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J-1 Waiver

Q: What is the Foreign Residence Requirement?

A: Visitors are subject to a requirement that they return to their home country to share with their countrymen the knowledge, experience and impressions gained during their stay in the United States. Unless USCIS approves a waiver for this requirement, exchange visitors must depart from the United States and live in their country of residence for two years before they are allowed to apply for an immigrant visa, permanent residence, or change to a new nonimmigrant status, immigrant visa, permanent residence, or change to a new nonimmigrant status.

Q: Who is subject to the Foreign Residence Requirement?

A: Only the following visitors are subject to the foreign residence requirement:

  1. Any part of your participation in the exchange program was paid for, directly or indirectly, by your government or the United States government. Your program sponsor should have noted on your DS-2019 (previously the IAP-66) (Certificate of Eligibility for Exchange Visitor Status) if your program was paid for directly or indirectly by your government or the United States Government. You can also discuss this issue with officials from the Bureau of Consular Affairs;
  2. You are from a country which has been designated by the Bureau of Consular Affairs as requiring your skills; or
  3. You arrived in the United States on or after January 10, 1977 to obtain graduate medical education or training.

Q: If the J-1 visitor is subject to the two-year home country residence requirement, are the J-2 dependents subject to the same requirement?

A: Yes, a J-1 visitor's dependent spouse and child are also subject to the foreign residence requirement.

Q: If the J-1 obtains a recommendation for waiver of the two-year home residence requirement, will that apply to the J-2 derivative applicants?

A: Yes, if the J-1 applies for and receives a favorable recommendation, members of the immediate family, if applicable, will be included.

Q: Can a J-2 apply independently from the J-1 for a waiver of the two-year home residence requirement?

A: In cases of death or divorce from the J-1, or when a J-2 child reaches age 21, the Waiver Review Division may entertain requests for waivers on behalf of the J-2. The Division will need a completed data sheet, DS-2019/IAP-66 forms of the J-1, divorce decree or death certificate (whichever is applicable), and, for a dependent son or daughter turning 21, a copy of his/her birth certificate.

Q: Can I serve my two-year home residence requirement in the U.S. or a third country?

A: The period of time a former exchange visitor spends in the U.S. or a third country may count towards fulfillment of the two-year home residence requirement if the person is employed by his or her government in its military service or career foreign service and that person is serving in a country other than the home country at the behest of his/her government. Before the Department can determine that the individual has satisfied the foreign residence requirement, we require a written statement from an official of the home government (through the home-country's embassy in Washington, D.C.) that the individual was or will be serving in the U.S. or third country in the service of his/her home country and at that government's request.

Q: What are the bases upon which I can obtain a waiver of the two-year residence requirement?

A: There are five statutory bases upon which you can apply for a waiver of the two-year foreign residence requirement:

  1. a no objection statement from your home government;
  2. a request from an interested U.S. government agency on your behalf;
  3. a claim that you will be persecuted if you return to your country of residence;
  4. a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your country of residence; and
  5. request by a designated State health agency or its equivalent.

Q: How do I request a "no objection" statement and where do I send it?

A: You may contact the consular section of your embassy in Washington, D.C., and request a "no objection" statement to be forwarded to the Department of State on your behalf. The Embassy must forward the "no objection" statement directly to the Waiver Review Division at the Department of State.

Q: When in the application process should I request a "no objection" statement?

A: Once you have your case number.

Q: What if I cannot get a "no objection" statement from my former country of residence?

A: You may apply for a waiver in any of the remaining statutory bases. If none of the other bases applies to your situation, you must return home to fulfill the foreign residence requirement.

Q: Can anyone apply for a waiver based upon "no objection" from the host country?

A: No. Foreign medical graduates sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) to do their clinical training cannot apply for a waiver based on a "no objection" statement.

Q: How can I be sure that you have received the "no objection" statement?

A: You can ask the embassy from which you requested the "no objection" statement if it has been sent to the Waiver Review Division. The Waiver Review Division unfortunately does not have the resources to notify each applicant when a "no objection" letter has been received on his/her behalf.

Q: What do I do if my waiver application based on "no objection" is taking longer than the processing time?

A: You can send a letter by fax to the Public Inquiries Division requesting the status. It is possible that the case is problematic. The case could be missing documents or the applicant could not be reached at the last known address.

Q: My "no objection" statement application was denied. Can I ask for reconsideration?

A: No. Waiver applications are exhaustively considered, and it is the policy of the Waiver Review Division not to reconsider "no objection" statement applications once a final determination has been made. You may, however, reapply using another statutory basis for waiver should another one apply to your situation.

