[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s book, co-authored by Elissa Taub, The Physicians Immigration Handbook.]
Who can be a J-2 nonimmigrant visa holder?
The Spouses and unmarried minor children of J-1 exchange visitors may be eligible for J-2 status. Worth noting is the definition of minor children, under the Immigration and Nationality Act (INA) as being those under 21 years of age. Also worth noting is the eligibility of same-sex spouses for J-2 status, as long as the jurisdiction in which the marriage look place legally recognized the marriage, whether within the United States or abroad.
How much time does a J-2 nonimmigrant spouse or child of a J-1 physician get to stay on each visit to the United States?
Similarly to J-1s, J-2 spouses and children are granted I-94s marked “D/S”, which stands for “duration of status.” In other words, as long as the J-1 meets the terms described on the Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status (plus a 30-day grace period at the conclusion of the J-1 program), the J-2 is considered to be in a legal stay in the United States.
What if a family member who is not a spouse or a minor child is in the J-1’s household?
It is possible for other family members living in the household to be eligible for B-2 classification. Included in these other family members are elderly parents, dependent siblings, co-habiting partners unmarried to the J-1, and others. The trip’s primary purpose must be to accompany the nonimmigrant. The normal six-month duration of a B-2 I-94 applies as opposed to the J-2 “duration of status” open-ended duration. As stated in the Department of State’s Foreign Affairs Manual rule on B-2 accompanying relatives:
The B-2 classification is appropriate for aliens who are members of the household of another alien in long-term nonimmigrant status, but who are not eligible for derivative status under that alien’s visa classification. This is also an appropriate classification for aliens who are members of the household of a U.S. citizen who normally lives and works overseas, but is returning to the United States for a temporary time period. Such aliens include, but are not limited to the following: cohabitating partners or elderly parents of temporary workers, students, diplomats posted to the United States, accompanying parent(s) of minor F-1 child-student. B-2 classification may also be accorded to a spouse or child who qualifies for derivative status (other than derivative A or G status) but for whom it may be inconvenient or impossible to apply for the proper H-4, L-2, F-2, or other derivative visa, provided that the derivative individual intends to maintain a residence outside the United States and otherwise meets the B visa eligibility requirements. If such individuals plan to stay in the United States for more than six months, they should be advised to ask the Department of Homeland Security (DHS) for a one-year stay at the time they apply for admission. If needed, they may thereafter apply for extensions of stay, in increments of up to six months, for the duration of the principle alien’s nonimmigrant status in the Untied States.
Does a family member have to enter as a J-2?
No. The family member can enter in an alternative nonimmigrant category, as long as he or she qualifies for that category.
How does a spouse or child apply for J-2 nonimmigrant status?
A spouse or minor child who seeks to enter the U.S. as a J-2 can apply to do so at a U.S. consulate or, if the individual is in the country in another nonimmigrant category, seek to change nonimmigrant status in the U.S. Whether seeking a visa at a consulate or filing a Form I-539, Application to Extend/Change Nonimmigrant Status, the applicant needs to submit the following supporting documentation in addition to the nonimmigrant application and fee:
- Documentation of the spousal or parent-child relationship, generally in the form of a marriage or birth certificate.
- Unless the application is jointly submitted with the exchange visitor’s initial J-1 application, documentation of the J-1’s compliance with the terms of the visa. It is generally sufficient to submit a copy of the DS-2019 along with a letter from the J-1’s employer in which the employer verifies that the physician is employed and in compliance with the J-1 program rules.
- The J-2 applicant’s own DS-2019 form issued by Educational Commission on Foreign Medical Graduates (ECFMG).
- Evidence of the J-2’s residency outside the United States. Property ownership in the applicant’s home country, familial ties and responsibilities, a job or job offer in the home country, or anything that will demonstrate the necessity for the applicant to return to the foreign residence.
Is a J-2 spouse subject to the INA §212 (e) home residency requirement?
