U.S. IMMIGRATION SYSTEM | J1 WAIVERS
The J-1 Exchange Visitor Program is largely a creation of the Cold War in which a special, temporary, nonimmigrant visa classification was established so as to enable emerging elites in foreign countries to enter the United States to engage in a wide variety of educational, professional, and cultural exchanges that would further the foreign policy objectives of the United States. In order to ensure the repatriation to their home countries, the Congress imposed upon many J-1 visitors a mandatory obligation to return to their home countries for two-years.
This two-year home residence obligation does not apply to all foreign nationals coming to the United States on J-1 visas. Rather, it applies specifically and exclusively in the following three (3) instances:
- To J-1 visitors who are undertaking programs in the United States that fall within their home country’s Skill List;
- To J-1 visitors who receive government funding from either their home country or from the United States; and
- To J-1 physicians, regardless of their home country, who enter the United States under the sponsorship of the Educational Commission on Foreign Medical Graduates (ECFMG) to undertake programs in Graduate Medical Education (i.e., clinical residencies or fellowships).
Once a J-1 visitor falls subject to the two-year home residence obligation, that individual is obligated either to return and be physically present specifically to their home country for an aggregate of two years or to obtain a waiver of their two-year home residence obligation. As long as a foreign national remains subject to the two-year home residence obligation, that individual is ineligible for the following two immigration benefits:
- An H-1B visa; and
- Permanent Resident Status.
Under U.S. law, a J-1 alien who is subject to the two-year home residence obligation has the following four (4) waiver options:
- No Objection statement issued by the home country (please note: not available to J-1 physicians);
- Exceptional Hardship to an anchor relative (i.e., spouse or child) who is a U.S. citizen or permanent resident;
- Persecution; or
- Waiver recommendation issued by an Interested Government Agency (IGA).
I. J-1 Waiver Based on a No Objection Letter
- Waiver of foreign residency requirement may be based upon a no objection letter from the J-1’s home government.
- Letter must be sent as a formal diplomatic note to the Waiver Review Division of the U.S. Department of State.
- Works best where skills list or, to a lesser extent, foreign government funds involved. Is not applicable if graduate medical education or training; rarely successful if U.S. government funds involved.
- Initiate no objection process by contacting the embassy of the J-1’s home county in Washington, D.C.
II. J-1 Waiver Based on an Exceptional Hardship Waiver
- Standard: that anchor relative (defined as spouse or child who is a U.S. citizen or permanent resident) will suffer from exceptional hardship if J-1 alien returns for two years to home country;
- Requires showing of exceptional hardship either if the anchor relative returns with the J-1 alien for two years or remains apart for this two year period of time;
- Hardship must be severe, e.g., medical problem that was unforeseen when entered the program and is not readily treated in home country or threatening conditions in home country;
- Application made to U.S. Citizenship and Immigration Services (USCIS), which makes an initial determination on the likelihood of exceptional hardship to the anchor relative;
- If USCIS finds exceptional hardship, the file is then sent to the Waiver Review Division of the U.S. Department of State, which will weigh the exceptional hardship against the underlying J-1 policy of requiring the J-1 alien to return to the home country;
- Normal processing time: 6-12 months.
III. J-1 Waiver based on Fear of Persecution
- Standard: that the J-1 alien would likely encounter persecution back in the home country based on race, religion, or political opinion;
- Application made to U.S. Citizenship and Immigration Services (USCIS), which makes an initial determination on the likelihood of persecution to the J-1 alien;
- If USCIS finds a likelihood of persecution, the file is then sent to the Waiver Review Division of the U.S. Department of State, which will weigh the likelihood of persecution against the underlying J-1 policy of requiring the J-1 alien to return to the home country;
- Normal processing time: 6-12 months.
IV. J-1 Waiver based on a Request from an Interested Government Agency (IGA)
- Policy: Waiver is based upon a recommendation issued by an appropriate government agency that believes that the J-1 alien’s ongoing residence in the United States serves the “public interest”;
- Various government agencies have their own waiver regulations;
- IGA Waivers widely utilized by J-1 physicians;
- Two most frequently utilized IGA waiver programs for physicians:
> Conrad State Waiver Program through the state departments of health
> Department of Veterans Affairs
- Both of the above noted waiver programs obligate the J-1 physician to work for three years for the sponsoring employer;
- Average processing time: 6 months;
- For more information on J-1 Waivers for physicians, please see various articles appearing on this website;
- Other federal agencies have flexibility to recommend waivers, again provided that the J-1 alien’s ongoing residence serves the agencies own interests as well as the public interests of the United States.
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