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

NATIONALITY: Chinese

LOCATION: Long Island City, NY

Our client was a citizen of China who came to the U.S. on a J-2 Visa in April 2007.  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 August 2014. This year, he wanted to change his status to H-4 based on his spouse’s H-1B status. However, because of his two-year foreign residency requirement, our client cannot change his status in the United States without fulfilling the 2-year requirement or getting a waiver application approved.

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 August 2014.

Our firm was retained to do her J-2 waiver. On March 9, 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 June 29, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On July 29, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: I-751 / Waiver of the Joint Waiver Requirement

APPLICANT: Chinese

LOCATION: Palisades Park, NJ

Our client contacted our office in early October 2018 regarding his I-751 filing. He came to the United States from China and he married a U.S. Citizen (his ex-wife) in August 2016. Through his marriage, he was able to obtain a 2-year conditional green card in August of 2017. His conditional residency terminated in August 2019. However, our client experienced a lot of difficulties in his marital life with his ex-wife. Unfortunately, their marriage ended in May 2019.  Thus, our client could not file the I-751 application jointly with his ex-wife.

After our office was retained, we prepared a waiver of the joint filing requirement because our client entered into marriage in good faith, but the marriage was terminated through divorce. We focused on the supporting documents that he can show and helped him draft an extensive and detailed affidavit about their marriage, and why it ended the way it did.

On August 5, 2019, our office filed the I-751 application with various supporting documents (including an affidavit over 7 pages) to demonstrate our client’s bona fide marriage with his ex-wife. Eventually, the USCIS approved our client’s I-751 application on June 8, 2020 without any RFE or interview. Now, he has his ten-year green card.

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Case: I-485

Potential Issue: Response to RFE

Client: Chinese

Location: Millburn, NJ

Our client came from China and filed her I-485 adjustment of status application to the USCIS in February 2019. We were not her attorney of record when she filed the application. On November 8, 2019, the USCIS Newark Field Office issued a Request for Evidence (RFE) asking for proof that our client met the two-year foreign residency requirement or proof that she has an approved waiver of the two-year foreign residency requirement. Our client contacted our office for legal assistance on RFE response and retained our office on November 14, 2019. 

In response to the USCIS’s RFE, our office included an Advisory Opinion by the U.S. Department of State, a copy of our client’s J-1 visa page and DS-2019. Moreover, our office included a detailed brief explaining why our client’s J-1 program was not subject to the two-year foreign residency requirement. On November 18, 2019, we filed the Response to RFE.

Eventually, on May 5, 2020, the USCIS approved our client’s I-485 adjustment of status application. Our client is now a green card holder.

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

NATIONALITY: Chinese

LOCATION: San Francisco, CA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in February 2002.  She came with her father who came on a J-1 Visa for her research work 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 2012.  She wanted to file her I-485 adjustment of status application as a derivative applicant of her husband’s case. 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 April 2012.

Our firm was retained to do her J-2 waiver, and on February 7, 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 April 2, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver.  On April 24, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Change of Status / I-539
NATIONALITY: Chinese
LOCATION: Columbus, OH

Our client is from China who came to the U.S. on a F-1 student visa. He consulted with our firm a few weeks before the expiration of his F-1 OPT status. He wanted to continue to stay in the United States on a different non-immigrant status. His wife is a F-1 student in the United States, so he can change his status from F-1 to F-2. He retained our office on September 12, 2019. We filed the I-539 Change of Status Application on September 18, 2019 along with financial documents to show financial support. Eventually, without any Request for Evidence (RFE), his change of status request (from F-1 to F-2) was granted by the USCIS on April 15, 2020. He can stay in the United States for the duration of status of his wife’s F-1 status.

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

EMPLOYER: Physician’s Office

BENEFICIARY: Macau

LOCATION: Brooklyn, NY

Our client is a physical therapist. His current employer was willing to petition him for a second-preference employment immigrant visa petition (I-140). Since he is a physical therapist, he 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 Master’s degrees in Rehabilitation Science and is a licensed physical therapist in the State of New York. Our office was retained on October 28, 2019, and we filed the Prevailing Wage Determination immediately.

We filed the I-140 application on March 17, 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.  

Eventually, on March 21, 2020, the USCIS Nebraska Service Center approved his EB-2 I-140 petition. Since the priority date for EB-2 Macau national is current, he can file his adjustment of status application at any time.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Mechanicsburg, OH

Our client came to the United States from China with a B-2 visitor’s visa in May 2015. After her authorized stay period expired, she remained in the United States.  She married a U.S. Citizen in November 2018 and retained our office for her green card application. Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on September 19, 2019.  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 as well. On March 9, 2020, our client was interviewed at the Cincinnati, Ohio USCIS office. Eventually, on the same day of her interview, her green card application was approved.

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

NATIONALITY: Chinese

LOCATION: Bloomington, IN

Our client was a citizen of China who came to the U.S. on a J-2 Visa in August 2008.  She came with her mother who came on a J-1 Visa for her research work 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 August 2017.  She has a prospective employer that was willing to file an 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 August 2017.

Our firm was retained to do her J-2 waiver, and on January 3, 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 February 5, 2020, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On March 2, 2020, the USCIS issued an I-612 approval notice for our client’s waiver request.

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CASE: Marriage-Based Adjustment of Status

CLIENT: Chinese

LOCATION: Lakewood, OH

Our client came to the United States from China and worked in the United States on her H-1B status. She married a U.S. Citizen in October 2019 and retained our office on November 8, 2019 for her green card application.  Our firm prepared and filed the I-130 Petition and I-485 Adjustment of Status Application on November 21, 2019. 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. On March 2, 2020, our client was interviewed at the Cleveland, Ohio USCIS office. Attorney Sung Hee (Glen) Yu from our office also accompanied our clients. Eventually, on the same day of the interview, her green card application was approved.

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

NATIONALITY: Chinese

LOCATION: Mountain View, CA

Our client was a citizen of China who came to the U.S. on a J-2 Visa in January 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 March 2013. She would like to get a waiver because she has a U.S. citizen spouse who can file I-130 petition for her. She can file 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 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 March 2013.

Our firm was retained to do her J-2 waiver, and on February 20, 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 18, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On April 2, 2019, the USCIS issued an I-612 approval notice for our client’s waiver request.

Once her J-1 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 Adjustment of Status Application on April 15, 2019.  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 January 29, 2020, our client was interviewed at the Santa Clara California USCIS office.  The interview went well, and eventually, on the same day of the interview, her green card application was approved.

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