This article provides a complete overview of J1 visa waiver for USA. The article discusses 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.
What is J1 Visa?
The J1 visa is specifically designed for individuals who participate in an 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
- International Visitor
- Professor and Research Scholar
- Short-Term Scholar
- Student at College/University level or Secondary level
- Summer Work and Travel
In order to qualify for a J1 visa you must first apply and be approved into an exchange visitor program through a designated sponsoring organization in the United States. After you are accepted 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. This primarily depends on the occupational field of exchange program or the specialized skill developed, and whether the program is financed by the US or your home-country government.
J1 visa with 2-year foreign residence requirement
J1 visa holders who come to the US for certain programs can be subject to a two-year home residency requirement (or last legal permanent residence). This means that they cannot change their visa status or get a work or family-based visa in the US for two years after their program ends. There are some exceptions to this requirement, such as if the J-1 holder marries a US citizen or permanent resident.
To comply with the two-year home residency requirement, you must return to your home country or your last legal permanent residence, before you can apply for certain nonimmigrant 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 to you. Other 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.
When does the foreign residence requirement apply?
To be subject to the J1 visa 2-year foreign residence requirement you must meet at least one of the following:
- Exchange Program Funded by the Government. You are subject to the 2-year foreign residence requirement if you participated in an exchange program funded entirely or partially, directly or indirectly, by:
- 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
- Specialized Knowledge or Skill. If your home country or country of last residence designated the J1 visa field of specialized knowledge or skill 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. Also, 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.
Limitations on foreign residence 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 visa (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).
- 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 other visas without first fulfilling the 2-year foreign residence requirement, including:
- Another J-1 visa (with few exceptions for Research Scholar or Professor)
- F-1 student visa
- B1/B2 tourist visa
- E-2 visa
- Any other visa
How to 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 a 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.
Malescu Law P.A. – Business & Immigration Lawyers