Q: What is the two-year Foreign Residency Requirement for J visa holders?
A: This rule requires some J visa holders to reside in their home country for at least two years before they may obtain an H, L or other immigrant visa to enter the U.S. or adjust their status within the U.S. You have to serve the two years in your home country or country of last habitual (permanent) residence, even if you obtain citizenship in another country.
Q: How may I obtain a Waiver on my two-year residency requirement?
A: Generally, a Waiver may be obtained through one of the following channels:
1. An Interested Government Agency (IGA) may request that the U.S. State Department waive the Foreign Residency Requirement.
2. A Waiver application based on hardship or persecution – If the J-1 status alien can establish that he/she will suffer persecution upon return to the home country, the foreign residency requirement will be waived. The threat of persecution needs to be based on one of the following three (3) grounds: a. Race b. Religion; or c. Political Opinion. Note: The alien has the burden to prove that he/she “will be subject to persecution.” The alien need not prove past persecution.
3. Health Agency Request. A designated State Health Agency or its equivalent may request a waiver on behalf of medical doctors who have been offered a full-time job with a health care facility serving an area with a shortage of medical professionals. In order to qualify for the waiver, the person must agree in writing to work at the facility for forty (40) hours per week, for a minimum of three (3) years and must begin work at the health care facility within ninety (90) days of the waive approval, and
4. Hardship – If complying with the Foreign Residency Requirements imposes exceptional hardship on the alien’s spouse or child, and the spouse or child is a
Q: What are my chances of obtaining a J-1 waiver?
A: It depends. Every case needs to be determined on its own merits. It is impossible to predict whether one’s J-1 Waiver request will be granted. However, a well prepared application along with strong supporting documentation will always improve your chances.
Q: May I self-petition for a J-1 Waiver?
A: You are eligible to self-petition for either a “Persecution” or a “Hardship” Waiver. An IGA Waiver request must be made on your behalf by an interested government agency and a health agency request must be made by a State Health department or equivalent.
Q: What is an IGA Waiver?
A: An IGA Waiver is obtained through sponsorship of an Interested Government Agency (IGA). Generally, the potential sponsoring IGA is a U.S. government agency that financially supports your program or has a strong interest in your area of research or study.
Q: How long does an IGA/State Health Agency Waiver take?
A: The amount of time required to obtain the IGA/State Health Agency recommendations depends on each particular IGA. After the IGA/State Health Agency recommendations are received, the State Department then reviews the case (2-3 months). The State Department then forwards its recommendation to the USCIS. The USCIS has varying review processing times.
Q: May a J-2 holder file a waiver petition independently of the J-1 Principal?
A: In most situations, a J-2 Holder is not allowed to file an independent Waiver petition. If a J-2 holder obtains a divorce from the J-1 principal, however, an independent waiver petition may be possible.
Q: May I change from J-1 status to another non-immigrant visa outside the U.S. if I am subject to the two-year residency requirement?
A: Yes. You may obtain a non-immigrant visa (O, E or F visa) from a U. S. Consulate located in a foreign country. But you may not obtain an H or L visa or permanent residence until you have received either a J-1 Waiver or until you have completed the two-year foreign residency requirement. You may change from J-2 to J-1 status while in the United States; however, you may be subject to the two year foreign residency requirement twice, once as a spouse of a J-1, and again as a J-1.
Q: How do I determine my current legal status in the U.S. as a J-1 Status Holder?
A: To determine your U.S. status, please refer to Forms IAP-66 and I-94. When you entered the U.S., the inspection officer will have marked “D/S” on your Form I-94. “D/S” means “Duration of Status” and indicates that your legal stay is for a certain limited period of time. The Exchange Program Period that is marked on your IAP-66 determines the length of your legal stay within the U.S.
Q: What is my J-1 Visa valid period?
A: The valid period of your J-1/J-2 visa is the period during which you may enter the U.S. This differs from the maximum duration of stay for your J program which defines the longest length of stay for anyone participating under the particular J program.
Q: My IAP-66 or DS2019 (Certificate of Eligibility) and I-94 (Arrival-Departure Record) are still valid but my visa has expired. May I leave and re-enter the U.S.?
A: It depends. You will need a new visa to re-enter the U.S. Reapplying for a J-1/J-2 visa may be risky in some countries.
Q: When my J status expires, do I have a grace period to legally stay in the U.S.?
A: Yes, you still have 30 days grace period to legally stay in the U.S.
Q: How may I adjust my status to permanent resident, if I am under the J-1 Foreign Residency Requirement?
A: Generally, you cannot petition for an Adjustment of Status if you have not yet met the Foreign Residency Requirement. Once you obtain a J-1 waiver, however, you may petition for an Adjustment of Status. You may also petition for an Adjustment of Status after you complete the two-year Foreign Residency Requirement. You may petition for a permanent residency visa once you begin to live in your home country, but the visa cannot be granted until the Foreign Residency Requirement is completed. You have to serve the two years in your home country or country of last habitual (permanent) residence, even if you obtain citizenship in another country.
Q: May I file for an I-140 (Labor Certification Petition) petition or I-130 (Alien Relative) petition while under the J-1 Foreign Residency Requirement?
A: Yes. Filing either an I-140 or an I-130 does not affect your status. Both allow you to obtain Permanent Residency Status in the future. For example, a person can obtain I-140 approval and then return to his/her home country and after completing the Foreign Residency Requirement, he/she is eligible to apply for permanent residency. Similarly, if a J-1 Waiver is granted, he/she can obtain a permanent visa (or adjust one’s status if in the U.S.) once the J-1 waiver is granted.
Q: What is the relationship between a J-1 Visa and an O-1 Visa?
A: There is no direct relationship between a J-1 Visa and an O-1 Visa. If a J-1 holder is not able to obtain a J-1 Waiver before his/her maximum term expires, an employer may apply for an O-1 Visa on behalf of the J-1 holder and he/she may go abroad to obtain an O-1.
Q: When is the waiver job considered completed? Is it from the date the H1 visa was granted or from the date one actually started working?
A: Completion of your waiver is based upon the date you started working in H-1B status. For example, if your H-1B approval begins July 1, 2008 but you start working on July 15, 2008, you must work until July 14, 2011 to complete your three year medical service requirement.
Q: Is it legal for the Doctor doing the J1 waiver to be employed in the capacity of an independent contractor? Does the visa allow one to be registered as a small business?
A: Your employer is the H-1B employer of record and therefore must pay you as an employee, not an independent contractor. If the employer wants to change this arrangement, then you must set up your own company and have your company file an H-1B petition. If the USCIS approves this petition (which it may not), then you will become an employee of your own company and this company can contract with your previous employer. In other words, the arrangement would be company to company and you will be an employee of your own company.
Q: I moved. Do I have to inform the USCIS?
A: Yes. If you are not a U. S. citizen, you must inform the USCIS on form AR-11 of each change of address. Failure to do so can affect your immigration process.
NOTE: Immigration law changes frequently. The resources and information provided on this web site are intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. Although we strive to keep this information current, we neither promise nor guarantee that the information is the latest available, or that it applies to your specific situation. You should not act or rely upon the information in these pages without seeking the advice of an attorney. To consult with Cowles & Thompson regarding your case, click here.