J-1 Waiver Archives - Herman Legal Group

J-1 Visa Waivers: Request by a Designated State Public Health Department (The Conrad 30 Waiver)

The J-1 visa is unique in one respect — it generally requires its holders to return to their home country for at least two years after their J-1 visa status, including any extensions, has expired. This restriction is known as the J-1 two-year home residency requirement. Five major categories of waivers are possible, however, including the so-called Conrad 30 waiver for foreign medical doctors.

Eligibility

To be eligible for a Conrad 30 waiver, you must:

Be located overseas at the time of your application or in legal J-1 status in the United States;
Be a medical doctor;
Have graduated from a foreign medical school;
Agree to work full-time for a US medical facility for at least three years. The facility must be located in or serve patients from an area of the United States that is suffering from a shortage of medical resources (such as hospitals and qualified doctors), as designated by the US Department of Health and Human Services. This facility is likely to be located in a rural area.
Apply for and receive H-1B immigration status (and corresponding immigration status for your spouse and children, if you have accompanying family members);
Obtain a written employment contract from the facility for which you will work;
Obtain a “no objection” letter from your home country’s government if it funded your J-1 exchange program (you don’t need this if your home country’s government did not fund your J-1 exchange program);
Start your employment within 90 days of receiving your waiver (which may be earlier than 90 days after the expiration of your J-1 status); and.
Comply with the eligibility requirements of the US state health department that sponsors you.

The Application Process, Step by Step

Assuming you are otherwise eligible, to apply for a J-1 Conrad 30 waiver, you must complete the following steps:

Apply for and obtain a sponsorship from a state health department (the Ohio Department of Health, for example).
Complete Form DS-3035, J-1 Visa Waiver Review Application. You do not have to complete Form I-612, as certain other J-1 waiver applicants do.
Assemble supporting documents (see below).
Turn over Form DS-3035 and supporting documents to your sponsoring state health department, which will forward it to the US State Department Waiver Review Division. Do not try to submit the application to the Waiver Review Division or the USCIS on your own — you must submit it to your sponsoring state health department, which must submit your application package to the Waiver Review Division.
The Waiver Review Division will review your application and issue a positive or negative recommendation, which it will forward to the USCIS. The Waiver Review Division will also notify you and your sponsoring state health department of the status of your recommendation (positive or negative).
The USCIS will make the final decision on your waiver request. If the Waiver Review Division issues a positive recommendation, the USCIS will probably approve your application, although it is not required to.

Supporting Documents

Assemble to following supporting documents to submit to your sponsor along with Form DS-3035:

USCIS Form G-28, if you are receiving the assistance of an attorney.
A copy of your resume, including your academic and employment history.
Two self-addressed, stamped envelopes (legal-sized).
Evidence that your employer is located in a medically underserved area.
Your employment contract, signed by both you and the head of the facility you will work for. It must confirm that you will work as a full-time medical doctor for at least three years.
Copies of all DS-2019 or IAP-66 forms that have ever been issued to you.
A letter from the appropriate state health department stating that your continuing presence in the US is in the public interest.
A No Objection Statement submitted directly from your home government to the US State Department Waiver Review Division, if (and only if) your exchange program was funded by your home country’s government.

After Your Waiver is Granted

If your J-1 waiver is granted, you and/or your sponsor must comply with the following in order to retain your J-1 waiver and your legal immigration status:

Make sure your sponsor submits Form I-129, Petition for a Nonimmigrant Worker, to the USCIS, seeking H-1B classification on your behalf; together with the favorable recommendation letter issued by the Waiver Review Division. These should be submitted together.
Your accompanying spouse and/or children must file Form I-539, Application to Extend/Change Nonimmigrant Status with the USCIS, seeking H-4 nonimmigrant status.
You must practice medicine full-time for three years in a designated underserved medical area. Your employment must begin within 90 days of receiving your J-1 waiver, not 90 days from the expiration of your J-1 status.
Once you complete your three-year period while complying with all applicable conditions, you (and your family) may apply for permanent residence in the United States, H nonimmigrant status (including an H-1B extension) or L nonimmigrant status.

A word of warning: If you fail to comply with all applicable requirements, your J-1 waiver will be withdrawn and you will again be subject to the two-year home residence requirement. Your family will also have to leave the US to the extent that their own immigration status is derived from yours.

