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 The J-1 Waiver - How To Waive the Two-Year Home Residency Requirement

1. The Waiver of J-1 Two-year Home Residency Requirement 

Many persons in the U.S. on J-1 visa are subject to the two-year Home Residency Requirement (HRR) found in Section 212(e) of the Immigration and Nationality Act. Under the Section 212(e), before a person on a J-1 visa with the two-year home residency requirement can change to an nonimmigrant status, the J-1 person must either return to the country of last residence for two years or obtain a waiver.

Many J-1 visa holders are required to return to their home country for two years, or must obtain a “J-1 waiver” before they can change or adjust their status in the United States. If a J-1 visa holder does not want to return home country for the two-year to meet the home country residence requirement, he or she can apply for a waiver of the requirement under any one of following five grounds: 

1) request by a designated State Department of Health; 

2) Interested Government Agency (IGA); 

3) persecution; 

4) no objection statement; or 

5) exceptional hardship.

There are a variety of options for J-1 waiver. The simplest procedure is through a letter of "no-objection" from alien's government. Other waivers can be issued through interested U.S. government agencies -- any U.S. federal government agency which is willing to take up your case. Also, waivers can be granted based on Exceptional Hardship or Fear of Persecution claims. For medical doctors, there are also J-1 waiver programs through certain federal and state government agencies for physicians employed in a designated health care shortage area.

These J-1 waive options are not mutually exclusive, and it is possible for an alien to base his/her waiver request on more than one of them, but normally requests are based on only one of the reasons. An alien, who believes that a U.S. Government agency may be officially interested in his or her case and may wish to request a waiver on his or her behalf, should inquire directly to that agency concerning such request.

Several factors determine whether or not one is subject to the two-year home residency requirement. These include funding by the U.S. or a foreign government; whether one's field of expertise is on the "skills list" for one's country; and whether the program involves graduate medical training, such as a residency program.

2. The Green Card Application for J-1 Visa Holder Subjected to the Two-Year Home Country Residency Requirement

For a J-1 visa holder subjected to the two-year home country residency requirement, you can file Form I-140 petition now for your immigrant visa to get your Green Card, and get your J-1 waiver later. You do not need to have a J-1 waiver before file an Form I-140 petition. The two-year home country residency requirement does not allow you to adjust the status from J-1 to U.S. permanent residency. 

After your Form I-140 approval, you are still subject to the two-year home country residency requirement, and you need to get the J-1 waiver before you can file Form I-485 to adjust your status to U.S. permanent resident. 

To help you get your J-1 waiver easily and quickly, we provide a high quality and case-proven
Complete Do-It-Yourself Package for J-1 Waiver Application, based on our extensive and practical experience. As added value in the Complete Do-It-Yourself Package for J-1 Waiver Application, we provide comprehensive instructions on J-1 waiver application requirements and processing, and we also let you know the required application documents, evidence, procedures, samples of recommendation letter and J-1 program sponsor letter, samples of required forms, and detailed explanation of the J-1 waiver application related forms and issues for different J-1 waiver options.

3. The J-1 Waiver Option - No Objection Statement (NOS)

For the No Objection Statement J1 waiver, the exchange visitor's home country government should issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the exchange visitor not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement, and does not object to the possibility of the exchange visitor becoming a resident of the United States.

The No Objection Statement may also be issued by a designated ministry of the exchange visitor's home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The exchange visitor has the responsibility for obtaining a no objection statement from his/her home government. 

The key points of the No Objection Statement J1 waiver include:

1) The home residency requirement for a J-1 holder may be waived if the alien's home country's government can issue a "no objection" letter to the U.S. Department of State indicating that it does not object to the J-1 waiver grant.

2) The country of the alien's nationality or last foreign residence provides the U.S. Department of State a written statement that it has no objection to your J-1 waiver. Your country's embassy in Washington DC can indicate in a direct letter to the U.S. Department of State that it has no objection to your receiving a waiver, or the foreign ministry in your capital at home can send a similar letter to the United States embassy there. 

