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.