If You Wish to Transfer to Another Health Care Facility

You might be hired by one facility and receive a better offer from another facility at some point, or the health care facility you work for might close. In order to accomplish a transfer, a certain amount of paperwork is required, and success is not guaranteed. Whether it is possible to accept a new position while maintaining your J-1 waiver status depends on several factors, including the specific facts of your case and when you apply for the transfer.

J-1 Visa Waivers: Exceptional Hardship

People whose presence in the US is based on a J-1 visa are subject to a requirement that other visa holders are not subject to — the two-year home residency requirement. The purpose of this requirement is for J-1 visa holders to use their newfound skills to assist people in their home countries. Five major waivers of the home residence requirement are available, however, one of which is the “exceptional hardship” waiver.

What is the Exceptional Hardship Waiver?

The exceptional hardship waiver allows you to remain in the US, or return to the US on an immigrant or nonimmigrant visa, without completing the two-year home residence requirement. Unfortunately, the degree of hardship that might be visited upon you is considered irrelevant — the only hardship that matters is a hardship to your US citizen or permanent resident spouse, child or, in some cases, other relatives.

What is “Exceptional” Hardship?

The two-year home residency requirement naturally results in hardship to the relatives of many people who are subject to it. They will be faced with the choice between remaining in the US without their spouse or parent or relocating to the J-1 visa holder’s home country. Although this might be experienced as hardship, it is not considered “exceptional hardship without more.

Remember that the final decision is discretionary and, to a large extent, subjective. Furthermore, there is no formal way to appeal the rejection of a J-1 waiver application, although it is possible to reapply for a waiver on another basis, such as fear of persecution in your home country. The following are some examples of circumstances that might constitute exceptional hardship.

Your wages will be reduced, or you may be unable to find employment, in your home country, thereby drastically reducing your family’s income if they depend on you for support.
The expense of maintaining two households (if your family will not return with you) will cause exceptional financial hardship.
Your spouse is a stranger to your home country’s culture, and strict local restrictions (religious restrictions, for example), might constitute additional hardship.
You are the primary caretaker of a seriously ill or infirm parent, and you will not be around to provide this care if you return to your home country.
Your spouse is ill and underinsured in the US, and cannot receive adequate medical treatment in your home country
A combination of various “ordinary” hardships might be seen as adding up to “exceptional” hardship.

How to Apply for an Exceptional Hardship Waiver?

To obtain an exceptional hardship waiver, you must obtain approval from both the USCIS and the US State Department’s Waiver Review Division. Once you get approval, you will not automatically be granted the right to stay in the US–you will simply not be barred by the two-year home residency requirement. You must still apply and be approved for another visa status — an H-1B visa, for example, or a permanent residence visa. It works like this:

Step 1: Fill out the J-1 visa waiver application on the State Department’s J Visa Waiver Online web page. You cannot file this application online — you must print it out. The printout will include a unique barcode that you will need for your application to be accepted.
Step 2: Mail your application to the State Department Waiver Review Division: Your application fee must include your completed application form, a printout of the bar code page, a check or money order for $120 (as of 2020– updates are available here), and other documents that you may need to support your application based on your individual circumstances.
Step 3: Complete USCIS Form I-612, print it out, add any necessary or useful documentation, and include a check or money order for $930 (as of 2020). If the USCIS likes your application, it will contact the Waiver Review Division with a recommendation in your favor. Ultimately, however, the final decision rests with the Waiver Review Division.
Wait for the USCIS to send you an I-797 approval notice.

Qualifying for Another Immigration Status

This much cannot be emphasized enough — if you cannot obtain an extension of your J-1 visa, you will need to qualify for and obtain another legal immigration status to remain in the US, even if your J-1 waiver is approved. That means you must receive approval of both your J-1 waiver and your new immigration status to remain in the US without interruption. Otherwise, you might have to leave the US and apply for a new US visa from abroad.

Some immigration statuses, however, will allow you to remain in the US while your application is pending. An immigration lawyer can help you maximize your chances of an uninterrupted stay in the US. It is important that you apply early — the time it takes for approval of a J-1 exceptional hardship waiver varies greatly, and it can take a year or more to process in some cases.

