Many people who enter the United States on J-1 (Exchange Visitor) visas are subject to the INA § 212(e) two-year home residency requirement. INA § 212(e) requires a former J visa holder to spend two years in his/her country of last foreign residence prior to receiving H, L, or permanent resident status. This two-year home residency policy prevents “brain drain” and furthers the mission of U.S. government-funded international exchange. There are five options for absolving the home residency requirement. The first option is for the exchange visitor (EV) to return to his/her home country for two full years. Under present policy, fulfillment of the two-year residency may be done over many years. The other four options involve receiving a waiver of the requirement in order to pursue H, L or permanent resident status in the United States.
FOUR WAIVER OPTIONS:
1. No Objection Statement (NOS):
The EV's home country government issues a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Department of State’s Waiver Review Division that it has no objection to the EV not returning to the home country to satisfy the INA § 212(e) two-year foreign residence requirement and does not object to the EV becoming a resident of the U.S.
Note: Federal law precludes the use of this option by foreign medical physicians who acquired J-1 status on or after January 10, 1977 for the purpose of receiving graduate medical education or training.
Note: This option generally is not available to an individual who has received U.S. government funding or has received funding from his or her home government, unless the home government’s funding source consents to the waiver.
2. Request by an interested government agency (IGA):
If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor's departure for two years to fulfill the INA § 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the EV for sake of public interest. The IGA request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. There are several government agencies that have prescribed processes and contacts for the recommendation of IGA waivers. The contact information for these agencies can be found at: http://www.travel.state.gov/visa/temp/info/info_1293.html. However, any government agency can act as an IGA even if they do not have a ready procedure available.
IGAs for Physicians
Several IGA waiver programs exist exclusively for foreign physicians seeking J-1 waivers. Foreign physicians who agree to serve in medically under-served areas may apply for IGA waivers either through a state health department, under the “Conrad State 30 Program,” or a federal agency with a physician waiver program.
Under the Conrad State 30 Program, waiver sponsorship can be made by a designated State Department of Public Health. To qualify, a foreign medical graduate must: (1) 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; (2) agree to begin employment at that facility within 90 days of receiving such a waiver; and (3) sign a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years. Each state’s public health department may recommend 30 such Conrad waivers directly to the Waiver Review Division each year. Five of the thirty requests may be for EV physicians who will serve at a facility that is not located within a designated area but serves patients who live within a designated health care professional shortage area.
Foreign physicians also can apply for waivers through certain federal agencies, such as the Department of Veterans Affairs (VA), the Appalachian Regional Commission (ARC), the Delta Regional Authority (DRA) and the Department of Health and Human Services (HHS). VA sponsors physicians who agree to work at VA facilities. ARC and DRA sponsor physicians who will work in these particular geographic regions. HHS sponsors only primary care physicians who agree to work in areas which are most severely underserved. Each of these programs has its own particular requirements, and their specific application materials should be consulted. There are no numerical limitations for these programs. Once an agency agrees to sponsor an EV for a waiver, the agency forwards its request to the Waiver Review Division.
3. Persecution
If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the EV may apply for a persecution waiver. This waiver requires the EV to submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to USCIS, within Department of Homeland Security. Only if USCIS recommends persecution will the State Department’s Waiver Review Division proceed with the waiver case under this basis. If the Waiver Review Division approves the waiver, it goes back to USCIS for final processing. Source of J-1 funding and “brain drain” are not considerations in persecution cases.
4. Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor
If an exchange visitor can demonstrate that his or her U.S. citizen or legal permanent resident spouse or child would suffer exceptional hardship either by residing in the EV’s home country for two years or by the departure from the U.S. of the EV for two years, he or she may apply for an exceptional hardship waiver. (Please note that mere separation from family is not considered sufficient to establish exceptional hardship.) This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to USCIS. Only if USCIS makes a finding of exceptional hardship will the State Department’s Waiver Review Division proceed with a waiver case under this basis. If the Waiver Review Division approves the waiver, it goes back to USCIS for final processing. Source of J-1 funding and “brain drain” are not considerations in hardship cases.
THE PROCESS:
After choosing a waiver, the first step is to complete U.S. Department of State (DOS) Form DS-3035, J-1 Visa Waiver Recommendation Application, online at: http://travel.state.gov/visa/temp/info/info_1296.html. Completing this form will provide you with the completed form, a supplementary form, two bar coded pages, and a waiver review number which consists of six digits. The waiver review number will be your receipt number and can be used to track the status of your application within the Waiver Review Division. Form DS-3035 should be signed and submitted with the first bar coded page and supporting documents to the DOS. The status can then be checked at: http://169.253.2.79/.
The other bar coded page, the Third Party Bar Code sheet, then will be submitted with supporting documentation to the agency responsible for the specific type of waiver for which you are applying. For a Persecution Waiver, the Third Party Bar Code sheet will be submitted with Form I-612 to the USCIS. For a Hardship Waiver, the Third Party Bar Code sheet will be submitted with Form I-612 also directly to USCIS. For an IGA waiver, the Third Party Bar Code sheet will be submitted with the application specific to the government agency, for example a Conrad State 30 application and supporting documents to a state department of health. And finally, a No Objection waiver will require the Third Party Bar Code sheet to be submitted to the applicant’s home country embassy. These agencies will then review the application. If they wish to give a favorable recommendation, they will forward their decision and the file to the DOS, which will then match this file with the DS-3035 file. If the DOS gives a favorable recommendation, the decision will then be forwarded to USCIS for final approval, which comes on Form I-612.
AFTER WAIVER APPROVAL
If the § 212(e) waiver is approved by all appropriate parties and an I-612 approval is received from USCIS, the EV is then eligible to apply to change status to any non-immigrant visa or an adjustment of status to permanent resident in the United States. The waiver itself does not give the EV an immigrant or nonimmigrant status.
For more information about § 212(e) waivers, visit the DOS website at: http://travel.state.gov/visa/temp/info/info_1296.html.