This is a point of contention and has been for decades. While many noted legal scholars have written that J-2s should not be subject to INA §212 (e), both the Department of State and U.S. Citizenship and Immigration Services (USCIS) assert that J-2 spouses are independently subject to the home residency requirement. In the event of the J-1’s waiver being approved, it automatically covers the J-2.
Can a J-2 spouse get a waiver on his or her own?
Typically, no, unless the J-2 previously was in J-1 status and subject to the INA §212 (e). The J-1’s waiver would cover the J-2, and an independent J-1 waiver application is unavailable. For example, a J-2 spouse who is a physician would not get the benefit of exemption from the H-1B cap to work in an underserved area if the community in which he or she was seeking to work was the same as the J-1 spouse.
In rare, specific circumstances, the Department of State will allow a J-2 to independently receive a waiver with the Department acting as an interested government agency (IGA). The most common occurrences of this are when the J-1 and J-2 divorce or the J-1 spouse dies, and then a J-2 child reaches the age of 21 and seeks a visa to remain in the United States.
Spouses falling into one of these scenarios may submit a waiver request by filing a Form DS-3035, J-1 Visa Waiver Recommendation Application, paying the processing fee, and submitting a statement detailing the special consideration which their situation deserves. In addition to the application, spouses should also submit:
- A copy of the J-1 spouse’s death certificate;
- A copy of the divorce decree from the J-1 spouse; or
- A copy of the J-2’s birth certificate if the J-2 is over 21 years of age.
If a J-2 spouse wants to fulfill the home residency requirement, in which country must it be completed?
Although this question has been asked over the years on numerous occasions to United States Information Agency (USIA) and Department of State officials, its answer remains ambiguous. It is presumably sufficient to go to the J-1’s last country of residence, which the Department of State directs J-1s to do so that they may satisfy the home residency requirement.
It remains unclear, however, whether the J-2 going to the J-2’s home country or country of last residence would be enough to satisfy the INA §212(e) return obligation. Therefore, it is recommended to seek the advisory opinion of the Department of State.
If the J-1 goes home to complete the home residency requirement, but the J-2 does not, is the J-2 still subject to the home residency requirement?
It is the position of the Department of State that a J-2 needs to satisfy the home residency requirement independently from the J-1, though legal scholars have stated that the statute does not support this requirement. Additionally, there have been recent cases in which J-2s have been successful in litigation when seeking to bypass the home residency requirement applicable to the J-1. Rather than risking losing the case, USCIS will typically decide to settle a case under such circumstances.
Can a J-1 switch to J-2 status?
While the law does not prohibit J-1s from switching to J-2 status, the ECFMG does hold the power to assess the facts in the case at its discretion to determine if the motivation of the J-1 is to circumvent the intent of the J-1s requirement to comply with §212(e). for this reason, there is no assurance that a DS-2019 for J-2 status would be universally granted.
Can a J-2 switch to H-1B status after the J-1’s shortage area waiver is approved?
This would have, until recently, been a non-issue. In 2013, however, USCIS started denying J-2 to H-1B change-of-status applications and forcing the J-2 to re-enter on an H-1B visa. USCIS’ current position is that only a J-2 to H-2 change of status is permitted after a shortage-area-based waiver approval. To date, USCIS retains this position, unaffected by the CIS Ombudsman’s dispute of this position in 2014.
Can a J-2 spouse change to J-1 nonimmigrant status?
Though time restrictions exist for J-2s changing to certain types of J-1 categories, there is no such bar on individuals seeking to switch to the J-1 physician category. ECFMG would still need to determine the individual’s likelihood to comply with the terms of the J-1 program. This includes the intention of the individual wo return to the home country, and this determination could cause ECFMG to decide not to sponsor the individual. ECFMG is not likely to approve situations, for example, where it seems apparent the spouses are “flip-flopping” statuses with the end goal of extending the overall stay in the United States.
Can J-2 spouses work?
