Most people who are in the United States in J-1 status are required to return to their home country for two years before seeking further residence in the United States. Nevertheless, there are five situations in which this two-year home residency requirement can be waived. One of these situations is when you have a legitimate fear of persecution based on your race, religion, or political beliefs if you return to your home country.
The “persecution waiver” can be granted even if it is the spouse or children of the J-1 visa holder (who hold J-2 visas) who fear persecution if they return home. The J-1 persecution waiver is somewhat more difficult to obtain than an asylum claim is, in part because the qualifying reasons for persecution are more narrowly defined.
Source of Persecution
You may fear persecution from your government if you return home. Nevertheless, the persecution you fear needn’t come from the government. You may qualify for a J-1 waiver if you expect to face danger from rebel groups, street gangs, etc, as long as the reason for the persecution is your race, religion, or political beliefs.
Procedure
The procedure for filing a J-1 waiver request on the basis of fear of persecution is similar to the process for filing a J-1 waiver request for other reasons. The main differences are (i) you must explain and document your fear of persecution to prove that your fear is reasonable, and (ii) you must file Form I-612.
Step 1: Prepare Your General J-1 Waiver Request
- Navigate to the State Department’s J Visa Waiver web page and register a case number. Write it down and keep it, because; you will need it later.
- Complete Form DS-3035. Fill it out online first, and then print it out, because the printout will include a barcode that encodes the information you provided. Don’t print out a blank form and fill it out by hand.
- Collect the supporting documents required by the form such as copies of your passport pages, Form I-94, Form DSP-2019 or Form IAP-66 (the document that established your eligibility for J-1 status in the first place), a copy of your birth certificate, official English translations of foreign language documents, etc.
Step 2: Prepare the Portions of Your Application That Deal Directly With Your Persecution Claim
Include the following documents based on need, availability, and the specific facts surrounding your persecution claim.
- A statement in which you describe the reasons for your fear of persecution and the conditions that currently prevail in your home country. This statement could turn out to be the centerpiece of your application, and it must be persuasive. This is where a skilled immigration lawyer could really help you.
- Any evidence that you have already suffered persecution in your home country — photographs, sworn affidavits from friends, family and yourself, media reports, medical evidence, etc.
- Evidence of your religious affiliation, if you are claiming persecution based on your religion. This might include affidavits from a religious leader, documents establishing your membership and activity in a particular religious organization, etc.
- Evidence of your membership or affiliation with political groups that might suffer persecution in your home country; publications in which you advocated for a particular political viewpoint, etc.
- A government-issued document establishing your ethnicity or nationality, if available.
- Police report or arrest records if you have been arrested, charged, or convicted of a crime in your home country based on activities related to your race, religion, or political views that would have been legal if they had taken place in the United States.
Step 3: Complete and File Form I-612 With the USCIS
Form I-612 is required for J-1 waiver requests based on fear or persecution or on exceptional hardship, but not for the other three bases for which a J-1 waiver may be requested).
- You can file Form I-612 first, send it to the USCIS, wait for the USCIS to send you an approval notice, and then file your general J-1 waiver application (Form DS-3035 and supporting documents) with the US State Department Waiver Review Division. To obtain a waiver, the State Department must approve Form DS-3035 and the USCIS must approve Form I-612.
- Alternatively, you can file Form I-612 with the USCIS and file your general J-1 waiver application with the State Department Waiver Review Division simultaneously (but in different envelopes, since they will go to two different addresses).
Remember — if you choose to file simultaneously, processing may be faster, but the State Department Waiver Review Division will not refund your processing fee even if the USCIS rejects your Form I-612 application.
Step 4: Periodically Check the Status of Your Application
You can check the status of your application by navigating to the appropriate State Department web page and scrolling down. This function will tell you if your application is missing anything (the processing fee, certain documents, etc.).
Step 5: Playing the Waiting Game
The State Department will forward your application to the USCIS together with a favorable or unfavorable recommendation. The USCIS will make the final decision and notify you by mail. The review process usually takes three or four months.
