Immigration Lawyer New York
       

J-1 Visas, The Two-Year Foreign Residence Requirement, and
How to Apply for a Waiver

 

Who is Subject to INA 212(e)?

If you are a scholar or trainee in J-1 exchange visitor visa status, or have been 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. 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 satisfy the requirement.

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: 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 to address is whether or not you are indeed subject to the two-year foreign residence requirement under INA Section 212(e). This will help determine both whether you need to apply for a waiver, and if so, what types of waiver may be available to you. The three possible reasons for being subject to the two-year foreign residence requirement are:

1. You are a physician who received graduate medical training in the U.S.;
2. The J-1 program received funding from the U.S. government, 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.

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 not binding. USCIS has the final word in determinations as to whether a J-1 exchange visitor is subject to the requirement, and whether a waiver application may be approved.


 

Who Can Get a J-1 Waiver?

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 30” waiver. Both require a 3-year employment contract with a sponsoring federal or state facility in a shortage area. Waiver contracts must be fulfilled under H-1B visa status, but such jobs are cap-exempt.

» As a matter of policy and practice, Fulbright scholars may not obtain “No Objection” waivers even though there is no prohibition under immigration law, because it would undermine the purpose of the Fulbright-Hays Act.

» If you are applying for a No Objection Waiver, you must first file the DS-3035 and get a case number, then submit the fee and copies of your passports and all your past & present J-1 program forms. Then, you submit a request form showing your case number to the Embassy of your home country, and they will submit their No Objection letter directly to the Waiver Review Division. Some countries have a policy against providing such letters.

» Exceptional hardship cases must be based on hardship to the qualifying family members, and hardship must be shown to exist both if you were to leave and the family remain in the U.S., or if everyone were to depart the U.S. together.

» 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 in ANY type of application for a J-1 waiver is to file your DS-3035 application with the Department of State's Waiver Review Division, get a case number, and submit the fee and requested documentation. You can only have one of a given type of waiver application pending at a time. For example, you cannot have two separate applications for a No-Objection Waiver, but if you filed a second DS-3035 with another fee, asking for a waiver application case number in a different category, then you could have one No Objection waiver request and one Interested Government Agency request being processed at the same time.

In order to complete the application form, you will need to have 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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