Yes. Upon their arrival in the United States under the status, J-2 spouses are allowed to seek employment authorization. In order to apply, the J-2 spouse would submit the following to the USCIS office with jurisdiction:
- Form I-765, Application for Employment Authorization, and the required $380 fee;
- Evidence of the spousal relationship, typically in the form of a marriage certificate;
- Documentation of the J-1’s status maintenance, such as a recent paystub or a letter from the employer;
- Copies of the Form I-94, Arrival/Departure Record, for each spouse;
- A letter from the J-2 stating the reason motivating his or her employment, the J-1’s employment by a residency or fellowship program and maintaining J-1 status, and that the income the J-2 will receive will not be used to support the J-1; and
- A copy of the J-1 and J-2’s DS-2019s.
Only upon receiving an I-766, Employment Authorization Document (EAD), is the J-2 permitted to work.
While USCIS regulations allow the EAD to be approved for a maximum of four years, USCIS, in practice, limits the approvals to one year at a time or the date the DS-2019 expires, whichever of the two is earlier. Also, employment authorization is limited to the time the J-1 is in J-1 status. Therefore, in the event the J-1 is granted a waiver and changes to H-1B status, the EAD’s validity would legally end on the date the H-1B becomes effective even though the EAD is unexpired.
Exchange visitor couples should consult with a tax expert about their obligations, specifically with regard to the fact that J-1s and J-2s are sometimes subject to different rules. J-2s, for example, are subject to having Social Security taxes withheld and are subject to federal and state income taxes, unlike J-1s.
Are there any restrictions on the type of work a J-2 may seek?
Other than certain types of government positions which are legally restricted to U.S. citizens, there are no restrictions on the type of employment in which J-2s can engage. This includes using a J-2 to participate in graduate medical training, an increasingly common practice in recent years.
The J-1 and J-2 should, however, carefully plan with an immigration attorney to decide what the course of action will be in the event the J-1 completes training before the J-2. As previously stated, there is no guarantee ECFMG will approve a change of the J-1 to J-2 status and the other way around. Furthermore, if the J-1 receives a J-1 waiver, the J-2’s training program may not be willing or able to change the J-2 to an H-1B.
Can a J-2 receive a Social Security number?
Once a J-2 receives an EAD, he or she can then seek a Social Security number. The card will, however, be annotated to note that it is not to be used as evidence of employment authorization. For instance, when a J-2 begins working at a job and is completing a Form I-9, Employment Eligibility Verification, the Social Security card would not be able to serve as evidence for employment authorization. Fortunately, the EAD card itself would serve to document both identity and authorization to work.
Can a J-2 receive a driver’s license?
Though this is determined by law on a state-to-state basis, states generally provide driver’s licenses to those in possession of a driver’s license, as well as spouses of work visa holders.
Can a J-2 enroll in school?
Yes. There is no restriction on the ability of a J-2 to engage in studies.
Do J-2s need to independently seek extension of their J-2 status?
No. The J-2 status automatically extends with the J-1’s status. ECFMG sill issue a new DS-2019 form to the J-2 with the same validity period as the J-1’s DS-2019.
It is worth noting that J-2 dependents are subject to the same new USCIS policy regarding unlawful presence which is applicable to primary J-1 nonimmigrants. J-2 depends should remain vigilant in the maintenance of their valid status in the United States by not working without authorization, by engaging only in permitted activities per the rules of their J-2 status, and by departing the United States in accordance with the limitations of their status.
What does the J-2 need for travel in and out of the United States?
J-2s need to present a valid passport with an unexpired J-2 visa along with an unexpired DS-2019 form endorsed for travel by ECFMG.
Can the J02 remain in the United States while the J-1 travels outside the country?
As long as the J-1 is the only one travelling outside the country for short periods of time, this is not an issue. Department of State regulations do not specify the length of travel by the J-1 for it to become problematic. As long as the J-1 physician remains employed by the training program, or the J-1 is travelling for purposes related to the person’s J-1 status, there should not be an issue.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.