Obtaining a Waiver for the J-1 Home Residency Requirement

J-1 Home Residency Requirement WaiverThe J-1 home residency requirement can be a major obstacle for J visa holders trying to adjust status to permanent resident or change status to another nonimmigrant visa. J visa holders should initially determine if the regulation applies to them. In some cases, a waiver is available.

After satisfying the J-1 home residency requirement or obtaining a waiver, foreign nationals subject to the requirement can generally file Form I-485, Application to Adjust Status, if they are otherwise eligible.

The J-1 visa is an exchange visitor nonimmigrant visa category is for individuals approved to participate in work- and study-based exchange visitor programs. The visa category provides opportunities for foreign nationals to travel and gain experience in the United States. A variety of J-1 visa programs enable the exchange visitor to come to the U.S. to teach, study, conduct research, demonstrate special skills or receive on the job training for periods ranging from a few weeks to several years.

 

J-1 Home Residency Requirement

The J-1 home residency requirement in the Immigration and Nationality Act (§212(e)) says that foreign nationals who visit the U.S. in J-1 status cannot become permanent residents in the U.S., change status in the U.S., or get work or family-based visa status such as H, L or K until they return to their country of last residence for at least two years cumulatively.

Subject to the Two-Year Home Residency Requirement

Not everyone is subject to the residency requirement. Those in J-1 status (and their J-2 dependents) are generally required to meet the two-year requirement if any of the following apply to the J-1 program:

  • Government funded Exchange Program

    You participated in a program funded in whole or in part by a U.S. government agency, your home country’s government, or an international organization that received funding from the U.S. government or your home country’s government.

  • Specialized Knowledge or Skill

    You participated in a program involving an area of study or field of specialized knowledge designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country.

  • Graduate Medical Education/Training

    You participated in a program to receive graduate medical education or training.

If you are unsure whether you are subject to the J-1 home residency requirement, contact the advisor for your specific program. You may also request an official “advisory opinion” from the U.S. Department of State. This advisory opinion is a formal determination whether or not you are subject to the J-1 home residency requirement.

J-1 Residency Requirement Waiver Eligibility

If you received funding from your home government or an international organization, or are subject based on the skills list, you may request a waiver for the J-1 home residency requirement. This is typically done by requesting a “No Objection Statement” (or letter of no objection) from your home country’s embassy in Washington, DC. However, it is extremely difficult to get a waiver if you received U.S. government funding.

Applicants for the residency requirement waiver may apply to the U.S. Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver. According to the Department of State, the basis of your waiver request must be under any one of the following five categories:

BASIS
1
No Objection Statement

Your home country government may issue a No Objection Statement, through its embassy in Washington, DC. The embassy must send the No Objection Statement to the Waiver Review Division. It must state your government has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the United States.

Alternatively, a designated ministry in your home government may issue the No Objection Statement. The ministry would then send it to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it to the Waiver Review Division.

Important Notice: U.S. law does not permit foreign medical physicians who acquired exchange visitor (J-1) visa status on or after January 10, 1977, to receive graduate medical education or training to use this option.

BASIS
2
Request by an Interested U.S. Federal Government Agency

Are you working on a project for or of interest to a U.S. federal government agency? And has that agency determined your departure for two years would be detrimental to its interest? If so, that agency may request an Interested Government Agency Waiver on your behalf. The head of the agency or his or her designee must sign the Interested Government Agency request and submit it to the Waiver Review Division.

Any U.S. federal government agency may request a waiver under this basis. See Designated Officials for Signatures. It is a list of interested government agencies and names of their designated officials. (NOTE: This list does not contain information for all U.S. federal agencies. It contains information only from agencies that provided the Waiver Review Division with individuals authorized to sign letters for waivers under this basis.)

BASIS
3
Persecution

Do you believe you will be persecuted based on your race, religion, or political opinion if you return to your home country? If so, you may apply for a persecution waiver. You must submit Form I-612, Application for Waiver of the Foreign Residence Requirement, to USCIS. USCIS will forward its decision to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.

BASIS
4
Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor

Can you show that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child? If so, you may apply for an exceptional hardship waiver. Mere separation from family is not sufficient to establish exceptional hardship. You must submit Form I-612, Application for Waiver of the Foreign Residence Requirement, to USCIS. USCIS will forward its decision to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of exceptional hardship.

BASIS
5
Request by a designated State Public Health Department or its equivalent

Are you a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education? If so, you may request a waiver based on the request of a designated State Public Health Department or its equivalent. You must meet the following criteria. (This waiver category is also known as the Conrad State 30 Program.) You must:

  • have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area;
  • agree to begin employment at that facility within 90 days of receiving a waiver; and
  • sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.

Review the listing of State Public Health Departments. Each department can request 30 such waivers per federal fiscal year. 10 of the 30 requests may be for exchange visitor physicians who will serve at facilities not located in a designated health care professional shortage area but which serve patients who live in a designated area. The state public health department will send its request to the Waiver Review Division, if it agrees to sponsor you for a waiver.

Application Process for the J-1 Waiver

To request the waiver to the J-1 home residency requirement, you’ll need to start the process on the State Department website. You’ll also find detailed directions there. Here’s a summary of what to expect:

  1. Complete the Online J Visa Waiver Recommendation Application
  2. Mail your Waiver Application and Fee Payment
  3. Submit the Supporting Documents
  4. Check your Waiver Request Status and Update your Contact Information

The Department of State, Waiver Review Division will forward its recommendation to USCIS. They will also send you a copy of that recommendation at the address on your online application, or your current address if you reported a change.

Processing times vary depending on the basis under which you request a waiver. The times listed below are estimates only.

No Objection Statement 12 to 16 weeks
Interested U.S. Federal
Government Agency
8 to 12 weeks
Persecution 12 to 16 weeks
Exceptional Hardship 16 to 24 weeks
State Public Health Department 12 to 16 weeks
Advisory Opinion 4 to 8 weeks

 

 
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Source: INA 212(e)