However, sometimes it will not be as easy to know if a person is subject to the to this requirement. It is possible to become subject to the requirement after receiving the Visa. In such you can consult with an immigration attorney to review the case, and/or a request for an Advisory Opinion.
Being subject to this requirement is usually due to government funding or working in an area on the Skills List for the home country or country of last residence.
Even if not subject to 212(e) can become subject to it later if the skills list changes and Departs and is later admitted to the US based on a new non-immigrant visa or falls out of status for any reason and is later reinstated to the exchange classification (1 legacy INS AFM Ch45), and 2 year Applies even if mistakenly give J instead of F visa.
The Exchange Visitor Skills List is a list of fields of specialized knowledge and skills that are deemed necessary for the development of an exchange visitor's home country. When you agree to participate in an Exchange Visitor Program, if your skill is on your country’s Skills List you are subject to the two-year foreign residence (home-country physical presence) requirement. The country you select is your country of citizenship or nationality as shown in your passport, with the below exception. If the country of your nationality differs from the country of your last legal permanent residence at the time you obtain your Exchange Visitor (J-1) visa status, the Skills List from the country of your last permanent residence at the time you obtain your J visa applies to you.
Note: If your country does not appear on this list, there is no requirement to return to your home country for two years at the end of your program, based on the skills list. Some countries aren't on the skills list. Also, Canadians are not subject to the Skills List.
Note: When choosing a U.S. occupational field title for the J-1, be mindful of whether it applies on this list.
The 2009 Skills List applies to exchange visitors who receive their J-1 visa on or after June 28, 2009, and whose country is on the 2009 Skills List. Exchange visitors who entered the United States prior to June 28, 2009 continue to be governed by the skills list that was in effect when they received their J-1 visa. Exchange visitors whose countries were removed from the 2009 Skills List, are, retroactively, not subject to the two-year home residence requirement based on the Exchange Visitor Skills List, even if they entered the United States prior to the effective date.
In groups that list a two-digit subject description with no four-digit subgroups following, the two-digit subject description is all-inclusive.
A U.S. Visa issues to the spouse or child (under 21 years of age) of a Principal J-1 Visa holder. If the child reaches the age of 21, they can no longer have a non-immigrant status under their parent(s). Moreover, if the J-2 Spouse divorces, they no can no longer have J-2 Status. J-2 Status non-immigrants can study and work while in the United States. A J-2 Visa holder cannot enter the U.S. before the Principal J-1 Visa holder.
J-2 Holders can obtain Employment Authorization Documents (EAD) or work permits. However, they can’t use income from J-2 work to be the principle family income.
They can also attend educational courses. However, it has never been officially made clear if they can attend regular school like high schools and college without changing to F-Status (student)
J-2 Visa Holders are also subject to residency requirements based on their principal. If principal has his waiver, they J-2 will be waived.
This is a Statement by the Waiver Review Division ("WRD") that states whether the J-1 Visa holder has to fulfill the 2-year foreign residency requirement.
It can take 4-6 weeks for the WRD to review the request and make a determination.
There are five statutory ways to apply for a waiver. One can apply for some of the waivers at once but will need separate State Department Application for each with separate processing fees.
It is important for the potential waiver applicant have their case reviewed during a consultation to see if these options are available to them.
1) A "No Objection" statement from the visitor's home country. This can be obtained from the Consulate of the Home Country Embassy in Washington, D.C. The Home Country "No Objection" Statement should be submitted after a Case Number is received from the Department of State. A denial of a "No Objection" statement cannot be appealed. Different countries have different requirements as to when this process should start. The Home Country processing times for this statement vary depending on the country as well.
The No Objection Statement must be sent directly to the Waiver Review Division. The No Objection Statement is not supposed to be given to the Applicant (the waiver applicant). It must be submitted by them directly to the Waiver Review Division.)
Note: Some countries won't issue a No Objection statement. In such a case, the visitor must try other options or must fulfill 2-year requirement
Note: foreign medical physicians that received J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training cannot request waivers under this basis.
