J-1 Visas: Waiving the 2 Year Foreign Residency Requirement

The two year residency requirement is a provision of U.S. immigration law that requires certain J-1 exchange visitors to return to their home country for a total period of no less than two years after they have completed their J-1 program. The home country is typically the person’s home country, or country of last residence other than the U.S. This home residency requirement is often referred to as 212(e). If the J-1 visitor is subject to 212(e), any J-2 dependents will also be subject to it.

A J-1 visitor may be subject to the foreign residency requirement if their stay was funded by the U.S. government, the government of their home country, or an international organization such as Fulbright or AMIDEAST. Residency requirement also applies to J-1’s who are on an Exchange Visitor’s Skills List for their home country and also to those who came to the U.S. to receive graduate medical training sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).

If you are subject to the home residency requirement you would be ineligible for an H or L visa as well as permanent residency until the two year foreign residency requirement is fulfilled or waived.

To obtain a waiver for the two year foreign residency requirement, a Department of State Waiver Review Application Data Sheet must be completed and filed. Once this occurs, there are several different types of waivers that a J-1 visitor may be eligible for.

The No Objection Statement waiver involves an official statement from the J-1 visitor’s government, typically via their embassy in the U.S., to the U.S. Department of State Waiver Review Division that indicates that they do not object to the J-1 remaining in the U.S. This waiver is normally used by those with foreign government funding or those on the Skills List. This waiver does not apply for persons in the U.S. for graduate medical training sponsored by ECFMG and is rarely successful if U.S. government funding has occurred with the J-1.

The Interested Government Agency (IGA) waiver is applicable when the J-1 visitor is involved in a program that is of vital interest to a U.S. government agency. The IGA must explain that the granting of the waiver is in the public interest and that the exchange visitor being out of the U.S. for two years would be detrimental to a program or activity of interest to that Federal agency.

The Credible Fear of Persecution waiver is applicable when the J-1 can demonstrate that upon return to their home country, they would face persecution due to race, religion, nationality, political opinion or membership in certain social groups. To obtain this waiver the J-1 would apply directly to the USCIS. Individuals with such a credible fear should also apply for asylum.

The Exceptional Hardship to a U.S. citizen or permanent resident spouse or child waiver is applicable when the J-1 can demonstrate that by returning to their home country, the U.S. citizen or permanent resident spouse or child of the J-1 would experience exceptional hardship. Economic hardships or the lack of professional opportunities or employment in their home country would not be sufficient to qualify for this waiver. Nor would mere separation from a U.S. citizen or legal permanent resident spouse or child be enough to grant the waiver. To obtain the waiver, the J-1 would apply directly to the USCIS, but must establish the exceptional hardship with sufficient documentation.

Keep in mind that a waiver of the J-1 two year foreign residency requirement does not grant employment authorization or status, and therefore must be coordinated with an application to change status to H-1B or L-1, or an application for adjustment of status and employment authorization. Also, when the J-1 visa is successfully waived, it follows that the J-2’s (dependents of J-1 visa holder such as spouse and children) are automatically waived as well.

If you are concerned about the J-1 two year foreign residency requirement, your first step should be to contact Shihab & Associates Co., LPA so that you may utilize the decades of experience and skill that our office can offer in assisting you through the difficult and lengthy J-1 waiver process.