Blog for Postdocs / Phds, National Interest Waiver, Extraordinary Ability

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J2 EAD renewal while I140 pending


I am a Biomedical Engineer, doing a Postdoc in Los Angeles with a J1 visa (no two year home country residence requirement, since I am not paid with government funding, and my home country is not on the skill list). My visa and DS2019 were initially: March 2016-March 2018, same dates are present in my husband’s EAD, since, as a J2, he is actually using it for working. I have recently got a DS2019 extension from my sponsor, up to 2020, but my husband can ask for EAD renewal just 6 months before the expiration of the actual one, that means September 2017.

I am considering to apply for the EB2-NIW green card, in the next future. I have a doubt: let’s say I formally apply now (i.e. within May 2017), in September 2017, the I140 NIW will still be pending, and my husband will have to ask for the J2 EAD renewal at that point. Are there any conflicts? Is there any possibility that the J2 EAD renewal is denied because my I140 NIW is pending?

I need this information in order to understand whether it is more safe to apply now, or wait for him to get the J2 EAD renewal, and then start the NIW procedure!



15 Responses to J2 EAD renewal while I140 pending

  • Tigran Kalaydzhyan says:

    Hello Francesca,

    I do not know any J2 EAD denied in a similar situation. In contrast, there are plenty of F1 visas issued to persons whose spouses filed I-140, that makes me think that your immigrant intent is not your husband’s, because you are the beneficiary of the petition, but not your husband (until he files I-485). Another positive reason is that there is no question/comment of this sort in the I-765 form, nor in the instructions, meaning it should not affect the eligibility. However, since I am not sure about this particular side of the law I would like to recommend you to consult with an experience attorney regarding this matter. Please keep us updated on this case.

  • Francesca says:

    Thanks. Honestly, the attorney basically said the same, nothing bad ever happened in similar situation. Also, it seems that, generally, nobody knows any cases of J2 EAD denied for whatever reasons. But please, feel free to report cases you might know.

  • Francesca says:

    Hello. Thank you for your answer. I got attorneys’ consultations, and they said there were no cases of denied J2 EAD due to NIW I140 of the spouse. However, they also said they know no cases of denied J2 EAD, in general. Does anybody have knowledge of any denied J2 EAD (or denied renewal)? Thanks.

      • Patanjali says:

        Hi , I had a similar question. Do we know any case where J2 EAD can get denied? Especially based on the current regime we see in the US

        • Tigran Kalaydzhyan says:

          There are plenty of reasons why J2 EAD can be denied (as any other type of application), however, it happens rarely and I am not familiar with such cases. Speaking of the current immigration environment, I do not see any significantly negative changes reflected in the law or USCIS stats (besides for nationals of very few countries). There are some fluctuations to the positive and negative side, as usual.

          • Pat says:

            Thanks Tigran. Am an Indian national , and I have been on the US H1B for 6 years. Prior to that I was on OPT & F1 – when I did my Masters. Currently my wife is looking at Phd program where a sponsor is ready to file a J1 for her. She has never worked in the US.

            Given my background – will there be a chance for denial of J2, or if we are able to prove to USCIS that the funds are insufficent (especially since we have a 2 year old going to daycare) will that be a stronger case? Please let me know

  • Pat says:

    ……. forgot 1 important thing. My H1B maxed out in April’17 & am currently in Canada. So my wife & me would need to get a J1 & J2 stamped before entering the US

    • Tigran Kalaydzhyan says:

      I do not see a reason why your J2 would be denied if she meets the financial requirements, which are $700 per month for spouse and
      $500 per month for each child. She can discuss it with the sponsor. Your background should not play a role.

      • Pat says:

        Thanks Tigran. Also my plan is to move to the US & apply for the J2 EAD – as mentioned earlier. Here are some of my questions regarding J2 EAD

        1. Is there any chance of rejection on J2 EAD, if my wife has J1 & maintains the status
        2. Heard it takes like 6-8 weeks for the J2 EAD card to arrive, can it be expatiated to further the employment chances
        3. My wife’s sponsor said it will be at least a 4 year project & may extend further. So can my wife get a J1 visa for more than 2 year at a stretch – we are both Indian nationals, and the 2 year limit applies. But it can be waived. The reason behind the question is in case she gets a long team J1, thereby my J2 will be of the same time as well.
        4. Is the J2 EAD valid for the same tenure of the J2 Visa or it can vary. If it VARIES, is there a process where I can ensure J2 visa & J2 EAD are valid for the same tenure (perhaps employment offer letter, documentation?)
        5. Finally given the above questions.. would it make sense for me to quit the existing job in Canada & both of us go to Canada… or I would wait out until things settle down for her in the US & then move

        • Tigran Kalaydzhyan says:

          Hi Pat,

          1. There should not be a problem with J2 EAD in this case. If in doubt, please consult with a qualified immigration attorney, the first consultation is usually free.
          2. I’m not sure I understood the question, but employment opportunities depend on the employer – some of them can wait for a year until you receive EAD, but some may need you right now.
          3. Your wife can extend DS2019/J1 as long as she stays in the same program. Your J2 will be extended as well. However, once the program ends, you will have to fulfill the 2-year home residence requirement or obtain a waiver.
          4. Normally, the EAD is valid for the length of time principal J1 is valid or the date stated on the EAD card, whichever is shorter. If your EAD is about to expire, but your spouse’s visa is valid/extended, then you should renew the EAD (you should start the procedure several months in advance).
          5. I do not understand the question. Could you elaborate on “quit the existing job in Canada & both of us go to Canada”?

          • Pat says:

            Thanks Tigran,
            5. “quit the existing job in Canada & both of us go to Canada”? Sorry that was supposed to be “quit the existing job in Canada & both of us go to USA”? Or it would be better for me to continue in Canada, & after couple of months move to the US, once my wife gets settled. Am asking this in specific reference to point 1. In case I get the J2 EAD without issues , I can move with immediately. Otherwise I need to ask my employer to file L1 or H1B & then move – that is a long shot at this time,

          • Tigran Kalaydzhyan says:

            I see. So, basically, your concern is the probability to get EAD rejected after you quit your job and move to the U.S. with J2. Even though I don’t see a reason why such rejection should happen, you can file the EAD form I-765 after obtaining J2 and proceed working in Canada while your wife works in the U.S. on J1. Just make sure your wife receives your biometric appointment from USCIS by mail.

  • Pat says:

    Sure, so I can enter the US once the bio-metric appointment date is fixed. So what I understand is, I don’t need to be physically present in the US when I file for EAD? Is that correct?

    1.Also can I leave the US once the bio-metrics are done, or I need to be in the US from bio metric until I receive the J2 EAD
    2. If 1. is TRUE how long would it take from bio metrics to get the J2 EAD. Am asking this question to determine if I would need to quit my Canada job OR can take like a 3 week vacation (maximum I can avail) for the process from bio metric to J2 EAD

    • Tigran Kalaydzhyan says:

      This is a tricky point. Form I-765 has explicit questions about you last entry, your immigration status and eligibility category. I would assume, that if you want to be on the safe side, it would be better to enter the country with your new J-2, so your status changes, then file form AR-11 (change of address), then file I-765 (EAD). You can then either go back to Canada and take vacation later to reenter the country for the biometrics, or you can wait for the fingerprint appointment in the U.S. If you want to file I-765 without entering the U.S. at all, then, I believe, it should be possible too, but I would first talk to a lawyer (I simply don’t know a precedent for this).

      You can travel after the biometrics. As a rough estimate of the processing time after biometrics, it makes sense to think about 2-3 months. However, it can fluctuate a lot.

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