Make Your Applications as Persuasive as Possible

The USCIS and the State Department Waiver Review Division will consider both your written application and any relevant supporting documentation yu provide. You will be given an opportunity to explain why you should receive an exceptional hardship waiver, and the assistance of an experienced immigration lawyer just might turn out to be the difference between success and failure.

J-1 Visa Waivers: Claim of Persecution

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.

J-1 Visa Waivers: Request by an Interested Federal Government Agency (IGA)

If you enter the United States on a J-1 exchange visitor visa (or adjust your status to J-1 while in the United States), you are likely to be subject to the two-year home residency requirement.

This means that, unless an exception applies, you will be required to return home for at least two years once your J-1 status expires — you cannot apply for permanent residency or H-1B status, for example.

It is possible that you are not subject to the two-year home residency requirement even though you entered the US in J-1 status. To find out, send details about your case to the State Department Waiver Review Division and ask them to send you an Advisory Opinion.

It is most likely, however, that you will need a waiver in order to evade the two-year home residency requirement. Obtaining an IGA waiver is one way you can do this.

What is an IGA Waiver?

The term “IGA” stands for an Interested Government Agency. You can obtain a J-1 waiver if a US federal government agency recommends the waiver on the basis that it would be in that agency’s best interests that you remain in the US. You may be a critical team member on an important project, for example.

You don’t have to be working for the US federal government to obtain an IGA waiver, and you can obtain an IGA waiver even if your home country refuses to issue you a “No Objection Statement.” Otherwise, there are three other possible ways that you might obtain a J-1 waiver.

How the Process Works

Following is a brief explanation of the process for obtaining an IGA waiver of the two-year home residency requirement:

Identify the US government agency that you wish to sponsor your IGA waiver. The agency must be a federal agency, not a state or local agency. Nevertheless, you don’t have to actually work for this agency to obtain an IGA waiver. If you perform research in epidemiology for a private hospital, for example, you might try the federal Centers for Disease Control and Prevention (CDC), since your research would likely benefit their mission of combating infectious diseases in the United States.
Complete Form DS-3035 online, making sure to identify the IGA option as the basis for your waiver request. Print out the completed document.
Submit Form DS-3035, as well as a copy of Form DSP or Form IAP-66, whichever you received. Your original J-1 sponsor will have given you Form DSP and Form IAP-66 Include with your J-1 waiver application package two self-addressed stamped envelopes. You will also need to submit a $230 processing fee and mail the entire package to the State Department Waiver Review Division.
You will be mailed a case number, along with certain instructions.

Ask your employer or an interested federal government agency, if your employer is not a federal agency) to submit a recommendation to the Waiver Review Division on your behalf. The recommendation needs to include a detailed statement of why the federal government needs you to remain in the United States after the expiration of your J-1 status and should not be compelled to return home for two years.
Any supporting documentation you submit to the IGA with your request could help your cause — certifications, awards, publications, patents, etc.
The letter should describe how your contributed presence in the US will benefit both the US public interest and the interests of the government agency that is recommending you. The letter should include letters of recommendations from your supervisors. All of this should be sent by the IGA directly to the Waiver Review Division. You cannot send it yourself.
The Waiver Review Division will review your application and issue a recommendation on your case (either positive or negative) to the USCIS. The USCIS will be responsible for making the final decision.

If Your Application is Denied

If your application is denied, you will not be able to appeal the denial. You can, however, start the process all over again using a different basis to request a waiver (a Conrad Program Waiver, for example). Remember, however, that your J-1 expiration date will not be extended simply because you have a pending waiver application.

J-1 Visa Waivers: The No Objection Statement

If you are an exchange visitor to the US holding a J-1 visa, you are likely to be subject to the two-year home residency requirement once your J-1 status expires. That means that you are expected to return home for at least two years rather than remain in the US in some other immigration status.

There are exceptions to this rule that will allow you to obtain a waiver of the two-year home residency requirement. One of these exceptions is that you can obtain a waiver if your home country’s government issues you a “No Objection Statement” that confirms it has no objection if (i) you apply for a waiver of the two-year home residency requirement or (ii) apply for permanent residency in the US.

