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

NATIONALITY: Chinese

LOCATION: Weehawken, NJ

Our client was a citizen of China who came to the U.S. on a J-2 Visa in June 2002.  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 May 2014. He would like to get a waiver because his employer would like to petition him H-1B. 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 May 2014.

Our firm was retained to do his J-2 waiver, and on March 31, 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 June 24, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 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 / Over 21-year-old dependent child

NATIONALITY: Costa Rican

LOCATION: Lawrence, KS

Our client is a citizen of Costa Rica who came to the U.S. on a J-2 Visa in August 2002.  She came with her father who entered on a J-1 Visa for his research 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 March 2012.  By getting a waiver, she would have the ability to be petitioned for H-1B status by her prospective employer. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without fulfilling the 2-year requirement or 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. 

Our firm was retained to do her J-2 waiver, and on February 24, 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 June 24, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 2021, the USCIS issued an I-612 approval notice for our client’s waiver request.

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Case: I-130/I-485
Applicant/Beneficiary – Taiwanese
Location: North Olmsted, OH

Our client entered the United States in February 2019 from Taiwan under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.  She married her U.S. citizen spouse in June 2020.

In August 2020, they contacted our office and consulted with us regarding adjustment of status. After consultation, they retained our office on August 11, 2020.  One main issue in her green card application was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Since our client resided in North Olmsted, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  However, it was quite foreseeable that the USCIS field office will exercise its discretion to deny his application because of her visa waiver entry.  

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on September 29, 2020.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients. On July 14, 2021, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  Attorney Sung Hee (Glen) Yu, Esq. accompanied our clients. The interview went well, and the USCIS approved her adjustment of status application on the same day of the interview.  Now, our client is a green card holder. 

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CASE: J-2 Waiver of Two-Year Foreign Residency Requirement Post-Divorce
NATIONALITY: Indian
LOCATION: Petaluma, CA

Our client is a citizen of India who came to the U.S. on a J-2 Visa in April 2012.  She came with her husband who held a J-1 Visa as a researcher.  Both were subject to the two-year foreign residency requirement. 

Eventually, she got divorced from her ex-husband in November 2020. Our client wanted to change her status in the U.S; 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 November 2, 2020, 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 May 24, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. The USCIS issued the I-612 waiver approval notice on July 2, 2021.

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

NATIONALITY: Korean

LOCATION: St. Paul, MN

Our client is from South Korea who came to the U.S. on a J-1 Visa. He entered in August 2018 to work as a researcher. His J-1 program made him subject to the two-year foreign residence requirement. In September 2020, he married his LPR spouse. He retained our office to seek legal assistance for his I-130 Petition and I-485 Adjustment of Status applications. However, before we file his I-485 application, he had to get a waiver of his two-year foreign residency requirement. 

Upon retention, our office prepared and filed a 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 Consulate General Office in Chicago to pursue the waiver for our client.  The Consulate 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 September 30, 2020, 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 an adjustment of status application based on his wife’s I-130 petition. 

The Korean Consulate General in Chicago forwarded our client’s documents to the Korean Embassy in DC.  After that, the Korean Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On March 19, 2021, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on July 1, 2021, the USCIS issued 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: Chinese

LOCATION: Piscataway, NJ

Our client as a citizen of China (became a Canadian citizen) who came to the U.S. on a J-2 Visa in February 2010.  He came with his mother who was 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.

He turned 21 in September 2016. He would like to get a waiver because he has a U.S. citizen spouse who can file an I-130 petition for him. He can file an adjustment of status application along with his wife’s I-130 petition. However, because of his two-year foreign residency requirement, our client cannot adjust his status in the United States without the fulfillment of the requirement or 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 September 2016.

Our firm was retained to do his J-2 waiver, and on December 11, 2020, 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 May 7, 2021, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On June 11, 2021, 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: Amherst, MA

Our client is from Turkey who came to the U.S. on a J-1 Visa in June 2013. Later on, he changed his status from J-1 to F-1. He eventually obtained an approved I-140 National Interest Waiver self petition. He wanted to apply for adjustment of status based on an I-140 National Interest Waiver self-petition. However, he needed a J-1 waiver first.  