Estimated processing time: 6-8 weeks
2) A request from an "Interested U.S. Government Agency" (known as an IGA Waiver). This is generally the U.S. Government Agency that has financially supported the work of the J-Visa Non-Immigrant, or has a strong interest in their work. Note that not all agencies will cooperate. Visit the website of the agency or call them to confirm whether they respond to just requests. The timing of this process is very important. Normally, it should be initiated a year before the end of the J-Visa period. This is to give to develop your work and research and publish articles which can support your claim, and network with key individuals that can submit letters of recommendation on your behalf. After obtaining a Case Number from the State Department, the processing time depends on how long the Government Agency takes to review the file.
Where an exchange visitor’s J-1 exchange program was sponsored by the U.S. government, the WRD bifurcates its adjudication, seeking “sponsor’s views” from the U.S. agency that sponsored the exchange. In the case of a person on a Fulbright exchange program, for example, that means that the WRD will seek sponsor’s views from the Office of Academic Exchange Programs in the State Department’s Bureau of Educational and Cultural Affairs (ECA). The views of U.S. program sponsors are usually negative. The recommendation of the sponsors is normally accepted, although the WRD is not legally bound to it. Thus, J-1 Waiver cases for U.S. government funding (like Fulbright Scholars) are difficult.
Note: foreign medical graduates can possible obtain an IGA waiver from specific government agencies.
Estimated processing time: 4-8 weeks
3) Based on a claim of persecution in the home country that the J-Visa visitor must return to. These are based on claims of persecution based on Race, Religion, Political Opinion or other threat of harm. To make this claim, two forms must be completed. In addition to the State Department Waiver Form DS-3035 (which must be completed for other types of waiver requests as well), the applicant must file Form I-612 with USCIS. https://www.uscis.gov/i-612.
These forms can be filed at the same, or one can file Form I-612 first and wait for its approval before filing and paying for the State Department Form. A denial of the USCIS form can be appealed.
Note: Reports indicate that USCIS “does not issue a receipt for the recommendation or any other notice to the Applicant or the attorney of record”, which has resulted in some I-612 approval notice from USCIS to go astray.
Note: Exceptional Hardship claims cannot be combined with a Claim of Persecution. An applicant must choose between whether to file an Extreme Hardship and Persecution Waiver request.
Estimated processing time: 3-4 months
4) A claim of exceptional hardship to a U.S. Citizen or Permanent Resident Spouse or Child if the visitor requests to his/her home country. This can include economic, physical and emotional hardship, not being to work, or lack of educational and health opportunities, as well as other reasons. The same forms are used as in a Persecution Claims (see above).
Note: Mere separation from your U.S. citizen (or lawful permanent resident) spouse or child is not considered to be sufficient to establish exceptional hardship.
Estimated processing time: 3-4 months.
5) A request from a designated State Health Agency or State Public Health Department, or its equivalent, also known as the Conrad State 30 Program. If a J-1 visitor took part in a graduate medical training program in the U.S. under the Sponsorship of the Educational Commission for Foreign Medical Graduates, they may be subject to the residency requirement.
Medical Doctors can apply for the Physicians J-1 waiver when in underserved areas. If a foreign medical graduate has been offered full-time employment in a healthcare facility in an area where there is a shortage of professional health care, and agrees to work within 90 days of receiving the residency waiver, and contract to work for a total of 40 hours per week for at least 3 years, they are eligible for a waiver. They can obtain it through an Independent Government Agency (IGA) or a State Health Agency (SHA). There are a limited number of such waivers given to each state each year.
Estimated processing time: 4-6 weeks.
Some Waiver requests require additional Administrative Processing which can cause delays increasing the estimated processing times.
The responsible officer of the exchange visitor program should be able to supply this form. However, the applicant must keep the forms. These are required for the Waiver Recommendation.
