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

 NATIONALITY: Filipina

 LOCATION: Oakley, CA

Our client came from the Philippines as a J-1 teacher. Her J-1 status made her subject to the two-year foreign residency requirement. Our client would like to file her adjustment of status application along with her U.S. 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) due to her previous marriage in the Philippines. Her only option was through 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 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 she retained our firm, we prepared and filed a waiver request through the exceptional hardship basis. On April 26, 2019, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  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 medical documents and doctor’s reports for her U.S. citizen husband’s medical condition.  

On May 9, 2019, our office filed an I-612 application to the USCIS. We asked for them to issue and recommend this waiver based on the fact that our client’s husband would experience exceptional hardship in the scenarios of relocation and separation. 

The USCIS issued a Request for Evidence (RFE) on March 16, 2020. They requested our client to submit more hardship documents. Our office thoroughly prepared the Response to RFE and filed it to the USCIS on May 22, 2020. 

Eventually, the USCIS approved his I-612 waiver on December 8, 2020. Now that our client’s two-year foreign residency requirement is waived, she can file her adjustment of status application along with her husband’s I-130 petition in the United States. 

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

 NATIONALITY: Indonesian

 LOCATION: Washington DC

Our Indonesian client came to the U.S. on a J-1 Visa in September 2016.  He came to the U.S. for his research program, and his J-1 visa made him subject to the two-year foreign resident requirement.  His research and higher education enhanced his interest in the field, and he would like to further his future research and development projects.  However, since most of these will take a longer time, he anticipated that most employers will eventually wish to petition him for an alternate form of visa such as an H-1B. But due to the two-year foreign residency requirement, he had to obtain a waiver first before he could change his current status in the United States. 

After he retained our firm, we prepared and filed a waiver request through the No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office contacted the Indonesian Embassy in Washington D.C. to make sure we knew all the updated requirements needed for their office to issue a no objection statement.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of his valid Indonesian passport, and a copy of Form DS-3035.

On June 5, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a change of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On October 28, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on November 2, 2020.  Now that our client’s two-year foreign residency requirement is waived, he can be a beneficiary of other non-immigrant visas in the United States without having to going back to Indonesia for 2 years.

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

NATIONALITY: Filipina

LOCATION: Roswell, NM

Our client is a citizen of the Philippines who came to the U.S. on a J-2 Visa in August 2017.  She came with her mother who came on a J-1 Visa. 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 July 2020.  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 fulfilling the two-year 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. Our client turned 21 in July 2020.

Our firm was retained to do her J-2 waiver and on July 10, 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 October 7, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 28, 2020, the USCIS issued an I-612 approval notice.

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CASE: H-1B Visa Petition

PETITIONER: School District in New Town, ND

BENEFICIARY: Filipino Special Education 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 2020 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. Though he was subject to the INA 212(e), two-year foreign residency requirement, he already obtained a J-1 waiver from the USCIS. 

The proffered position for the Beneficiary is a 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 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 October 16, 2020, via premium processing. Eventually, our client’s H-1B application was approved on October 30, 2020 without any RFE.  He can now work for his employer for three years on an H-1B status.

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

 NATIONALITY: Indonesian

 LOCATION: Jacksonville, FL

Our Indonesian client came to the U.S. on a J-1 Visa in February 2016.  She came to the U.S. for her internship, and she was subject to the two-year foreign resident requirement.  In January 2020, our client married his U.S. Citizen husband and she wanted to apply for permanent residency. However, due to the two-year foreign residency requirement, she had to obtain a waiver first.

After she retained our firm, we prepared and filed a waiver request through a No Objection Statement (NOS) from the Indonesian Embassy in the United States.  Our office contacted the Indonesian Embassy in Washington D.C. to make sure we knew all the LATEST requirements needed for their office to issue a no objection statement.  The Embassy requested nine different documents including a statement of reason for the waiver, the applicant’s resume, a copy of her valid Indonesian passport, and a copy of Form DS-3035.

On May 28, 2020, the J-1 Waiver (Form DS-3035) Application was filed to the Department of State.  We also sent a request to the Indonesian Embassy to issue a No Objection Statement and recommend this waiver based on the fact that our client would have been eligible to file a marriage based adjustment of status application but for the waiver.

