A1 and A2
Diplomatic Personnel

Section 13 for principal and spouse







Blue list


A-1 or A-2, or G-1 or G-2
Unable to return to the country represented by the government
Public interest
Person of good moral character
Otherwise admissible
Out of Status
http://www.state.gov/s/cpr/rls/dpl/
Quota
Section 13 Principal,
Spouse and Dependents
(continued)

Logistics





Classic definition of derivatives applies


No separate I-360 required
I566 not endorsed
I508
No Travel grounded until AP issued
Compare A1/A2 derivative “habitual member of household”
for NIV Status
Death of Principal doesn’t – family still eligible
Petition Procedures

File I-485 and related I-131, I-765

Must include I-566 (not endorsed) and I-508

Processing is currently about 24 months

AOS considered abandoned if travel before
AP is issued
NIV - Basic Rules for A1
A2 Dependents




A1/A2 trumps all other nonimmigrant visa statuses
Dependents can adjust status but generally cannot
change status
Must obtain work permit (employment authorization
document) to work
Grace period – 30 days vs. 60 days
NIV - Basic Rules for A1
A2 Dependents
(continued)

Immediate family






Spouses
Parents
Children – Various Age Thresholds
Others
Habitual member of household
B2 for Cohabitating partners

August 17, 2011 USCIS Policy Memo
Problems for Dependents
Leaving A1/A2 Status



Can’t change status to most other nonimmigrant
visa status – such as F-1students, J-1exchange
visitors;
May be able to change to H-1B if child can
demonstrate independence from principal;
Can’t work after age 21, or 23 if in school
Visa Options if A1/A2
Principal is Terminated

Termination required

Grace Period/Timing of Filing

Location of “Change”: I539 v. Consular

I539 Change –


Endorsed I566 required
I508
Compliance with A1/A2

Taxes due for dependents

Effect of Violations

§222(g)
G-4 International
Workers and Their Family

Special immigrant visas (SIV) for retiring principal
and spouse - eligibility requirements

SIV for children – eligibility requirements

Special Issues/Considerations/Petition Procedures


Options for G-4s not likely to meet retirement
eligibility criteria or when children are aging out
NIV Options
Basic Rules for G-4
Dependents




G-4 trumps all other nonimmigrant visa statuses
Dependents can adjust status but generally cannot
change status
Must obtain work permit (employment
authorization document [EAD]) to work
Grace period – 30 days vs. 60 days
SIV Basic Requirements
for Retiring Principal and Spouse
Retiring Principal G-4 – INA Section 101(a)(27)(I)(iii)
Retiring G-4 with minimum 15 years aggregate of
residence and presence in U.S. and in G-4 status
 3.5 years min. physical presence and residence
within 7 years preceding application
 Must apply within 6 months of retirement
◦ Official business outside of US and “customary leave” not subtracted
from designated periods assuming residence remains US and duty
station of principal continues to be US 8 CFR Section 101.5(c)
SIV for Retiring
Principal and Spouse
(continued)
Spouses of retiring principal

Spouse need not have been in G-4 status

Spouse cannot file independent of principal G-4

No separate I-360 required

Spouse does not need to meet designated periods
of time
Issues / Considerations



Can principal accrue 15 years before
mandatory retirement?
What is the timing of Field Office Assignments?
Beware of departures after retirement and
re-entries in G-4 status due to CBP error.
Death of Principal G-4
and Impact on Surviving Spouse

SIV available to surviving spouse if principal G-4
met requirements except actual retirement

Spouse must be in G-4 or N Status

Must file within 6 months of death
SIV for Children
Eligibility requirements:




Have been in G-4 status (or N status) for 7 years
between ages 5 and 21 (until 22nd birthday)
Have half of 7 years actual presence and residence
in the U.S. before date of application
Applies before age of 25 and is unmarried
Residence and physical presence in U.S. interrupted
by school abroad; absences on “customary leave”
permissible and do not interrupt designated time
periods; periods need not be continuous
Petition Procedures

File I-360 concurrently with I-485 and related
I-131, I-765

Must include I-566 (not endorsed) and I-508

Need PID (personal identification number)

Processing is currently about 4 months

AOS considered abandoned if travel before AP
is issued
Problems for Children


Can’t change status to most other nonimmigrant
visa status – such as F-1students, J-1exchange
visitors; may be able to change to H-1B if child
can demonstrate independence from principal
Can’t work after age 21, or 23 if in school
Options When
SIV Not Feasible

Other employment-based preferences if spouse’s
employer will sponsor

Can apply while in G-4 status

DV Lottery

Green card under Extraordinary Ability, NIW
or EB-5 for Principal
Visa Options if
G-4 is Terminated
N for Parents and Children of SIVs

