J-1 Waiver to Winning EB-1 as a Extraordinary Individual
The J-1 Visa places a mandatory requirement on the applicant to return to their home country for a two year period post completion of their J-1 program if any Government funds were used for the cost of their stay in the US, or if their profession falls within a designated “skills list” for their country.
Our client, a very talented young Electrical Engineer, came to the US as a teenager to attend a University Level program on a scholarship program funded by the US Department of State. He received an exception and was allowed to complete his Bachelors and Masters Degree programs in the US.
Currently working as the Intellectual Property Engineer for a start-up that is a leader in the Wireless charging space, the client has multiple patents that he is listed as co-inventor for. He would be a good candidate for an Extraordinary Ability visa given his exceptional skills and the importance of his work to the US and internationally; however, the J-1 rules prevented him from applying for permanent residency.
The client had previously applied for a waiver of the J-1 requirements based on a letter from the Government of his home country; however, given that he is from the Gaza Strip in Palestine, his application was denied as the US does not recognize Palestinian State as a sovereign national state, nor does the US recognize the Palestinian Authority as a legitimate Foreign Government.
We were able to secure the waiver of the 2-year residence showing that our client was likely to face severe persecution if he was returned to Gaza.
Our core arguments were that our client ought not be required to return when the main impetus for this requirement was to allow the returning J-1 holder to help raise the skills and expertise of people in his home country. The present day realities in Gaza are such that the core tools required for the candidate to help others raise their skill level are impossible to find within the territories; furthermore, given the restrictions regarding safe passage in and out of the Gaza Strip, there was no guarantee that the candidate would even be allowed to return to his family.
Additionally, we also focused on the lifelong impediment to the candidate. Given the vast advances in technology made within short periods of time, the candidate's entire career would be severely jeopardized if he were forced to return to a situation where he would be unable to keep working in his areas of exceptional skill, much less be able to keep informed of the progress made given the lack of infrastructure that supports forms of communication and internet access within Gaza.
We successfully secured the J-1 waiver and then quickly moved to step 2; the application for Extraordinary Ability (EB-1)
Although not conventionally recommended by attorneys, we decided to file TWO applications; EB-1 as well as as the National Interest Waiver (NIW) after an agonizing 2-year wait and post a submission of additional documents in response to a Request for Evidence, we received approvals for BOTH applications, but decided to withdraw the NIW so that he could adjust status based on the approved EB-1.
The 4-year journey from start to finish and the multi inch submission were well worth ever ounce of toil, sweat and elation!