This is a complete guide to J1 visa waiver for USA. Before we discuss the J1 visa waiver, it is important to understand that not all J1 visas are equal, the purpose of the J1 visa, what triggers the 2-year foreign residence requirement and how to obtain a J1 visa waiver and waive the 2-year foreign residence requirement and other restrictions.
The J1 visa is a nonimmigrant visa for the US specifically designed for individuals who participate in approved exchange visitor programs in the United States. Generally, you can come to the United States on a J1 visa if you participate in certain exchange visitor programs including Au pair and EduCare, Camp Counselor, Government Visitor, Intern, International Visitor, Physician, Professor and Research Scholar, Short-Term Scholar, Specialist, Student at College/University level or Secondary level, Summer Work and Travel, Teacher and Trainee. In order to qualify for a J1 visa you must first apply and be approved into an exchange visitor program above through a designated sponsoring organization in the United States.
After you are accepted to participate in an exchange visitor program you can obtain a J1 visa. However, it is important to understand that certain J1 visas are subject to a 2-year foreign residence requirement while others are not and this primarily depends on the occupational field of program or the specialized skill developed, and whether the program is financed by the US or home-country government as discussed below.
Who is subject to a J1 visa with 2-year foreign residence requirement?
When you participate in an exchange visitor program that falls under the conditions below, then your J1 visa is subject to a two-year home-country (or last legal permanent residence) physical presence requirement. This requires you to return home for at least two years after your exchange visitor program, either to your country of nationality or your last legal permanent residence, before you can apply for certain other nonimmigrant visas or immigrant visas (green card) for the United States.
You are subject to the 2-year foreign residence requirement if your program meets one of the conditions below, regardless of the specific annotation on your J1 visa stamp. Sometimes, consular officers forget to add a note about the 2-year foreign residence requirement on the J1 visa, but this does not mean that the requirement does not apply simply because it is not listed on your visa stamp. Similarly, at times, consular officers erroneously mark the J1 visa with the 2-year foreign residence requirement, when in fact you are not subject to the requirement.
Requirements to the 2-year foreign physical residence
To be subject to the 2-year foreign physical residence requirement then at least one of the following must apply to you:
- Exchange Program Funded by the Government. If you participated in an exchange program funded entirely or partially, whether directly or indirectly, by the U.S. government or an agency of the U.S. government or an international organization that received funding from the U.S. government or your home country’s (or last residence) government, then you are subject to the 2-year foreign residence requirement.
- Specialized Knowledge of Skill. If your home country or country of last residence designated the field of specialized knowledge or skill that you participated in as necessary for the development of the country, then you are subject to the 2-year foreign residence requirement. Keep in mind that not all countries designate the same field of specialized knowledge and skill as important and certain countries do not designate any skills. This means that for example if an exchange program in hospitality management and food and beverage is designated as a skill for Romania and Jamaica, the same program is not a skill for Argentina and other countries such as Canada, Greece or Mexico do not have a designated skill list. Based on the example above, if you participated in an exchange program in hospitality management (hotel), then you will be subject to the 2-year foreign residence requirement if you are from Romania or Jamaica, but not if you are from Argentina, Canada, Greece or Mexico.
- Graduate Medical Education or Training. If you entered the United States to receive graduate medical education or training, then you are subject to the requirement.
What are the restrictions for individuals holding J1 visa with 2-year foreign residency requirement?
If you are subject to the 2-year foreign residence requirement, you cannot do any of the following until you fulfill the 2-year physical presence in your home country or country of last residence or you obtain a J1 visa waiver:
- Change status in the United States to any nonimmigrant visa category except A visa or G visa. You can apply to change from J-1 visa status to a diplomatic and other government officials (A visa) or representatives to international organizations (G visa) even if you are required to meet the foreign residence requirement.
- Adjust status in the United States to lawful permanent resident (green card holder).
- Receive an immigrant visa (green card) at a U.S. Consulate or Embassy abroad.
- Receive an H, L or K-1 fiancé visa at a U.S. Embassy or Consulate.
However, you are allowed to apply and receive another J-1 visa (with few exceptions for Research Scholar or Professor), F-1 student visa, B1/B2 tourist visa, E-2 visa and any other visa not specifically listed above without first fulfilling the 2-year foreign residence requirement.
How can you obtain a J1 visa waiver?
If you have or had a J1 visa and you are subject to the 2-year foreign residence requirement, but you cannot fulfill it, then you need to apply for a J1 visa waiver. You can request a J1 visa waiver under any one of the following five applicable bases in U.S. immigration law:
- No Objection Statement from your country’s government. Generally, your home country government may issue the No Objection Letter. Foreign medical physicians who acquired J1 visa status on or after January 10, 1977, to receive graduate medical education or training cannot use this option.
- Exceptional Hardship to US citizen or lawful permanent resident (green card holder) spouse or child of an exchange visitor. You can apply for the Exceptional Hardship Waiver if you can show that your departure from the United States would cause exceptional hardship to your U.S. citizen or permanent resident spouse or child.
- Fear of Persecution based on race, religion or political opinion. If you believe that you will be persecuted if you return to your home country, then you can apply for a Persecution Waiver.
- Request by an Interested U.S. Federal Government Agency. If you are working on a project for or of interest to a U.S. federal government agency and the agency determined that your departure would be detrimental to its interest, then the agency can request an Interested Government Agency Waiver. This waiver is also available to foreign physicians who agree to serve in medically underserved areas or areas experiencing health professional shortage.
- Request by a Designated State Public Health Department or its Equivalent (Conrad State 30 Program). If you are a foreign medical graduate who received graduate medical training or education in the US under J1 visa you can request waiver based on the request of a designated State Public Health Department or its equivalent. Each State Public Health Department can request 30 such waivers per federal fiscal year. 10 out of the 30 requests may be for J1 exchange visitor physicians who will serve at facilities not located in a designated health care professional shortage area but which serve patients who live in a designated area. To qualify for this type of waiver, you must meet the following criteria:
- 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;
- Agree to begin employment at that facility within 90 days of receiving a waiver; and
- Sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than 3 years.
Our immigration lawyers in Miami, Florida USA assist with evaluating your J1 visa case, the 2-year foreign residence requirement and preparing and filing J1 visa waivers. You can contact us or schedule an appointment.
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