J-1 Visa holders who are restricted by the 2-year J-1 home residence requirement (or home country physical presence requirement, or Section 212(e) restriction), under § 212(e) of the Immigration & Nationality Act (INA), may seek a waiver of that requirement, known as a J-1 Waiver, in one of 5 ways.
- J-1 Waiver Based on No Objection Statement
- J-1 Waiver Based on Interested Government Agency (IGA)
- J-1 Waiver Based on Persecution
- J-1 Waiver Based on Exceptional Hardship
- J-1 Waiver Based on Designated State Health Agency Request (Conrad J-1 Waiver for Physicians)
1. J-1 Waiver: No Objection Statement
More than half of J-1 Waiver applications fall into the No Objection category. These J-1 Waiver requests originate when the J-1 Waiver Review Branch receives a diplomatic note from the applicant?s home government stating that it has ?No Objection? to the grant of a J-1 waiver.
It is important to distinguish between No Objection statements issued on behalf of J-1 visa holders who are subject to the two-year home-country physical presence requirement because their area of study, training or work appears on the J-1 Skills List and ?No Objection? statements submitted in support of J-1 Visa holders who have received Government funding (see Note on Government Funding, below). In the absence of either direct or indirect US Government or other government funding, a ?No Objection? statement from the J-1 visa holder?s home country is likely to result in a favorable J-1 Waiver recommendation.
If, however, the requested information indicates that the J-1 waiver applicant did receive direct or indirect Government funding, the sponsor providing such funding will be contacted for its views regarding the grant of a waiver. If the sponsor objects to a J-1 waiver, a ?No Objection? statement from a home country has limited, if any, effect, and the Agency will generally make an unfavorable recommendation to USCIS, and the No Objection J-1 Waiver request will be denied.
The J-1 Waiver ?No Objection? statement option is not available to J-1 visa holders who acquired J-1 Visa status on or after January 10, 1977, for the purpose of receiving graduate medical education or training. J-1 Waiver requests from foreign physicians based upon exceptional hardship, however, are reviewed in the same manner as other similar requests.
Generally, No Objection J-1 Waiver requests are processed within 6 to 8 weeks of the J-1 Waiver Review Board?s receipt of all required documentation, although timing can vary. This processing time estimate does not include processing time for USCIS to make its final decision on the J-1 Waiver, which depends both on USCIS priorities at the time DOS sends its J-1 Waiver recommendation to USCIS, as well as which of the USCIS Service Centers is handling the case.
2. J-1 Waiver: Interested Government Agency Requests (IGA J-1 Waiver)
The J-1 IGA Waiver is the second most prevalent (approximately 30%) basis upon which J-1 Waivers are sought. A J-1 Waiver request by an interested US Government agency or department (IGA) must explain that: (a) the granting of the waiver is in the public interest; and (b) the J-1 visa holder?s compliance with the 2-year Home-Country Physical Presence requirement would be detrimental to a program or activity of interest to that Federal agency. Upon receipt of an IGA J-1 Waiver request, DOS reviews the J-1 Waiver file to see if USG funding is involved; if so, DOS then requests the views of the USG agency or department providing such funding. If the funding agency or department does not object, DOS is most likely to forward a favorable J-1 Waiver recommendation to USCIS, and the J-1 Waiver will be approved.
If the agency or department that funded the J-1 Waiver applicant does object, however, the J-1 Waiver Review Branch forwards the J-1 Waiver application to the J-1 Waiver Review Board for a decision. The Board, in turn, weighs the program, policy and foreign relations aspects of the J-1 Waiver application against the agency and public interest aspects underlying the IGA request. In these circumstances, the IGA J-1 Waiver request will be subject to increased scrutiny, as will the amount of funding that underlies the sponsor?s objection to the grant of the J-1 waiver. However, in years past, approximately one-third of IGA J-1 Waiver requests have been granted.
J-1 Waiver applications based upon an IGA request should have very strong supporting documentation demonstrating why the IGA has a special interest in the project at issue, and why the J-1 visa holder is uniquely qualified to fill his/her position as opposed to American applicants or other foreign nationals who are not subject to a J-1 Visa 2-year home country residency requirement.
A PERM Labor Certification and/or evidence of unsuccessful attempts to fill the position should be included in the application. As in all J-1 Waiver applications other than those alleging persecution, USG funding will weigh heavily in the final determination.
In general, IGA J-1 Waiver requests are processed within 4 to 8 weeks of the J-1 Waiver Review Board?s receipt of all required documentation. This processing time estimate does not include processing time for USCIS to make its final decision on the J-1 waiver application, which depends both on USCIS priorities at the time DOS sends its recommendation to USCIS as well as which of the service centers is handling the case.
3. J-1 Waiver: Persecution
A very small percentage of J-1 Waiver applications are based upon fear of persecution on account of race, religion or political opinion upon return to the J-1 Visa holder?s home country. These J-1 Waiver requests should be originated with USCIS. If USCIS makes a preliminary finding of probable persecution, the J-1 Waiver applicant?s file is forwarded to DOS, which, in turn, refers the J-1 Waiver request to the Department of State?s Bureau of Democracy, Human Rights and Labor, Office of Asylum Affairs for consideration. Their determination generally serves as the principal basis for DOS?s recommendation to USCIS.