Applying for a Waiver

You can apply for a waiver of the J-1 visa two-year home residency requirement by completing Form DS-3035 (including accompanying documentation) and paying your processing fee online using the web page of the Waiver Review Division of the US State Department. Be sure to indicate that you are relying on a No Objection Statement as your basis for seeking a waiver (rather than one of the other four bases for a waiver).

You can also fill out the form online, print it out and mail it along with a check or money order for the appropriate fee to the Waiver Review Division of the US State Department. DO NOT print out a blank Form DS-3035, fill it in by hand and mail it — your application will be rejected and you won’t even get your fee refunded.

How to Obtain a No Objection Statement

In all likelihood, you will need to contact your home country’s embassy in the US and ask them to prepare a No Objection Statement on your behalf. Some countries, however, have designated certain domestic ministries to issue No Objection Statements. Check with your home country to make sure. In all likelihood, however, you will be referred to your home country’s embassy (not a local consulate).

Dealing With Your Home Country

Your home country has established its own procedures for issuing a No Objection Statement, and these procedures vary from country to country. There is no guarantee that your government will agree to issue a statement at all. Suppose, for example, that you received graduate medical training in the US and there is a shortage of doctors in your country. In that case, your government may insist that you return home.

Forwarding the No Objection Statement to the US Government

If your request for a No Objection Statement is approved by your embassy, it will submit the No Objection Statement Directly to the US State Department Waiver Review Division. You don’t need to do this yourself.

If your country relies on a domestic ministry to issue No Objection Statements, the ministry will send the statement to the U.S. Chief of Mission, Consular Section, at the US embassy in your home country’s capital. The U.S. embassy will then forward the No Objection Statement to the US State Department Waiver Review Division, and the Waiver Review Division will then forward it to the USCIS for a final decision.

If Your Application is Rejected

If your application is rejected, remember that there are four other bases for obtaining a waiver of the J-1 two-year home residency requirement

Proving that your US citizen spouse or child will endure exceptional hardship if you are forced to return home;
Proving that if you return home you will suffer persecution due to your race, religion or political beliefs;
An interested government agency (IGA) recommends that you be granted a waiver because it is in their best interests that you remain in the US (to complete a research project, for example); and
The Conrad Program Waiver, under which J-1 visa holders who graduated from medical school can receive a J-1 waiver if they take a full-time job in an area of the US that is suffering from a shortage of medical resources (usually a rural area).

The J-1 Waiver: How to Fill Out Form I-612?

People who enter the US on a J-1 visa are generally not allowed to extend their stay in the US after the completion of their J-1 waiver status. Instead, they are expected to return to their home countries for at least two years. The US offers five major bases upon which you can apply for a waiver of the two-year home residency requirement.

Who Needs to File Form I-612?

You need to file USCIS Form I-612 if you, having lived in the US on a J-1 visa, seek a waiver based on (i) legitimate fear of persecution if you return home or (ii) exceptional hardship to your US citizen spouse or child.

Form I-612 is also required for waiver applicants who are spouses of J-1 visa holders (in J-2 status) who are no longer married to the J-1 spouse at the time of the waiver application; or children of the J-1 or J-2 visa holder who are themselves married or who are over 21 years of age. As with the J-1 waiver application, Form I-612 is only needed if the basis for the waiver is fear of persecution or exceptional hardship (to the J-2 applicant, not the J-1 visa holder).

J-2 spouses who are still married to the J-1 holder, and unmarried children of the J-1 holder who are under 21 need not file Form I-612, as long as you file Form I-612 and include their names and information in your application. If you fail to do so, they will have to file their own Form I-612 to remain with you in the US.

Filing Fee

The filing fee for Form I-612 is $930, and it is non-refundable even if the application is rejected. This amount does not include the filing fee for Form DS-3035 ($215).

Specific Instructions for Form I-612

Although you may either type or print the application, you must use black type, and all entries must be legible. Do not leave any item blank — write “N/A” (not applicable) if a question doesn’t apply to you. If you need to add extra pages, print your name and Alien Registration Number (A-number) on each additional sheet, sign and date each sheet, and make it clear to which part of the application your response refers.

