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.
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.
2. The J-1 Waiver
Option - No Objection Statement (NOS)
For the No Objection Statement J1 waiver, the exchange visitor's home country government should issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the exchange visitor not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement, and does not object to the possibility of the exchange visitor becoming a resident of the United States.
The No Objection Statement may also be issued by a designated ministry of the exchange visitor's home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The exchange visitor has the responsibility for obtaining a no objection statement from his/her home government.
The key points of the No Objection Statement
J1 waiver include:
1)
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.
2) 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.
3) 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.
The law precludes the use of this option by foreign medical physicians, who acquired J-1 status for the purpose of receiving graduate medical education or training.
3. The J-1 Waiver
Option - Request by an Interested Government Agency (IGA)
If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor's departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the exchange visitor for sake of public interest.
The IGA request must be signed by the head of the agency or its designee and submitted directly to the
DOS Waiver Review Division. The exchange visitor has the responsibility for obtaining an IGA request from a U.S. Federal Government agency.
An interested Federal agency 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.
The
key points of the Interested Government Agency J1 waiver include:
1) 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.
2)
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.
3)
The IGA applications can be used by foreign physicians, who agree to serve in medically under-served areas,
4. The J-1 Waiver
Option - Request by a Designated State Department of Public Health or
Its Equivalent, or Called CONRAD
Only foreign medical doctors who received their J-1 status to pursue graduate medical education or training may apply for a waiver under this basis. Pursuant to the requirements of Public Law 103-416, a foreign medical graduate may apply for a J1 waiver under this basis for the following situations:
1) who has an offer of full-time employment at a health care facility in a designated health care professional shortage area at a health care facility which serves patients from such a designated area, and
2) who agrees to begin employment at that facility within 90 days of receiving such a waiver, and
3) who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years.
The exchange visitor must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the thirty requests may be for exchange visitor physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated health care professional shortage area. The state public health department will forward the Conrad requests directly to the Waiver Review Division if agrees to sponsor the exchange visitor for such a waiver.
5. The J-1 Waiver
Option - Exceptional Hardship to a United States Citizen (or Legal
Permanent Resident) Spouse or Child
If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. But mere separation from family is not considered to be sufficient to establish exceptional hardship.
This J1 waiver basis requires that the exchange visitor submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (USCIS), within the Department of Homeland Security. Only if USCIS makes a finding of exceptional hardship will the
DOS Waiver Review Division proceed with the waiver case under this basis. USCIS will forward its decision directly to the Waiver Review Division on Form I-613.
The
key points of the Exceptional Hardship J1 waiver include:
1) 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.
2)
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.
3)
The alien needs to apply for J1 waiver to both DOS Waiver Review Division
and USCIS.
6. The J-1 Waiver
Option - Fear of Persecution
If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he or she were to return to his/her home country, the exchange visitor may apply for a persecution waiver. This waiver basis requires that the exchange visitor submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (USCIS), within Department of Homeland Security.
Only if USCIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis. Once USCIS makes a decision, it will forward directly to the Waiver Review Division its decision on Form I-613.
The
key points of the Fear of Persecution J1 waiver include:
1) 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.
2)
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.
3) The alien
needs to apply for J1 waiver to both DOS Waiver Review Division and
USCIS.
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