USCIS on Request for J-2 Spouses to Work after Conrad Waivers

In March 2014, the Citizenship and Immigration Services (CIS) Ombudsman recommended a U.S. Citizenship and Immigration Services (USCIS) policy change regarding the narrow interpretation of a provision in the law that impacts J-2 spouses of J-1 physicians. Under the USCIS interpretation of the law, these J-2 spouses are prevented from applying to change to nearly any nonimmigrant status other than H-4, even after receipt of Conrad 30 waivers of the home residency requirement. In responding to this recommendation, the USCIS agreed that increased flexibility for J-2 spouses would be preferable, but found that existing law prevents them from implementing such changes. However, the USCIS indicated its openness to the consideration of options for issuance of employment authorization documents (EADs) to such former J-2 spouses who hold H-4 status.

Restrictions for COS of J-2 Spouses

The Conrad 30 program permits international medical graduates (IMGs) to receive a waiver of the J-1 home residency requirement in exchange for three years of service in the United States providing qualified medical care in an area that has either a shortage of physicians or populations that are medically underserved. The three years of service must be completed in H1B status. Historically, when a J-1 physician received a waiver under the Conrad 30 program, the J-2 spouse was permitted to change to any nonimmigrant status, assuming the individual otherwise qualified for said status. In April 2013, however, the USCIS announced a reinterpretation of immigration law that severely limited the ability of dependents of J-1 IMGs to change status. Under this strict interpretation, such a J-2 spouse is limited to changing status to H-4 following the principal J-1 receiving a waiver under the Conrad 30 program. MurthyDotCom first reported on this development in the NewsBrief, Change of Status Restrictions for J-2 Spouse (30.Apr.2013).

CIS Ombudsman’s Recommendations

The CIS Ombudsman recommended that the USCIS take the necessary steps, through regulation and issuance of policy guidance, to permit otherwise eligible J-2 dependents of J-1 physicians approved for Conrad 30 waivers to change status to employment-authorized nonimmigrant classifications. The Ombudsman’s position is that existing law does not expressly prohibit these changes of status and, thus, it should be interpreted more broadly. The CIS Ombudsman, in making these recommendations, considered both legal and policy matters, and concluded that the restrictive J-2 change of status policy favors administrative convenience, instead of promoting economic and social benefits.

USCIS Response: Consider Options for Work as H-4

The USCIS responded to the CIS Ombudsman’s recommendations on June 24, 2014. While the USCIS concurred in principle with the idea the J-2 spouses in question should be allowed to change to statuses other than H-4, the USCIS argues that this is prohibited under existing law. The USCIS position is that the J-2 dependents are not permitted to obtain a change of status to H1B (or other employment-authorized status) until the former J-1 spouse completes the three years of service under the waiver terms. However, the USCIS is willing to review current regulations and consider the steps needed to allow the dependent spouses to obtain employment authorization while in H-4 status.

Conclusion

While the USCIS did not accept the CIS Ombudsman’s recommendations and a broader interpretation of existing law, the willingness of the USCIS to consider addressing this issue by potentially allowing such H-4s to work is a positive step. It should be noted that the situation discussed in this article relates to the ability to change status from within the United States. There can be options for obtaining a different status by traveling abroad and applying for an appropriate visa, even where a change of status is prohibited. Anyone with questions about options as a J-2 dependent may contact the Murthy Law Firm for assistance.

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