4. J-1 Waiver: Exceptional Hardship
J-1 Hardship Waiver requests comprise approximately 5% of all J-1 Waiver requests. J-1 Waiver requests based on Exceptional Hardship to a US citizen or Legal Permanent Resident spouse or child or children originate with an USCIS J-1 Waiver filing. If USCIS determines that Exceptional Hardship does exist, it forwards the J-1 Waiver file to DOS. DOS estimates that they make favorable recommendations on such J-1 Waiver applications slightly less than 50% of the time.
If either direct or indirect USG funding is involved, DOS will seek the views of the funding agency on the J-1 Waiver request. The J-1 Waiver Review Branch then balances program, policy and foreign relations considerations against the exceptional hardship that would befall the US citizen or Legal Permanent Resident spouse or child or children if the 2-year J-1 home residency requirement were enforced. No two J-1 Waiver requests based upon exceptional hardship are identical, even those with the same underlying facts. Note that in cases with the same underlying facts, program, policy and foreign relations considerations that exist at the time of J-1 Waiver consideration may lead to different outcomes.
The processing time for a J-1 Hardship Waiver depends upon DOS?s receipt of information and views from other Federal Government agencies, and is generally 3 to 4 months.
Exceptional Hardship J-1 Waiver Application Contents
DOS has provided the following possible factors for consideration of an Exceptional Hardship J-1 Waiver; the Agency has emphasized that these factors have no particular weight or order.
- Amount and source of funding received by J-1 waiver applicant.
- General country conditions affecting health, safety or general welfare of J-1 waiver applicant?s US citizen or Legal Permanent Resident spouse or child(ren).
- Absence of any objection by J-1 Waiver applicant?s home government to grant of a J-1 Waiver.
- Chronic medical condition of US citizen/lawful permanent resident spouse, child or children, and lack of adequate medical treatment in applicant?s home country (DOS will submit such information to the Department of State?s Medical Services division for expert evaluation of available medical facilities in that country).
- Presence of threat to safety of US citizen/Legal Permanent Resident spouse, child or children due to political or religious considerations in applicant?s home country.
- Existence of a custody order that would prevent US Citizen or Legal Permanent Resident spouse from removing minor children from a court?s jurisdiction.
- Service in US Armed Forces that would prevent US Citizen spouse/Legal Permanent Resident alien from accompanying J-1 waiver applicant to his/her home country. And/or,
- J-1 Waiver applicant?s marital status and whether s/he has any children.
Separation from a US Citizen or Legal Permanent Resident spouse or child in and of itself is not likely to outweigh program, policy and foreign relations considerations in favor of the 2 year home residence requirement. This includes J-1 Waiver applications alleging extreme hardship to a spouse due to inferior employment opportunities in the J-1 Waiver applicant?s home country. In addition, if the US Citizen family member is a naturalized citizen of the US and a native of the J-1 Waiver applicant?s home country, this factor is likely to negatively influence consideration of arguments alleging that a family member will have problems adjusting to life abroad.
When considering a J-1 Hardship Waiver, it is critical to note that a J-1 Hardship Waiver application must not only demonstrate that the qualifying US Citizen or Legal Permanent Resident relative(s) of the J-1 Waiver applicant will face exceptional hardship should the whole family relocate to the home country. They must also show that the qualifying relatives would face exceptional hardship should some of the family members stay in the United States. The latter?which is often quite difficult to demonstrate?appears to be the more important issue in a J-1 Hardship Waiver application.
5. J-1 Waiver: Designated State Health Agency or Its Equivalent (Conrad Waiver)
Foreign medical graduates with an offer of full-time employment at a health facility in a designated health professional shortage area who agree to begin employment at such facility within 90 days of receiving such J-1 Waiver, and who sign a contract to continue working at the health care facility for a total of 40 hours per week for not less than 3 years may obtain a J-1 Waiver. For information on State Health Agency requests and the Conrad program for Physician J-1 Waivers, contact the person designated in your state of interest.
Only physicians may apply for a waiver on this basis. State Health Agency Request (Conrad) J-1 Waiver applications take approximately 4 to 6 weeks to process. This processing time estimate does not include processing time for USCIS to make its final decision on the waiver, which depends both on USCIS priorities at the time DOS sends its recommendation to USCIS as well as which of the service centers is handling the case.
Note on US Government Funding and J-1 Waiver
In all J-1 waiver cases except those based upon fear of persecution, the J-1 Waiver Review Branch requests the views of the US Government (USG) program sponsor if the J-1 exchange visitor?s program has been financed directly or indirectly by an agency of the USG. In general, all ?G? J-1 visa programs have government funding, as do a number of ?P? programs. Note also that sponsorship by LASPAU, AMIDEAST and IIE, among others, may involve US government funds.