J-2 spouse AOS victory!

In a decision dated November 30, 2011, A#: 200984146/LIN1190536914, the Nebraska Service Center found that a former J-2, who had never held J-1 status, who was covered by the former J-1’s Conrad State 30 can adjust status independently of the former J-1, while the former J-1 is still completing the three year service requirement required for the Conrad State 30 waiver.  The facts were that both the J-1 and the J-2 were physicians.  The J-2 completed medical residency training in J-2 status with an EAD.  The J-1 was granted a Conrad State 30 waiver  which covered the J-2.  The J-1 changed status to H-1B  to complete the medical service requirement and the J-2 changed status to H-1B at the same time.  The employer of the former J-2 sponsored her for a PERM and I-140, both of which were approved.  The NSC issued a Notice of Intent to Deny in connection with the I-485, raising the issue of whether the J-2 could adjust status before the J-1 completed the three year medical service requirement.  Counsel provided extensive briefing and prevailed arguing that the waiver of the two year home residence requirement granted pursuant to Section 212(e) and 214(l) of the INA was unconditional and fully vested, subject to revocation only upon the occurrence of a condition subsequent; such as the failure of the J-1 to complete the three year service requirement.  Thus, the former J-2 had a full and unconditional waiver and could adjust status.

Kudos to Jan Pederson and Michelle Kobler, attorneys for the physician.