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

By Richard Herman

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.