CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Korean
LOCATION: California
Our client is a citizen of South Korea who came to the U.S. on a J-2 Visa in February 2004. She came with her 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.
She turned 21 in January 2006. This year, she became an Assistant Professor with a tenured track; thus, her employer is willing to file the 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 January 2006.
Our firm was retained to do her J-2 waiver, and on February 27, 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 22, 2019, the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On April 5, 2019, the USCIS issued an I-612 approval notice for our client’s waiver request.