J1 Waiver

A J1 waiver is a type of inadmissibility waiver used by prior J1 visa holders (exchange visitors) who now wish to remain in or return to the US without fulfilling the two-year foreign residence requirement.

The foreign residence requirement is codified in section 212(e) of the INA and requires certain J1 visa exchange visitors to return home for a minimum of two years before  changing status to an H-1B visa, an L visa or adjusting status to that of a green card holder. A J1 waiver is not needed, however, for a change of status to an F1 student visa.

J1 visa holders who are subject to the two-year foreign residence requirement include those who:

• received funding from the United States Government, their own government, or an international organization in connection with their participation in the Exchange Visitor Program;
• are pursuing education, training, or a skill that appears on the Exchange Visitor Skills List for their country; or
• acquired J1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

If an exchange program participant is subject to the foreign residence requirement, a spouse or child who obtained a J2 visa will also be subject to the requirement.  Further, J1 program participants are cautioned not to rely on consular determinations, such as those that appear on the DS-2019, of whether they are subject to the foreign residence requirement. Instead, an advisory opinion should be obtained from the Department of State prior to attempting to change status or adjust status.

Why is a J1 Waiver required?

J1 exchange visitor visas are unique in that they require some holders to return home at the end of the program for a period of two years instead of allowing the foreign national to work under an H-1B visa, L visa or to adjust status to a green card holder. While this rule may seem harsh, the intent of the J1 exchange visitor visa is to provide citizens of foreign countries with the opportunity to experience America, and the American way of life, and then return home and share what they have learned with their countrymen. To this end, often the Untied States and/or the country of origin will contribute money to the J1 program in order to facilitate the cultural exchange. If all participants were allowed stay in the US at the end of the program, the intent of the program would be thwarted and the resources spent on that participant would have been wasted. So, to be fair, certain J1 program participants must return home to share knowledge for two years, at a minimum. However, this two-year foreign residence requirement (FRR) is waivable for certain applicants.

What is a J1 waiver?

The J1 waiver is used by exchange visitors to bypass the two year foreign residence requirement that would otherwise prevent them from adjusting or changing status to another type of US immigration visa, such as an H-1B or a green card.

There are five types of J1 waiver that can possibly be used by a program participant:

1. No Objection Letter: A J1 visa holder who is subject to the foreign residence requirement can obtain a letter from the home government stating that there is no objection to that person staying in the US without returning home for two years. Medical doctors who came to the US for graduate medical training cannot get a J1 waiver based on a no objection letter.
2. Interested Government Agency (IGA): J1 visa exchange program participants who have an important role in a research project, and can prove that returning home for two years would negatively impact the project, can get their J1 waiver sponsored by a government agency that has an interest in the project. Doctors who agree to work for VA Hospitals run by the US Veterans’ Administration or medical facilities in under served areas can obtain an IGA J1 waiver of the foreign residence requirement.
3. Persecution: J1 visa exchange program participants who believe that they will be persecuted if they return to the home country due to race, religion or political opinion can seek a J1 waiver based on persecution.
4. Hardship: If a J1 visa holder has a US citizen or green card holder spouse or child, he or she can apply for a J1 waiver based on hardship. To receive the J1 waiver, the applicant must show that his or her departure from the US would cause extreme hardship to the US citizen or lawful permanent resident.
5. State Department of Health: Doctors who have a full-time job offer at a health-care facility in a designated medical professional shortage area can apply for a J1 waiver if they agree to start working within 90 days of obtaining the waiver. The doctor must sign a contract promising to work at the facility for 40 hours a week for a minimum of three years.

A waiver attorney can help with the J1 waiver process

Obtaining a J1 waiver is essential for certain former exchange visitor program participants to either continue to work in the US or to adjust status to that of a green hard holder. The waiver process is complicated and should be handled by a qualified waiver attorney. For more information on the J1 waiver process, contact us today for a free consultation.