Messersmith Law Firm

Immigration Q&A - February 14, 2010

Q1: Funding Repayment in Lieu of J1 Waiver

I came from South Africa on a J1 visa last September which was funded by the Department of State. I’m subjected to the two year requirement. I met my girlfriend who is a US citizen and we want to get married. I would like to get a J1 waiver by paying back the amount I received from Department of State. Can I do that?

I have some bad news for you. Paying back funding to get a J1 waiver or to avoid to home residency requirement altogether is not an option. The State Department wants J1 holders who entered through their programs to return to their home countries. You will have to apply for a J1 waiver if you do not wish to return to South Africa for two years. If you marry your girlfriend, she may be able to help you obtain a J1 hardship waiver. However, due to the fact that you had government funding, possibly Fulbright, the State Department is going to hold you to a very high standard when adjudicated your waiver petition. We have obtained J1 waivers for persons whose programs were funded by the State Department so we may be able to help you. You’ll have to contact our office so we can review your options with you.

Q2: H2B Visa Applicant Not on Country List

I started a new restaurant and, believe it or not, have had serious trouble finding workers. The winter and summer are the major tourist seasons here in Florida and I have been short staffed since November. I know a group of guys from Spain that I would love to bring in to work over the summer and possibly longer. I know the H2B visa is for seasonal work like mine but I notice that Spain isn’t on the H2B country list. I saw from your web site that there is a way around this. Can you help me out? This could make or break me.

You are certainly correct that the H2B visa is the appropriate visa for seasonal workers. You are also correct that Spain is not one of the approved countries for H2B visas. There is an exception and that is if you can show that visa issuance is in the US interest. USCIS looks to four factors to determine the US interest requirement.

  1. Evidence that the beneficiary has been admitted to the United States previously in H2A or H2B status and complied with the terms of his/her status;
  2. Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
  3. Potential for abuse, fraud, or other harm to the integrity of the H2A or H2B program through the potential admission of these worker(s) that a petitioner plans to hire; and
  4. Other factors that would serve the US interest, if any.

It is not necessary to prove all four factors. “Other factors” stated in factor 4 are evidence that the H2B sponsor or the US industry or government agency would suffer harm without the services of the H2B visa applicant.

The Messersmith Law Firm, P.C.
230 E Ohio Street · Suite 208 · Chicago, IL 60611
Tel: (312) 751-9960 · Fax: (312) 751-9970 · info@messersmithlaw.com
© Copyright 2002-10 - The Messersmith Law Firm, P.C. All Rights Reserved.