Part 1

Print your USCIS Online Account Number (if you have one) and your A-number in the spaces provided. Thie USCIS Online Account Number is not the same as your A-number. Make sure your mailing address is accurate, and make sure you notify the USCIS if it changes, because this is the address where the USCIS will send you mail.

Part 2

You must identify the reason why you believe you are subject to the two-year home residency requirement. Optimistically, it is possible that you are not even subject to this requirement.

Part 3

Part 3 requires you to identify your basis for seeking a J-1 waiver (fear of persecution or exceptional hardship). You will need to explain in detail why you believe that you are eligible for a waiver on this basis, and you must include any available evidence with your application. Remember, you don’t need to file Form I-612 if you are applying for a waiver on some other basis (a no objection statement, a request by an IGO or a Conrad Waiver).

Part 4

In Part 4, you must include information about your spouse and children, if you want your J-1 waiver to apply to them as well. If you are claiming exceptional hardship as the basis for your waiver request, it is particularly important that you provide citizenship or permanent residency information about your spouse and children.

Part 5

You must sign and date Form i-612 yourself (even if someone else prepared it for you), except that a parent or legal guardian can sign on behalf of a minor child. You must also provide accurate contact details.If an interpreter helped you complete the application, the interpreter must sign the form as well and provide identification and contact details.

Supporting Documents for Form I-612

Depending on your circumstances and the specific basis upon which you are applying for a J-1 waiver, you may need to include the following evidentiary documents:

Your I-94 Arrival/Departure record, as well as your spouse’s I-94 if he or she is not a US citizen or permanent resident;
Your marriage certificate;
Evidence of termination of any previous marriages that either you or your spouse entered into;
Your spouse and childrens’ birth certificates;
Other evidence of birth if a birth certificate is unavailable;
Naturalization certificates or evidence of lawful permanent residency for your spouse and children, especially if you are claiming exceptional hardship;
If you are claiming exceptional hardship, you should include detailed financial information about the income and savings of you and your spouse.
Proof of all entries and exits to and from the US by you, your spouse and your children;
Copies of Forms DS-2019/IAP-66, Certificate of Eligibility for Exchange Visitor Status, for you and your spouse (if applicable);
Any evidence that your fear or persecution is legitimate, if you are using this as the basis of your waiver request;
Any evidence of exceptional hardship, if you are using this a the basis for your waiver request;
Other documentation, depending on your circumstances.

You will need to send Form I-612 to the USCIS, not the US State Department where you send the rest of your application. File Form I-612 either (i) after you file your J-1 waiver application with the State Department Waiver Review Division, or (ii) before you file your J-1 waiver application, in which case you must wait for the USCIS to approve Form I-612 before you can file your J-1 waiver application.

Save a copy of Form I-612 and all supporting documents for your own records. You might need them later.

The J1 Visa Waiver Application: Procedural Aspects

Acertain amount of red tape is required to obtain a J-1 waiver, even if your eligibility is not in doubt. It is in your best interests to get it right the first time, because any deficiencies in your application could cause unnecessary delay. In today’s unstable immigration law environment, any change that takes place during a delay is likely to be adverse to you. Following is a general rundown of the steps you need to take to obtain a J-1 waiver.

Step 1: Complete Your Application Online

To obtain a J-1 waiver, you are required to complete Form DS-3035.online. You cannot download the form and fill it out by hand — it must be filled out online and printed out. If you send a hand-printed version, it will be returned to you minus the processing fee, which is not refundable. Once you complete Form DS-3035, you can download and print it, in black and white only. It will come out as a barcode that encodes the information you provided.

If you are applying for a J-1 waiver in either the persecution or exceptional hardship categories, you must also submit Form I-612 to the USCIS, have it approved, and submit it with From DS-3035.

Step 2: Mail Your Application

You will need to mail your application to the State Department. Your application must include the following documents:

Form DS-3035 (with the barcode);
Copies of every Form DS-2019/IAP 566 that you have received incident to your J-1 status;
Two self-addressed, stamped legal-size envelopes;
The application fee ($120 at the time of this writing, plus an additional $930 if you are also required to file Form I-612.) The application fee must be submitted by check or money order, made out to the U.S. Department of State. It must be accompanied by your full legal name, your J-1 waiver case number, if you have one; your place of birth and your date of birth:
Mail your application to the one of the two addresses listed in Step Two of the State Department J-1 waiver page.

