[This month’s ABCs of Immigration issue is adapted from Greg Siskind’s new book, The Physician Immigration Handbook.]
J-2 Status for Family Members of a J-1 Exchange Visitor
Who can be a J-2 nonimmigrant visa holder?
Both the spouse and unmarried minor children under the age of 21 of a J-1 exchange visitor qualify for J-2 status. Same-sex spouses are eligible based on the legal recognition of the marriage in the jurisdiction in which the marriage took place, whether in the U.S. 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?
Similar to J-1s, J-2 spouses and children of physicians are provided with I-94s marked “D/S” for duration of status. With this condition, as long as the J-1 meets the terms outlined in the Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, in addition to the 30-day grace period at the conclusion of the J-1 program, then 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 are elderly parents, dependent siblings, co-habiting partners not married to the J-1, as well as others. The B-2 I-94, however, does not include the open-ended duration of status classification granted to J-2s, instead the normal six-month duration applies. The Department of State’s Foreign Affairs Manual rule on B-2 accompanying relatives states:
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 foe 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 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 principal alien’s nonimmigrant status in the United States.
Does a family member have to enter as a J-2?
No. The family member can apply to enter in any nonimmigrant category for which he or she is qualified.
How does a spouse or child apply for J-2 nonimmigrant status?
A minor child or spouse wishing to enter the United States as a J-2 can do so by applying for this status at a U.S. consulate, or he or she can seek to change nonimmigrant status, if the individual is in another nonimmigrant category in the United States. Whether seeking a visa at a consulate or filing a form I-539, Application to Extend/Change Nonimmigrant Status, in the United States to change nonimmigrant status, the applicant would submit the nonimmigrant application and fee, as well as provide the following supporting documentation:
- Documentation of the spousal or parent-child relationship (marriage or birth certificate is normally adequate)
- Unless the application is being submitted jointly with the exchange visitor’s initial application, documentation that the J-1 is complying with the terms of the visa. Submitting a copy of the DS-2019 along with a letter from the J-1’s employer verifying the physician is employed and complying with the J-1 program rules should be adequate.
- The J-2 applicant’s own DS-2019 from issued by Educational Commission on Foreign Medical Graduates (ECFMG)
- Evidence of the J-2’s having residency abroad. To show a need to return to the foreign residence, applicants may provide documentation of property ownership in the home country, family ties and responsibilities, a job or job offer in the home country, etc.
Is a J-2 spouse subject to the INA §212(e) home residency requirement?
While this issue has been a point of contention for decades and many noted legal scholars have written that J-2s should not be subject to it, the Department of State and U.S. Citizenship and Immigration Services (USCIS) strongly affirm that J-2 spouses are independently subject to the home residency requirement. The J-2 would automatically be covered if the J-1’s waiver is approved.
Can a J-2 spouse get a waiver on his or her own?
Generally, unless the J-2 previously was in J-1 status and subject to INA §212(e), the answer is no. The J-1’s waiver would apply to the J-2, and an independent J-1 waiver application is not available. As an example, this means that a J-2 spouse, who is a physician, would not get the benefit of exemptions from the H-1B cap to work in an underserved area if he or she was seeking to work in the same community as the J-1 spouse.
In limited 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 examples are when the J-1 and J-2 divorce, when the J-1 spouse dies, and when a J-2 child turns 21 and seeks a visa to remain in the United States.
Spouses who find themselves fitting one of these situations 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 explaining the reasons for their situation warranting special consideration. Included with the application should be:
- A copy of the divorce decree from the J-1 spouse;
- A copy of the J-1 spouse’s death certificate; or
- A copy of the J-2’s birth certificate if the J-2 is over 21 years old.
If a J-2 spouse wants to fulfill the home residency requirement, in which country must it be completed?
Although this question has been posed to United States Information Agency (USIA) and Department of State officials on numerous occasions throughout the years, the answer is still not entirely definitive. Presumably, going to the J-1’s last country of residence (which is what J-1s are directed to do to satisfy the home residency requirement by the Department of State) should be enough to satisfy this requirement. However, it is unclear whether the J-2 going to the J-2’s home country or country of last residence would be enough to comply with the INA §212(e) return obligation. The recommended course of action in this situation is to get an advisory opinion from the Department of State.
If the J-1 goes home to complete the home residency requirement, but not the J-2, is the J-2 still subject to the home residency requirement?
The Department of State holds the position that a J-2 must independently satisfy the home residency requirement apart from the J-1. As previously noted, legal scholars have long contended that the statute does not support this requirement. J-2s in recent cases have been successful in litigation when attempting to bypass the home residency requirement applicable to the J-1. USCIS has shown that it will prefer to settle such a case as opposed to risk losing it.
