J-2 Waiver of Two-Year Foreign Residency Requirement, Interested Government Agency Approval for Chinese Client in Oklahoma

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

Our client is a citizen of China who came to the U.S. on a J-2 Visa. 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.

After our client came to the United States, he finished high-school as a J-2 visa holder and later pursued his Bachelor’s degree. Our client initially started his bachelor’s program as a J-2 visa holder, but in April 2001, he changed his status from J-2 to F-1 through the U.S. Consulate in Mexico. He had to change his status from J-2 to F-1 because he turned 21 in January 2011. After he graduated, he married his current U.S. Citizen wife in October 2009 and his wife filed an I-130 petition on behalf of our client. The I-130 petition was approved in February 2011.

Our client contacted our office in January 2012, and sought advice regarding his chances of applying for permanent residency. He has an approved I-130 petition; however, without a waiver of the 2-year foreign residency requirement, our client would not be able to adjust his status in the United States. Our office explained that we can apply for his 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 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 firm was retained to do his J-2 waiver on January 19, 2012. On January 31, 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 was not a dependent of a J-1 visa holder anymore. Eventually, on February 21, 2012 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On March 16, 2012, the USCIS issued an I-612 approval notice for our client’s waiver request. Now, our client can file his I-485 adjustment of status application with the approved I-130 petition and I-612 waiver approval. He can now apply for his green card.