J-1 Visas - Waivers Of The Two-Year Home Residency Requirement
by Greg Siskind
This article covers a stringent requirement that has become quite a dilemma for a large number of J-1 recipients. Many people who come to the US as J-1 Exchange Visitors are subject to a requirement that precludes them from changing to many other major non-immigrant visa categories or adjusting to permanent resident status unless they have spent two years after completing their stays in J-1 status in their home country, or country of last permanent residence.
The IAP-66 Form or SEVIS Form DS-2019 issued by a J-1 program sponsor provides for a consular or immigration official to make a preliminary determination regarding the applicability of the home residency requirement. This determination may also be stamped or written next to the visa stays in the passport. Note, however, that this determination is only preliminary and should not necessarily be relied on without carefully reviewing with an attorney whether the J-1 visa holder falls into one of three exclusion categories.
Am I subject to the home residency requirement?
Three categories of J-1 visa holders are subject to the home residency requirement. The first category is for J-1s whose field of training and expertise appears on a Skills List maintained by the State Department. The list is periodically revised by the State Department (most recently on March 17, 1997) and includes countries where various skills are in short supply. Most industrialized countries do not appear on the Skills List. A J-1 visitor is subject to the home residency requirement if his skill was on the Skills List at the time the J-1 entered the US , even if the skill is later removed.
J-1ís who receive funding either from their home government or a US government agency for participating in their J-1 program are also subject to the home residency requirement. Any amount of funding triggers the requirements. Financing includes monetary payments, even in the form of loans, as well as other forms of financial aid such as covering expenses for tuition, books, insurance, etc.
Finally, any J-1 who enters the US to receive "graduate medical education or training" is subject to the two-year home residency requirement. Such education or training includes residency or fellowship programs involving health care services to patients. Programs involving observing, consulting, researching or teaching with no patient care are not considered "medical education or training." The Educational Commission on Foreign Medical Graduates sponsors J-1 medical education or training programs.
Am I eligible for a Waiver?
Waivers of the home residency requirement are available in a few situations:
In order to demonstrate exceptional hardship to a US citizen or permanent resident spouse or child, the J-1 might try and document medical hardship, persecution of the US 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 may not be 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 or if the family is together in the J-1's home country.
A waiver is available if the J-1 will face persecution in his or her home country due to race, religion or political opinion. The criteria 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 waiting longer than a year after entering to apply.
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, diplomatic statement from the home country to the State Department. Most foreign embassies in Washington have officials designated to handle these statements. The procedures vary widely from country to country and may take up to a year or more. Note that a "no objection" letter is not a basis for a waiver when the exchange visitor came to the US to receive "graduate medical education or training."
A statement from a US government agency to the State Department that the granting of a waiver would be in the public interest and that two years of home residency would jeopardize the agency's interests is a 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. Waivers are almost always granted in these cases. One exception would be in the case of funding from an agency like the Fulbright Commission of U.S.A.I.D.
A statement from a US government agency to the State Department that the granting of a waiver would be in the public interest and that two years of home residency would jeopardize the agency's interests is a 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. Waivers are almost always granted in these cases. One exception might be in the case of funding from an agency like the USAID.
Greg Siskind, Esq. is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at firstname.lastname@example.org.
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