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Listserv Q&A for
"INS, DOS, DOL - The Search for Consistency "

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Question:

Although it is established that INS has final say on applicability of the INA 212e J1/2 two year home country requirement, INS has typically deferred to "recommendation" of the USIA/DOS Waiver Review Branch. Ron suggested using this INS authority to not apply for an advisory opinion with DOS Waiver Review Branch but rather asking INS to make the determination in the course of its adjudication of a H1B petition requesting change of status. In such a case, would you consider the H1B approval notice a sufficient final decision on the 212e issue to feel comfortable advising the client to travel and apply for an H1B visa stamp? Would you advise the strategy of filing an H-1B petition requesting change of status even in a case of having filed an advisory opinion and having received a negative DOS determination? Would you advise the strategy of filing an H-1B petition requesting change of status even in a case of having filed a waiver application and having received a negative DOS determination?

Answer by Ron Klasko:

I usually know what position the Department of State will take on an advisory opinion request. If I believe that the advisory opinion will be negative but I believe the client is not subject to 212(e), I will apply directly to the INS. I will do this whether or not the alien has received a negative advisory opinion and whether or not the alien has filed a waiver application and received a negative DOS determination. In the event that the INS approves the change of status, I advise the client that the issue could again arise at the time of visa application at a U.S. consulate. I will usually equip the client with the legal brief that I filed with the change of status application that resulted in the INS approving the change of status.


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