In order to remain in the United States permanently after termination of the J-1 period of stay, many foreign nationals must first obtain a waiver of the two-year foreign residence requirement found in INA section 212(e).
This requirement is a very broad prohibition which prevents previous J visa holders from adjusting status, obtaining a K, H or L visa, applying for cancellation of removal or changing to any other non-immigrant status except A or G. It is a significant hurdle.
- There are 3 ways that certain J visa holders become subject to the two-year foreign residence requirement:
- 1. The area of training in which they are engaged is on the skills list for their home country;
- 2. The visa holder came to the US for graduate medical training;
- 3. The J-1 program was funded by the home country or by the U.S. government.
- A waiver of the INA 212(e) foreign residence requirement can be obtained on four different bases:
- 1. Hardship to a qualifying relative;
- 2. Risk of persecution to the applicant;
- 3. Recommendation from an interested government agency;
- 4. A no objection statement from the foreign government. (This basis is not available to J-1 holders who came to the US for graduate medical training.) The no objection statement must be submitted by the applicant’s embassy directly to the State Department Waiver Review Division and must have the applicant’s case number on the envelope and on the statement itself or it will be rejected. In no objection-based cases, it may be advantageous to have the embassy forward the entire application package so that all of the documents are received together in the same filing.
PROCEDURAL STEPS IN APPLYING FOR THE WAIVER
A data sheet and DS-3035 must be completed and mailed to the Department of State’s Waiver Review Division along with two self-addressed stamped envelopes and a cashiers check or money order for the filing fee.
The Waiver Review Division will assign the applicant a case number and will mail the applicant a set of instructions and a list of required documents to support the waiver application. All supporting documents sent to the Waiver Review Division must contain this case number on the envelope and on the documents.
The Waiver Review Division makes its recommendation on the case to USCIS directly. A copy of that recommendation will be mailed to the applicant in cases involving no objection statements and interested governmental agencies. If the waiver is based on exceptional hardship or persecution, the applicant will not receive a copy of the recommendation.
An interested governmental agency must submit a statement explaining how the public interest would be served by the granting of the waiver and how the applicant’s compliance with the two-year foreign residence requirement would be detrimental to a program or activity of official interest to the agency. The statement must make clear the connection between the applicant’s proposed employment and the agency. Typically, this statement is accompanied by letters from experts in the field and documentation regarding the applicant’s credentials.
Applicants basing their waiver request on hardship or persecution must seek prior consent from USCIS by submitting Form I-612 with a copy of the I-94, documentation of the citizenship or LPR status of the applicant’s spouse or child and of the relationship between the applicant and the spouse or child, Form DS-3035 (Data Sheet), copies of all DS-2019 forms issued to the applicant, documentation of the hardship or persecution, a declaration from the applicant containing all pertinent information, and the filing fee. If USCIS approves the waiver application, it sends its recommendation on Form I-613 directly to the State Department. Denials of such waiver requests made to USCIS may be appealed to the Administrative Appeals Office.
The Waiver Review Division will make a request for the position of the applicant’s sponsor regarding the waiver request, and it generally will follow that recommendation. Applicants who have received financial support from a US government source are far less likely to have their waiver granted.
If the Department of State makes a favorable waiver recommendation, the applicant may file for adjustment of status, employment, and travel authorization. In cases based on hardship or persecution, the applicant may file for adjustment of status upon receipt of notification that USCIS has approved the waiver application. In no-objection and interested governmental agency cases, the adjustment of status application can be filed once the Department of State recommendation has been received.