Married to Former J-2/AOS Denied/Now??

E

eddiek

Registered Users (C)
My wife is a former J-2 who came to US nearly 5 years ago with her ex-husband who was a J-1 Fulbright scholar. They separated, we met, dated for nearly 2-years while her divorce was pending, then we married last fall after it was final and she was in her grace period. She has done everything totally legal. We filed all the proper papers (with the assistance of a lawyer), but we did not file the I-612 Waiver upon advice from both our lawyer and the Immigration office itself. They said that her divorce nullifies her 2-year HRR since she is no longer his legal spouse.

After only 4 months, we recieved her Advance Parole papers (her mother overseas aqcuired breast cancer through all this and she has not been able to go see her yet) and also our interview notice and work permits. She started back to work 2 months ago after volunteering for 8 months and we went to our interview a couple weeks ago. The Immigration officer said that he thought she should be required to return to her country for 2-years because of her former J-2 status, but wasn't sure. We argued what the office and lawyer told us that her divorce nullifies this. He stamped our Alien spouse petition approved, but sent off our package to the District Director for review.

We just got back a letter from the DD that says she is denying our AOS because of her J status and the 2-year HRR and we didn't have a waiver. In addition, she terminated her 2-month old work permits and Advance Parole papers. The letter also states that we can not appeal, but that we can request a review of the decision in front of an Immigration Judge.

I am curious now if we should file an I-612 for Waiver, try to get a court-hearing or both. If we file a waiver, do we have to "re-open" the case? Is it better to go for a "no-objection" or "hardship"? I have two young children from a previous marriage that I am the legal guardian. If my current immigrant wife left, it would be devastating for them to have another female leave their home (this has been reiterated by a therapist) They are really close to her. In addition, I can't go to her country with her because of the visitation arrangement for my children with my ex-wife.

I have no qualms about going to court in that I know that we have a great case, but I'm worried about the length time this might take and not sure the proper order I should proceed. If anyone has any suggestions or advice, I would greatly appreciate it.

Thanks in advance.
Eddie
 
Sounds as if you got really bad legal advice. This is from the "J Waivers of INA 212(e) FAQ" at the Department of State's Web site (http://travel.state.gov/visa/temp/info/info_1294.html#dependents):
Q. Can a J-2 apply independently from the J-1 for a waiver of the two-year home residence requirement?

A. In cases of death or divorce from the J-1, or when a J-2 child reaches age 21, the Waiver Review Division may entertain requests for waivers on behalf of the J-2. The Division will need a completed data sheet, DS-2019/IAP-66 forms of the J-1, divorce decree or death certificate, whichever is applicable, and, for a dependent son or daughter turning 21, a copy of his/her birth certificate.​
Is seems obvious from this entry in the FAQ that divorce does not free the J-2 dependent of the 2-year HRR. Your wife needs to apply for a waiver. I would try No Objection first, but you should contact her ex-husband's Fulbright Commission first. They should be able to give you an idea if No Objection is feasible for J-2 dependent of Fulbright fellow from that country. I do not see why they would object, but it is definitely worth contacting them first since they will probably have a say (program sponsor). Hardship cases are more complicated. If No Objection does not work, then use Hardship as a backup plan.

I do not know that you have a case against USCIS. It does not seem as if they did anything wrong in this case. Maybe you should sue your lawyer for lousy advice. How could he/she miss something that is even mentioned in the Department of State's FAQ on J Waivers? :confused:
 
It's not obvious. We actually went to the immigration office, waited in line all morning and talked to an immigration officer about it. They said that since she's out of status and in her grace period that she doesn't need a waiver because her divorce nullifies her status. They said to treat it as a marriage case as any other visa adjustment. This was backed up by our lawyer. It's a rare instance. Even in our interview, no one in the office there could say for sure. Even the law that the DD quoted in her denial letter, stated that she is required because she is the "spouse" of a J-1. But, she's not anymore and wasn't when we filed.

We will check with the Fulbright commision, but I'm sure that no objection wouldn't be a problem since she recieved no benefits from her ex's studies and neither will the US or her home country. Therefore, it doesn't seem to hold much weight either because of it.

Since I've posted, it looks as if we are going to file to go in front of an Immigration Judge. Has anyone had any experience with this? Length of time, what to expect, etc...???

Thanks,
Eddie
 
Once subject to the 2-year HRR, it does not go away just because your status changes. People carry the 2-year HRR with them. Even if the divorce ment she was no longer in the country on J-2 status, it did not do away with the fact that she once entered the country on a J-2 visa. The moment she entered the U.S. on a J-2 visa she became subject to the 2-year HRR. I am no legal scholar, but I think INA 212(e) makes it pretty clear that the admittance on J status is what matters. Read for yourself:
I think your lawyer is just blowing smoke up your behind by making you think your wife does not need a waiver. Fire your lawyer and just get the waiver. I do not think it will be a problem for your wife to get it, but I really think you are wasting your time trying to argue that she does not need one.
 
I'll still apply for a waiver, if I were you. There's no harm in pursuing matters in 2 directions, in case one of them is not successful ! ! ! !, you'll end up saving time.
 
You must log in or register to reply here.
Top