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

NATIONALITY: Chinese

LOCATION: Philadelphia, PA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in August 2013.  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.

She turned 21 in April 2018. She would like to get a waiver because she has an employer who will file the 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 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 April 2018.

Our firm was retained to do her J-2 waiver, and on May 16, 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 12, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On June 26, 2019, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement 

NATIONALITY: Turkish                                                                                                        

LOCATION: Lincoln, NE

Our client is from Turkey who came to the U.S. on a J-1 Visa in August 2017 to work as a researcher. She became a tenured track professor and her school would like to petition her H-1B visa and green card application. However, she will not be able to adjust her status unless she gets a waiver for the 2-year foreign residency program.  

She retained our office on March 20, 2019. Thereafter, our office promptly prepared for filing a waiver request through a No Objection Statement (NOS) from the Turkish Embassy in the United States. Every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Statement waiver.  Our office promptly contacted the Turkish Embassy in D.C. to pursue the waiver for our client.  The Embassy requested several documents including a statement of reason for the waiver and Turkish National ID.

On April 4, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Turkish Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client will be a beneficiary of H-1B and green card application. 

Eventually, the Turkish Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On June 4, 2019, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On June 21, 2019, the USCIS issued an I-612 approval notice for the waiver of our client’s two-year foreign residency requirement. 

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

NATIONALITY: Chinese

LOCATION: Jersey City, NJ

Our client is a citizen of China who came to the U.S. on a J-2 Visa in June 2012.  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.

She turned 21 in November 2013. She would like to get a waiver because she has an employer who will file the 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 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 November 2013.

Our firm was retained to do her J-2 waiver, and on March 15, 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 April 8, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On June 5, 2019, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-1 Waiver of Two-Year Foreign Residency Requirement, No Objection Statement 

NATIONALITY: Canadian                                                                                                           

LOCATION: Pittsburgh, PA

Our client is from Canada who came to the U.S. on a J-1 visa in January 2014 to work as a short-term scholar at one of the national laboratories in the United States. Currently, she is in the U.S. with her F-1 status and is pursuing her Ph.D. program. With our legal assistance, her husband got his I-140 self-petition approval (National Interest Waiver Category) in February 2019.  They were about to file their adjustment of status applications based on the approved I-140 petition; however, our client would like to double-check whether she was subject to the two-year foreign residency requirement for that J-1 program.

Upon our client’s request, our office checked with the State Department by filing an advisory opinion request.  According to the Department of State, “if you are not sure whether the two year foreign residence applies to you, you may make a written request for an advisory opinion for the applicability of the residence requirement to your situation.”  Our office promptly filed this advisory opinion request on January 16, 2019 to the Waiver Review Division of the Department of State.

Unfortunately, the decision of the Department of State stated that our client is subject to the two-year foreign residency requirement. After our office received this decision from the Department of State, our office promptly prepared for filing a waiver request through a No Objection Statement (NOS) from the Canadian Embassy in the United States. 

On April 1, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Canadian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to adjust with an approved I-140 if she obtains the waiver.

Thereafter, the Canadian Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On May 15, 2019, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS has issued an I-612 approval notice on May 25, 2019. Now, our client can file her adjustment of status application along with her husband’s approved I-140 petition.

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CASE: H-1B Visa Petition

PETITIONER: School District in Mohave Valley, AZ

BENEFICIARY: Filipina Elementary Education Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in March 2019 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary Education Teacher from the Philippines who has been working for this employer for last 5 years under J-1 status. Though she was subject to INA 212(e), two-year foreign residency requirement, she already obtained a J-1 waiver from the USCIS.

The proffered position for the Beneficiary is an Elementary Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2020 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B).

Once retained, our office filed the H-1B visa petition with various supporting documents on April 29, 2019, via premium processing. However, the USCIS issued the Request for Evidence (RFE) and requested our client to submit her I-612 J-1 waiver approval notice once again. Our office filed the Response to RFE on May 14, 2019. Eventually, our client’s H-1B application was approved on May 23, 2019.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Extension Petition
PETITIONER:  Sensor Device Development Company in Irvine, CA
BENEFICIARY: Mechanical Engineer from Japan

Our client is a leading company in providing innovative sensors and health monitoring solutions to the problem related to maintenance and safety of civil infrastructure and other structural / material systems. They contacted our office in January 2019 to seek legal assistance from our office for their foreign employee’s H-1B extension.  The beneficiary obtained his Master’s Degree in Mechanical Engineering. The proffered position for the Beneficiary is a Principal Engineer which qualifies as a specialty occupation. This proffered position is clearly a “specialty occupation” because the minimum requirements for this position are a Bachelor’s Degree in Science/Engineering or its equivalent.  Moreover, our office helped this employee’s H-1B transfer case in 2016 and it was approved by the USCIS.

