Question: I am a Canadian citizen. My wife is going to apply for a J-1 visa. I want to apply for either a TN visa or an H-1B visa. Can I do this if my wife needs to get a waiver for the two-year home residence rule?
Reply: If an individual’s spouse is subject to the J-1 visa two-year home residence requirement,[1] then that individual will also be subject to the two-year home residence requirement if he/she enters the U.S. as a dependent under J-2 visa status. See 8 C.F.R. § 212.7 (c) (4).
Individuals subject to the two-year home residence requirement would not be able to obtain an H-1B visa until they fulfilled the two-year home residence requirement, or obtained a waiver. A J-1 visa holder may include his/her spouse and children who were under J-2 visa status in the waiver application. See, e.g. Adjudicator’s Field Manual § 45.3.
Although a J-2 visa holder may be prohibited from obtaining an H-1B visa unless satisfying the above requirements, he/she may still obtain TN visa status despite being subject to the two-year home residence requirement. 9 FAM 41.59 N15. However, the two-year home residence rule prohibits an individual from obtaining TN visa status through an I-129 change of status petition. 8 C.F.R. § 248.2 (a) (3). The TN would have to be obtained at a U.S. port-of-entry (Canadians) or U.S. consulate (Mexicans).
Individuals should also be aware that while present in the U.S. under J-2 visa status, they may obtain their own independent employment authorization based on this status.
[1] Individuals who have obtained a J-1 visa may be subject to a two-year home residence requirement if (1) the U.S. government or the individual’s government funded his/her J-1 program; (2) the J-1 program was for graduate medical education or training; or (3) the individual is subject to the Skills List. See INA § 212 (e); U.S. Dept. State. J-1 Visas.