Pursuant to Section 212(e) of the Immigration and Nationality Act, certain J-1 visa holders and their J-2 dependents are subject to a two-year home residency requirement. Individuals who are subject to the two-year home residency requirement, must return to their home country for at least two years at the conclusion of their J-1 exchange visitor program, or receive a waiver, before they may change their status to certain visa classifications such as H or L visa classifications, or apply to become a lawful permanent resident.
J-1 and J-2 visa holders can determine if they are subject to the two-year home residency requirement by inspecting their visa. The bottom center of the visa will indicate whether an individual is subject to the requirement. If an individual is unsure whether or not they are subject to the two-year home residency requirement, they can request an advisory opinion form the United States Department of State’s Waiver Review Division.Types of J Waivers
If an individual is subject to the two-year foreign residency requirement, they may apply for a waiver based on five grounds:
- A No Objection Statement by the individual’s home country;
- A request by an interested United States government agency;
- A claim that the individual will face persecution if forced to return to their home country;
- A claim that the individual’s departure from the United States will cause exceptional hardship to a United States citizen or lawful permanent resident spouse or child; and
- A request by a state public health department or its equivalent. (Please note, this only applies to foreign medical graduates who obtained J-1 status to pursue graduate medical training or education. For more information, please click on the following link (J Waivers for Physicians).
An individual may seek a waiver by seeking a No Objection Statement from their home country’s government. The statement must state that the government does not object to the individual staying in the United States and not returning to their home country to serve the two-year home residency requirement. Individuals directly seek a No Objection Statement from their country’s embassy in Washington D.C. The embassy then directly sends the No Objection Statement to the Department of State’s Waiver Review Decision.Request by an Interested United States Government Agency
Individuals who work on a project for, or of interest to, a United States government agency, may have that government agency request a waiver on their behalf. The government agency must request the waiver in a letter signed by the head of the agency, or a designated official, stating: (1) why granting the waiver is in the public interest; and (2) how the individual having to leave the United States for two years would be detrimental to the government agency.Persecution
Persecution waivers may be filed if an individual fears that they will be persecuted in their home country on account of race, religion, or political opinion. A persecution waiver application, Form I-612, and supporting documents are first filed with USCIS. USCIS then makes a credible fear determination of whether it believes the individual would more than likely face persecution based on race, religion, or political opinion if they were to return to their home country to fulfil the two-year home residency requirement. If USCIS finds a credible fear, the application is forwarded to the Department of State’s Waiver Review Division for a final determination.Exceptional Hardship
Individuals may request an exceptional hardship waiver, if their two-year absence from the United States would cause exceptional hardship to their United States citizen or lawful permanent resident spouse or child. Mere separation is not considered an exceptional hardship. Factors that may be considered an exceptional hardship include: loss of income; any medical or mental conditions of the applicant’s spouse or child which could be adversely affected if they accompany the applicant to the applicant’s home country; and any political or safety conditions in the applicant’s home country that would cause safety concerns if the applicant’s spouse or child accompanied the applicant to their home country.
Applications for exceptional hardship are initially filed with USCIS. USCIS will forward its decision to the Department of State’s Waiver Review Division. If USCIS makes a finding of exceptional hardship, the Department of State will procced to make a final waiver recommendation.Contact an Experienced J Waiver Attorney Today
If you or someone you know is interested in learning more about J Waivers, contact Hartzman Law Firm Today. Our principal lawyer, Daniel Hartzman, is knowledgeable in all five types of J Waivers, and has assisted countless individuals in obtaining J Waivers.
If you are interested in obtaining a J Waiver, Hartzman Law Firm and Attorney Hartzman are here to help. Please call us at (412) 495-9849, or fill out a contact form online. We offer free consultations in person, by phone, and by secure video conferencing. Weekend consultations are also available by request.
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