J-2 Waiver of Two-Year Foreign Residency Requirement, Interested Government Agency Approval for Ukrainian Client in Indianapolis Indiana

CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Ukraine
LOCATION: Indianapolis, IN

Our client is a citizen of Ukraine who came to the U.S. on a J-2 Visa.  He came with his father who was on a J-1 Visa to pursue his Ph.D. 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 H, L, and O.

After our client came to the United States, he completed his high-school as a J-2 visa holder and later went to college.  Our client initially started his bachelor’s program in a J-2 status, but in January 2011, he changed his status from J-2 to an F-1 student visa through the U.S. Embassy in Canada.  He had to change his status from J-2 to F-1 because he turned 21 in January 2011. After graduation, he applied for OPT (Optional Practical Training), later got a job offer, and started to work for this company in Indianapolis.

Our client contacted our office in December 2011, and sought legal advice regarding the J-2 waiver process.  His OPT will be expired in July 2012, and his current employer was willing to sponsor his H-1B visa.  However, without a waiver of the 2-year foreign residency requirement, our client would not be able to change his status to H-1B.  Our office explained to him that we can do the J-2 waiver application through the Interested Government Agency (IGA) route.

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 this 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 his J-2 waiver on December 20, 2011. On January 9, 2012, 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 is not a dependent of the J-1 visa holder anymore.  Eventually, on January 27, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On February 29, 2012, the CIS granted the J-2 waiver.

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