When a foreign national enters the us on a J1 cultural exchange visa, they are expected to return to their home country for at least two years before attempting to immigrate to the US. The statutory authority for the J1 waiver is codified in INA section 212(e). Former J1 visa holders obtain a J1 waiver if they can show that a US Citizen or Lawful Permanent Resident spouse or child would suffer exceptional hardship if the applicant were forced to return home.

Recent J1 Waiver Decision

The Administrative Appeals Office (AAO) recently released a decision that it had made with regard to a J1 waiver.  Studying inadmissibility waiver decisions often sheds light on how officials might rule in a particular case.

In this case study, the citizen from Indonesia had entered the US on a J1 visa in 1990 and was subject to the 212(e) two year requirement based on Indonesia’s Exchange Visitor Skills List.  To qualify for the J1 waiver, the applicant must show that it would be exceptional hardship for the family to live in Indonesia for two years and exceptional hardship to live in the US without the applicant. Pursuant to Matter of Mansour, exceptional hardship is more than the anxiety, loneliness or altered financial circumstances that would result from the 2yr trip abroad.

In denying the J1 waiver, the AAO found that the applicant failed to prove exceptional hardship. There was no evidence that the family would be unable to obtain medical coverage in Indonesia, or that the couple would be able to find jobs. Further, the applicant had two adult children living in Indonesia.

Unlike other US immigration waivers which are decided solely by employees of the Department of Homeland Security, whether or not to grant a J1 waiver is usually a joint decision by the US Department of State (which administers the J1 exchange visa program), the USCIS, and the government of the J1 visa holder’s home country. Since the J1 visa participant cannot change or adjust status without an approved waiver, J1 waiver processing times at the Department of State are often an important factor for an immigration attorney handling a J1 waiver case.

Current Department of State estimates for J1 waiver processing are below.  However, since each case is different, the processing time for your particular J1 waiver case could vary dramatically from the published estimates. Further, the estimate assumes that all required documentation has been received by the Department of State.

J1 Waiver Processing – March 2010

• No Objection Letter:  6 to 8 weeks
• Interested Government Agency (IGA): 4 to 8 weeks
• Persecution: 3 to 4 months
• Hardship: 3 to 4 months
• State Department of Health: 4 to 6 weeks
• Advisory Opinion: 4 to 6 weeks