J-1 Waiver of Foreign Residency Requirement

The J-1 visa is an exchange visitor visa that allows foreign nationals to participate in an approved work or study based program temporarily. Applicants may teach, conduct research, consult, receive training, and much more on a J-1 visa. The Department of State grants certain public and private entities the authority to act as exchange sponsors for J-1 visa holders. The J-1 visa program is made possible to promote the interchange of persons and the free flow of ideas and skills in the arts, sciences, and education. Exchange visitors may include professors, scholars, research assistants, students, trainees, teachers, specialists, etc. Employment may be authorized to J-1 visa holders based on the specific terms of their agreement with the sponsoring agency. Such terms must be explicitly stated in the visa holder’s DS-2019 Certificate of Eligibility for Exchange Visitor or training plan including compensation and worksite location(s). The J-1 recipient may not accept employment from any other agency that is not stated in the terms of the agreement.

As stipulated by INA Section 212(e), certain J-1 visa holders and their J-2 dependents are subject to a two-year foreign residency requirement which requires the foreign national and J-2 dependents to return to their home country for at least two years at the conclusion of the J-1 exchange visitor program. Applicants who wish to change their status to another visa classification, such as the H or L visa classifications, must first obtain a waiver of the two-year foreign residency requirement from the Department of Homeland Security. Additionally, J-1 and J-2 visa holders subject to the two-year residency requirement cannot adjust their status to permanent residence, receive an immigrant visa from a U.S. embassy or consulate, or receive an H, L, or K visa until they receive a waiver. J-1 and J-2 visa recipients will know that they are subject to the two-year residency requirement by inspecting their visa. On the bottom center of the visa biographical page there will be a notation stating whether the bearer of the visa is or is not subject to the 212(e) two-year residency rule. J-2 dependents do not need to apply for a separate waiver of the two-year foreign residency requirement, they are automatically included in the waiver application of the J-1 waiver applicant. The J-1 waiver applicant must identify their J-2 dependent(s) on the DS-3035 application or USCIS Form I-612 Application for Waiver of the Foreign Residence Requirement. If the J-1 applicant’s waiver application is approved, the approval extends to the J-2 derivative dependents.

If you are unsure of whether you are subject to the requirement, you may request an advisory opinion from the Department of State’s Waiver Review Division. For more information on advisory opinions please click here.

Typically, J-1 visa holders participating in a program that requires specialized knowledge or skills, medical education or training, or who are part of a program that receives funding from a United States government agency, a foreign government agency, or an international organization are subject to the two-year foreign residency requirement. Unless you are required to file USCIS Form I-612 Application for Waiver of the Foreign Residence Requirement depending on the basis of your waiver (such as persecution claims or exceptional hardship), the J-1 waiver applicant must submit a completed online application, Form DS-3035 and mail the confirmation page including the barcode to the DOS Waiver Review Division along with supporting documentation.

If you are subject to the two-year requirement, you may apply for a J-1 waiver under one of the following five applicable bases:

You may request a ‘no objection’ statement through either your country’s embassy in Washington DC or a designated government ministry in your home country. In order to request a no objection statement from your embassy you must contact the consular section of your country’s embassy in Washington DC. The no objection statement must clearly state that your government will not object to your continuity in the United States thereby waiving the two- year rule of physical presence and to the possibility that you may seek lawful permanent residence in the United States.

No objection statements issued by your country’s embassy must be sent to the Department of State’s Waiver Review Division. No objection statements issued by a government ministry must be sent to the U.S. Chief of Mission Consular Section at the U.S. embassy within that country. You may not send a no objection letter to the DOS or U.S. Chief of Mission Consular Section on behalf of your country’s embassy or government ministry. Supporting documentation including DS-3035 confirmation page and copies of biographical documentation may be mailed to the DOS Waiver Review Division.

Exception: Foreign medical physicians receiving graduate medical education or training while on a J-1 visa on or after January 10, 1977 are not eligible for no objection waivers. See #5 Conrad State 30 Program, request by a designated state public health department or its equivalent.

An interested United States federal government agency can request a waiver on your behalf if your two-year absence will be detrimental to the project you will be participating in. Only the head of an American federal government agency or their designee may sign the request and submit it to the DOS Waiver Review Division. The request must clearly explain the reason your continued stay is in the public interest of the United States and why the agency would suffer a detriment in your absence. Supporting documentation including DS-3035 confirmation page and copies of biographical documentation may be mailed to the DOS Waiver Review Division.

