October 15, 2007

Waiver of Two Year Foreign Residency Requirement for J-1 Visa Holders

Many J-1 Exchange Visitors are subject to the two-year home residency requirement. This requirement precludes these visitors from changing to many other nonimmigrant visa categories or adjusting to permanent resident status unless they have spent two years in their home country or country of last permanent residence upon completion of their J-1 program.

There are three categories of J-1 visa holders that are subject to the home residency requirement:

  1. Those whose field of training and expertise appears on a Skills List maintained by the State Department.
  2. Those who received funding either from their home government, an international organization or a U.S. government agency for the J-1 program.
  3. Those who entered the United States to receive graduate medical education or training.

Waivers of the home residency requirement are available in a few situations:

Fulfilling the requirement would result in exceptional hardship to a U.S. citizen or permanent resident alien spouse or child. In order to demonstrate exceptional hardship to a U.S. citizen or permanent resident spouse or child, the J-1 might try and document medical hardship, or persecution of the U.S. citizen or permanent resident if they go to the J-1’s home country, as well as other unusual hardships. Lesser hardships such as spousal separation, separation from children and language problems by themselves are not enough to prove hardship. Rather, the totality of hardship must be measured. A greater degree of hardship must be found in cases involving foreign medical graduates or those receiving U.S. government funding. Also, the hardship must arise both upon a separation of family members and if the family is together in the J-1’s home country.

Fulfilling the requirement will result in persecution to the alien on the basis of race, religion or political opinion. The criteria for a persecution-based waiver are similar to asylum claims; however, the burden of proof in a persecution-based waiver claim is higher than for an asylum claim. Consequently, most people pursue asylum applications rather than a J-1 waiver based on persecution. Furthermore, asylum claims usually lead to permanent residency status while this is often not true for a J-1 waiver. One instance where a persecution-based waiver may be favored is when an asylum claim is unavailable due to the applicant’s waiting longer than a year after entering to apply.
The alien’s home country government indicates no objection to the alien’s remaining in the U.S.

Waivers may be granted if a J-1 visa holder obtains a “no objection” letter from the exchange visitor’s country of nationality or last permanent residence. The “no objection” letter is a formal statement from the home country to the State Department. Most embassies or consulates in the U.S. have officials designated to handle these statements. Note: A “no objection” letter cannot be the basis for a waiver when the exchange visitor came to the U.S. to receive graduate medical education or training.

An interested government agency recommends the waiver as being in the national interest. A statement from a U.S. government agency to the State Department that the granting of a waiver would be in the public interest can also be the basis for a waiver. This is usually available if the agency employs the J-1, but an agency may request a waiver even if it does not employ that individual.

By Ann Massey Badmus