3) This waiver is not available to the alien who came to the United States  as an exchange visitor to receive graduate  medical education or training. The law precludes the use of this option by foreign medical physicians, who acquired J-1 status for the purpose of receiving graduate medical education or training.

4. The J-1 Waiver Option - Request by an Interested Government Agency (IGA)

If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor's departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the exchange visitor for sake of public interest. 

The IGA request must be signed by the head of the agency or its designee and submitted directly to the DOS Waiver Review Division. The exchange visitor has the responsibility for obtaining an IGA request from a U.S. Federal Government agency. 

An interested Federal agency can be a sponsor for physicians to work full-time for three years in a nonimmigrant H-1B status in a geographic area designated as having a shortage of health care professionals. In order to qualify for the waiver, the person must agree in writing to work at a medical facility for 40 hours per week, for a minimum of 3 years and must begin work at the health care facility within 90 days of the waive approval. The J-1 waiver applicants sponsored by the Department of Veterans Affairs are not required to practice medicine in an area designated as having a shortage of health care professionals.

The key points of the Interested Government Agency J1 waiver include:

1) A U.S. government agency requests the U.S. Department of State to recommend a waiver on the alien's behalf for the reason that compliance with the two-year home residence requirement would be detrimental to a program or activity of official interest to the agency.

2) If your participation in a research or a project sponsored by a U.S. government agency has sufficient importance to that agency, the agency can apply to the U.S. Department of State for a waiver for you in its interest.

3) The IGA applications can be used by foreign physicians, who agree to serve in medically under-served areas. 

5. The J-1 Waiver Option - Request by a Designated State Department of Public Health or Its Equivalent, or Called CONRAD

Only foreign medical doctors who received their J-1 status to pursue graduate medical education or training may apply for a waiver under this basis. Pursuant to the requirements of Public Law 103-416, a foreign medical graduate may apply for a J1 waiver under this basis for the following situations: 

1) who has an offer of full-time employment at a health care facility in a designated health care professional shortage area at a health care facility which serves patients from such a designated area, and 

2) who agrees to begin employment at that facility within 90 days of receiving such a waiver, and 

3) who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years.

The exchange visitor must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the thirty requests may be for exchange visitor physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated health care professional shortage area. The state public health department will forward the Conrad requests directly to the Waiver Review Division if agrees to sponsor the exchange visitor for such a waiver. 

6. The J-1 Waiver Option - Exceptional Hardship to a United States Citizen (or Legal Permanent Resident) Spouse or Child

If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. But mere separation from family is not considered to be sufficient to establish exceptional hardship.

A J-1 visa holder who can demonstrate that his/her departure for two years would cause “exceptional hardship” to their United States citizen or permanent resident spouse or child may obtain a waiver of the two-year foreign residence requirement. The benefits of the hardship waiver are that if approved, the applicant can immediately apply for permanent residence (Green Card) or change of status in the United States. The disadvantages include that the outcome of the J-1 exceptional hardship waiver application is difficult to predict.

The typical hardships include medical hardship, psychological hardship, political and social conditions in the home country, and economic and career disruption which would impact the qualifying relatives. Length of marriage, number of children, original nationality of the qualifying relative, and any past separation between the J-1 waiver applicant and the qualifying relatives can also be taken into
consideration. Mere separation is not enough to outweigh the public policy objectives of the J1 program.

Because the J-1 hardship waiver is not easy to obtain and it is subject to discretionary considerations by adjudicating officers, the J-1 waiver in exceptional hardship should be submitted with careful preparation.

This J1 waiver basis requires that the exchange visitor submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (USCIS), within the Department of Homeland Security. Only if USCIS makes a finding of exceptional hardship will the DOS Waiver Review Division proceed with the waiver case under this basis. USCIS will forward its decision directly to the Waiver Review Division on Form I-613. 