Once retained, our office promptly filed the H-1B visa petition with various supporting documents on February 18, 2019 via the regular processing service. Eventually, our client’s H-1B application was approved on May 15, 2019.  His H-1B is good until April 11, 2021.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Vietnamese
LOCATION: Stamford, CT

Our client is a citizen of Vietnam who came to the U.S. on a J-2 Visa in August 2008.  He came with his wife (now, his ex-wife) who held a J-1 Visa as an exchange visitor.  Both were subject to the two-year foreign residency requirement.

Unfortunately, while they are residing in the United States, his marriage did not work out well. Eventually, he got divorced from his ex-wife in August 2018 in Vietnam. Prior to their divorce, our client changed his status from J-2 to J-1 (his J-1 program is not subject to the two-year foreign residency requirement). He wanted to file the waiver so that he can be petitioned for H-1B by his current employer.

Our client contacted our office and retained our firm to do his J-2 waiver on December 3, 2018. On December 7, 2018, the J-2 Waiver (DS-3035) 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 was divorced from the J-1 visa holder.  Eventually, on March 25, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued I-612 waiver approval notice on May 15, 2019.

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CASE: H-1B Visa Petition

PETITIONER: School District in Mohave Valley, AZ

BENEFICIARY: Filipina Elementary Special Education Teacher

ISSUES: Cap-Exempt, Research Organization

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in March 2019 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary Special Education Teacher from the Philippines who has been working for this employer for the last 4 years under J-1 status. Though she was subject to INA 212(e), two-year foreign residency requirement, she already obtained a J-1 waiver from the USCIS.

The proffered position for the Beneficiary is an Elementary Special Education Teacher. We showed that this is a “specialty occupation” because the minimum requirement for this position is a Bachelor’s Degree in Education or its equivalent.

In the first week of April, the numerical cap of H-1B visas for fiscal year 2020 was already reached. However, our client is qualified for cap-exempt petitions since it is a non-profit organization affiliated with an Institution of Higher Education as defined in 8 C.F.R. 214.2(h)(19)(iii)(B).

Once retained, our office filed the H-1B visa petition with various supporting documents on April 19, 2019, via premium processing. There were no Requests for Evidence during the processing of the H-1B. Eventually, our client’s H-1B application was approved on May 1, 2019.  She can now work for her employer for three years on an H-1B status.

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

NATIONALITY: Korean

LOCATION: Columbus, OH

Our client is a citizen of South Korea who came to the U.S. on a J-2 Visa in February 2005.  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.

He turned 21 in October 2011.  He plans to file his adjustment of status with NIW petition.  However, because of his two-year foreign residency requirement, our client cannot change his 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 October 2011.

Our firm was retained to do his J-2 waiver, and on January 18, 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 March 22, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On May 7, 2019, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: H-1B Extension

PETITIONER: Elementary School

BENEFICIARY: Filipina Elementary School Teacher

LOCATION: Crownpoint, New Mexico

Our client is a public grant elementary school for Native Indians in New Mexico. They contacted our office to seek assistance from our office for their foreign employee. The beneficiary is from the Philippines and she obtained her Bachelor’s degree in English. The proffered position for the Beneficiary is an elementary school teacher which we argued qualifies as a specialty occupation

The foreign beneficiary in this case already had her H-1B from our client last year.  She also has an approved I-140 petition which allows her to get three year extension. Her H-1B status was not yet expired, and she wanted to extend her H-1B status.

After retention, our office promptly filed the H-1B visa petition with various supporting documents on December 3, 2018 via regular processing.  Since this petition was based on an extension, this petition was exempt from the annual cap of the H-1B. Thus, we could file prior to April 1, 2019.  Eventually, our client’s H-1B Petition was approved on April 9, 2019 without any RFE. Now the Beneficiary can work for her Petitioner-Employer as an H-1B visa holder and she can continuously work there.

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