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

NATIONALITY: Korean

LOCATION: St. Louis, MO

Our client is a citizen of South Korea who came to the U.S. on a J-2 Visa in February 2011.  She came with her father who entered on a J-1 Visa as a researcher in the U.S. 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.

She turned 21 in January 2015 and currently she has a U.S citizen husband. By getting a waiver, she would have the ability to file her I-485 adjustment of status application along with her U.S. citizen spouse’s I-130 petition. However, because of her two-year foreign residency requirement, our client cannot adjust her status in the United States without the fulfillment of requirement or the 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 January 2015.  

Our firm was retained to do her J-2 waiver, and on May 24, 2022, 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 July 12, 2022, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 30, 2022, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-130 / I-485 (Marriage-Based Adjustment)

NATIONALITY: Philippines

LOCATION: Raymore, MO

Our client came from the Philippines on a J-1 in August 2017 to work as a teacher. According to her DS-2019, she was subject to the two-year foreign residency requirement. 

In April 2019, she got married to her U.S. citizen husband and later consulted with our firm for her J-1 visa waiver prior to applying for adjustment of status. If someone is subject to the two-year foreign residency requirement, he or she cannot get a green card in the United States until he or she fulfills the requirement or obtains a waiver.

Upon retention, our office prepared a waiver request through a No Objection Statement (NOS) from the Philippine Embassy in the United States and eventually the EVP in the Philippines.

On April 18, 2019, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  On November 26, 2019, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  Then, the Waiver Review Committee forwarded the materials and favorable recommendation to the Philippine Embassy in D.C. who eventually issued a No Objection Statement. On March 9, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on March 30, 2020, the USCIS issued an I-612 approval notice for the waiver. 

Our client retained our office again for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on June 26, 2020.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients at our office via conference calls. On November 23, 2021, our client was interviewed at the Kansas City, MO USCIS office. Eventually, on November 24, 2021, her green card application was approved.

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CASE: J-1 Waiver of the Two-Year Foreign Residency Requirement, Hardship

 NATIONALITY:  Ghanaian

 LOCATION: St. Louis, MO

Our client came from Ghana as a J-1 scholar in 2008.  His J-1 status made him subject to the two-year foreign residency requirement. Our client would like to file his adjustment of status application along with his U.S. citizen wife’s I-130 petition; however, due to the two-year foreign residency requirement, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under the No Objection Statement or Interest Government Agency (IGA). Our client also received government funding for his research programs which made his case tougher for the No Objection Statement or IGA waiver route. Our client though would like to pursue his J-1 waiver based on the exceptional hardship standard. 

According to 8 C.F.R. Section 212.7(c)(5), “an alien who is subject to the foreign residence requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States… may apply for a waiver on Form I-612.” 

Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978). 

After he retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On April 1, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit of our client, an extensive brief in support of our client’s J-1 waiver application, and other supporting documents. Our client provided us with extensive medical documents and doctor’s reports for his U.S. citizen wife’s medical conditions.  On April 2, 2019, our office filed an I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s wife would experience exceptional hardship if our client needs to go back to Ghana for two years. 

On November 7, 2019, the USCIS issued a Request for Evidence (RFE) for our client’s I-612 case. The USCIS asked our client to submit more evidence to demonstrate the exception hardship to his U.S. citizen wife if he has to go back to Ghana for 2 years.  On January 27, 2020, our office filed a Response to RFE to the USCIS along with additional documents to support the claim of financial and medical hardship including income and expenses, plus more recent medical documents of his U.S. citizen wife evidencing the hardship.

Eventually, the USCIS approved his I-612 waiver on July 29, 2021. Now that our client’s two-year foreign residency requirement is waived, he can file his adjustment of status application along with his wife’s I-130 petition. 

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CASE: I-130 / I-485 Adjustment of Status

 NATIONALITY:  Canadian

 LOCATION: Overland Park, KS

Our client was a citizen of China (currently citizen of Canada) who came to the U.S. on a J-2 Visa in June 1996.  She came with her father who came on a J-1 Visa for his 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.