Step 3: Submit Necessary Documents

After you submit your application, certain supporting documents must be submitted by third parties on your behalf. These documents differ depending on your basis for seeking a J-1 waiver.

If you are requesting a waiver based on a no objection statement, the government of your home country must submit this on your behalf.
If your waiver request is based on a request by an Interested Government Agency (IGA), the IGA must submit a statement to the State Department on your behalf.
If you are seeking a waiver based on a claim of persecution, the USCIS must send the State Department a recommendation on your behalf after you file Form I-612 with the USCIS.
If you are seeking a waiver based on exceptional hardship to a US citizen or permanent resident spouse or child, the USCIS must send a recommendation to the State Department on your behalf after you file Form I-612 with the USCIS.
If your waiver request is based on the Conrad 30 Waiver Program (service as a physician in an underserved area of the US), a designated state public health department or an equivalent entity must submit a recommendation on your behalf.

Remember, it is your responsibility to ensure that the appropriate organizations send the supporting documents on your behalf. If they are not sent, the State Department will not follow up on them and your waiver request will be rejected.

Check Your Application Status

You can check the status of your waiver application on the State Department website. This web page will notify you if any of the required application documents are missing, whether any required application information is missing, and whether the State Department requires more information from you.

If any documents to be submitted to a third party have not been submitted (the No Objection Statement, for example), it is your duty to contact them and have them send the documents — again, the State Department Waiver Review Division will take no action.
It is unlikely that you will obtain any relevant information on your status until at least a month after you submit your waiver application.

If the State Department Requests More Information

Your application may be missing critical information. Suppose, for example, that you are claiming a waiver on the basis of hardship to your spouse, but your application includes a foreign language marriage certificate with no certified English translation, In this case, since the missing information is not something that should be provided by a third party, the State Department will notify you that the information is missing from your application.

Since the State Department will mail you the notification to the address you provided on Form DS-3035, be sure to notify them promptly if you change your address.

If you submit any additional documents, write your case number on all documents you send. To avoid confusion, write your case number on the outside of the envelope as well. This should speed up processing.

J-1 Waiver Approval

After the State Department Waiver Review Division decides to recommend the approval of yor J-1 waiver application, it will mail you a copy of its recommendation and forward another copy to the USCIS. The USCIS will inform you of their decision on your J-1 waiver application by mailing a notification to the address you listed on Form DS-3035.

Waiver of the J-1 Exchange Visitor Two-Year Home-Country Physical Presence Requirement

Content

Introduction

The J-1 exchange visitors visa allows exchange visitors to participate in a one- to five-year cultural or educational exchange program that is overseen by the US Department of State. J-1 status is awarded for exchange visitors who are participating in teaching, lecturing, studying, training, observing, researching or consulting programs, and is sometimes funded by the participant’s home country.

The J-1 is not considered a “dual intent” visa, which means that exchange visitors are expected to return home at the conclusion of your visa status. Many J-1 visa holders wish to extend their stay in the United States, only to find that their options are extremely limited due to the rule that many types of J-1 visa holders must return to their home countries for two years before they apply for most types of US visas. This rule can sometimes be waived.

What is the Two-Year Home-Country Physical Presence Requirement?

Once you complete your J-1 exchange visitor visa eligibility, you are subject to the two-year home-country physical presence requirement if your visa was based on your participation in one of the following programs:

A Government Funded Exchange Program: A program that received funding from a US government department or a department of your home country government; or a program that was sponsored by an international organization (the UN, for example) that received funding from a department of the US government or your home country government.
A Specialized Knowledge or Skill Program: A program involving study or training in an area of specialized knowledge that appears on your home country’s Exchange Visitor Skills List and that has been designated as critical for your home country’s development (agriculture, for example).
Graduate Medical Education and Training: You participated in a program to receive graduate medical education or training.

Purpose of the Home Residence Requirement

Perhaps the most important reason for the two-year home-country physical presence requirement arises from the purpose of the J-1 visa. The J-1 visa is not only designed to benefit you — it is also designed to benefit your home country.

Suppose, for example, that you undergo graduate medical training in the United States. One of the reasons that you were permitted to undergo this program in the first place is that your graduate medical training will benefit patients in your home country.

