J-1 WAIVER OF THE TWO-YEAR (2)
FOREIGN RESIDENCY REQUIREMENT

214(j)(1) the Immigration and Nationality Act of 1952 ("Act"), Pub. L. No. 82-414, 66 Stat. 163,
8 U.S.C. 1184(h).
212(e) of the INA; 8 U.S.C. 1182(e), 22 C.F.R. 514.44

1999 VIKRAM BADRINATH, P.C. All rights reserved.


Introduction

Current immigration law mandates that certain J-1 non-immigrant visa holders are subject to a requirement that they must return to their home country or country of last residence upon completion of their training in the U.S. See Section 212(e) of the INA; 8 U.S.C. 1182(e), 22 C.F.R. 514.44. These J-1 visa holders must return to their home country for a period of two (2) years at the expiration of the J-1 program. Any J-1 non-immigrant visa holder who is subject to the two (2) year foreign residency requirement is prohibited from changing to many other non-immigrant status categories and cannot adjust to permanent resident status without first satisfying the residence requirement or obtaining a waiver. See 8 U.S.C. 1182(e); 8 C.F.R. 248.2(c), (d); Friederger v. Schultz, 616 F.Supp. 1315 (D.C. Pa. 1985).

Only certain J-1 non-immigrant visa holders are subject to the two (2) year foreign residency requirement. This includes the following types of individuals: (1) Whose participation was financed in whole or in part, directly or indirectly, by an agency of the government of the U.S. or by the government of his nationality or last residence; (2) Who at the time of admission or acquisition of status as a J-1 was engaged in a field which was on the USIA's "skills" list. ("Skills" listing can be found at 62 Fed. Reg. 2, 448-2,516 (Jan. 16, 1997), reprinted in 74 Interpreter Releases 670-704 (Apr. 21, 1997), and should also in the Appendix to O.I. 212.8(e), 9 FAM 41.62, Exhibit II.). See "Skills" List. Nevertheless, a J-1 non-immigrant visa holder who is subject to the two (2) year foreign residency requirement may apply for a waiver of that requirement (e.g., if the waiver is granted, then an alien need not return home).

In general, there are five categories of circumstances that can waive the two (2) year foreign residency requirement for a J-1 non-immigrant visa holder, such as the following: See 8 C.F.R. 212.7(c)(5).

  1. The J-1 visa holder can demonstrate that his or her return to the home country for two years would cause "exceptional hardship" to a United States citizen or lawful permanent resident spouse or child (factors considered: economic, physical and emotional hardship; loss of employment; educational and health opportunities).
  2. The return would result in persecution of the J-1 visa holder due to race, religion, or political opinion;
  3. The home country government indicates it has no objection to the J-1 visa holder remaining in the United States (not available to a foreign medical graduate except if they came to U.S. as J-1 to observe, consult, teach or do research.)
  4. An Interested United States Government Agency ("IGA") recommends to the United States Information Agency (USIA) that the waiver be granted "in the national interest." (generally, must show that granting waiver is: (A) in the public interest; (B) compliance with two (2) year return would be "clearly detrimental" to program/activity of the IGA.)
  5. International Medical Graduate: A Foreign Medical Graduate (F.M.G.) may obtain a waiver through a recommendation issued by an interested federal or state agency interested in facilitating the physician's employment in a designated medically underserved area. See INA 214(k).

Application Procedure

Obtaining a waiver of the two (2) year foreign residency requirement can often be confusing, difficutly, and timely. Normally, the U.S. INS can only grant a waiver request, which is made on Form I-612, Application for Waiver of Two (2) Year Foreign Residency Requirement for exceptional hardship or persecution requests, after the USIA makes a favorable recommendation to the U.S. INS. In other situations, generally, there is no specific government forms for a waiver request. The request must be in writing and must be accompanied with all supporting documentation. The IGA waiver request must contain a waiver recommendation from the relevant agency.

Form I-612 Application requests based on hardship or persecution are filed with the U.S. INS, however the USIA must review the request and make a recommendation to the U.S. INS, first. Requests for waivers based on a "no objection letter" or IGA recommendation must be filed with the USIA which then recommends its decision to the U.S. INS. In all cases, if the USIA agrees to recommend grant of the waiver, it will notify the U.S. INS, which will issue the formal approval notice. If the USIA recommends against grant of the waiver, the U.S. INS must deny the waiver.

For more information about Waivers for the J-1 Nonimmigrant Visa holder, please contact us by email, telephone, or fax or schedule an appointment to have your individual case discussed and analyzed by an attorney.