CASE: J-2 Waiver of Two-Year Foreign Residency Requirement / Over 21-year-old dependent child
NATIONALITY: Australian
LOCATION: Houston, Texas
Our client is a citizen of Australia who came to the U.S. on a J-2 Visa in November 1999. 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 started to attend a community college in the Dallas area as a J-2 visa holder. In August 2000, she filed an I-539 change of status application to the USCIS, and this application was granted. She changed her status from J-2 to F-1. She completed her associate’s degree and proceeded to a Bachelor’s degree at a different academic institution. However, after she graduated in 2005, she failed to maintain her non-immigrant status in the United States.
She turned 21 in 2002.
She eventually got married to a U.S. citizen husband and her husband filed an I-130 petition for our client in April 2010. This I-130 petition was approved in July 2010. However, because of her two-year foreign residency requirement, our client could not apply for permanent residency.
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 August 2002.
Our firm was retained to do her J-2 waiver on February 28, 2014. On March 17, 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 April 2, 2014 the DOS recommended to the United States Citizenship and Immigration Service (USCIS) that our client be granted a waiver. On April 28, 2014, the USCIS issued an I-612 approval notice for our client’s waiver request.