CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Chinese
LOCATION: San Francisco, California
Our client was a citizen of Canada who came to the U.S. on a J-2 Visa in January 1992 when she was a Chinese Citizen. 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.
Once her mother’s program was completed, her family immigrated to Canada. In 1999, our client came back to the U.S. on a TD visa (dependent of TN visa holder) with her parents. She finished her high school and went back to Canada for her undergraduate degree. In 2009, she came back to the U.S. on an F-1 student visa to pursue her degree. Later, she married her current husband and she filed her adjustment of status application as a derivative applicant of her husband’s application.
She turned 21 in 2005. However, because of her two-year foreign residency requirement, the USCIS requested her to show whether she has complied with the 2 year foreign residency rule. She was not aware of this requirement since she was so young when she came to the United States in 1992.
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 December 2005.
In order to obtain aJ-2 waiver before her RFE deadline, she contacted our office. Our firm was retained to do her J-2 waiver on March 2, 2015. On March 4, 2015, 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 9, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On May 4, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.