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J-1 Waivers of the Two-Year Foreign Residence Requirement

If you are a medical resident, graduate scholar, teacher or trainee in J-1 exchange visitor visa status, or if you have ever held J-1 visa status in the past, you may be subject to the requirement of Section 212(e) of the Immigration & Nationality Act to return to your home country for 2 years upon completion of your exchange program. If so, you must satisfy this requirement or obtain a waiver of it before you can obtain H or L visa status, or apply for permanent residence. Periods spent abroad in a third country will not count toward this requirement; it can be satisfied only in your home country.

If you have outstanding qualifications in your field, and can travel abroad to apply for a visa in your home country, you may be able to obtain an O-1 visa while you are still subject to Section 212(e), but this is temporary solution. It does not remove the two-year foreign residence requirement, it only postpones it. If you leave the United States and return in O-1 status, you still cannot obtain H or L status or permanent residence without either going home for two years or obtaining a waiver of INA Section 212(e).

The first question a J-1 waiver application must address is why you are subject to Section 212(e). This will help determine what types of waiver may be available to you. Possible reasons why the two-year foreign residence requirement may apply are:

1. You are a physician educated abroad who received graduate medical training in the U.S.;
2. Your J-1 program received funding from the U.S. government, and/or the government of your home country, or an international organization in which one or both of those countries is a member state;
3. The subject area of your J-1 program is included in the Exchange Visitor Skills List for your country. If you are a national of China, everything is on the Skills List, regardless of what type of J-1 program you have participated in.

Although the Form DS-2019 (or IAP-66) that authorized your J-1 exchange program has a section for the consular officer to indicate whether you are subject to Section 212(e) based on one or more of these 3 criteria, the consular officer’s designation is advisory only: it is not binding on USCIS. Furthermore, even though the process of applying for a waiver begins with the State Department, even their recommendation is not binding. USCIS always has the final word in determining whether a J-1 exchange visitor is subject to Section 212(e), and whether a waiver application may be approved.

The four types of waivers available are based on:

I. A statement of No Objection from the home country
II. Exceptional hardship to US citizen or permanent resident spouse or child
III. Persecution in home country on basis of race, religion, political opinion/affiliation or membership in a particular social group
IV. Interested Government Agency

Prospective J-1 waiver applicants should take note:

» Physicians who receive graduate medical training in the U.S. are ineligible for the “No Objection” waiver by law, and most often pursue an “Interested Government Agency” waiver or a “Conrad State 30” waiver. Both of these waivers require the physician to complete a 3-year employment contract with a sponsoring health care facility in a federally-designated shortage area. Most federal agencies and state health departments restrict waiver sponsorship to general practitioners. Some specialties may qualify, but the eligibility rules and application filing deadlines vary from one state to the next. Waiver contracts must be fulfilled under H-1B visa status, but such jobs are cap-exempt, and can commence at any time of year.

» As a matter of policy and practice, Fulbright scholars usually may not obtain “No Objection” waivers even though there is no prohibition under immigration law, because a waiver would undermine the purpose of the Fulbright-Hays Act, the law which authorizes these scholarships. Even with favorable letters of no objection from the government of the home country and the Fulbright commission in the home country, a Fulbrighter typically cannot obtain a No Objection waiver without proof of unusual  and compelling facts establishing that the home country and the US will both benefit considerably more by allowing the Fulbright scholar to remain in the US.

» You must file a DS-3035 application with the US Department of State and obtain a waiver application case number before requesting a No Objection letter from the Embassy of your home country.  Once you obtain your case number, then you make the request to your Embassy, and they will send their letter directly to the Waiver Review Division at the State Department.

» Exceptional hardship cases must be based on proof of hardship to qualifying family members who are U.S. citizens or permanent residents, not to the J-1 exchange visitor. Hardship must be shown to exist both if the J-1 exchange visitor were to leave and the family remain in the U.S., or if the whole family  were to depart the U.S. and return to the J-1's home country.

» The standard for a persecution waiver is identical to that for asylum: you must show the basis for a reasonable fear of persecution in your home country, based on membership in a protected group.

The Department of State (DOS) reviews the determination made by the consular officer when the J visa was issued, and will then review statements and evidence as to why a waiver would be appropriate, and makes a recommendation to USCIS as to whether the waiver should be granted.

The first step of the process is to file a DS-3035 waiver application form and open a file with the DOS Waiver Review Division, to obtain a case number. Complete procedural instructions are posted by DOS at http://travel.state.gov/visa/temp/info/info_1288.html

In order to complete the application form, you will need legible copies of all Forms DS-2019 and/or IAP-66 ever issued to you.

The waiver application form can be filled out online at https://j1visawaiverrecommendation.state.gov, but it cannot be submitted online nor saved electronically. It must be printed and mailed to a drop box with a money order for the fee and photo, along with the signed forms, fees and photos of any dependent family members who have held J-2 status. While the online application is tedious, it saves time in the long run, because the online version generates a waiver case number immediately, and it also generates a bar code, which helps DOS to sort and speed processing once the application is received.

Karin Wolman is admitted to the bar in the State of New York.
Her practice is limited to U.S. Immigration & Nationality law.

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