Can a J-1 switch to J-2 status?
While the law does not prohibit J-1s switching to J-2 status, the ECFMG has discretion to look at the facts in each particular case to determine if the intentions of the J-1 are to circumvent the intent of the J-1’s requirement to comply with §121(e). Therefore, no guarantee can be made that a DS-2019 for J-2 status would be granted in every case.
Can a J-2 switch to H1-B status after the J-1’s shortage-area waiver is approved?
This was not a problem until recently. In 2013 USCIS began denying J-2 to H1B 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-4 change of status is permitted after a shortage-area-based waiver is approved. In a 2014 report, the CIS Ombudsman disputed this position, but, to date, USCIS is not backing off its position.
Can a J-2 spouse change to J-1 nonimmigrant status?
There are some time bars on J-2s switching to certain types of J-1 categories, but there is no such bar on individuals seeking to switch to the J-1 physician category. ECFMG would still need to determine, however, if the individual is likely to comply with the terms of the J-1 program (including the intention to return to the home country) and could decide not to sponsor the applicant. It is worth noting that ECFMG is unlikely to approve situations where it appears that the spouses are “flip-flopping” statuses in order to prolong the overall stay in the United States.
Can J-2 spouses work?
Yes. J-2 spouses are allowed to seek employment authorization after their arrival in the Unites States as a J-2/ In order to apply, a J-2 spouse must submit the following to the USCIS office with jurisdiction:
- Form I-765, Application for Employment Authorization, and the required fee of $380;
- Evidence of the spousal relationship (normally a marriage certificate);
- Documentation that the J-1 is maintaining status (recent paystub, letter from employer, etc.);
- Copies of form I-94, Arrival/Departure Record, for each spouse;
- A letter from the J-2 stating why the employment is desired, that the J-1 is employed 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
The J-2 is permitted to work only after receiving an I-766 Employment Authorization Document (EAD).
USCIS regulations permit the EAD‘s approval to last up to four years, however in practice, USCIS limits the approvals to one year intervals or the date the DS-2019 expires, whichever is earlier. Also, employment authorization is limited to the time the J-1 remains in J-1 status. For example, if the J-1 is granted a waiver and changes to H-1B status, the EAD’s validity would terminate legally on the end date the H-1B becomes effective, even though the EAD is unexpired.
It is in the best interest of exchange visitor couples to speak with a tax expert regarding their obligations, specifically due to the difference in rules that apply J-1s and J-2s. As an example, J-2s are subject to having Social Security taxes withheld and are subject to federal and state income taxes, while J-1s are not.
Are there any restrictions on the type of work a J-2 may seek?
J-2s can engage in any type of employment, with the rare exception of those which are legally restricted to U.S. citizens, such as certain types of government positions. Included in that is a practice that has become increasingly common over recent years, participation in graduate medical training. Attention should be paid, however, to whether is scheduled to complete training prior to the J-2’s completion, and both parties’ coordination with an immigration lawyer is encouraged. As previously mentioned, ECFMG’s approval of change of J-1 to J-2 status or vice versa is not guaranteed. Furthermore, if the J-1 gets a J-1 waiver, the J-2’s training program might not be willing nor able to change the J-2 to an H-1B.
Can a J-2 receive a Social Security number?
After obtaining an EAD, a J-2 can seek a Social Security number. The card will be annotated to note, however, that it is not to be used as evidence of employment authorization. For example, the Social Security card could not be used to show employment authorization when the J-2 starts a job and is completing an I-9, Employment Eligibility Verification. Fortunately, he or she can use the EAD card itself to document both identity and authorization to work.
Can a J-2 receive a driver’s license?
This is determined by state law, but generally states provide driver’s licenses to those in possession of a driver’s license, in addition to spouses of work visa holders.
Can a J-2 enroll in school?
Yes. No restrictions are placed upon a J-2’s ability 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 will issue the J-2 a new DS-2019 form that has the same validity period as the J-1’s DS-2019.
What does the J-2 need for travel in and out of the United States?
A valid passport with an unexpired J-2 visa along with an unexpired DS-2019 form endorsed for travel by ECFMG are needed for the J-2 to travel in and out of the U.S.
Can the J-2 remain in the United States while the J-1 travels outside the country?
As long as the duration of stay by the J-1 is short, this is not an issue. Department of State regulations do not quantify the brevity of the stay, or at what length it becomes a problem. As long as the J-1 physician remains employed by the training program, or the J-1 travels for purposes related to the individual’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.