The J-1 visa holder must move out of the U.S. and stay in their home country for a period of two years in order to be eligible for a green card or to apply for an immigrant status. Exchange visitors who move into the U.S. on a J-1 visa can get their two years foreign residency requirement waived off. In order to get the requirement of the section 212 (e) of the Immigration and Nationality Act (INA) waived off, you must meet certain criteria.
There are five statutory bases provided by the U.S. Department of State that may be used by J-1 visa holders to waive the foreign residency requirement. They are as follows:
- No objection letter by the government of the home country: The foreign residency requirement can be waived if the home country’s government provides a “no objection certificate” stating that it does not object to the waiver of the two-year foreign residency requirement. A “no objection certificate” is not available to medical interns who received training in the U.S.
- Threat of persecution: If the alien will be subject to persecution upon return to his or her home country, the two-year foreign residency requirement can be waived. The J-1 visa holder must provide proof that he or she will be subject to persecution upon return. The threat of persecution must be on one or more of the following grounds in order to obtain the waiver:
- Race
- Religion
- Political opinion
- IGA request: The J-1 visa holder can get the waiver of the two-year foreign residency requirement if the Interested Government Agency (IGA) shows interest in the J-1 visa holder’s stay in the U.S. This is possible if the J-1 holder works on a project for the agency or if the alien is working on a project that is of interest to the agency. The IGA is a U.S federal government agency. This request must be agreed upon by both the DOS and the USCIS in order to get the waiver.
- Hardship: If the two-year foreign residency requirement imposes hardship on the dependents of the J-1 visa holder or if the spouse or child is a U.S citizen, then the foreign residency requirement may be waived.
- Upon request by a Designated State Health Agency: If the J-1 visa holder is a medical practitioner working as a full-time doctor in a hospital, he or she is then eligible for the two-year foreign residency requirement. This can be completed upon the request by the Designated State Health Agency. The person will qualify for the waiver if he accepts work for 40 hours per week, for a period of 3 years. The person must also begin work within 90 days after the approval of the waiver.
Upon a recommendation from the DOS, the USCIS can waive the requirement. Obtaining a recommendation from the DOS involves a four-step process.
- A data sheet must be submitted to the DOS waiver review division. Two stamped, self-addressed envelopes and the appropriate fee have to be submitted along with the data sheet.
- The DOS then sends the case number and the instruction sheet, depending on the type of waiver indicated on the data sheet.
- Form I-612 must be filed with the USCIS for persecution and hardship waivers. If granted by the U.S., the information is then transmitted to the DOS. For other categories, the application must be sent to the agency or the foreign government.
- The application will be reviewed by DOS and the recommendation will be forwarded to the USCIS. A copy of the recommendation will be sent to the applicant and the J-1 sponsor. The USCIS grants the persecution or hardship waiver and forwards it to the DOS. The waiver review division of the DOS reviews the program, foreign relation aspects, and the policies of the case.
Contact our office today to speak with a lawyer to learn more about your options and to begin the visa application process.