J-1 Visa Lawyer: Waivers of the 2-Year Foreign Residency Requirement

Los Angeles is a large and diverse community that has a lot to offer visitors looking to live and work in the United States for a brief period to exchange ideas and learn new skills. Recognizing the value to the United States in having visitors share their culture and knowledge, the United States government created the J-1 Visa to encourage students and professionals to visit to the United States to engage in the exchange of cultures and ideas, while creating opportunities to work and study for those visitors.

Under Section 212(e) of the Immigration and Nationality Act, the two-year foreign residency requirement obligates some, but not all, J-1 visa holders to return to their home country and be physically present for two years before they can obtain an H or L visa, or a green card (i.e., permanent residency).

Which J-1 Visa Holders are subject  two-year foreign residency requirement?

You are subject to the foreign residency requirement if:

  • Your exchange program was partially or completely funded by your home country government or the United States Government (such as the Fulbright Program);
  • Your exchange program involved a specific, specialized skill or knowledge that your home country has listed as important to its development; or
  • Your exchange program was for graduate or medical training.

J-2 Visa holders, as dependents, are also subject to the requirement if the principal J-1 visa holder is subject the two-year foreign residency requirement.

J-1 Visa Advisory Opinions from Department of State Waiver Review Division

Sometimes it is unclear whether the 2-year foreign residency requirement applies. Such uncertainty often arises from a discrepancy between the DS-2019 and the visa itself. In such cases, our immigration lawyers request a formal Advisory Opinion from the State Department’s Waiver Review Division. A favorable Advisory Opinion eliminates the need for a J-1 waiver since it confirms that the 2-year foreign residency requirement doesn’t apply.

To which country must I reside to fulfill the foreign residency requirement if I’ve changed citizenship or nationalities?

J-1 visa holders who are subject to the 2-year foreign residency requirement under INA 212(e) who then subsequently acquire citizenship in another country must still return the country initially designated on Form DS-2019.

Immigration options to postpone the two-year foreign residency issue

If subject to the two-year foreign residency requirement, you can postpone the requirement by acquiring a visa such as E visa, TN, O-1, J-2, or F-1. Finding an interim immigration status is a particularly attractive for those who pursue waivers based on exceptional hardship or fear of persecution as those waivers may take several years (!) to adjudicate.

4 ways to obtain a waiver of J-1 Visa’s two-year foreign residency requirement

If your J-1 visa imposes the two-year foreign residency requirement, you can apply for a waiver of the requirement in these 4 ways:

No Objection Statement from your home country:  A No Objection Statement is a declaration that your home country does not object to you not returning to the home country for the required two years and that it does not object to you becoming a lawful permanent resident in the United States.

Request from the United States Government:  If you are working on a project for a United States Government Agency and that agency decides that your return to your home country for two years would have a negative effect on the project, that agency can request a waiver on your behalf.

Persecution:  If you believe that you will be persecuted – harmed or killed for your race, religion or political opinion – if you return to your home country, you can apply for a waiver. The J-1 waiver of the two-year foreign residency requirement based on persecution is a higher standard than the well-founded fear of persecution that asylum applicants must meet..

Exceptional Hardship to a United States citizen or Lawful Permanent Resident (green card holding) spouse or child:   if you can show that two years outside of the United States will present an exceptional hardship to your United States citizen or lawful permanent resident spouse or child, then you can apply for a waiver. Exceptional hardship is a high standard and you must show something more than the stress of a separation from your family.

2-Year Foreign Residency Requirement Waivers for International Medical Graduates (IMGs)

International Medical Graduates (IMGs) who come to the U.S. for training are typically subject to the two-year foreign residency requirement either because their status was sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) or because they obtained training in the U.S. that is included in the J-1 Visa Exchange Visitor “Skills List.”

Aside from the waiver options described above, International Medical Graduates (IMGs) who wish to remain in the U.S. after completing their exchange can pursue waivers from federal agencies and health departments on the state level. These agencies are referred to as “interested government agencies” (IGAs) and they typically grant the following waivers:

  • Conrad 30 Waiver Program;
  • Veterans Administration;
  • Appalachian Regional Commission;
  • Delta Regional Authority; and
  • Department of Health & Human Services (HHS) Research Waiver.

The employer files these waiver requests based on a place of employment in a:

  • Health Professional Shortage Area;
  • Medically Underserved Area; or
  • VA Hospital.

Most states grant waivers to primary care doctors. And state health departments on the state level grant 5 of the 30 annual Conrad slots to non-underserved locations.

How do I apply for a waiver?

The application for a J-1 Visa waiver is called a DS-3035.  It must be completed online and there is a fee of $120, which must be paid at the time you submit your application.  After submitting the application, you will be issued a visa waiver number.

No Objection Statement:  With your visa waiver number, contact your home country’s embassy here in the United States or at a foreign ministry in your home country to request a No Objection Statement. If your home country agrees to issue the statement, it will forward this statement to the Waiver Review Division. If your home country will not issue a No Objection Statement, you must apply under another category or fulfill the two-year foreign residency requirement.

Interested Government Agency: The agency must send the waiver request directly to the Waiver Review Division directly.

Persecution and Exceptional Hardship: you must file Form I-612 and submit it directly to United States Citizenship and Immigration Services (USCIS). Along with the form, you should submit supporting documents.

Persecution: documents that are helpful include a detailed, personal statement explaining why you can’t return to your home country, any evidence of threats or acts of persecution against you or others similar to you, and country condition reports in your home country.

Exceptional Hardship: documentation varies and is case-specific, but you’ll need to demonstrate that fulfilling the 2-year foreign residency requirement would impose “exceptional hardship” on you and your family. USCIS will make a determination on the merits of your persecution or exceptional hardship claim and forward the decision to the Waiver Review Decision.

Need a J-1 Waiver. Call our Los Angeles based immigration lawyers today!

The legal obligation to return to your home country for two years can have a disastrous impact on your life, your family, and your career. At the Law Offices of Joshua L. Goldstein, P.C., our immigration lawyers have a proven track record of solving this problem. Our J-1 waiver clients include physicians, scientists, and researchers.

Call our Los Angeles office today at (213) 262-2000 or contact us here.