In some cases a J-1 participant may apply for a waiver of the two years to waive the home residency requirement. All J-1 waiver cases must go through the U.S. State Department Waiver Review Division first, and once the State Department recommends a waiver, the file goes to USCIS to issue the J-1 waiver on form I-612. (The process is slightly different with hardship waivers.) The USCIS usually follows the State Department’s recommendation in deciding whether or not to issue a waiver.
There are five bases to grant a J-1 Waiver:
- No Objection Statement. Your home country government may issue a “No Objection Statement” through its embassy in Washington, D.C. This statement essentially waives you of your responsibility to return to your home country to satisfy the two-year home-country physical presence requirement. The No Objection Statement may also be issued by a designated ministry in your home country’s government and sent 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 directly to the Waiver Review Division. Only people who are subject to the two-year home residency requirement because of the skills list or because of their home country government financed the J-1 exchange visitor, are eligible to file a waiver in this category. If you are a foreign physician that came here on a J-1 visa for medical residency, you are not eligible to file a waiver through this option.
- Request by an Interested U.S. Federal Government Agency – or IGA for Interested Government Agency. If you are working on a project for a U.S. government federal agency or if your project is of interest to a U.S. government federal agency, and that agency has determined that your departure for two years to fulfill the two-year home-country physical presence requirement would be detrimental to its interest, that agency may request an Interested Government Agency Waiver on your behalf. An Interested Government Agency can also be a federal agency that submits requests on behalf of foreign physicians. These foreign physicians must agree to serve in geographic areas where there are healthcare professional shortage or medically underserved areas for three years. These IGA waivers are not approved through a state program but rather through Federal agencies that sponsor waivers, such as areas covered by the following Federal agencies: Delta Regional Authority (DRA), Appalachian Regional Commission (ARC) or Health and Human Services (HHS). Please note that the HHS also has a research based waiver option for researchers who are conducting investigations on topics of national importance to the U.S. such as medical research, and it is imperative to the continuation of the research program that they remain here.
- Persecution. If you believe that you will be persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver. The fear of persecution must be backed up by evidence to prove persecution is likely should you return.
- Exceptional Hardship. You may apply for this waiver if you can demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child. Please note that mere separation from family members is not considered to be sufficient to establish exceptional hardship. There must be other factors, such as a severe medical condition, severe financial hardships, other unfavorable conditions in the applicant’s home country, etc., to justify an approval of a hardship waiver.
- Request by a designated State Public Health Department or its equivalent (also called a Conrad State 30 Program). If you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education, you may request a waiver of the two-year home residency requirement. This waiver is based on the request of a designated State Public Health Department or its equivalent, if you meet all of the following criteria:
- You have an offer of full-time employment at a healthcare facility in a designated health care professional shortage area (HPSA or MUA) or at a health care facility which serves patients from such a designated area;
- You agree to begin employment at that facility within 90 days of receiving the J-1waiver; and
- You signed a contract to continue working at that healthcare facility for a total of 40 hours per week and for no less than three years.
All J-1 waivers, except the waivers for physicians serving 3-years in a medically underserved area, have immediate validity. This means the applicant can immediately file for an H-1B visa or green card once the J-1 waiver is approved.
For physicians, the waiver is granted on a conditional basis. The J-1 waiver has to be approved first, then the physician can apply for an H-1B visa in order to work in the medically underserved area for 3 years. However, if the physician does not complete the 3 years of full time employment in the medically underserved area, the waiver that was granted to him or her may be revoked by the government.
If you need to obtain a J-1 visa waiver for yourself or for an employee, give us a call. This is a very complicated process and it is best to consult with an experienced immigration attorney to discuss the best strategy for your case in order to minimize delays or denials.