The following is a list of some documents that should be included in a waiver based on a United States federal government request. The following list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on the specific case.

The list includes but is not limited to the following items:

Biographical Documentation

• Copy of Biographical Passport Page;
• Copy of U.S. Visa I.D. Page (if applicable);
• Copy of I-94 Arrival/Departure Record (if applicable);
• Copy of DS-2019, IAP-66 forms;
• Copy of Birth certificate and translation to it;

Supporting Documentation

• Your resume/curriculum vitae;
• A statement signed and dated by you that reads exactly as follows:
• "I,__________(your name) hereby declare and certify, under penalty of the provisions of 18USC.1101, that: (1) I have sought or obtained the cooperation of_______(enter name of U.S. Government agency which will submit/is submitting an Interested Government Agency Waiver request on your behalf to obtain a waiver of the two-year home-country physical presence requirement); and (2) I do not now have pending nor will I submit another request to any U.S. Government department or agency or its equivalent, to act on my behalf in any matter relating to a waiver of my two-year home residence requirement.";
• A letter of request from the head of the agency, or a designated official, stating why it is in the public interest that you be granted a waiver of the two-year home-country physical presence requirement (section 212(e) of the Immigration and Nationality Act);
• A signed contract for no less than three years and 40 hours a week between you and the facility where you will work;
• Evidence that the clinic/facility is located in a U.S. Department of Health and Human Services designated Health Professional Shortage Area or Medically Underserved Area;
• A statement signed by the head of the facility at which you will be employed stating the facility is located in a designated Health Professional Shortage Area or Medically Underserved Area and provides medical care to both Medicaid- and Medicare-eligible patients, and indigent uninsured patients. The statement should also include the Federal Information Processing Standards county code and census tract or block numbering area number (assigned by the Bureau of Census) or the 9-digit zip code of the area where the facility is located;
• Evidence that unsuccessful efforts were made to recruit a U.S. citizen physician for the position (for example, medical journal advertisements; labor certification; or language in a cover letter stating efforts to recruit a U.S. citizen physician have been unsuccessful); and
• Form G-28 or letter from a law office, if you designated an attorney to represent you.

Government Agency Request from the Department of Veterans Affairs (VA) on behalf of an exchange visitor physician to serve in a VA hospital

• VA hospitals do not have to be in an underserved area; and
• VA applications must include a signed memorandum of agreement between you and the hospital in lieu of a three-year contract.

Exchange visitors who fear persecution in their home country on account of race, religion, or political opinion may seek a waiver of the two-year foreign residency requirement by filing USCIS Form I-612 Application for Waiver of the Foreign Residence Requirement. If credible fear of persecution is determined by CIS the application will be forwarded to the DOS Waiver Review Division for a waiver recommendation. Applicants must prove that if they were to return to their home country to fulfill the two-year foreign residency requirement they would more than likely face persecution based on race, religion, or political opinion.

The following is a list of some supporting documents that should be included along with USCIS Form I-612 Application for Waiver of the Foreign Residence Requirement on the basis of persecution. The list is not all inclusive and specific details pertaining to your application should be discussed with a licensed attorney in detail. Additional documents may be necessary depending on the specific case.

The list includes but is not limited to the following items:

Biographical Documentation

• Copy of Biographical Passport Page;
• Copy of U.S. Visa I.D. Page (if applicable);
• Copy of I-94 Arrival/Departure Record (if applicable);
• Copy of DS-2019, IAP-66 forms;
• Copy of Birth certificate and translation to it;

Evidence in support of persecution claims

• Written statement detailing the circumstances arising from your persecution claim if you were to return to your country to fulfill the two-year rule;
• Medical reports and evaluations from Health care professionals (Affidavits, Reports)– explaining the harm the applicant has suffered due to his/her activities;
• Affidavits, Reports, pictures – establishing that applicant has suffered harm or showing applicant`s enrolment in different activities;
• Police reports – indicating applicant’s involvement;
• Government established documents – establishing the applicant`s ethnicity, religion, nationality;
• Proof of applicant`s party or group membership or affiliations;
• Very DETAILED affidavit from the applicant explaining the following:
  1. How the incidents have started;
  2. Date and place of each incident;
  3. Detailed story of each incident;
  4. Who was involved, how many people;
  5. Consequences of the incident
• Affidavits from close friends, family members:
  1. Who can demonstrate applicant`s enrollment in activities;
  2. Who have witnessed an event;
  3. Who can confirm and explain how applicant has suffered by being involved in different incidents;
• Proof of Attempts to Obtain Documents – if applicant has tried but failed to obtain documentation, those failed attempts could be submitted as evidence that the documentation is not available;
• Form G-28 or letter from a law office, if you designated an attorney to represent you;

