On Aug 03 2020 by Jordan J. Gonzalez

An Indian National’s Guide to Acquiring a Letter of No-Objection of the Two-Year Home Residence Requirement

The No-Objection Waiver process for Indian Nationals can be a time-consuming process that requires navigating through various U.S. and Indian government agencies. Surprisingly, despite the large number of Indian Nationals who seek No-Objection Waivers annually, there is no centralized and recent guidance relating to India’s No-Objection Waiver process. This article provides the latest guidance based on the most recent processing trends.

Step 1 – Determining Applicability of 212(e) Ground of Inadmissibility and Eligibility for a Waiver

The DS-2019 generally provides a starting point regarding whether one is subject to the two-year home rule requirement, though the DS-2019 should by no means be given deference. The U.S. Department of State can make errors in designating two-year home rule applicability. As such, careful analysis should be conducted prior to deciding to pursue a waiver. While two-year home rule applicability falls outside the scope of this article, please consult our firm’s prior article for further information.

Step 2 – Acquiring Certified Bio-Data  and Affidavit from the Local Indian Consulate

The Indian No-Objection Waiver process is distinct from other countries insofar as you must obtain the approval of three agencies located in India. In starting the process of acquiring these approvals, please note that the agencies will not consider your request unless you first acquire certified “bio-data” and an “affidavit” from your local consulate.

There are several Indian consulates in the U.S. where you can acquire these certifications, each of which serves different states. You should be sure to download complete copies of the correct forms pertaining to your consulate. They are available in New York; Chicago; Atlanta; Houston 1 and 2; San Francisco; D.C.).  Once the forms are populated, applicants should print out four sets and have them notarized prior to visiting the consulate.

Upon notarization, applicants must submit four sets of bio-data and affidavit forms to their local consulate with supporting records. In submitting, follow the applicable Consulates’ instructions on supporting records and delivery. If accepted, you will receive four sets of certified bio-data and affidavit forms. You should retain one copy for Step 5; the remaining three will be critical to Step 3.

Step 3Acquire Sub-NORI Letters from India

Once in possession of the four sets of documents, the applicant must acquire no-objection letters from three distinct Indian agencies, including the (1) Ministry of Human Resources Development (MHRD) or the Ministry of Health Family Welfare (MHFW) (discussion on which agency to file with to follow), (2) Regional Passport Office in India that granted the applicant’s initial visa, and (3) State Home Department (the state where the applicant maintains an Indian residence). These letters are called “No Objection to Return to India” (NORI) letters. For the purposes of this article, I will call them “Sub-NORI” letters.

With respect to the first agency, specifically, most will file with the MHRD online, unless your J-1 training related to “medical and allied subjects” and/or “medical profession and medical education,” in which case, you will file with the MHFW. Finding out which office applies is important, as if you are subject to the MHFW’s jurisdiction, it will not issue you a letter unless you are over sixty-five years old. If you have any questions on whether you will be classified as a “medical” worker, ask your local consulate or an attorney licensed to practice law in India.

Filings with the three agencies must be accompanied with the following records:

  1. One set of certified bio-data and affidavit;
  2. Cover letter describing why you are seeking the agency’s approval, prepared in very careful collaboration with an immigration attorney;
  3. Academic credentials;
  4. J-1 documentation, including visas and DS-2019s;
  5. First and last pages of current and all prior passports;
  6. U.S. immigration status documents; and
  7. Proof of residence in the U.S.

Once all documents are submitted, the Regional Passport Offices and State Home Departments will initiate a police “home visit” to applicants’ parents’ homes to assess whether the applicant is abandoning their parents and conduct other criminal background checks. In total, processing times for each sub-NORI letter can range from three to seven weeks.

Once in possession of the three letters, applicants can proceed to the State-side steps.

Step 4 – Prepare Form DS-3035 and Mail to U.S. Department of State

While in the process of or immediately after acquiring the Sub-NORI letters, applicants should create their DS-3035 profile with the U.S. Department of State (DOS)’s Waiver Review Division. To accomplish this, one must complete DOS’s fillable form. Upon completing the fillable form, DOS’s systems will generate five critical documents:

  1. Waiver Review Division Barcode Page;
  2. Populated DS-3035;
  3. Statement of Reason;
  4. Supplementary Applicant Information pages; and
  5. Third Party Barcode Page.
     
    Once in possession of these records, you should mail Items 1 – 4 plus:

  6. Copies of the biographical pages of your passport;
  7. Copies of all forms DS-2019 and J-1 visas,
  8. Two self-addressed and stamped legal-sized envelopes, and
  9. Filing fee in the amount of $ 120.00 made out to the “U.S. Department of State” to the DOS’s Waiver Review Division; and
  10. Form G-28, if applicable.

Every page of the filing should be bates stamped with the case number, the applicant’s full name, date of birth, place of birth, and waiver basis.

Submissions to the Waiver Review Division must be mailed via USPS to “Department of State J-1 Waiver, ATTN: Waiver Review Division, P.O. Box 979037, St. Louis, MO 63197-9000.” One submitted, you can check on receipt status by visiting Check the Status. It can take between three and five weeks for documents to be received.

Step 5 – Returning to Indian Consulate in the U.S. that Issued Certified Bio-Data and Affidavit Forms

Before initiating Step 5, make sure that the U.S. Department of State has received all the documentation in Step 4 and opened a case on your behalf. Once you have made this confirmation, you should go to your local consulate and submit the three Sub-NORI letters, which should still be in your possession. In submitting, you should follow the specific consulates’ instructions. Upon delivery, the consulate should send a NORI certificate directly to the Indian Embassy in Washington, D.C. The Embassy will then forward the NORI and Third-Party Barcode page to the DOS’s Waiver Review Division, where the DS-3035 application you previously sent is being held for review.

Step 6 – Wait for DOS and DHS Decisions

If you have followed the above-mentioned protocol, congratulations! It is likely that no further action is required on your part. According to the Waiver Review Division’s website, No Objection waivers take twelve to sixteen weeks to process. If the Waiver Review Division approves your No-Objection Waiver, it will forward notification of the approval to USCIS. Two to three weeks after the forwarding, USCIS will normally issue you an I-612 receipt notice, followed by an approval two to three weeks later.

Navigating the No-Objection waiver process is a daunting task. Any misstep can mean having to restart the process, which could mean the loss of several weeks or months. Expediency is an especially important factor for those starting the no-objection process late, as failure to acquire a waiver in a timely manner can have major implications on one’s immigration options.

Luckily, our firm has ample experience with the no-objection process and is available to assist you through this complex process. If you require our firm’s guidance, please contact us here to set up a consultation.

 

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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