By Richard T. Herman
Herman Legal Group – Cleveland & Columbus, Ohio
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Short Answer:
No — if you are subject to the two-year home-residence requirement under INA § 212(e) as a holder of a J-1 visa, you generally cannot change status to an H-1B visa while in the U.S. until you either fulfill the requirement or obtain a waiver.
The two-year home-residence requirement must be fulfilled or waived before a J-1 holder can access immigration benefits such as H-1B status.
Even if your employer submits an H-1B petition and you are selected in the lottery, USCIS will not approve a change of status until that requirement is resolved.
If you file an H-1B change of status while still subject to 212(e), your case will likely be denied under USCIS Policy Manual, Vol. 2, Part D, Ch. 5.
Under INA § 212(e), certain J-1 exchange visitors must return to their home country (or last legal permanent residence) for two years after completing their program before they can change status or apply for H-1B, L, K, or immigrant visas. This two-year home residency requirement applies to J-1 visa holders who receive funding from their home country government or the U.S. government as part of their J-1 program.
You may be subject to 212(e) if:
This rule applies even if you later switch to another visa; it remains a lifetime bar until it is either fulfilled or waived.
Even if your DS-2019 does not mention the requirement, you could still be subject — always confirm through an advisory opinion.
If you are subject to 212(e), you cannot change your status to H-1B, L-1, or permanent residence while in the United States, and you are also ineligible for certain immigration benefits until you fulfill or waive the requirement. The two-year home residency rule applies to multiple nonimmigrant classifications, not just H-1B. You can, however, still apply for an H-1B petition — but it will not be approved or activated until you meet or waive the requirement.
This restriction applies both to change of status and to consular visa issuance. Even if USCIS approves your petition, the Department of State will refuse to issue the visa until 212(e) is resolved.
| Option | Permitted While 212(e) Applies? | Notes |
|---|---|---|
| Change of status inside the U.S. | ❌ No | Must fulfill or waive 212(e) first. |
| H-1B via consular processing | ❌ No | Waiver or completion of 2 years required before visa issuance. |
| Other visas (such as H, L, K visas, immigrant) | ❌ No | Also blocked under 212(e); any person subject to 212(e) is affected by these restrictions. |
| Diplomatic (A, G) visas | ✅ Limited | Certain exceptions for diplomats and international org. staff. |
The two-year requirement acts as a statutory bar, not just an administrative preference.
The home-residence rule ensures that exchange visitors return home and share skills gained in the U.S. It’s meant to promote international cooperation — not to punish participants. The two-year home residency requirement is a key feature of J status, designed to support the exchange program’s goals by encouraging knowledge transfer to the participant’s home country.
However, it often creates hardship for foreign professionals offered long-term U.S. employment, who may need additional support to navigate the complexities of this rule.
You can satisfy 212(e) by residing in your home country or country of last legal permanent residence for at least two years after completing your J-1 program.
You must show physical presence proof (passport entries, employment, etc.) if USCIS requests evidence.
The alternative is to apply for a waiver through the Department of State Waiver Review Division and USCIS. The waiver for the two-year home residency requirement must be recommended by the U.S. Department of State (a waiver recommendation) and approved by USCIS. Obtaining the requirement waived involves following specific procedures, including submitting the necessary forms and supporting documentation.
There are five legal bases for waiving the two-year requirement:
Processing Time:Expect 6–18 months depending on the waiver category and your nationality. Processing times may vary for foreign medical graduates.
The Conrad 30 program remains a primary route for foreign physicians transitioning from J-1 to H-1B in 2025.
Yes, but with limitations.If you are a J-1 exchange visitor, your employer may file an H-1B petition to secure a cap number, but USCIS will not approve change of status or allow you to start H-1B employment until the Two-Year Home Residence Requirement under 212(e) is fulfilled or waived.
Example:You are selected in the FY 2026 H-1B lottery. If your waiver is not approved by October 1, 2025, your petition remains pending or is denied until you submit the DOS waiver approval notice.
Key Insight: Filing early gives your employer flexibility but doesn’t override the statutory bar.
If your waiver path seems uncertain, returning home to complete the two years may be the cleanest legal path to future H-1B or green card eligibility.
Some multinational employers allow you to work from your home country during the two-year period, then transfer you back under H-1B once satisfied.
Universities, nonprofit research institutions, and affiliated hospitals may file H-1B petitions exempt from the annual cap. These cases are not automatically exempt from 212(e), but such employers often have experience navigating these transitions.
If qualified, consider O-1 (“extraordinary ability”), A or G visas, or TN (for Canadians/Mexicans). These categories sometimes bypass standard H-1B timing but still require addressing 212(e) before permanent residence. See below for more info.
If married to a U.S. citizen or LPR, consider the exceptional hardship waiver — showing that your spouse or child would suffer if you had to return home.
You must prove exceptional, not routine, hardship.
A J-1 research scholar funded by both a U.S. university and India’s Department of Science & Technology is subject to 212(e). Her private-sector employer files H-1B in March 2025. She must first obtain a no-objection waiver through India’s Ministry of Education before USCIS will approve her H-1B change of status.
A J-1 physician finishing residency in 2025 obtains a Conrad 30 waiver by agreeing to work in an underserved Ohio county for three years. The waiver allows him to change status to H-1B and begin employment immediately after waiver approval.
A teacher sponsored by a U.S. government exchange program is ineligible for a no-objection waiver. She completes her two-year service in her home country and later secures H-1B sponsorship abroad.
In 2025, average waiver processing times are 9–12 months, depending on home government response times and DOS workload.
For some professionals who are still bound by the two-year home-residence requirement under INA § 212(e), transitioning directly to H-1B is legally blocked.
