Waivers Of The Home Residency Requirement (J-1 Waivers)
Many people who have held a J-1 visa will be subject to a requirement that they spend two years in their country of citizenship or residency once their J-1 status has expired. People most commonly subject to his requirement are those whose program was financed in whole or in part by a U.S. government agency, by the government of the person’s country of residence, or nationality; or was a resident of a country who was designated as requiring people with the kinds of skills or knowledge the J-1 visitor was engaged in; or who came to the U.S. to receive graduate medical education or training.
If the two-year home residency requirement applies, the foreign national must spend a total of two years in their country of residence or citizenship before seeking an immigrant visa. The two years does not have to be completed all at once. For example, if someone changed to an F-1 visa after the expiration of their J-1 visa, they may count visits home during school breaks towards their residency requirement. Alternatively, the foreign national may seek a waiver.
There are four reasons a person can request a waiver: (1) no-objection from the home country (2) hardship to a citizen or legal permanent resident spouse or child, (3) persecution in home country, (4) interested government agency.
The first option requires the embassy of the foreign national to send a no objection letter to Waiver Review Division (WRD) of the Department of State. The WRD will then seek an opinion on the matter from any program the foreign national participated in that received U.S. government funding. Finally, the DOS will make a recommendation on whether to approve or deny to U.S. Customs and Immigration Enforcement.
The second option requires the foreign national to demonstrate that their U.S. citizen or LPR spouse or child would suffer an exceptional hardship if the foreign national had to meet the two year residency requirement. The hardship must apply both if the foreign national is to leave and if the family member were to accompany them to their home country. Examples of hardship are medical conditions, loss of career or educational opportunities or facing prejudice in the foreign national’s country.
The third option requires the foreign national to show that if they were return to their home country they would be subject to persecution based on their race, religion, or political opinion. The burden of proof on the foreign national is similar to that in an asylum case.
The final option is the interested government agency waiver. The foreign national must first apply to the U.S. government agency, and if the agency agrees, they will contact DOS. The agency must determine that requiring the foreign national to return home for two years would harm an agency program. Physicians may be eligible to seek a special type of waiver known as a Conrad if they are willing to work for three years in a medically underserved area.
Ware|Immigration is proud to serve individuals and organizations nationwide. Our offices are located in the greater New Orleans area; Baton Rouge, Louisiana; Florida; Seattle, Washington and Centennial, Colorado. We are available by appointment, schedule a consultation at 866-833-8308 or online.