She turned 21 in December 2016. She wanted to get a waiver because she has a U.S. citizen spouse who can file I-130 petition for her. She can file an adjustment of status application along with her husband’s I-130 petition. However, because of her two-year foreign residency requirement, our client cannot adjust her status in the United States without the waiver approval.

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. Our client turned 21 in December 2016.

Our firm was retained to do her J-2 waiver, and on August 13, 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 September 10, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On September 20, 2019, the USCIS issued an I-612 approval notice for our client’s waiver request.

Once her J-2 waiver was approved, our client retained our office again for her adjustment of status application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on January 27, 2020.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On September 24, 2020, our client was interviewed at the Kansas City, MO USCIS office.  Eventually, on January 13, 2021, her green card application was approved.

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CASE: I-485 Adjustment of Status

EMPLOYER: Physicians’ Office

BENEFICIARY: Canadian Nurse Practitioner

LOCATION: St. Louis, MO

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a certified nurse practitioner, she is eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a Certified Nurse Practitioner. Our office was retained on August 12, 2019 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 28, 2020 via premium processing. We included the job offer letter, notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  On February 5, 2020, the USCIS Nebraska Service Center issued a Request for Evidence and requested the Petitioner to submit its business existence documents such as IRS FEIN issuance letter, articles of incorporation, and business license. Our office filed the Response to RFE on February 13, 2020. On February 25, 2020, the USCIS Nebraska Service Center approved her EB-2 I-140 petition. 

Once the I-140 petition was approved, our client retained our office again for her and her husband’s I-485 adjustment of status applications. Our office filed the I-485 adjustment of status applications on May 25, 2020. Everything went smoothly and the receipt notices and fingerprint appointment came on time.

Eventually, on November 6, 2020, the USCIS Nebraska Service Center approved our clients’ adjustment of status applications without an interview. They are now green card holders.

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CASE: I-140 (EB-2 Category) / Schedule A / Premium Processing

EMPLOYER: Physicians’ Office

BENEFICIARY: Canadian Nurse Practitioner

LOCATION: St. Louis, MO

Our client is a certified nurse practitioner. Her prospective employer was willing to petition her for a second-preference employment immigrant visa petition (I-140). Since she is a certified nurse practitioner, she is eligible for “Schedule A” classification.

The Department of Labor (DOL) maintains a schedule of occupations in its regulations, Schedule A included, for which the individual permanent labor certification procedure is not required. The schedule of pre-certified occupations is referred to as Schedule A, and is included in DOL regulations at 20 CFR 656.10. Based on an occupation’s inclusion on Schedule A, an employer may file an immigrant visa petition (I-140) directly with the (USCIS) without first going to the DOL for a labor certification. Usually, prior to filing I-140 petitions (EB-2 or EB-3 category), the employer must file a Labor Certification to the Department of Labor. However, for Schedule A cases, the employer does not have to go through the labor certification process. The position of Nurse Practitioner is included in Schedule A.

Our client has a Bachelors and Masters degree in nursing and is a certified Nurse Practitioner. Our office was retained on August 12, 2019 and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on January 28, 2020 via premium processing. We included the job offer letter, the notice of filing, employment letter, and other necessary supporting documents.

In our cover brief, we included the “ability to pay” argument and why nurse practitioners must fall under the Schedule A designation.  However, on February 5, 2020, the USCIS Nebraska Service Center issued Request for Evidence and requested the Petitioner to submit its business existence documents such as IRS FEIN issuance letter, articles of incorporation, and business license. Our office filed Response to RFE to the USCIS along with supporting documents on February 13, 2020. Eventually, on February 25, 2020, the USCIS Nebraska Service Center approved her EB-2 I-140 petition. Since the priority date for Canadian national is current for the EB-2 category, she is eligible to file her adjustment of status application now.

