J-1 Waiver
Certain exchange visitors (J-1) as well as their dependent spouse and children under the age of 21 (J-2) are subject to a two-year home-country physical presence requirement. It obliges you to return to your home country for at least two (2) years at the end of your exchange visitor program. An exchange visitor undertakes home residence requirement due to one or more of the following reasons:
- Government funded Exchange Program - You participated in an exchange program that was funded in whole or in part by a U.S. Government agency, your home country’s government, or an international organization that received funding from the U.S. Government or your home country’s government.
- Specialized Knowledge or Skill - You participated in an exchange program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country.
Exchange Visitor Skills list can be found at
https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor/exchange-visitor-skills-list.html - Graduate Medical Education/Training - You participated in an exchange program to receive graduate medical education or training.
This is otherwise known as the foreign residence requirement under U.S. law, Immigration and Nationality Act, section 212(e). The only way to fulfill this requirement is by returning to your home country for a cumulative total period of at least two years. Otherwise, you are not permitted to do any of the following:
- Change status while in the U.S. to the nonimmigrant categories of temporary worker (H) or intracompany transferee (L);
- Adjust status while in the U.S. to immigrant visa/lawful permanent resident status (LPR);
- Receive an immigrant visa at a U.S. embassy or consulate; or
- Receive a temporary worker (H), intercompany transferee (L), or fiancé (K) visa.
However, if you are unable to return to your home country to fulfill the two-year requirement, there is a provision in U.S. law for a waiver of this requirement by the Department of Homeland Security (DHS).
You should apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver under any one of the five applicable bases set forth in U.S. immigration law. Choose the one basis that you qualify for or applies to your situation.
Five Bases for Recommendation of a Waiver:
1. No Objection Statement:
Your home country government may issue a ‘No Objection Statement’ through its embassy in Washington, DC directly to the Waiver Review Division that it has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the U.S.
2. Request by an Interested U.S. Federal Government Agency:
If you are working on a project for or of interest to a U.S. federal government agency, and that agency has determined that your departure for two years to fulfill the two-year home-country physical presence requirement would be detrimental to its interest, that agency may request an Interested Government Agency Waiver on your behalf.
3. Persecution:
If you believe that you will be persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver.
4. Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:
If you can demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for an exceptional hardship waiver.
5. Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program):
If you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education, you may request a waiver of the two-year home-country physical presence requirement based on the request of a designated State Public Health Department or its equivalent, if you meet certain requirements.
Requesting a Waiver Review from the Department of State and then the final waiver approval from USCIS can be a lengthy and cumbersome process. Our law firm will help you navigate through this multistep process in relative ease and enable you to change your current status to a rather less restrictive non-immigrant or to an immigrant status.