You may request an exceptional hardship waiver if your departure from the United States, to fulfill the two-year foreign residency requirement, would cause your U.S. Citizen or lawful permanent resident (LPR) spouse or child an exceptional hardship by filing USCIS Form I-612 Application for Waiver of the Foreign Residence Requirement. An exceptional hardship requires the presence of an unusual circumstance. Family separation is not considered an exceptional hardship. CIS will forward its decision to the DOS Waiver Review Division which will grant the applicant a waiver recommendation if CIS has made a finding of exceptional hardship.In addition to Form I-612, the applicant should provide a written statement detailing the circumstances arising from the exceptional hardship claim. If your spouse or child is a U.S. Citizen you must provide evidence of their US Citizenship. If your spouse or child is an LPR you must submit a copy of I-551 Permanent Resident Card. Additionally, the applicant must provide copies of their biographical documentation along with documentation in support of their exceptional hardship which may include affidavits, medical reports, medical records, photographs, psychological evaluations, financial hardships, etc. It is recommended that applicants carefully review the I-612 Instructions on the CIS website before applying.

Foreign medical graduates who received their graduate medical training or medical education on their J-1 visa may seek a waiver of the two-year foreign residency requirement at the request of a designated state public health department or its equivalent. Special Provision: If you participated in an exchange program that was funded by the government of your home country, the government of your home country must submit a no objection statement to the DOS Waiver Review Division as an additional component to your application. The no objection statement must clearly state that it is for a Request by a Designated State Public Health Department (or its equivalent), or a Conrad State 30 Program, waiver.

J-1 applicants cannot file a waiver under this basis on their own behalf, only a designated state public health department may make such a request. Waivers submitted under this basis are limited. Each department can request no more than 30 of these requests per federal fiscal year; 10 must be submitted for exchange visitor physicians who will serve patients living in a designated health care professional shortage area.

In order to qualify the following three requirements must be met:

• The applicant must have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area;
• The applicant must agree to begin employment at that facility within 90 days of receiving a waiver; and
• The applicant must sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.

Such requests are reviewed by the state public health department and then forwarded to the DOS Waiver Review Division if approved. For a list of state designated healthcare departments click here.

To apply, a designated state public health department must send the following items directly to the DOS Waiver Review Division.

Biographical Documentation

• Copy of Biographical Passport Page;
• Copy of U.S. Visa I.D. Page (if applicable);
• Copy of I-94 Arrival/Departure Record (if applicable);
• Copy of DS-2019, IAP-66 forms;
• Copy of Birth certificate and translation to it;

Supporting Documentation

• Your resume/curriculum vitae;
• A letter from the state public health department’s designated official (designated by the state governor) which states it is in the public interest that you remain in the U.S. and includes the following:
  1. Your name
  2. Your country of last legal permanent residence
  3. Name of medical facility
  4. Address of facility
  5. U.S. Department of Health and Human Services designated Health Professional Shortage Area (HPSA) ID number of medical shortage area
  6. A letter from the facility that wishes to hire you;
• Evidence that the facility is in a Health Professional Shortage Area or a Medically Underserved Area;
• A signed contract for no less than 40 hours a week for three years between the facility and you, with signatures by you and the head of the facility; and
• Form G-28 or letter from a law office, if you designated an attorney to represent you.

Presently, the Department of State has published the following estimated processing times for waiver recommendations which vary depending on the waiver basis. Certain waivers require additional administrative processing by the waiver division. Processing of an application begins when your application is considered complete meaning the processing fee has been paid, copies of the DS-2019/IAP-66 forms, and all other required documents have been submitted.

For frequently asked questions regarding J-1 Waivers of the two-year foreign residency requirement click here. For more information on the application process please click here.