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J-1 Exchange Visitor Two-Year Home Country Physical Presence Requirement Waiver

Some J-1 visa holders are subject to a two year home country physical requirement, also known as the foreign residence requirement, under the Immigration and Nationality Act (“INA”), Section 212(e). This two year requirement applies to the J-1 for one of the following reasons: 1) government funding - the J-1 exchange program was funded in whole or in part by a U.S. government agency, the exchange visitor’s home government, or an international organization that received money from the U.S. or the home country’s government; 2) skills list - the J-1 participated in an exchange program in an area of study or field of specialized skill that appears on the Exchange Visitor List, or 3) graduate medical education - the J-1 participated in an exchange program in the alien physician category for a medical residency or fellowship. If the two year requirement applies to the J-1, it also applies to those on a J-2 dependent visa. There are various waivers available from this requirement. If a J-1 Waiver is granted, it also applies to any J-2 dependents, provided they are included in the Waiver request.

Caroline Ostrom, Minneapolis business immigration attorney, assists J-1 Visa holders nationwide to obtain J-1 Waivers. We encourage you to contact us if you need legal advice about eligibility for the J-1 Waiver or the application process.

What It Means to be Subject to Two Year Requirement

If you are subject to the two year home country physical presence requirement, you are required to return to your home country for a cumulative total period of at least two years. You are not prohibited from traveling to the United States, but until you have fulfilled the two-year home-country physical presence requirement, you are not allowed to: 1) change status to any category except A or G within the U.S.; 2) adjust status to a lawful permanent resident (LPR) within the U.S.; 3) receive an immigrant visa (LPR) at a U.S. Consulate; or 4) receive an H-1B, L-1A or L-1B, or K-1 fiancé (K) visa at a U.S. Consulate.

Waiver Options

If you are subject to the 212(e) two-year home country physical presence requirement, there are five bases for a J-1 Waiver:

1. No Objection Statement

If your home country has no objection to your not returning home for two years, it can issue a No Objection Statement through its embassy in Washington, DC and send it directly to the Waiver Review Division at the U.S. Department of State. The No Objection Statement may also be issued by a designated ministry in your home country’s government and sent to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it directly to the Waiver Review Division. If the home country does not object, the J-1 Waiver is generally granted.

The No Objection Statement option is available where the 2-year requirement applies due to the skills list or home government funding. It is not viable for J-1s where the exchange program received funding from the U.S. government. It is also not available to foreign medical physicians who acquired J-1 status on or after January 10, 1977, for the purpose of receiving medical education or training in the U.S.

2. Request by an Interested U.S. Federal Government Agency:

An Interested Government Agency (“IGA”) can file an IGA J-1 Waiver on behalf of a J-1 exchange visitor. To qualify, the J-1 must be working on a project for or of interest to a U.S. federal government agency, and that agency must determine that a two year departure to fulfill the home-country physical presence requirement would be detrimental to its interest. Unlike the “No Objection Statement Waiver” the IGA Waiver is an option for J-1 foreign physicians who agree to serve in health professional shortage areas or medically underserved areas, or a Veteran’s Administration facility. Please also see our section on immigration by physicians more details. The IGA waiver is also used for researchers, with the US Department of Health & Human Services most frequently acting as the IGA.

3. Persecution

A J-1 visitor who can demonstrate that he or she would be persecuted based on race, religion, or political opinion upon return to the home country by the government or by forces that the government is unable or unwilling to control may apply for a persecution waiver. This is a higher level of proof than the “reasonable fear” standard of an asylum application, and difficult to obtain. This type of J-1 Waiver is filed with a Form I-612, Application for Waiver of the Foreign Residence Requirement, directly with USCIS. USCIS will then forward its decision directly to the Department of State’s Waiver Review Division, which has an opportunity to review exchange visitor program, policy or foreign relations concerns before the waiver is finalized by USCIS.

4. Exceptional Hardship

A J-1can apply for a J-1 Waiver based on extreme hardship to his or her U.S. Citizen or Legal Permanent Resident (LPR) spouse or child. To qualify for this type of J-1 Waiver, the J-1 must demonstrate particular circumstances – emotional, financial, educational, and/or medical – which would make enforcement of the two year requirement an extreme hardship for the U.S. or LPR spouse or child. This J-1 Waiver is filed directly with USCIS with the Form I-612, Application for Waiver of the Foreign Residence Requirement. USCIS will forward its decision directly to the Department of State’s Waiver Review Division, which has an opportunity to review exchange visitor program, policy or foreign relations concerns before the waiver is finalized by USCIS.

5. Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program)

A foreign medical graduate who obtained J-1 exchange visitor status to pursue graduate medical training or education may request a J-1 Waiver based on the request of a designated State Public Health Department or its equivalent, provided certain criteria are met. This waiver category is also known as the Conrad State 30 Program, or Conrad Waiver. To qualify, you must: 1) have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area; 2) agree to begin employment at that facility within 90 days of receiving a waiver; and; 3) sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years. You must also obtain a “No Objection Statement” from your home country if you received funding from it for the J-1 program. The Conrad Waiver allocates 30 slots per State per fiscal year, and 10 of these can be used at facilities that serve clients in underserved areas, although the facility is not physically in a designated underserved area. Please also see our section on immigration by physicians.

How Our Minneapolis Immigration Attorney Can Help

There are several potential options for a successful J-1 Waiver, depending on your case. We analyze your case and apply your set of circumstances to determine the best way forward. Each of the five bases for the J-1 Waiver is distinct, and has its own set of eligibility requirements and procedures. We guide clients through the process step by step, through the different relevant agencies, which can include coordination between the Department of State, USCIS, foreign government Embassies, U.S. federal agencies, and State agencies.

Based in Minneapolis, our immigration team works with J-1 visa holders in the Twin Cities, nationwide, and throughout the globe. We welcome you to contact Ostrom Law Office for assistance with your immigration matter.

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