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Gay Ukrainian teen gets visa assistance from KC attorney

By: Nicholas Phillips April 30, 2018

When Max Drobot arrived in Kansas as a high school exchange student from Eastern Europe, he felt free. Life can be hard for LGBTQ people in his home country of Ukraine, but after arriving in Topeka, Drobot came out as gay. When his parents found out and disowned him, however, Drobot grew distraught. As his visa neared expiration, he wasn’t sure what to do.

James Breckenridge

Then a Kansas City attorney stepped in to take on Drobot’s case.

James Breckenridge of Levy Craig already has cleared an extraordinary hurdle in securing Drobot’s legal status in the United States, and he has done it pro bono.

“Being a gay man myself and having grown up in rural Kansas, I can’t imagine how it would’ve felt had my parents not been supportive of me,” said Breckenridge, who studied in Venezuela as a high-schooler. “Max faces that challenge across continents, with an ocean in between.”

Drobot came to the United States at age 15 with a J-1 visa for secondary students; The United States issues J-1 non-immigrant visas to cover au pairs, summer work travel, interns, high school and university student exchanges, physician exchanges and similar situations.

He arrived in August 2015 and stayed with a host family on a visa that was good through June 2016. After coming out and suffering a rift with his parents, though, Drobot needed help. His plight came to the attention of Immigration Equality, a New York nonprofit organization that advocates for LGBTQ immigrants. Immigration Equality referred the case to Breckenridge in 2016.

It was a natural fit. Breckenridge had worked for the U.S. Department of State, which oversees non-immigrant visas intended for temporary visits. His main areas of practice are bond litigation and immigration, in which he accepts pro bono cases.

Breckenridge scored an initial victory in Drobot’s case by obtaining a declaration of Special Immigrant Juvenile, a status that allows foreign visitors under 21 who have been abused or abandoned by their parents to apply for a green card — that is, permanent residency.

Yet Drobot’s status couldn’t be adjusted from Special Immigrant Juvenile to permanent resident because he had originally come with a J-1 visa. The goal of the visa, according to the State Department website, is “to enable foreign nationals to come to the U.S. to teach, study, conduct research, demonstrate special skills or receive on-the-job training.”

Crucially, many J-1 visas require the holders to return to their home countries for two years to share the skills and ideas they’ve gained in the United States. But Drobot had no one in Ukraine to return to. His parents had not only disowned him – they also had moved to Libya.

“He would’ve faced homelessness,” Breckenridge said.

So Breckenridge applied for a J-1 waiver of that return requirement. There are four ways to get one, and Breckenridge tried the most common: obtaining a no-objection letter from the home country. In such a document, the home country permits its citizen to remain in the United States.

Some European countries readily issue these letters, according to J-1 waiver attorneys interviewed by Missouri Lawyers Weekly. Other countries, such as Egypt, have a mixed record. Certain countries refuse. That category includes Venezuela, and, until very recently, Ukraine.

When Breckenridge contacted Ukrainian authorities for help in April 2017, they informed him via email that since 2010, their policy with no-objection letters had been blanket refusal. Yet by coincidence, they recently had reconsidered and decided in February 2017 that in “special circumstances” they would issue the letters for “humanitarian considerations.” Those considerations included “the urgent need for medical treatment and necessity of high quality of health care in the United States.”

Drobot was a candidate for that relief. According to Breckenridge, the teen had attempted suicide and was in treatment for major depressive disorder. His doctors feared his condition would regress if he were to return to Ukraine.

Finally, in a letter dated March 13, 2018, the Ukrainian authorities approved the issuance of a no-objection letter for Drobot.

“I was just elated for Max,” said Breckenridge. “He has had a really hard time.”

Drobot, who speaks at least three languages, is “exceptionally resilient,” Breckenridge added. Now 18, Drobot lives with his boyfriend. As a senior at Seaman High School in Topeka, he has been named a “Student of the Month,” has earned a GPA above 4.0 and participates in a theater group. He is scheduled to graduate in May.

Drobot is not out of the woods yet. The State Department has yet to favorably recommend his J-1 waiver to U.S. Citizenship and Immigration Services, the agency that must formally grant it.

That favorable recommendation is not guaranteed because Drobot first studied in Kansas with a scholarship from the State Department’s Bureau of Educational and Cultural Affairs.

“When the U.S. government funds the exchange, the general sense is that [the State Department] is not going to issue the waiver,” said Brian Schmitt, a Maryland attorney who reports more than 600 victories in J-1 waiver cases.

Nathan Arnold, a State Department spokesman, wrote in an email that not all waiver applications involving U.S.-funded exchanges are denied, though some are if they “adversely affect” the overall program, department policy or foreign-relations concerns.

“The State Department has worked hard to implement measures that ensure participants return home from their exchange programs,” Arnold said. “At the same time, waivers are available and are approved when it is appropriate to do so.”

Breckenridge feels that he and his client have a shot.

“This is further than we ever could have imagined,” he said. “I have our embassy on notice in Kyiv. At this point, we have every reason to remain hopeful.”