The major drawback of the J visa is that some exchange visitors are permitted to enter the U.S. only on the condition that they return to their home country for a minimum of two years after their program is completed.
Exchange visitors are subject to the two-year home residency requirement if:
1. They obtained money from either their home government or the U.S. government;
2. Their occupation is listed on the Exchange Visitor Skills List; or
3. They are coming to the U.S. to obtain graduate medical education or training.
It is sometimes difficult to obtain a J waiver to the 2-year home residency requirement. This is true even if the foreign national has married a U.S. citizen during the course of his or her stay in the United States. Nevertheless, in many cases, J visa holders can obtain waivers.
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MISCONCEPTIONS ABOUND ABOUT J WAIVERS
Prior to discussing waivers, it is important to clarify several misconceptions about the J visa. First, most J programs do not subject the foreign national to the two-year residency requirement. Only three types of programs contain this requirement.
One of these programs is for aliens who obtain J status in order to receive graduate medical education or training in the U.S. There are special rules pertaining to J waivers for International Medical Graduates (IMGs) who come to the U.S. to do medical residency or fellowship programs.
The second is for all persons whose J programs are financed by the U.S. government or by the visa holder’s government. The last is for persons whose occupations or courses of study appear on the Exchange-Visitor Skills List published by the State Department which administers all J programs. Foreign countries in need of certain skills place them on this list. Exchange visitors who participate in a program involving these designated skills are subject to the foreign residency requirement.
In addition, many people assume that the affected alien must return to his home country for two years immediately following the completion of the program, and may not set foot in the U.S. during those two years. In reality, the foreign residency requirement bars the alien, for a period of two years, solely from obtaining H (temporary worker), L (intracompany transferee), or permanent residence status in the U.S.
The alien may return to his home country and reenter the U.S. in visitor, student or other status. However, any time spent in the U.S. or a third country does not count toward the two-year residency requirement. For example, if an International Medical Graduate (IMG), after finishing a medical residency in the U.S. moves to Canada to avoid the two-year residency requirement and now wishes to re-enter the U.S., he will still be obstructed by the two-year rule.
It also should be noted that the foreign residency requirement attaches not only to the principal alien, but to the spouse and children who are present in the U.S. in dependent J-2 status. However, if the spouse and children never obtained J-2 status, they are not subject to the foreign residency requirement.
SUCCESS STORIES – J WAIVERS
- J-1 Waiver Victory
- A Hardship Waiver for a Physician
- Physician: Exceptional Hardship – Mexican Immigrant: Alternate Chargeability
OBTAINING J WAIVERS
There are four methods by which a foreign national may obtain a waiver of the two-year residency requirement. Each method requires the approval of one or more U.S. government agencies.
1. NO OBJECTION LETTERS
The government which financed the alien’s program, or which requested that the alien’s skill be placed on the Skills List, may write a letter to the State Department stating that it has no objection to a waiver of the foreign residency requirement for a particular alien. If both the State Department and the Bureau of Citizenship and Immigration Services (CIS) concur, the waiver is granted. However, graduates in medical education are ineligible to receive a waiver based upon a no objection letter.
2. HARDSHIP WAIVERS
A person may obtain a J waiver if the imposition of the foreign residence requirement would impose “exceptional hardship” on his or her U.S. citizen or permanent resident spouse or children. For example, a hardship waiver might be granted if the person were married to a U.S. citizen, had one or more citizen children, and the family would be forced by the residency requirement either to separate or to reside together in a war-torn country.
A hardship waiver might also be granted if a family member were suffering for a life-threatening disease for which treatment was not available in the country where the person is a citizen. Persons facing dramatically negative situations due to family conditions or conditions in their home country may consider this option.
3. PERSECUTION WAIVERS
The foreign residency requirement may be waived by the USCIS where it is determined by the State Department that the person cannot return to his country of nationality or last residence because of persecution he or she would be likely to encounter, based on race, religion or political opinion.
4. INTERESTED GOVERNMENT AGENCY J WAIVERS
An agency of the U.S. government may write to the State Department requesting a waiver of the foreign residency requirement for a particular person. For example, the Department of Health and Human Services (HHS) could write such a letter on behalf of a physician with a job offer in a medically-underserved area or a scientist if it was shown that the scientist’s research might lead to a vaccine or cure for a serious disease. If the State Department and the USCIS agree, and they almost invariably do, the waiver would be granted.
Besides the Department of Health and Human Services (HHS), the other federal government agencies most likely to sponsor J waivers for IMGs are the Veterans Administration (VA), the Appalachian Regional Commission (ARC) and the Delta Regional Authority (DRA).
Individual states may sponsor up to 30 physicians per year for J waivers through their Departments of Health. All 50 states as well as the District of Columbia, Puerto Rico and Guam have “Conrad 30” programs for physicians.
It is often difficult to obtain a waiver of the two-year residency requirement. Before obtaining J status, persons should determine whether they will be subject to the residency requirement and, if so, whether any alternative immigration status is readily available to them.
J Waivers – Additional Resources
- J Waivers for Physicians
- J Waivers (State Department)
- 212(e) Waivers (NIH)
- AAO Non-Precedent Decisions on Application for Waiver of the Foreign Residence Requirement
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Carl Shusterman served as an INS Trial Attorney (1976-82) before opening a firm specializing exclusively in US immigration law. He is a Certified Specialist in Immigration Law who has testified as an expert witness before the US Senate Immigration Subcommittee. Carl was featured in the February 2018 edition of SuperLawyers Magazine.
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