The Filing Fee for State Department Form DS-3035 is $120.00 USCIS for Form I-612 (for Persecution and Extreme Hardship claims) is $930.00. Please review the appropriate government website for the most up to date fees.
With one exception, a denied waiver recommendation application cannot be reconsidered or appealed, and you should not apply again under the same basis as used in your original waiver request. The one exception is if you requested a waiver based on persecution or exceptional hardship to a U.S. citizen (or legal permanent resident) spouse or child, and you have new relevant information which you believe may result in a different decision. You may apply again to USCIS. However, the whole process must start again.
If the Waiver is Recommended, it will be forwarded to USCIS and the applicant will be notified. If the decision is unfavorable, a notification letter will be sent to the applicant and USCIS. USCIS will make the final determination. USCIS must be contacted to be informed of the status of their processing.
For inquiries regarding a Waiver of the Two-Year Home Residency Requirement in general that have not been addressed by the State Department's website, you may send an inquiry to email@example.com for a response.
With a few exceptions, J-2 spouses and children cannot independently apply for waiver recommendations when their J-1 spouses or parents are not applying. The exceptions where the Waiver Review Division will consider requests for waiver recommendations from J-2 spouses and children are:
All such cases are evaluated by the Waiver Review Division on a case-by-case basis.
Only the time spent in the home country, or the country of last residence can be counted for the 2-year requirement. The time can be accumulated in aggregate. However, that time will count if the applicant is employed by the home country government, in its military, or its career foreign service and are serving time in another country at the behest of the home country government. For the Waiver Review Division to determine if the time was satisfied, an official written statement through the home country embassy about this is required.
Yes, you will use the same case number for all future waiver recommendation applications or advisory opinion requests. If you initially submitted an advisory opinion request, use that same number when you apply for a waiver(s) at a later date.
An attorney can help guide you by reviewing your forms I-94, IAP-66 Forms (Certificate of Eligibility), Copy of Visa, Documents describing financial support for the J-1 Program as well as information about the visitor's work or research, including resume/C.V.
The JQK Law Firm can evaluate whether the 2-year requirement applies and whether a waiver is possible based on the requirements and the applicants background, as well working on helping to draft/edit recommendation letters to be as well-written and persuasively as possible, and to select appropriate agency to request waiver.
This is a type of temporary (non-Immigrant Visa) meant for "Exchange Visitors" of foreign countries into the United States, for people to participate in work and study based programs. Those that qualify for this status and are sponsored through an accredited Exchange Visitor Program, can do many types of work/study in the U.S., including, but not limited to:
The goal of the "J" Exchange Visitor program was for temporary visitors to the U.S. to take the skills and knowledge learned in the US and bring back to home country
How Long Are J-1 Programs Valid For? Is There A Grace-Period After Expiration?
This depends on the duration of the program that is the basis of the the Status. It can be extended as necessary as well. If the J-Status expire the individual has a 30-day grace period to legally stay in the U.S.
Some J-1 Exchange Visitors are required to return to their home country or country of last residence for a cumulative period of two (2) years after their J-1 Status is completed in the U.S. in order for them to be able to file for U.S. lawful permanent residency (Green Card) - Section 212(e) of the Immigration and Nationality Act (INA).
The former J-1 holder can still visit the U.S. However, he/she, and J-2 Dependents, are subject to this requirement and cannot do the following until the requirement is satisfied or a waiver is obtained:
Those subject to this requirement can still obtain O, E, F or another J-status, but they must be obtained through the Consulate after exiting the United States. Note: If obtaining another J-status, one must be careful not to accumulate an additional 2-year residency requirement.
Note: J-1 and J-2 holders not subject to this requirement can change/adjust status in the U.S.
Note: that there are different 12 & 24 month bars for those that entered the U.S. on J-1 Visas for Professors or Research Scholars.
Normally, to know if you are subject to the 2-year foreign residency requirement, you can review your J-Visa. It should be written that you are subject to the Visa Requirement as shown in this image: