J Visa Waivers
Several subgroups of J-1 exchange visitors are subject to a two-year foreign residence requirement contained in section 212(e) of the Immigration and Nationality Act. Section 212(e) requires aliens subject to the home residency requirement to return to their home country or the country where they last resided for two years in the aggregate before they are eligible to return to the United States as a permanent resident or non-immigrants in the H or L classifications.
The foreign residence requirement means that an alien must spend the two years in his country of citizenship or last residence; time spent in other countries does not count in totaling the two-year time period.
The requirement of foreign residence is applicable to three main groups:
- exchange visitors whose participation in the program was financed in whole or in part,
directly or indirectly, by an agency of the U.S. government or by the government of the alien's country or by an international organization;
- exchange visitors who entered the United States to pursue education, training, or skills that appear on the Exchange Visitor Skills List for their home country;
- exchange visitors who came to the United States in order to receive graduate medical training.
Exchange visitors who are subject to, but do not wish to comply with, the two-year home country residence requirement, may apply for a waiver of that requirement under any one of the following five applicable grounds provided by the INA:
Note: The following five waiver grounds are excerpted from a State Department legal memorandum on point.
- "No Objection" statement from the home government
Note: The law precludes use of this option by medical doctors listed in "3" above.
The exchange visitor's government must state that it has no objection to the exchange visitor not returning to the home country to satisfy the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act, as amended, and remaining in the U.S. if he or she chooses to do so.
- Request by an interested (U.S.) Government agency, or 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 continued stay in the United States is vital to one of its programs, a waiver may be granted if the exchange visitor's continued stay in the United States is in the public interest.
Note: There are special rules for applications filed on behalf of foreign physicians who agree to serve in medically underserved areas.
- Persecution
If the exchange visitor believes that he or she will be persecuted upon return to the home country due to race, religion, or political opinion, he or she can apply for a waiver. It is very difficult to obtain a waiver on the basis of fear of persecution. To succeed the waiver applicant provide substantial evidence that persecution is likely.
- Exceptional hardship to a United States citizen (or permanent resident) spouse or child of an exchange visitor
If the exchange visitor can demonstrate that his or her departure from the United States would cause extreme hardship to his or her United States citizen or lawful permanent resident spouse or child, he or she may apply for a waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.) It is very difficult to obtain a hardship waiver.
- Request by a designated State Department of Health, or its equivalent
Note: The law permits only medical doctors to apply for a waiver on this basis.
Pursuant to the requirements of Public Law 103-416, of October 25, 1994 and Public Law 107-273, of November 2, 2002, foreign medical graduates who have an offer of full-time employment at a health care facility in a designated health care professional shortage area, and who agree to begin employment at the facility within 90 days of receiving such waiver, and who sign a contract to continue to work at the health care facility for a total of 40 hours per week and not less than three years, may apply for a waiver.
At Weber & Associates we have considerable experience dealing with J Visa waiver applications. We know the subtle points of law upon which decisions turn, and we know how to draft applications to strongly present your case.
Weber & Associates has a deeply ingrained policy of only accepting winnable cases. If we do not think we can win your case we will not waste your money or our time.
Please call for a free evaluation of your case. When you call please have passport and J Visa paperwork available because we require information contained in those documents. Alternately you can email us for a case evaluation. If you email us please be sure to include all relevant facts of your case, including date of entry and date visa expires or expired, your country of citizenship, and the nature of your J Visa program in the United States.
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Copyright © 1999-2002 by Deborah A. Weber. All rights reserved.
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