CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Russian

LOCATION: Bar Harbor, ME

Our client was a citizen of Russia who came to the U.S. on a J-2 Visa in November 1998. She eventually became a Canadian citizen. She came with her mother who came on a J-1 Visa for her research program in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to go back to their home country for two-years before they can apply for permanent residency or some non-immigrant visa such as the H, L, and O visas.

After our client came to the United States, she attended a school and then moved to Canada after her mother’s research program ended. Our client came back to the United States in 2019 on a TN visa.

She turned 21 in November 2016. This year, her employer wanted to file an H-1B petition for her. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without fulfilling the 2-year foreign residency requirement, or obtaining a waiver.. 

Although J-2 dependents cannot independently apply for a waiver, in cases where a J-2 child reaches 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 dependent.  The Department of State’s policy allows for that process in instances where the J-2 dependent obtains a divorce form the J-1 principal, the J-1 principal dies, or in cases where the J-2 dependent turns 21, which is our client’s case. In fact, our client turned 21 in November 2016.

Our firm was retained to do her J-2 waiver, and on December 20, 2019, the J-2 Waiver application (Form DS-3035 and supporting documents) was filed to the Department of State. We also sent a request to the DOS to be an interested government agency and recommend this waiver based on the fact that our client reached the age of 21 and was not a dependent of a J-1 visa holder anymore.  Eventually, on June 1, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On June 23, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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