However, depending on your current visa classification, a few alternative visa categories may offer lawful pathways to continue working in the U.S. while you pursue your waiver or complete your two-year period abroad. Recent policy updates have also impacted J-1 visa holders from several countries, making certain options more accessible for those individuals.
The O-1 visa is often the most practical workaround for J-1 holders who cannot yet change status to H-1B because of § 212(e).
The O-1 is reserved for individuals who have demonstrated extraordinary ability in their field—such as:
You must prove sustained national or international acclaim through:
Many post-doctoral researchers, startup founders, and specialized professionals qualify for O-1A long before meeting H-1B caps or J-1 waiver timing.
Technically, **§ 212(e)**does not prevent you from obtaining an O-1 visa, but it does bar a “change of status” inside the U.S.That means:
In practice:
The O-1 offers temporary employment continuity, not a permanent waiver of the two-year rule.
| Feature | O-1 Visa | H-1B Visa | Notes |
|---|---|---|---|
| Subject to annual cap? | ❌ No | ✅ Yes | O-1 available year-round |
| Requires prevailing wage? | ❌ No | ✅ Yes | Greater employer flexibility |
| Dual intent allowed? | ⚠️ Limited | ✅ Yes | Can’t file green card until 212(e) resolved |
| Change of status possible from J-1? | ❌ No | ❌ No | Must apply at consulate |
| Duration | 3 years + extensions | 3 + years + extensions | Renewable indefinitely |
The O-1 can serve as a temporary bridge visa for J-1 holders with exceptional qualifications who want to remain employed in the U.S. while awaiting a J-1 waiver or completing their two-year stay.
A biomedical researcher on a J-1 visa with U.S. government funding is subject to 212(e).
Her employer sponsors an O-1A petition citing her publication record and national awards.
She departs for Canada, secures her O-1 visa at the consulate, and returns to continue her project—remaining subject to 212(e) but legally working in O-1 status until her hardship waiver is approved.
Filing an O-1 can buy you time while pursuing a hardship or no-objection waiver without interrupting your research or professional projects.
If you work for or are sponsored by an embassy, consulate, or international organization such as the UN, World Bank, or WHO, you may qualify for A- or G-category visas, which are not restricted by 212(e) for employment purposes.
However, these are highly specific and apply only to those directly engaged in official capacities.
If you are a Canadian or Mexican citizen, the TN visa under the USMCA (formerly NAFTA) allows you to work in a listed professional occupation.
Similar to O-1, you cannot change from J-1 to TN inside the U.S. while subject to 212(e), but you can apply abroad and re-enter under TN status.
TN eligibility depends on your degree and job title matching one of the approved professional categories in the treaty.
Some researchers or lecturers may temporarily enter under a B-1 in lieu of H-1B classification for short-term academic projects, conferences, or consultations while awaiting their waiver.
These are strictly nonimmigrant, short-term, and require careful structuring with counsel to avoid misrepresentation.
In today’s hybrid world, some J-1 holders complete the 212(e) requirement by working remotely from their home country for their future U.S. sponsor during the two-year period.
This satisfies the physical-presence requirement while maintaining professional continuity and employer ties.
At a Glance:
While the H-1B visa remains the most common path for long-term employment, the O-1 visa can be a critical bridge option for highly qualified individuals still constrained by the J-1 two-year rule.
It allows you to lawfully work in the U.S. through consular processing, without violating 212(e), while maintaining a professional foothold until your waiver or home-residency fulfillment clears the path for H-1B or green card eligibility.
If your resume includes advanced degrees, published research, patents, or leadership in your field, discuss the O-1 option with your immigration lawyer early — ideally 6–8 months before your J-1 program ends.
It can preserve your U.S. career trajectory without violating immigration law.
| Law Firm | Locations | Practice Strengths | Distinguishing Feature |
|---|---|---|---|
| Herman Legal Group | Cleveland & Columbus, OH (National) | J-1 waivers, H-1B transitions, physician immigration | 30 + years experience; multilingual staff; national reach |
| Fragomen LLP | Global | Corporate & employment immigration | High-volume employer representation |
| Murthy Law Firm | MD & TX | H-1B & J-1 strategies for professionals | Strong waiver expertise |
| Klasko Immigration Law | PA & NY | Physician waivers & federal litigation | Deep DOS & USCIS litigation background |
For Ohio and national clients seeking individualized attention, Herman Legal Group offers direct attorney involvement, not case-manager hand-offs.
Richard T. Herman, Esq. is a nationally recognized immigration lawyer with 30 + years of experience representing professionals, families, and businesses across the U.S. and world. He is co-author of “Immigrant, Inc.” and founder of the Herman Legal Group — The Law Firm for Immigrants™.
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.
To be eligible for a Conrad 30 waiver, you must:
Assuming you are otherwise eligible, to apply for a J-1 Conrad 30 waiver, you must complete the following steps:
Assemble to following supporting documents to submit to your sponsor along with Form DS-3035:
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:
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.
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.
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.
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.
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.
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:
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.
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.
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.
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.
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.
Include the following documents based on need, availability, and the specific facts surrounding your persecution claim.
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).
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.
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.).
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.
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.
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.
Following is a brief explanation of the process for obtaining an IGA waiver of the two-year home residency requirement:
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.
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.
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.
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).
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.
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, remember that there are four other bases for obtaining a waiver of the J-1 two-year home residency requirement
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.
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.
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).
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.
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.
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 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).
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.
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.
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:
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.
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.
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.
You will need to mail your application to the State Department. Your application must include the following 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.
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.
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.
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.
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.
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.
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:
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.
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.
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:
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:
To obtain a No Objection Statement, you must apply to your home country. There are two ways of doing this:
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.
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.
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” 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.
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:
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:
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.
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.
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.
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