It would therefore defeat the purpose of the program to allow you to remain in the United States after the completion of your J-1 program, because in that case your skills would benefit US patients, not patients in your home country. Indeed, in many cases, your home country itself might object to your waiver application. A waiver is possible, however.

Am I Subject to the Two-Year Home-Country Physical Presence Requirement?

If you are not sure of your J1 waiver status (whether you are subject to the two-year home-country physical presence requirement), you can send your case information to the Department of State Waiver Review Division and ask them to issue you an official Department of State Advisory Opinion. If the Waiver Review Division determines that you are not subject to the two-year home-country physical presence requirement, keep the letter for your records (you may need it later) and proceed with your original plans.

Loopholes Where a Waiver is Not Required?

Even if you are subject to the two-year home country physical presence requirement, you are not absolutely forbidden from remaining in or returning to the US. Nevertheless, without a J1 waiver you are not allowed to:

Obtain H status (temporary worker) or L status (intracompany transferee) either through adjustment of status in the US or through receipt of such a visa at a US embassy or consulate abroad;;
Adjust your status in the United States to lawful permanent resident or receive an immigrant visa from a US embassy or consulate abroad; or
Receive a fiance visa from a US embassy or consulate abroad.

How Do I Get a J-1 Visa Waiver?

How do you waive the two-year rule? You must apply to the Waiver Review Division of the US Department of State to obtain a waiver under Section 212(e) of the Immigration and Nationality Act. If your application is successful, the US Department of State will contact the USCIS with a waiver recommendation that it issue you a waiver.

How easy is it to get a J-1 visa waiver? That depends entirely on your circumstances. To obtain a J-1 visa waiver, you must rely on one of the following five grounds:

A “No Objection Statement” from Your Home Country

To obtain a No Objection Statement, you must apply to your home country. There are two ways of doing this:

Normally, you would seek a No Objection Statement by requesting one from your home country’s embassy in Washington, D.C. and following their application procedures. If the embassy approves your application, it will send the No Objection Statement to the US Department of State Waiver Review Division.
Alternatively, your home country may have designated a specific designated ministry to issue No Objection Statements. In this case, assuming that the ministry approves your application, it will send the No Objection Statement to the U.S. Chief of Mission at the U.S. Embassy in your home country, which would then forward it to the US Department of State Waiver Review Division.

The No Objection Statement must assert that your home country’s government does not object to the waiver of the two-year home resident requirement in your case, and that it does not object to you applying for permanent residency in the United States (regardless of whether you actually intend to apply for permanent residence).

Please note that J-1 visa holders who are medical doctors and who received graduate medical training in the United States cannot receive a waiver of the two-year home country physical presence requirement on the basis of a No Objection Statement. If you qualify under one of the other grounds for a waiver, however, you can still request a waiver.

Request by an Interested U.S. Government Agency

If you are involved in research, say, or consulting, your work may be valuable to a US federal government agency, regardless of whether you are working for that agency. If so, returning to your home country may harm the project you are working on. In such a case, the interested government agency can request an Interested Government Agency (IGA) Waiver on your behalf.

The IGA itself will submit a request to the Waiver Review Division on your behalf.

Any US federal government agency can request a waiver on your behalf. Remember, however, that the agency must be a federal agency — a state agency cannot request an IGA on your behalf. Be sure to include accurate contact information with your request.

Legitimate Fear of Persecution

This basis for a J-1 waiver is humanitarian in nature, and it is similar to a claim for asylum. To qualify, you must have a legitimate (fact-based) fear of persecution based on your race, religion, or political views if you return home If so, you may apply for a persecution waiver.

You must submit Form I-612, to the USCIS, including accurate contact information. The USCIS will make a decision on whether you have a legitimate fear of persecution. and then forward that decision to the Waiver Review Division.

Exceptional Hardship

“Exceptional hardship” to your spouse can provide the basis for a J-1 waiver if (and only if) your spouse is a US citizen or lawful permanent resident. Remember, it is not your own hardship that will be considered, but hardship to your spouse.

Remember also that this hardship must be “exceptional.” A two-year separation from your spouse (or a two-year relocation to a foreign country, which may or may not be an option) will ordinarily cause hardship, of course; but this degree of hardship is not considered “exceptional” for J-1 waiver purposes.

