Change of Status Restrictions for J-2 Spouse30 Apr 2013
There is an important change of status restriction on J-2 dependents of J-1 international medical graduates (IMGs). The following NewsBrief from the Murthy Law Firm discusses this nuance, which may otherwise come as a surprise to a J-2 spouse who seeks to transition to a new status once the J-1 principal spouse completes the J-1 residency and/or fellowship program.
Background: Home Return Requirement Waiver
IMGs who intend to participate in clinical graduate medical education (residencies and fellowships) are often admitted to the U.S. in J-1 classification. Their accompanying dependent spouses and minor children are classified as J-2s. Both J-1s and J-2s in this situation are obligated to return to their home countries for a period of two years following the completion of the residency or fellowship program.
Often, J-1 IMGs will opt to seek a waiver of the home-residency requirement. The most common avenue for such waivers is sponsorship by a State Department of Health (Conrad 30) or another interested government agency (IGA) program to provide clinical medical care for a three-year period in a federally designated areas that have a shortage of physicians or populations that are medically underserved. This three-year service period must be completed in H1B classification.
Dilemma for J-2 Spouse Working on the EAD
It is fairly common for J-2 spouses to be employed in the United States with a valid employment authorization document (EAD). However, this option disappears once the J-1 spouse changes status to H1B to perform the required three years of waiver service. Thus, once the waiver is approved for the J-1 nonimmigrant, the J-2 spouse must choose to either change to H-4 dependent status (and lose employment eligibility) or seek to transition to H1B or another applicable, valid nonimmigrant status to continue working, if qualified and eligible.
USCIS Now Says Only H-4 Change Allowed in U.S. for J-2s
In the past, the U.S. Citizenship and Immigration Services (USCIS) routinely accepted and approved applications by J-2 nonimmigrants for change of status to H1B or another applicable, valid employment authorized nonimmigrant status after a waiver was granted to the primary spouse on J-1 status. This held true even during the time when the former J-1 primary family member was working toward completing the three-year service obligation in the designated shortage or underserved area. However, under current interpretations, this is no longer permitted.
The USCIS recently released Q&As from an April 11, 2013 meeting with the American Immigration Lawyers Association (AILA). In this meeting, the USCIS advised that, per their interpretation, J-2 spouses of Conrad 30 and other IGA waiver recipients may change status only to H-4 during the three-year period when the waiver recipient is fulfilling the terms of his/her waiver. Put simply, the USCIS does not permit this group of current and former J-2 nonimmigrants from changing to any status within the United States other than H-4 until the former J-1 spouse has completed her/his three-year Conrad or other waiver commitment in H1B status.
J-2 Can Obtain Other Status by Consular Processing
This interpretation does not mean that such J-2 spouses are forced to spend three years in H-4 status. It means that they cannot transition to a status other than H-4 from within the United States. They can avail themselves of other status options, including H1B, through the consular processing option once the primary spouse is granted a waiver. The USCIS will process H1B petitions filed for such individuals and, if everything is in order, approve the petitions for consular processing. Consequently, such individuals can depart the U.S. and apply for H1B visas to permit their return trips to the U.S. in that status after the waiver of the home return requirement is approved. The same is true of other nonimmigrant statuses for which one may be eligible.
This matter is important for the many J-2 spouses seeking to transition to statuses other than H-4 while their J-1 spouses comply with the three-year H1B service requirement of the Conrad 30 waiver. Attorneys at the Murthy Law Firm are available to help such individuals to understand their options and provide representation for this transition.
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