Persons who enter the United States as J-1 exchange visitors, as well as their J-2 spouses and children, may be subject to a two-year foreign residence requirement. The requirement exists to promote the cross-cultural exchange. The two-year requirement only applies in cases where the exchange program is financed in whole or part by the U.S. government or a foreign government, where the J-1 exchange visitor is in the United States for post-graduate medical training, or where the United States has found that the foreign country is in need of the skills involved in the program. This Exchange Visitor Skills List is published regularly.
The foreign residence requirement mandates two years of physical presence in the home country before the person is eligible for permanent residence, for any H visa (such as H-1B) or L visa. While former J-1 exchange visitors who are subject to the foreign residence requirement are eligible for all other visa classifications, most changes of status (except changes to certain diplomatic and humanitarian statuses) are prohibited and a visa must be obtained outside the United States.
Returning to one’s home country for two years is not always possible, desirable or needed. The U.S. government offers several waiver options to eliminate the requirement without spending a full two years abroad.
The United States will grant waivers on the recommendation of the foreign government. Applications are processed through the Department of State and the foreign embassy in Washington or another designated consulate. Waivers based on no-objection statements are not available for foreign medical graduates and are often unavailable in cases where the exchange program was financed by the United States government. Countries have individual policies for application procedures and whether they will permit waivers at all.
If a two-year departure would subject the J-1 alien’s U.S. citizen or permanent resident spouse or child to exceptional hardship, a waiver can be granted on that basis. Applications are processed separately through the Department oF State and Citizenship and Immigration Services. An application must demonstrate exceptional hardship both if the qualifying family member accompanies the J-1 home and if the qualifying relative remains in the United States. The standard for a waiver is similar to I-601 waivers of other forms of inadmissibility.
Should there be a severe risk of persecution upon returning home, the United States can waive the two-year requirement on that basis. The expected persecution must be based on the applicant’s race, religion or political opinion. The requirements for a persecution waiver are similar to the standard for asylum. A persecution waiver requires a stronger showing of the chance of persecution than an asylum case, but the waiver is available in situations where asylum is not, such as when applying more than one year after entry. An approved asylum application usually eliminates the two-year foreign residence requirement without a separate waiver process.
Foreign Medical Graduate Waivers
J-1 foreign medical graduates, who are always subject to the two-year foreign residence requirement, may apply for a waiver by agreeing to work for a period in an underserved or otherwise designated region. State departments of health as well as certain federal agencies recommend physicians for waivers. In the case of state departments of health, 30 waivers are available annually under the Conrad 30 waiver program and in some states an additional, unlimited number, are available through other federal programs. Every agency has separate application requirements and procedures. Upon approval of the waiver, a separate H-1B petition is required before starting work. The H-1B petition is always exempt from the annual cap.
Interested Government Agency Waivers
If a waiver is needed and none of the other waiver programs is available or appropriate, any federal agency may recommend a waiver be granted. Typically federal agencies limit recommendations to their own employees, but the Department of State will recommend waivers on its own in extraordinary cases.
Greenberg Visa Law has extensive experience with all forms of J-1 waivers, and particular experience with medical graduate waivers and waivers for individuals who have a foreign residence requirement to countries besides the country of nationality. We invite you to contact us for a review of your situation.