J-Visas For Exchange Visitors & J Waivers

The J-1 Visa allows those who are approved to participate in an “exchange program” to temporarily remain in the U.S. for the duration of the program. J-1 program categories range from au pair, scientist, student to physician, and can also provide for summer employment. Often, but not always, the J-1 nonimmigrant is expected to return to his home country for 2 years after completion of his program, in order to utilize the experience and skills he had acquired. However, this 2-year requirement only applies to obtaining an H or L visa or permanent residence in the United States. Sometimes, it is possible to obtain a J waiver to eliminate this 2-year requirement.

The J program is administered by the US Department of Status. In order to apply for a J-1 visa, you need to obtain form DS-2019 from your sponsoring agency. You need to ask either the Responsible Officer (RO) or the Alternate Responsible Officer (ARO) what documents you need in order to obtain form DS-2019.

Spouses and children of J-1 visa holders may be obtained J-2 status. Persons in J-2 status may apply for employment authorization documents although their income may not be used to support the J-1 visa holder. Persons in J-2 status should apply for their work permits using form I-765. J waivers may be obtained by the following means: (1) No Objection Letters (Not for IMGs); (2) Exceptional Hardship; (3) Persecution; and (4) Interested Government Agencies (IGAs).

General Resources – J Visas Waivers

Exchange Visitor Categories

J Waivers

The major drawback of the J visa is that some exchange visitors are permitted to enter the U.S. only on the condition that they exit this country for a minimum of two years after their program is completed. Exchange visitors are subject to the two home residency requirement if:

The obtained money from either their home government or the U.S. government.
Their occupation is listed on the Exchange Visitor Skills List.
They are coming to the U.S. to obtain graduate medical education or training.

It is sometimes difficult to obtain a “J waiver”, or an exception, to this two-year foreign residency requirement. This is true even if the foreign national has married a U.S. citizen during the course of his or her stay in the United States. Nevertheless, in many cases, J visa holders can obtain waivers. The latest State Department procedures regarding J waivers should be followed.

MISCONCEPTIONS ABOUND

Prior to discussing waivers, it is important to clarify several misconceptions about the J visa. First, most J programs do not subject the foreign national to the two-year residency requirement. Only three types of programs contain this requirement. One of these programs is for aliens who obtain J status in order to receive graduate medical education or training in the U.S. There are special rules pertaining to J visas and waivers for physicians who are International Medical Graduates (IMGs). The second is for all persons whose J programs are financed by the U.S. government or by the visa holder’s government. The last is for persons whose occupations or courses of the study appear on the Exchange-Visitor Skills List published by the State Department which administers all J programs. Foreign countries in need of certain skills place them on this list. Exchange visitors who participate in a program involving these designated skills are subject to the foreign residency requirement.

In addition, many people assume that the affected alien must return to his home country for two years immediately following the completion of the program, and may not set foot in the U.S. during those two years. In reality, the foreign residency requirement bars the alien, for a period of two years, solely from obtaining H (temporary worker), L (intracompany transferee), or permanent residence status in the U.S. The alien may return to his home country and reenter the U.S. in visitor, student or another status. However, any time spent in the U.S. or a third country does not count toward the two-year residency requirement. For example, if an International Medical Graduate (IMG), after finishing a medical residency in the U.S. moves to Canada to avoid the two-year residency requirement and now wishes to re-enter the U.S., he will still be obstructed by the two-year rule.

It also should be noted that the foreign residency requirement attaches not only to the principal alien but to the spouse and children who are present in the U.S. independent J-2 status. However, if the spouse and children never obtained J-2 status, they are not subject to the foreign residency requirement.

Obtaining Waivers

There are four methods by which a foreign national may obtain a waiver of the two-year residency requirement. Each method requires the approval of one or more U.S. government agencies.

1. NO OBJECTION LETTERS

The government which financed the alien’s program, or which requested that the alien’s skill is placed on the Skills List, may write a letter to the State Department stating that it has no objection to a waiver of the foreign residency requirement for a particular alien. If both the State Department and the Bureau of Citizenship and Immigration Services (CIS) concur, the waiver is granted. However, graduates in medical education are ineligible to receive a waiver based upon a no objection letter.

2. HARDSHIP WAIVERS

The alien may obtain a waiver if the imposition of the foreign residence requirement would impose “exceptional hardship” on his or her U.S. citizen or permanent resident spouse or children. For example, a hardship waiver might be granted if the alien were married to a U.S. citizen, had one or more citizen children, and the family would be forced by the residency requirement either to separate or to reside together in a war-torn country. A hardship waiver might also be granted if a family member were suffering for a life-threatening disease for which treatment was not available in the country where the alien was a citizen. Persons facing dramatically negative situations due to family conditions or conditions in their home country may consider this option.

3. PERSECUTION WAIVERS

The foreign residency requirement may be waived by the CIS where it is determined by the State Department that the alien cannot return to his country of nationality or last residence because of persecution he or she would be likely to encounter, based on race, religion or political opinion.

4. INTERESTED GOVERNMENT AGENCY WAIVERS

An agency of the U.S. government may write to the State Department requesting a waiver of the foreign residency requirement for a particular alien. For instance, the Department of Health and Human Services (HHS) could write such a letter on behalf of a physician with a job offer in a medically underserved area or a scientist if it was shown that the scientist’s research might lead to a vaccine or cure for a serious disease. If the State Department and the USCIS agree, and they almost invariably do, the waiver would be granted.

Besides the Department of Health and Human Services (HHS), the other federal government agencies most likely to sponsor J waivers for IMGs are the Veterans Administration (VA), the Appalachian Regional Commission (ARC) and the Delta Regional Authority (DRA).

Individual states may sponsor up to 30 physicians per year for J waivers through their Departments of Health. All 50 states, as well as the District of Columbia, Puerto Rico and Guam, have established “Conrad 30” programs for physicians.

CONCLUSION

It is often difficult, though not impossible, to obtain a waiver of the two-year residency requirement. Before obtaining J status, persons should determine whether they will be subject to the residency requirement and, if so, whether any alternative immigration status is readily available to them.