Sheku-Kamara v. Karn
581 F.Supp. 582 (1984)
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Rule of Law:
A spouse or child admitted to the United States on a J-2 dependent visa is subject to the two-year foreign residence requirement if the principal J-1 exchange visitor is subject to it, regardless of whether the dependents entered the U.S. after the principal had ceased participating in the government-funded program that initially triggered the requirement.
Facts:
- In 1978, Benedict V. Sheku-Kamara, a citizen of Sierra Leone, entered the U.S. on a J-1 visa for a graduate program financed by the U.S. Government, making him subject to a two-year foreign residence requirement.
- On August 18, 1979, Mr. Sheku-Kamara married Josephine M. Sheku-Kamara in London, England.
- Mr. Sheku-Kamara's program sponsorship was changed to a privately-funded one, retroactive to October 9, 1979; he received no further government funding after this date.
- On March 6, 1980, their son, Jawa A. Sheku-Kamara, was born in England.
- On August 5, 1980, after Mr. Sheku-Kamara was no longer in the government-funded program, Mrs. Sheku-Kamara and their son were issued J-2 dependent visas.
- Shortly thereafter, Mrs. Sheku-Kamara and her son entered the United States to join Mr. Sheku-Kamara.
- While in the U.S., Mrs. Sheku-Kamara applied to the Immigration and Naturalization Service (INS) for adjustment of her status to that of a lawful permanent resident.
Procedural Posture:
- Josephine M. Sheku-Kamara applied to the Immigration and Naturalization Service (INS) for an adjustment of status to lawful permanent resident.
- On September 7, 1983, the INS District Director, Lyle L. Karn, denied the application, determining that she was subject to the two-year foreign residence requirement.
- Josephine and Jawa Sheku-Kamara (plaintiffs) filed an action in the U.S. District Court for the Eastern District of Pennsylvania against Karn (defendant), seeking a declaratory judgment that they are not subject to the requirement.
- Both plaintiffs and the defendant filed cross-motions for summary judgment in the District Court.
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Issue:
Does the two-year foreign residence requirement under 8 U.S.C. § 1182(e) apply to the spouse and child (J-2 visa holders) of an exchange visitor (J-1 visa holder) when they enter the United States after the J-1 visitor has ceased participating in the government-funded program that subjected him to the requirement?
Opinions:
Majority - Bechtle, District Judge
Yes. The two-year foreign residence requirement applies to the J-2 dependents because their status is derived from the principal J-1 visa holder who remains subject to the requirement. The court's reasoning is threefold: 1) The plain language of the controlling regulation, 8 C.F.R. § 212.7(c)(4), explicitly states that a spouse or child joining an exchange visitor who is subject to the requirement is also subject to it. 2) The dependents received the significant benefit of being permitted to enter the U.S. solely because of the principal's J-1 status, which is more dispositive than whether they directly received government funds. 3) Exempting the dependents would create an anomalous result, placing them in a better legal position than the principal from whom their status is derived.
Analysis:
This decision solidifies the principle that a J-2 dependent's immigration obligations are derivative of and coextensive with the J-1 principal's obligations. It clarifies that the determinative factor is the principal's status, not the timing of the dependent's entry relative to the principal's funding source. The ruling prevents the creation of a loophole where a J-1 visitor could change funding, bring family to the U.S., and have them evade a requirement to which the principal remains subject, thereby strengthening the integrity of the Exchange Visitor Program's foreign residence rule.
