CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Korean
LOCATION: Los Angeles, California
Our client is a citizen of South Korea who came to the U.S. on a J-2 Visa in August 2005. 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.
After our client came to the United States, she completed her ESL courses and was admitted to the University to pursue her bachelor’s degree. In July 2006, she went back to South Korea and got her F-1 student visa at the U.S. Embassy in Seoul, and came back to the United States with her F-1 student visa.
She turned 21 in 2007. This year, she would like to change her status from F-1 to H-1B if her prospective employer files an I-129 petition for her in April. Moreover, she also has an approved I-140 petition and currently is waiting for her priority date to be current. However, because of her two-year foreign residency requirement, our client cannot change her status in the United States without fulfilling the requirement or getting 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 March 2007.
Our firm was retained to do her J-2 waiver on December 11, 2014. On December 12, 2014, 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 January 9, 2015 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On January 20, 2015, the USCIS issued an I-612 approval notice for our client’s waiver request.