The Indonesian Embassy eventually issued a No Objection Statement for our client, and sent this letter to the State Department’s Waiver Review Division.  On September 16, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. The CIS then issued a receipt and an I-612 approval notice on October 6, 2020. Now that our client’s two-year foreign residency requirement is waived, she can file an adjustment of status application with her husband I-130 petition.

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

NATIONALITY: Ukrainian

LOCATION: New York, NY

Our client is a citizen of Ukriane who came to the U.S. on a J-2 Visa in July 2002.  He came with his father who was on a J-1 Visa for his research program. 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, he attended a school and his family moved to Canada after his father’s research scholar period ended. Our client came back to the United States with an H-1B visa.

He turned 21 in April 2014. Early this year, his employer told him that they wanted to file an I-140 petition for him. 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 April 2014.

Our firm was retained and on July 2 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 September 28, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On October 9, 2020, the USCIS issued an I-612 approval notice.

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

NATIONALITY: Korean

LOCATION: Cleveland, OH

Our client is from South Korea who came to the U.S. on a J-1 Visa in 2019 to work as a 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 has to get a waiver for his two-year foreign residency requirement first. 

Once retained, our office promptly 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 June 25, 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 a National Interest Waiver petition and adjustment of status application.

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 September 14, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement. Eventually, on October 6, 2020, the USCIS issued I-612 approval notice and waived our client’s 2 year foreign residency requirement.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Eagle Butte, SD

Our client came from the Philippines on a J-1 in August 2015 to work as a teacher. She was subject to the two-year foreign residency requirement. She now has a US Citizen child and she wishes to apply for a waiver. 

Our office told our client that she can apply for a waiver under the No Objection Statement category based on the fact that she has a U.S. citizen child. 

On July 12, 2019, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We then prepared the EVP Packet upon receipt of her documents. On November 14, 2020, our office sent our client’s materials to the Waiver Review Committee in Manila, Philippines.  They eventually approved the No Objection Statement, forwarded the approval to the Philippine Consulate in DC to issue the official NOS, and the then on September 10, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  Eventually, on September 23, 2020, the USCIS issued an I-612 approval notice for the waiver.

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CASE: J-1 Waiver (No Objection Statement)

NATIONALITY: Philippines

LOCATION: Christiansted, VI

Our client came from the Philippines on a J-1 visa in September 2016 to work as a teacher. She was subject to the two-year foreign residency requirement. Her wanted sponsor her green card and she 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.

Our office told our client that she can apply for a waiver under the No Objection Statement category based on the fact that she has a U.S. citizen son. 

On March 3, 2020, the J-1 Waiver Application (Form DS-3035) was filed to the Department of State.  We then prepared and filed the No Objection Request to the EVP. Eventually, the No Objection Statement was issued. 

On September 10, 2020, the Waiver Review Division issued a favorable recommendation based on the No Objection statement.  On September 23, 2020, the USCIS issued an I-612 approval notice for the waiver.

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Case: I-130/I-485
Applicant/Beneficiary – Italian
Location: Strongsville, OH

Our client entered the United States in February 2020 from Italy under the visa waiver program. As a Visa Waiver Entrant, he was only authorized to remain in the United States for 90 days.  He married his U.S. citizen wife in March 2020. After he entered the United States in February 2020, he never left.  

In April 2020, they contacted our office and consulted with us regarding adjustment of status. They retained our office on April 7, 2020.  One main issue in his green card application through marriage was the fact that he 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 Strongsville, Ohio, his application had a better chance compared to states under the 9th Circuit (see Momeni v. Chertoff).  

Our office filed the I-130 Petition and I-485 Adjustment of Status Application on April 17, 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 at our office. On September 21, 2020, our client was interviewed at the Cleveland, Ohio USCIS Field Office.  Attorney Sung Hee (Glen)Yu, Esq. accompanied our clients. Eventually, the USCIS approved his adjustment of status application on the same day of the interview.  Now, our client is a green card holder. 

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