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

 NATIONALITY:  Iraqi

 LOCATION: Loveland, CO

Our client came from Iraq as a J-1 Fulbright scholar in January 2015.  She was subject to the two-year foreign residency requirement. Our client would like to file her adjustment of status application along with her US citizen husband’s I-130 petition; however, due to the two-year foreign residency requirement, she had to obtain a waiver first.

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

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 she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On February 26, 2020, 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 her U.S. citizen husband’s medical conditions.  On March 9, 2020, our office filed the I-612 application to the USCIS and asked them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship if our client needs to go back to Iraq for two years. 

Eventually, the USCIS approved her I-612 waiver on February 4, 2022. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her U.S. Citizen husband’s I-130 petition.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in November 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is an Elementary School Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School 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 2022 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). 

Upon retention, our office filed the H-1B visa petition with various supporting documents on December 23, 2021 via premium processing. On January 13, 2022, the USCIS issued a Request for Evidence for our client’s petition. Our office filed the Response to RFE on the same day. Eventually, our client’s H-1B application was approved on January 25, 2022. She can now work for her employer for three years on an H-1B status.

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

 NATIONALITY:  Iraqi

 LOCATION: Plymouth, NM

Our client came from Iraq as a J-1 visitor in August 2017.  He was subject to the two-year foreign residency requirement. To be eligible for adjustment of status or other forms of visas such as the H-1B, he had to obtain a waiver first.

Unlike our other J-1 clients, our client could not pursue his waiver under 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 would like to pursue his J-1 waiver based on exceptional hardship. Our client’s U.S. citizen daughter was experiencing exceptional medical hardships. 

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 exceptional 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 March 18, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  Thereafter, our office prepared an affidavit for our client, an extensive brief in support for 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 daughter’s medical condition.  On March 20, 2020, our office filed the  I-612 application to the USCIS and asked for them to issue and recommend this waiver based on the fact that our client’s daughter would experience exceptional hardship if our client needs to go back to Iraq for two years. 

Eventually, the USCIS approved his I-612 waiver on December 29, 2021.

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

NATIONALITY: Korean

LOCATION: Greenbelt, MD

Our client is from South Korea who came to the U.S. on a J-1 Visa in November 2020 to work as a postdoctoral researcher. His J-1 program made him subject to the two-year foreign residence requirement. He retained our office to seek legal assistance for his I-140 (National Interest Waiver Classification) and I-485 Adjustment of Status applications. However, before we file his I-485 application, he had to get a waiver for his two-year foreign residency requirement. 

Our office filed the waiver request through the No Objection Statement (NOS) from the Korean Embassy in the United States.

Attorney Sung Hee (Glen) Yu from our office contacted the Korean Embassy in DC to pursue the waiver for our client.  The Embassy requested six different documents including a statement of reason for the waiver, the applicant’s resume, a J-1 visa waiver confirmation application, and a letter of reason for obtaining the J-1 waiver.  Most of those documents needed to be written in Korean, so Attorney Yu, a Korean himself, assisted our client in completing those documents.

On August 23, 2021, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Korean Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client is eligible to file a National Interest Waiver petition and adjustment of status application.

Thereafter, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On December 9, 2021, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on December 30, 2021, the USCIS issued the I-612 approval notice and waived our client’s 2 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: Filipina

LOCATION: Hendersonville, NC

Our client is a citizen of the Philippines who came to the U.S. on a J-2 Visa in July 2019.  She came with her mother who came on a J-1 Visa for her employment in the United States. Both were subject to the two-year foreign residency requirement, meaning they had to get a waiver or 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 2021.  She wanted to file her I-485 adjustment of status application 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 2021.

Our firm was retained to do her J-2 waiver, and on September 15, 2021, 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 November 18, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On December 15, 2021, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Saudi Arabian
LOCATION: Riyadh, Saudi Arabia

Our client is a citizen of Saudi Arabia who came to the U.S. on a J-2 Visa in April 2017.  She came with her husband who held a J-1 Visa as a researcher.  Both were subject to the two-year foreign residency requirement. 

She got divorced from her husband in March 2021 and went back to Saudi Arabia. Our client wanted to be petitioned for H-1B by her prospective employer; however, she cannot do it unless she fulfills the two year foreign residency requirement or obtains a waiver.

She retained our firm to do her J-2 waiver. On March 30, 2021, 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 September 30, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. Finally, the USCIS issued the I-612 waiver approval notice on November 12, 2021.

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CASE: I-130 (Petitions for Parent) and Adjustment of Status
CLIENT: Kenyan
LOCATION: Arlington, VA

Our client retained us to petition for his father who came to the U.S. from Kenya. Our client is US citizen by birth and his father came to the United States in 2003 as a G-4 visa holder. He contacted our office in January of 2021 and discussed with us a possible I-130 petition and I-485 Adjustment of Status application for his father. He retained our office on January 31, 2021. 

Our firm prepared and filed the I-130 Immigrant Visa Petition and I-485 Adjustment of Status Application on March 4, 2021.  Everything went smoothly and the receipt notices, fingerprint appointment, and work permits all came on time. On October 12, 2021, the USCIS approved our client’s father’s adjustment of status application.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under a J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School 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 2022 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 October 5, 2021 via premium processing. Our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipina Elementary School Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in September 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a Special Education Teacher from the Philippines who has been working for this employer for several years under J-1 status. The beneficiary’s J-1 program is not subject to the 2 year foreign residency requirement.  

The proffered position for the Beneficiary is an Elementary School 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 2022 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 October 5, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 18, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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CASE: H-1B Visa Petition

PETITIONER: School District in Forrest City, AR

BENEFICIARY: Filipina High School Math Teacher

ISSUES: Cap-Exempt, Nonprofit Organization Affiliated with an Institution of Higher Education

Our client is a public school district affiliated with several institutions of higher education. They contacted our office in August 2021 to seek legal assistance from our office for their foreign employee. The beneficiary is a High School Math Teacher from the Philippines who has been working for this employer for the last several years under a J-1 status. Her J-1 visa was not subject to the 2 year foreign residency requirement. 

The proffered position for the Beneficiary is a High School Math 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 2022 was already reached. However, we argued that our client is qualified for cap-exempt petitions since they are 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 September 24, 2021 via premium processing. Eventually, our client’s H-1B application was approved on October 7, 2021 without any RFE.  She can now work for her employer for three years on an H-1B status.

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