He retained our office on December 10, 2020. Our office filed a waiver request through a No Objection Statement (NOS) from the Turkish Embassy in the United States. Every country’s Embassy maintains different procedures with regard to the J-1 No Objection Statement waiver.  Our office 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 December 29, 2020, 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 is eligible to adjust based on his I-140 NIW petition.  

Eventually, the Turkish Embassy issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  Thereafter, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. On June 4, 2021, the USCIS issued an I-612 approval notice. Now, our client can file the I-485 adjustment of status application along with his I-140 NIW Self-Petition.

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

 NATIONALITY:  Lebanese

 LOCATION: Cleveland Heights, OH

Our client came from Lebanon in June 2016 on a valid J-1 visa.  He got his J-1 status as a research scholar and received government funding for his research.  His J-1 status made him subject to the two-year foreign residency requirement. 

Later, he married his current U.S. citizen wife and became a father of a U.S. citizen child. Our client would like to file his adjustment of status application along with his 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). That’s because he received government funding for his research program. 

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 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). 

On May 7, 2019, 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 wife’s medical conditions.  On May 8, 2019, our office filed the I-612 application to the USCIS.

On February 5, 2020, the USCIS issued a Request for Evidence (RFE) for our client’s I-612 case. The USCIS asked our client to submit more hardship evidence. On February 25, 2020, our office filed the Response to RFE to the USCIS.

Eventually, the USCIS approved his I-612 waiver on May 25, 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 in the United States. 

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Case: I-130/I-485
Applicant/Beneficiary – German
Location: Cleveland, OH

Our client entered the United States in August 2020 from Germany under the visa waiver program. As a Visa Waiver Entrant, she was only authorized to remain in the United States for 90 days.  She married her U.S. citizen spouse in October 2020. 

In November 2020, they contacted our office and consulted with us regarding adjustment of status. They retained our office on November 2, 2020.  One issue in her green card application through marriage was the fact that she came to the United States under the visa waiver program.   As our office wrote in our previous success story with a similar issue,  under the visa waiver program, citizens of certain countries can enter the U.S. for 90 days without a visa with the condition that the visitor waives his or her right to contest removal (other than on the basis of asylum).  The “no-contest” provision of the Visa Waiver Program is fundamental; if someone could enter under the VWP and then contest removability, it would defeat the whole purpose of the Program which is to make it easy for certain nationals to come to the United States to visit and then leave without all the red-tape involved in visa issuance.

Since our client resided in Cleveland, Ohio, her application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  

Nevertheless, our office filed the I-130 Petition and I-485 Adjustment of Status Application on November 12, 2020.  Our office requested the CIS to exercise favorable discretion in granting adjustment of status. Everything went smoothly and the receipt notices, fingerprint appointment, and work permit all came on time. Prior to the interview, we thoroughly prepared our clients via conference calls. On May 14, 2021, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  Attorney Sung Hee (Glen) Yu, Esq. accompanied our clients. The interview went well, and the USCIS approved her adjustment of status application on the same day of the interview.  Now, our client is a green card holder.

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CASE: H-1B Visa Petition

PETITIONER: School District in Eagle Butte, SD

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 January 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 the last 5 years under a  J-1 status. Though she was subject to the INA 212(e), two-year foreign residency requirement, she obtained a J-1 waiver from the USCIS through our firm’s legal assistance. 

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 2020, the numerical cap of H-1B visas for fiscal year 2021 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 January 26, 2021, via premium processing. On February 3, 2021, the USCIS issued a Request for Evidence (RFE) and requested our client to submit more documents to prove its affiliation with institutions of higher education. Our office prepared the response and filed the Response to RFE on March 30, 2021. Eventually, our client’s H-1B application was approved on April 13, 2021. She can now work for her employer for three years on an H-1B status.

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