To apply for the waiver, you must submit Form I-612 to the USCIS , which will decide whether the hardship your spouse is likely to endure qualifies as “exceptional.” The USCIS will then forward its waiver recommendation to the Waiver Review Division, which will make the final decision on your waiver application.

Request by a Designated State Public Health Department (The Conrad 30 Waiver Program)

Some areas of the United States, particularly remote rural areas, suffer from a shortage of doctors. If you graduated from a foreign medical school and received graduate medical training while in J-1 status, you may be eligible for a J-1 waiver if:

A designated State Public Health Department or its equivalent supports your waiver application;
You have been offered a full-time job at a health care facility in an area of the United States where there is a shortage of physicians, or at a healthcare facility that serves patients from such an area, regardless of its physical location;
You promise to start your job at the designated state health care facility within 90 days after you receive your J1 waiver; and
You agree in writing to work for such designated state health care facility for at least 40 hours per week for no fewer than three years.

How Long Does It Take to Get a J-1 Visa Waiver?

Waiver processing times vary depending on which basis you are using to support your application. The following should be taken as rough estimates, which could change at any time:

No Objection Statement: 40 to 60 days
Interested Government Agency (IGA): 30 to 60 days
Legitimate fear of persecution: Three to four months
Exceptional hardship: Three to four months
Conrad 30 Waiver Program: 30 to 45 days
Department of State Advisory Opinion: 30 to 45 days.

Remember, the submission of inaccurate contact information, especially if you currently reside abroad and your address is in a foreign language, will delay your application. This is a common mistake.

Conclusion

The J-1 visa’s two-year home-country physical presence requirement is one of the harshest conditions imposed under any type of US visa. The assistance of an experienced immigration lawyer is critical.

J-1 Waiver Approved for Client Subject to Persecution

Client: J-1 Exchange Visitor Visa Holder
Client’s Country of Origin: Iraq
Case Type: J-1 Waiver of Two-Year Home Residency Requirement
Date of Application: October 2018
Date of Approval: August 2019

Our client retained Herman Legal Group counsel to assist with legal matters and potentially save his life. A citizen of Baghdad, Iraq, our client has been present in the US since 2013 on J-1 status. This status is granted to participants of exchange programs who engage in work and academic studies while advancing towards their future careers. Our client owns a background in research and studies in political science and is a Ph.D. candidate within his field. For some J-1 holders, once you complete the program, before starting another, you may be subject to a two-year home residency requirement. It means that the immigrant must return to his home country for two years after completion of the program, which was not an option in our client’s case.

Before coming to the US, our client had been subject to persecution in Iraq. While belonging to a Sunni family, Baghdad is primarily a Shia city where the militia is known to abuse their power and authority. Many of his former colleagues had been detained, murdered, or kidnapped by Shiite militias, in addition to his brother’s life being taken. Our client had also suffered trauma as the army had abducted and tortured him until his family agreed to pay a ransom as they did not want to lose another member.

Once going to the US for a scholarship, our client experienced post-traumatic stress disorder from the events that occurred in his past. He considered applying for asylum after his arrival, but his assumptions that the militias would dissipate were proven wrong after ISIS gained government control. Throughout his stay, he continued to receive letters from the Iraqi Supreme National Commission to be summoned, but he knew that many people had been detained in prisons for years as a result.

Our client came to us for help in a time of desperation. If he returned to Iraq, his spouse and US-born child would need to return with him, putting them in a dangerous fate. Attorney Erin James aided in the matter, and after hearing our client’s trauma and worries, she was determined to assist our client in his and his family’s safety. Attorney James gathered an immense amount of documentation necessary to receive an approved waiver of the home residency requirement. The evidence assembled included documentation of our client’s participation in the exchange program, evidence displaying eligibility of persecution claims, articles of the country’s political state, and accredited psychiatrist reports confirming of the long-lasting mental distress caused by the militias. After months on review, the USCIS ultimately approved our client’s waiver to return to Baghdad. Instead, our client and his family were able to stay in safety within the US. With much time and effort involved, this was a great success for both Herman Legal Group counsel and our client, who now has the ability to apply for other visas to become a permanent US resident.