J-1 Waivers
How to Waive the 2-year Home Residency Requirement
J-1 Waiver of the 212(e) 2-year Home Residency Requirement
What is it?
Some people in the United States on a J-1 Visa are required to return to their home country for 2 years once their visa expires.
But what if they met someone while here and want to get married? What if they have an opportunity to do important work in the United States? What if they will face persecution upon return?
That's where the J-1 Waiver comes in. The waiver allows you to stay in the United States without satisfying the 2-year home residency requirement.
How to Know if You Are Subject to the Requirement
If you do not know whether the two-year home-country physical presence requirement applies to you, you can request an Advisory Opinion from the Department of State, Waiver Review Division.
Eligibility
There are 5 basis of eligibility for the waiver:
No Objection Statement:
Your home country government may issue a “No Objection Statement,” through its embassy in Washington, DC. The embassy must send the 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. Check your embassy's website for instructions on how to get this process started.
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.
Note: 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.
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.
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 then 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.
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 then 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.
Request by a designated State Public Health Department or its equivalent (also known as the Conrad State 30 Program):
Are you are 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.:
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.
How Does the Process of Obtaining the Waiver Work?
You can file the waiver for the 212(e) two-year home residency on this page of the Department Of State website.
If the Department of State approves the request and issues a letter recommending the waiver, it will then transfer the file to USCIS, which will issue you a final determination on a I-797 Notice of Action.
You can then use this waiver to apply for another type of immigration status in the United States!
Something to note, is that certain petitions can be filed at the same time that you are applying for the waiver (such as an I-130) while others (such as an I-485) you must wait until you have the approved waiver before submitting the application.
Have any questions? Please contact us! We are happy to help.