1. The Waiver
of J-1 Two-year Home
Residency Requirement
Many
persons in the U.S. on J-1 visa are subject to the two-year
Home Residency Requirement (HRR) found in Section 212(e) of the Immigration and Nationality
Act. Under the Section 212(e), before a person on a J-1 visa with the two-year
home residency requirement can change to an nonimmigrant status, the
J-1 person must either return to the country of last residence for two years or
obtain a waiver.
There are a variety of options for J-1 waiver. The simplest procedure is
through a letter of "no-objection" from alien's government. Other
waivers can be issued through interested U.S. government agencies -- any
U.S. federal government agency which is willing to take up your case. Also, waivers
can be granted based on Exceptional Hardship or Fear of Persecution claims. For
medical doctors, there are also J-1 waiver programs through certain federal
and state
government agencies for physicians employed in a designated health care shortage area.
These J-1 waive options are not mutually
exclusive, and it is possible for an alien to base his/her waiver request on
more than one of them, but normally requests are based on only one of the
reasons. An alien, who believes that a U.S. Government agency may be
officially interested in his or her case and may wish to request a
waiver on his or her behalf, should inquire directly to that agency
concerning such request.
2. The J-1 Waiver
Options
Several
factors determine whether or not one is subject to the two-year
home residency requirement. These include funding
by the U.S. or a foreign government; whether one's field of expertise is on the
"skills list" for one's country; and whether the program involves
graduate medical training, such as a residency program. The waiver of the
two-year home residence requirement maybe authorized under the following circumstances:
a) Exceptional Hardship:
If
complying with the two-year
home residency requirement
imposes exceptional hardship
on the alien's spouse or child, and the spouse or child is a U.S. citizen or
permanent U.S. resident, the two-year
home residency requirement may be waived.
For
example, If you had a child who was
born in the U.S. and was therefore a citizen of this country, and if the
child had a serious medical condition that could not be treated in your
home country, you might obtain a waiver because the child would suffer an
exceptional hardship by going there with you.
b) Fear of Persecution:
The alien
establishes in an application to the USCIS that returning to his or her
country of nationality or last foreign residence would subject him or
her to persecution on account of race, religion or political opinion.
If
the J-1 alien can establish that he/she will suffer persecution upon
return to the home country, the foreign residency requirement will be waived.
The threat of persecution needs to be based on one of the following three
grounds: race,
religion, or
political
opinion.
The alien has the burden to prove that he/she will be subject to
persecution.
c) Interested Government Agency:
A U.S. government agency requests the U.S.
Department of State to recommend a
waiver on the alien's behalf for the reason that compliance with the
two-year home residence requirement would be detrimental to a
program or activity of official interest to the agency.
If your
participation in a research or a project sponsored by a U.S. government
agency has sufficient importance to that agency, the agency can apply to
the U.S. Department of State for a waiver for you in its interest.
d) No Objection:
The
home residency requirement for
a J-1 holder may
be waived if the
alien's
home country's government can issue a "no
objection" letter to the U.S. Department
of State
indicating that it does not
object to the J-1 waiver grant.
The country of the
alien's nationality or last foreign residence provides the U.S. Department
of State a written statement that it has no objection to your J-1 waiver.
Your
country’s embassy in Washington DC can indicate in a direct letter to
the U.S. Department of State that it has no objection to your receiving a
waiver, or the foreign ministry in your capital at home can send a similar
letter to the United States embassy there.
This waiver is not available to the alien who came to the United States
as an exchange visitor to receive graduate medical education or training.
e) Physicians Employed in a Designated Health Care Shortage Area:
An interested Federal agency, any State Department of Public Health
or its equivalent can be a sponsor for physicians to work full-time for
three years in a nonimmigrant H-1B status in a geographic area designated as having a shortage of health
care professionals. In order to
qualify for the waiver, the person must agree in writing to work at a medical facility
for 40 hours per week, for a minimum of 3 years and must begin
work at the health care facility within 90 days of the waive approval.
The J-1 waiver applicants sponsored by the Department of
Veterans Affairs are not required to practice medicine in an area
designated as having a shortage of health care professionals.
3. The J-1
Waiver Process
There are a variety of methods for applying for J-1 waivers, depending on the
facts of the particular case, but all waiver requests are processed through the
DOS, and it is up to the DOS to issue a recommendation to USCIS. The actual
decision on the waiver then comes from USCIS. A
waiver of the home residency requirement may be difficult to obtain and
always requires a significant amount of time to process. Therefore, one must
plan ahead and assure the waiver request is not inconsistent with your
nonimmigrant visa extension or application.
The J-1 waiver has evolved into a time-consuming process. The typical
interested government agency case can take up to 9 months to adjudicate.
Once the case reaches the DOS, processing times for interested government
agency waivers are estimated about 4.5 months, and the exceptional hardship waivers are estimated
about 8
months. If the DOS recommends a waiver, most USCIS Service Centers will take
about 3 - 4 months to issue the final waiver approval.
A waiver request based on either the sponsorship of an interested government agency or a “no objection” statement by the government of the
country of his or her nationality involves submission
of that statement together with the alien’s other
supporting documents. A waiver request based on other U.S. government agency sponsorship,
State health department request, or a “no objection” letter may only be
filed with the Department of State’s Waiver Review Division.
A waiver application based on either an
exceptional hardship or persecution claim must be filed on Form I-612
(Application for Waiver of the Foreign Residence Requirement). The I-612 must be accompanied by the
supporting documentation described on the form and the fee. A waiver application on Form I-612 should be
properly filed at an USCIS Service Center where the applicant is residing.
Before proceeding to adjudicate the application, DOS and/or USCIS officers will verify that
the applicant is indeed subject to the two-year home residence requirement, and will
not assume that the alien is subject to the requirement just because he or she
is filing the waiver application or even because another officer so indicated
during a prior proceeding on the DS-2019 form.
If the applicant is found to be subject to the requirement, the DOS and/or USCIS
officers
will check records indicating that an applicant may have resided in the country
of nationality or last foreign residence for at least two years following the termination of the exchange visitor program, and seek information about the
length of such residence. If the applicant is not found to be subject to the requirement,
DOS and/or USCIS will
reject the application and inform the applicant in writing of the basis of the
determination, together with instructions concerning application for permanent
resident status or change of nonimmigrant status, if appropriate.
According to Department of
State, regardless of the
type of waiver request, the cost of processing is the same. The agency
has set the fee, based on its calculation of the per unit cost of
processing waiver requests. The Department of
State charges
a fee to cover the cost of processing waivers of the two- year home country
requirement imposed on certain J-1 visa holders.
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