The key points of the Exceptional Hardship J1 waiver include:

1) If complying with the two-year home residency requirement imposes exceptional hardship on the alien's spouse or child, and the spouse or child is a U.S. citizen or permanent U.S. resident, the two-year home residency requirement may be waived.

2) For example, If you had a child who was born in the U.S. and was therefore a citizen of this country, and if the child had a serious medical condition that could not be treated in your home country, you might obtain a waiver because the child would suffer an exceptional hardship by going there with you. 

3) The alien needs to apply for J1 waiver to both DOS Waiver Review Division and USCIS.

7. The Arguements for J-1 Waiver based on the "Exceptional Hardship"

The waivers of 2-year home residency requirement that applies to some J-1 visiting scholars who hold or have held J-1 status. One of the J-1 waiver categories is based on the "exceptional hardship" to the alien's U.S. citizen or lawful permanent resident spouse or child.

The J-1 waiver application based on the "exceptional hardship" is not easy to get approval, but it is possible in some circumstances. It requires some creative effort to identify the issues and properly document the hardships that might not be immediately evident.

The J-1 hardship waivers often involve a number of intertwined hardships, it is difficult to determine which hardship is sufficiently exceptional. Therefore, it is necessary to demonstrate that the hardship exists under any possible scenario regarding the J-1 holder's relative remaining in the U.S. or accompanying the J-1 alien abroad.

For the J-1 waiver based on "exceptional hardship", one of the arguement is that enforcing the 2-year home residency requirement would create hardships on the U.S. citizen spouse and child, including interruption and compromise of the spouse's career, separation of a parent and a young child, serious economic consequences, and risk of physical harm due to current country conditions.

Also, for some J-1 holders, the 2-year home residency requirement may not not workable for economic reasons, and for the welfare of the child, ans it could be a severe compromise to a promising career for the U.S. citizen spouse and the family.

8. The Financial Fardship for U.S. citizen Spouse and Child

To apply for J-1 waiver in "financial hardship" option, the J-1 holder should consider the financial hardship for the U.S. citizen spouse and child. For example, if the J-1 alien goes back to his or her home country alone, the U.S. citizen spouse's salary may not be sufficient to cover the expenses of housing, childcare, and day-to-day life expenses inside the United States, especially  in some expensive cities or states.  Also, the J-1 alien would not be able to earn enough money in the home country to contribute to the family's support. Therefore, the situation is not financially viable.

If the J-1 alien's family is in one of the highest cost-of-living areas in the United States, the couple may also not be able to accumulate significant savings upon which to rely for living without the J-1 alien in U.S. Additionally, as immigrants, they may not have relatives living in the United States to help them through the difficult time.

Also, when one parent is abroad for the 2-year home country service and the other parent is in the United States, the U.S. citizen child would suffer. The child may not have contact with either parent, while both parents are working in U.S. and abrod, which lets to the negative impact of such a parental separation at a young age. While separation alone is not the hardship, but the situation may go beyond normal separation hardship levels in some cases.

9. The J-1 Waiver Option - Fear of Persecution

If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he or she were to return to his/her home country, the exchange visitor may apply for a persecution waiver. This waiver basis requires that the exchange visitor submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (USCIS), within Department of Homeland Security. 

Only if USCIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis. Once USCIS makes a decision, it will forward directly to the Waiver Review Division its decision on Form I-613. 

The key points of the Fear of Persecution J1 waiver include:

1) The alien establishes in an application to the USCIS that returning to his or her country of nationality or last foreign residence would subject him or her to persecution on account of race, religion or political opinion.

2) If the J-1 alien can establish that he/she will suffer persecution upon return to the home country, the foreign residency requirement will be waived. The threat of persecution needs to be based on one of the following three grounds: race, religion, or political opinion. The alien has the burden to prove that he/she will be subject to persecution. 

3) The alien needs to apply for J1 waiver to both DOS Waiver Review Division and USCIS.




 

 


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