A J-1 visa is a non-immigrant visa issued by the U.S. government to exchange visitors participating in programs that promote cultural exchange, especially to obtain medical, certain level of academic (mostly Post-Doctorate Program) or business training within the U.S. All applicants must meet the eligibility criteria and be sponsored either by a private sector or government program. Recently, the number of J-1 visa issuances has rapidly increased. However, most of the J-1 visa holders are subject to the Two-Year Foreign Residence Requirement. Under INA Section 212(e), this requirement is one of the grounds of inadmissibility. Nevertheless, this mandatory two-year home residence requirement can be waived by the following waivers:
- No Objection Statement (NOS) Waiver
- Exceptional Hardship / Persecution Waiver
- Interested Government Agency Waiver
This article will only discuss the No Objection Statement Waiver. We will explain and discuss other types of waivers in later blog articles.
What is the “Two-Year Home Residence Requirement?"
Before we discuss it further, if your J-1 visa and DS-2019 states that you are not subject to this requirement under the INA Section 212(e), then you do not need to worry about this waiver at all. In case you are not sure whether you are subject to the 2-year requirement, you can file an advisory opinion request to the Department of State. However, certain classes of J-1 "Exchange Visitors" require that the alien return to his/her home country or country of last permanent residence for a period of two (2) years upon completion of their J-1 status. The alien must spend the two-year period in country he/she resided in at the time he/she received the J-1 visa. Such classes include:
- Individuals who have obtained their J-1 status through programs financed either in whole or in part by the U.S. government or individual's home country government;
- Individuals whose home country is in short supply of people with the individuals' skill sets; and
- Individuals who have received medical training within the U.S. as interns or residents.
Until this two-year residency requirement has been completed the alien will not be eligible for H or L status and cannot adjust to permanent resident status in any circumstance without getting a waiver. Moreover, a J-1 visa holder who is subject to the requirement cannot change his or her status to other non-immigrant visas in the United States by filing I-539 (change of status). Alternatively, an alien may obtain a new status without returning to the home country by seeking such visas in a U.S. consulate in a foreign country such as Canada or Mexico. However, this process may take more time, and the rate of approval is highly dependent on the consular office.
Step-by-Step Guide: No Objection Statement Waiver
The J-1 Visa Holder’s home country government should issue a No Objection Statement (NOS) to the Waiver Review Division stating that it has no objection to the J-1 Visa holder not returning to the home country to satisfy the two-year foreign residence requirement. The NOS may also be issued by a designated ministry of the J-1 visa holder’s home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division.
Hence, in order to obtain a NOS, you should contact the consular section of your home country’s embassy. Depending on your nationality, your home country’s Embassy’s website may tell you what kind of documents you need to submit to them. Also, it is very IMPORTANT to note that every country has different policies with regard to NOS. For example, certain Embassies request extensive documentation for the NOS process. In contrast, certain Embassies only request a simple one-page request from the applicant.
To start applying for a NOS waiver, you need to go to the Department of State website and fill out the Online J Visa Waiver Recommendation Application (Form DS-3035). Upon completing the Form DS-3035 online, your information will be downloaded into a barcode and you will be issued a waiver case file number and further instructions. Once you have completed this online form, you must print and mail in your DS-3035 Application with barcode, and payment ($215) to the Department of State.
Then, you need to submit all requested documents to the embassy to request a no objection statement. As mentioned above, every country’s Embassy maintains different procedures and policies with regard to the J-1 No Objection Waiver. Contact the Embassy and ask what types of documents you need to submit along with your application together with the third party bar code page.
Once you submit the requested documents to the Embassy, they will process your waiver application and will determine whether they will issue a No Objection Statement. If NOS is issued by your Embassy, then the Embassy will forward your documents to the Waiver Review Division. The Waiver Review Division will forward its recommendation directly to the USCIS. You will receive a copy of that recommendation at the address you listed on your Form DS-3035 or the most current address we have for you if you reported a change of address. Please note that the USCIS will the final determination on your waiver request. USCIS will notify you directly, whether your waiver application is denied or approved.
If you have any questions, do not hesitate to contact our firm. The Sarmiento Immigration Law Firm has extensive experience with the J-1 visa waiver process for various clients from different countries. We have handled various Hardship waivers, No Objection Statement waivers and Interested Government Agency waivers for them.
Sung Hee (Glen) Yu, Esq.