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CASE: I-130 / I-485 / J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child

NATIONALITY: Honduran

LOCATION: Missouri

Our client is a citizen of Honduras who came to the U.S. on a J-2 Visa in August 1991.  He came with his father who came on a J-1 Visa for his 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 his father’s J-1 program was completed, his family remained in the United States.

He turned 21 in December 2000. He has U.S. citizen fiancé who can file I-130 petition for him after their marriage is entered. However, because of his two-year foreign residency requirement, our client cannot file his adjustment of status application in the United States without the fulfillment of requirement or the 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 December 2000.

Our firm was retained to do his J-2 waiver, and on March 10, 2017, 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 March 27, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On April 5, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request. After his J-2 waiver was approved, he married his U.S. citizen fiancé.

Once his J-2 waiver was approved, our client retained our office again for his adjustment of status application. Our firm prepared and filed the I-130 Petition and Adjustment of Status Application on December 22, 2017.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. Prior to the interview, we thoroughly prepared our clients through conference calls. On May 15, 2018, our client was interviewed at the Kansas City, MO USCIS office.  The interview went well, and eventually, on the same day of the interview, his green card application was approved.

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CASE: H-1B Change of Employer

PETITIONER: Waste Management Company

BENEFICIARY: Indian Chief Financial Officer

LOCATION: St. Louis, MO

Our client is a wastewater treatment and management company in St. Louis, MO area. They contacted our office in early September 2017 to seek a legal assistance from our office for their foreign employee. The beneficiary is from India and she obtained her Master’s degree in Business Administration. The proffered position for the Beneficiary is a Chief Financial Officer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Master’s Degree in Business Administration or its equivalent.  

The foreign beneficiary in this case already had her H-1B visa from her previous employer.  However, her H-1B visa was not expired yet, and she wanted to extend her H-1B status on the change of employer basis.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on September 27, 2017. Since this petition was based on the change of employer, this petition was exempted from the annual cap of the H-1B.  Thus, we could file prior to the April 1. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B Petition was approved on April 24, 2018. Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can work there for next three years.

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CASE: PERM Labor Certification / Audit Response

EMPLOYER: Wastewater Management Company

BENEFICIARY: Indian Chief Financial Officer

LOCATION: Missouri

Our client’s current employer was willing to petition her for a second-preference petition (I-140).  Our client has a Master’s degree in Business Administration (MBA) in the United States and work experience. Based on our client’s educational, professional and work background, our office determined that she is clearly eligible for EB-2 classification for her I-140 petition.  Our client eventually retained us in August 2016.

Prior to filing PERM, our firm prepared the prevailing wage request, job order, advertisements, internal job posting, recruitment report, and all other steps which are important pre-PERM filing. Take note that the PERM application could be filed at least 60 days from the job posting date or 30 days from the last ad. Within a week from our retention, the prevailing wage request was filed.  After we obtained the PW determination, our office filed the job order on January 10, 2017.  On May 3, 2017, we promptly filed PERM.

However, on July 28, 2017, the Department of Labor issued a request for audit. The DOL requested documents from Petitioner to determine whether the recruitment process was done properly. In response to the Audit request, our office prepared the response to Audit brief along with Employer’s declaration, notice of filing, and recruitment documentation on August 8, 2017.  

Eventually, on January 9, 2018, the PERM Labor Certification was approved – an EB2 position for the Indian beneficiary. Now, our client can file the I-140.

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

NATIONALITY: Honduran

LOCATION: Missouri

Our client was a citizen of Honduras who came to the U.S. on a J-2 Visa in August 1991.  He came with his father who came on a J-1 Visa for his 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 his father’s J-1 program was completed, his family remained in the United States.

He turned 21 in December 2000. He has a U.S. citizen fiancé who can file an I-130 petition for him after their marriage is entered. However, because of his two-year foreign residency requirement, our client cannot file his adjustment of status application in the United States without the fulfillment of requirement or the 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 December 2000.

Our firm was retained to do his J-2 waiver, and on March 10, 2017, 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 March 27, 2017, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On April 5, 2017, the USCIS issued an I-612 approval notice for our client’s waiver request.

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