Exchange visitors who are subject to the two-year foreign residency requirement of Section 212(e) of the Immigration and Nationality Act (INA), may be able to waive this requirement if they meet certain conditions. The USCIS will grant a waiver upon a favorable recommendation from the Department of State (DOS). There is a four-step process to obtain a DOS recommendation:
- The applicant submits a Data Sheet to the DOS Waiver Review Division with two stamped self-addressed envelopes and the appropriate fee.
- DOS sends the case number and instruction sheet for the waiver to the applicant.The instruction sheet will depend upon the type of waiver indicated on the Data Sheet.
- For persecution and hardship waivers, the next step is filing Form I-612 (Application for Waiver of the Foreign Residency Requirement) with USCIS. If the USCIS grants the I-612, it then transmits the information to the DOS. For the other categories, the next step is an application to the agency or to the foreign government, as described below.
- DOS reviews the application and forwards the recommendation to USCIS with a copy to the applicant and J-1 Sponsor. If the USCIS grants the persecution or hardship waiver it then transmits the information to the Waiver Review Division of DOS which shall make a recommendation after reviewing the “Program, policy, and foreign relations aspects of the case.”
The Department of State provides five (5) statutory bases that J-1 holders may use to waive the two-year foreign residency requirement.
- “No Objection” Letter
- The foreign residency requirement may be waived provided your home country’s government issues a “no objection” letter to the U.S. State Department indicating that it does not object to the two-year foreign residency requirement being waived.
Exception: A “no objection” waiver is generally not available to medical residents/interns who received medical training in the U.S. For information about how to obtain a “No Objection” Letter, please click here.
- Interested Government Agency Request (IGA)
- An Interested Government Agency is a U.S. Federal Government Agency that has a vested interest in the visitor remaining in the U.S., if he or she is working on a project for or of interest to the agency, since it may be crucial to the agency’s programs or functioning. The IGA may request that the U.S. State Department waive the Foreign Residency Requirement. Both the U.S. State Department and the USCIS must agree to grant the waiver. For information about how to obtain an IGA waiver, please click here. For a list of IGA’s, please click here.
- Threat of Persecution
- If an alien subject to the foreign residency requirement can establish that he or she will suffer persecution upon return to the home country, the foreign residency requirement will be waived. The threat of persecution needs to be based on one of the following three (3) grounds:
- Religion; or
- Political Opinion.
Note: The alien has the burden to prove that they “will be subject to persecution.” The alien need not prove past persecution.
- If complying with the Foreign Residency Requirements imposes exceptional hardship on the alien’s spouse or child, and the spouse or child is a U.S. citizen or permanent U.S. resident, the Foreign Residency Requirement may be waived.
- Designated State Health Agency Request (for Physicians only)
- A designated State Health Agency or its equivalent may request a waiver on the behalf of medical doctors who have been offered a full-time job with a health care facility serving in an area with a shortage of medical professionals. In order to qualify for the waiver, the person must agree in writing to work at the facility for forty (40) hours per week, for a minimum of three (3) years and must begin work at the health care facility within ninety (90) days of the approval of the waiver.