SIV child must be under 21 years

Work authorization incident to status

Granted for 3 years; extensions in 3 year increments
B-2 of F-1 children who are students – but only
if no longer eligible for G-4
J Visas
two-year foreign residence
requirement and waivers
Some J-1 exchange visitors are subject to the twoyear foreign residence requirement of INA § 212(e).
One subject to the two-year foreign residence requirement is subject to several legal
disabilities that do not go away until one obtains a waiver or fulfills the requirement.
See INA § 212(e). These legal disabilities are (one subject cannot do the following):




Apply for H or L visa stamps;
Apply for permanent resident status;
Apply for an immigrant visa; and
Apply for change of status (except A or G for non-physicians).
See INA § 248(a).
Three ways
to become subject
INA § 212(e) lists three ways one can become subject
to the two-year foreign residence requirement:

U.S. or foreign government funding;

Training in an area on the Skills List for the home country;

Participation in graduate medical education.
Government financing
EV is subject if his/her participation in the program was
financed in whole or in part, directly or indirectly, by an agency
of the government of the United States or by the government
of the country of his/her nationality or last residence.

Government financing that does not go directly to the
EV should not subject the EV to the two-year foreign
residence requirement.



That said, the State Department WRD tends to err on the side of
finding people subject in this circumstance.
Fulbright funding is the most common form of funding seen in J-1
practice. This kind of case is especially difficult to win.
Note that foreign government funding is not subject
to the special problems associated with U.S.
government funding.
Skills list



An EV is subject to the two-year foreign residence
requirement if he/she, at the time of obtaining EV status,
was a national or resident of a country that had
designated the EV’s field of specialized knowledge of
skill as clearly required by the country.
Current skills list and previous skills list are found
on the State Department’s website.
The easiest and most common way to obtain a waiver
for one subject based on the skills list is through a
no objection waiver application.
Graduate medical
education or training

EV’s who come to the United States to receive
graduate medical education or training are subject.

These individuals must be sponsored by the
Educational Commission for Foreign Medical
Graduates (ECFMG).
J-2 derivatives

DOS and USCIS consider J-2s subject if the J-1 is
subject. See 22 C.F.R. § 41.62(c)(4) and 8 C.F.R. §
212.7(c)(4).

If the J-1 receives a waiver, the J-2 derivatives also
receive waivers.

A J-2 is independently subject to the two-year
foreign residence requirement, but J-2s cannot
independently apply for waivers.
J-2 derivatives
(continued)
J-2s can request that the State Department act
as an interested government agency to waive
the requirement in three limited circumstances:

J-1 and J-2 spouse divorce;

J-1 spouse dies; or

J-2 children reach the age of 21.
Determining whether
two-year foreign residence
requirement applies



Annotations on J visa stamps and DS-2019s (formerly
IAP-66s) are frequently incorrect and are not legally
binding.
One can request an advisory opinion from the State
Department WRD. Caution: The WRD errs on the side
of finding people subject even when the individual is
not.
Both USCIS and the WRD assert that they are the final
arbiters of whether one is subject.
DS-2019
Delay return requirement
EV’s that are subject cannot change status
(except to A or G), but he/she can depart and apply
for B, E, F, or O visa status at a consulate abroad.
Fulfillment
Requires the EV to return to country of last residence
or nationality for two years.



Fulfillment requires residence and physical presence.
Total period must be two years, although it can be done
incrementally.
Substantial fulfillment is a positive equity in waiver
applications.
No objection waivers
The two-year foreign residence requirement may be
waived if the EV’s home country issues a no objection
statement.





Home country transmits no objection statement to WRD through
diplomatic channels.
Each country has its own requirements for issuance. Some will not
issue a no objection statement.
No objection waivers are good options for individuals that are
subject based on the skills list or purely foreign government
funding.
ECFMG sponsored physicians are ineligible for this kind of waiver.
No objection waivers usually won’t overcome the special
problems associated with U.S. government funding,
although these sometimes can be won.
Hardship waivers
Must have a qualifying relative.


Qualifying relative is a USC or permanent resident spouse
and/or USC or permanent resident child or children.
Exceptional hardship must be unusual, with a significant
probability of occurrence, and it must be relatively
uncommon.

Only hardship to qualifying relatives is supposed to count,
although you can argue hardships to the applicant to the extent
those will cause hardship to the qualifying relatives.
Hardship waivers
(continued)


Must demonstrate exceptional hardship in every
possible travel alternative. Focus on hardship
minimizing travel alternative.
Hardship waivers are adjudicated based on the
totality of the circumstances.
Persecution waivers
The applicant must demonstrate that he/she has a
well-founded fear of persecution upon return to the
home country on the basis of race, religion, and/or
political opinion.

The basis or bases must be strong and provable through documentary
and testimonial evidence.

The standard has been likened to the “well-founded fear of
persecution” standard in asylum.
IGA waivers



Any U.S. government agency that is willing to show
that the EV’s departure would be detrimental to the
program or activity that is of interest to the agency.
For J-1 physicians, an IGA may also be a state
department of health.
Applicant need not be a current or prospective
employee of the sponsoring agency.