Q: Which U.S. government agencies can apply for the waiver on behalf of foreign medical graduates?

A: Appalachian and Delta Regional Commissions, Department of Health and Human Services, Department of Veterans Affairs and Department of Interior for Indian Reservations. Foreign medical graduates may also apply through an individual State's Department of Health that participates in the Conrad State 30 program.

Q: How do I apply for a waiver based on my fear of persecution if I were to return to my home country?

A: Apply directly to the USCIS on Form I-612. Also apply to the Department of State on Form DS-3035.

Q: When do I submit my DS-3035 and processing fee to the Department of State, Waiver Review Division?

A: You may submit your application and processing fee prior to submitting I-612 to USCIS or after USCIS has acted favorably on your I-612.

Q: Do I need to send anything, in addition to USCIS submission to the Waiver Review Division?

A: No, unless requested by the Waiver Review Division.

Q: Can I apply for a waiver based both on my fear of persecution and the exceptional hardship that my having to return to my home country would cause my family?

A: No. Persecution claims should never be intertwined with claims of exceptional hardship.

Q: My application based on fear of persecution was denied by USCIS. Can I ask for reconsideration?

A: Yes. Requests to reopen persecution applications are made through the USCIS. If the USCIS determines that new information warrants reopening of the case, USCIS will forward a new Form I-612 application to the Department for its consideration.

Q: How do I apply for a waiver based on the exceptional hardship that my American citizen or permanent resident family members face if I must return to my home country?

A: Apply directly to the USCIS on Form I-612. Also apply to the Department of State on Form DS-3035. Please note you will need to apply to both USCIS and the Department of State.

Q: When do I submit my DS-3035 and processing fee to the Department of State, Waiver Review Division?

A: You may submit your application and processing fee prior to submitting I-612 to USCIS or after USCIS has acted favorably on your I-612.

Q: I came to the U.S. from a country other than Canada on a J-1 visa, and after completion of my J program I moved to Canada and acquired landed immigrant status in Canada. Which country am I subject to return to for my two-year residence requirement -- my former country of residence or my current one, Canada?

A: You are subject to return to your former country of residence. J-1 regulations stipulate that an exchange visitor is subject to the country of his/her legal permanent residence at the time that the visitor acquires the J-1 status. The visitor must return to his/her former country of residence in order to fulfill the two-year home residence requirement or he/she must receive a waiver of the requirement.

Q: After a favorable recommendation for a waiver is made and transmitted by the Waiver Review Division to the USCIS, what is the next step?

A: USCIS will make the final decision regarding the waiver and will contact the exchange visitor directly.

Q: Will I be notified by the Waiver Review Division that my application has been forwarded to USCIS?

A: Yes. You will receive a copy of the recommendation.

Q: If my application is denied, will I be notified of the reasons why?

A: Yes.

Q: What is the reason most applications are denied?

A: Applications are denied because the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason, "no objection" applications in Fulbright/USAID funded programs are generally denied.

Q: Is there an appeal process for denials/unfavorable recommendations for a waiver by the Waiver Review Division?

A: There is an internal agency review process, but there is no formal appeal process for the applicant. However, the visitor may be eligible to reapply based on another statutory ground, e.g. if the first application was based on a "no objection" statement from the applicant's home country and then reapplies based on an interested U.S. government agency (IGA) request, a claim of exceptional hardship to a U.S. citizen or legal permanent resident spouse or child(ren), or based on a fear of persecution if the applicant is required to return to his/her home country.

Q: What if I have new information that may affect my eligibility for a waiver recommendation? Can I just send that to the Waiver Review Division and ask for a reconsideration of my previously denied application?

A: If you have already received a final determination from the Waiver Review Division that denies your request for a waiver recommendation, you will need to apply again from the beginning for a waiver recommendation. You can use this new information to support your reapplication. You will need to follow all of the procedures for reapplication that you followed for your first application, including paying the $215 fee. If your application is still pending with the Waiver Review Division and you have not yet received a final determination, you should send that information on to the Waiver Review Division for their consideration with your file. Please remember to write your waiver case number on any documentation you send and on the outside of the envelope.

Q: What is an advisory opinion for a waiver recommendation case?

A: An advisory opinion is a request for a statement from the Waiver Review Division as to whether an exchange visitor is subject to Section 212(e) of the Immigration and Nationality Act, as amended.

Q: When should I request an advisory opinion?

A: You should only request an advisory opinion after you have participated in a J-1 program and you have doubts whether you are or are not subject to Section 212(e).

Q: Can anyone request an advisory opinion on my behalf?

A: Yes. Your attorney or your responsible/alternate officer may request an advisory opinion for you.

 

 

 

 

 

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