J-1 VISAS AND WAIVERS

J-1 Exchange Visitors

The Immigration and Nationality Act provides a nonimmigrant visa category for individuals to come to the U.S. as visiting students or scholars in the United States. The "J" visa is for educational and cultural exchange programs designated by the U.S. Department of State. Many universities bring international faculty and research staff, as well as some students, to the United States on the J-1 exchange visitor visa. There are also agencies like Fulbright, USAID, CODOFIL, VIF and others that run exchange visitor programs that bring foreign students and trainees to the United States.

The "J" Exchange Visitor program is designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts, and sciences. Participants include students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of travel, observation, consultation, research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.

An individual granted J-1 Exchange Visitor status (as well as his or her dependents in J-2 status) may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act, as amended, if:

  • the J-1 received funding from the U.S. government, their own government, or an international organization in connection with their participation in the Exchange Visitor Program, and/or;

  • the education, training, or skill the J-1 is pursuing in this country appears on the “Exchange Visitor Skills List” for their country, and/or;

  • the individual acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

    Once an individual is determined to be subject to the two-year home residence requirement, he or she is precluded from changing status in the U.S. (except to A or G),and from obtaining an H, L or immigrant visa or adjusting status to lawful permanent resident, until the home residence requirement has been fulfilled or waived. Determination of the applicability of the home residence requirement is initially made by the U.S. consular official at the time of visa issuance. Some exchange visitors who are subject to the home residence requirement do not wish to fulfill the requirement, and must therefore obtain a waiver.

    An individual who is not sure if he or she is subject to the requirement, or if an individual's visa is marked that he or she is subject and the individual believes that his may be in error, may want to request an advisory opinion from the Department of State.

    OPTIONS FOR A J-1 WAIVER

    There are five applicable grounds for a waiver provided by US immigration law, as follows:

  • No Objection Statement

    This, the easiest of all the waiver options, is available if the Exchange Visitor is subject to the residency requirement ONLY on the basis of the “Skills List,” and if the Exchange Visitor was not engaged in graduate medical training as a J-1. To obtain a “No Objection” waiver, the Exchange Visitor's government must state that it has no objection to the Exchange Visitor not returning to the home country to satisfy the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act, and must submit this statement to the U.S. Department of State.

  • Request by an Interested Government Agency (IGA)

    If an Exchange Visitor is working on a project for, or of interest to, a U.S. Government agency, and that agency has determined that the Exchange Visitor's continued stay in the U.S. is vital to one of its programs, a waiver may be granted if the Exchange Visitor's continued stay in the U.S. is in the public interest. For a listing of sponsoring agencies, please visit the U.S. Department of State. IGA waivers are available through several programs for International Medical Graduates. Please refer to David Ware & Associates’ Section, J-1 Physicians.

  • Persecution

    If the Exchange Visitor believes that he or she will be persecuted upon return to the home country due to race, religion, or political opinion, he or she can apply for a waiver, or perhaps even file an application for asylum, which would require essentially the same evidence.

  • Exceptional hardship

    If the Exchange Visitor can demonstrate that his or her departure from the United States would cause extreme hardship to his or her U.S. citizen or lawful permanent resident spouse or child, he or she may apply for a waiver. Please note that mere separation from family is not considered sufficient to establish exceptional hardship.

  • State Department of Health

    The law permits only medical doctors to apply for a waiver on this basis. Pursuant to the requirements of Public Law 103-416, of October 25, 1994 and Public Law 107-273, of November 2, 2002, foreign medical graduates who have an offer of full-time employment at a health care facility in a designated health care professional shortage area, and who agree to begin employment at the facility within 90 days of receiving such waiver, and who sign a contract to continue to work at the health care facility for a total of 40 hours per week for a prescribed period of time, may apply for a waiver. Please refer to David Ware and Associates' section, J-1 Physicians

    WAIVER APPLICATION PROCESS

    Depending on the basis for a waiver, the application process can be extremely complicated, and for that reason we have chosen not to try to give extensive information on this website. However, these are the major steps for obtaining a waiver:

    1. Apply at the U.S. Department of State, with fee, to establish a case file.

    2. Collect and submit the documents needed for a waiver. An Exchange Visitor pursuing a waiver through an Interested Government Agency (IGA) would submit documents to the IGA for approval. The IGA would then send the documents to the U.S. Department of State only if the case is approved. Other types of waivers involve different procedures.

    3. The U.S. Department of State, having received the necessary information for adjudication of a waiver request, issues a decision. If recommended, a "favorable recommendation letter" is sent to CIS. If denied, the applicant will receive a letter from the U.S. Department of State citing the reason(s) for denial.

    4. CIS, having received a favorable recommendation from the U.S. Department of State, makes the final determination.

    For more information about the various options for a J-1 waiver, please visit the U.S. Department of State and arrange an appointment with one of our attorneys.