In many cases, individuals holding J-1 status are subject to a two-year foreign residency requirement, which requires them to return to their home country for two years at the end of their J-1 exchange visitor program. Many physicians, scientists, engineers and other professionals, students and trainees find themselves in this situation. However, the two-year home residency requirement can often be avoided by obtaining a waiver from the US State Department and Department of Homeland Security.
Below is some general information pertaining to waivers of the two-year home residency requirement. If you would like to speak with an immigration lawyer regarding the requirements for obtaining a waiver, please feel free to contact us. Edgecomb Law LLC has a nationwide immigration practice, which means that the firm works with immigration clients in the Boston area as well as throughout the United States and abroad.
Who is subject to the two-year home residency requirement?
The two-year home residency requirement applies to individuals who have received funding from the U.S. government, a foreign government in order to participate in their J-1 exchange visitor program. It also applies to individuals whose skills are designated by their country of last permanent residence as necessary for that country’s development. Additionally, most foreign medical graduates who have participated in graduate medical training in the U.S. are subject to the two-year home residency requirement. If an individual is unsure as to whether the two-year home residency requirement applies to her, she may seek an advisory opinion from the U.S. State Department.
Who is eligible for a waiver of the two-year home residency requirement?
It is often possible for individuals subject to the two-year home residency requirement to obtain a waiver. There are five bases of available for obtaining a waiver request from the State Department:
(1) Statement of No Objection. An individual who has received funding from her home country or country of last residence can request a waiver of the two-year home residency requirement on the basis of a statement of no objection from an embassy or consulate of that country. The statement must affirm that the country’s government has no objection to the individual’s remaining in the US after expiration of her J-1 status. Statements of no objection should be submitted to the U.S. State Department, which may then recommend a waiver from the Department of Homeland Security on the applicant’s behalf.
(2) Request by an Interested US Federal Government Agency. Some J-1 exchange visitors can obtain a waiver by obtaining a request from a U.S. federal agency that holds an interest in a project on which the visitor is working, if the agency determines that the J-1 visitor’s departure would be detrimental to the agency’s interests. The visitor must select an appropriate agency and go through that agency’s channels to obtain a request for a waiver; each federal agency has its own policies and procedures regarding waiver requests. This can be a very long process due to the number of government officials who must review the submissions, so applicants should plan well in advance (in some cases, obtaining a request from an interested government agency and subsequent approval from the State Department and Department of Homeland Security can take years).
(3) Persecution. A waiver may be requested if an individual believes she will be subject to persecution on the basis of race, religion or political opinion if she is required to return to her home country or country of last residence. Individuals seeking a waiver on the basis of persecution should submit Form I-612 to USCIS. However, even in the event that USCIS finds that persecution is likely, the State Department still has the authority to reject the waiver application on policy grounds.
(4) Exceptional Hardship to a US Citizen (or lawful permanent resident) Spouse or Child of a J-1 Exchange Visitor. A J-1 visitor who has a spouse or children that are US citizens may seek a waiver based on exceptional hardship to the US citizen family members. Alleging hardship based on separation is not enough; the applicant must demonstrate serious hardship related to medical or psychological issues, political or social conditions in the home country, or severe economic disruption to the family. Individuals seeking a waiver on the basis of hardship to a US citizen relative should submit Form I-612 to USCIS. However, even in the event that USCIS finds that hardship to a US citizen is likely, the State Department still has the authority to reject the waiver application on policy grounds.
(5) Request by a Designated State Public Health Department or Its Equivalent. Physicians may obtain a waiver of the two-year home residency requirement by agreeing to serve full-time in a health care facility in an area designated by the US Department of Health and Human Services as an underserved area. The doctor must also obtain a contract at the health care facility and agree to begin work there within 90 days after receiving the waiver (not 90 days after expiration of her J-1 status). The required minimum term of employment in the underserved area is three years. Also, if the doctor has received funding for her J-1 program from her home country or country of last residence, she must obtain a no objection statement from the consulate or embassy of that country.