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Two-Year Home Residency Requirement

Let’s say that a J-2 visa holder enters the United States as a derivative of a J-1 principal who is subject to the two-year home residency requirement of INA 212(e). Without leaving the United States, she later changes status from J-2 to J-1. The J-1 program in which she participates as the principal is also subject to INA 212(e). Thus, the person is independently subject to INA 212(e) based on two separate programs – her husband’s (as a J-2 derivative) and her own (as a J-1 principal). Please confirm that this person may file a single DS-3035 form that includes all DS-2019s from both programs and receive a single waiver covering both programs.

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ANSWER: 

In this situation, the applicant’s J-1 waiver does not cover her period in J-2 status. 9 FAM 41.62 states that if an alien is subject to the two-year foreign residence requirement, the spouse and child of that alien are also subject to that requirement. Thus, the individual you have described would need a separate waiver to cover the time that she spent in J-2 status that subjected her to the two-year home residency requirement.Two separate DS-3035 applications would therefore be required in this circumstance.

Unless the context shows otherwise, all answers here were provided by Rajiv and were compiled and reported by our editorial team from comments and blog on immigration.com

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