J Waivers of Section 212(e) of the Immigration and Nationality Act
Note: This legal guide is for informational use only. One should not act or refrain to act solely based on the information provided. No attorney client relationship is created unless a retainer is signed by the attorney and the client.
Types of J Waivers
There are five statutory bases for a waiver of the two-year foreign residence requirement:
- a no objection statement from the home government,
- a request from an interested U.S. Government agency on the alien's behalf,
- a claim that the alien will be persecuted if he or she returns to his or her country of residence,
- a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if the alien is required to return to his or her home country, and
- a request from a state public health department, or its equivalent, on the alien's behalf (this only applies to foreign medical graduates who obtained J-1 status for graduate medical training or education).
No Objection Statements
- The consular section of the alien's embassy in Washington, D.C., can forward a "no objection" statement to the Department of State on the alien's behalf. The Embassy forwards the "no objection" statement directly to the Waiver Review Division at the Department of State.
- Foreign medical graduates sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) to do their clinical training cannot apply for a waiver based on a "no objection" statement.
- It is the policy of the Waiver Review Division not to reconsider "no objection" statement applications once a final determination has been made. The alien may, however, reapply using another statutory basis for waiver should another one apply to the alien's situation.
Interested U.S. Government Agencies
- A waiver may also be based on an Interested U.S. Government agency (IGA) application.
- A letter from a U.S. Federal Government agency, signed by the head of that agency or a designated official, explaining why granting such a waiver is in the public interest of the U.S. and why it would be detrimental to the agency if the exchange visitor returns home to fulfill the two-year requirement. The IGA request letter is sent directly by the agency to the Waiver Review Division.
- An exchange visitor physician, who plans to provide medical service in an underserved area in the U.S. on behalf of an interested U.S. Government Agency, may obtain a waiver based on an interested U.S. Government agency application for a physician. This is different waiver basis than the Conrad program, which allows individual states to nominate up to 30 foreign medical graduate J-1 physicians for a waiver.
- The Interested U.S. Government Agency is responsible for gathering and sending to the Waiver Review Division the documents for the application package.
- The Department of Veterans Affairs requests on behalf of J-1 physicians to serve in VA hospitals: VA hospitals do not have to be in an underserved area and the VA applications must include a signed memorandum of agreement between a physician and a hospital in lieu of a three-year contract.
- The following U.S. Government agencies may apply for the waiver on behalf of foreign medical graduates to practice medicine: Appalachian and Delta Regional Commissions, Department of Health and Human Services, Department of Veterans Affairs and Department of Interior for Indian Reservations. J-1 foreign medical graduates may also apply through an individual state's department of health Conrad program.
J waivers based on persecution must be filed with both U.S. Citizenship and Immigration Services and the Department of State. The Department of States J waiver application is submitted prior to the filing of the U.S. Citizenship and Immigration Services form I-612. U.S. Citizenship and Immigration Services then makes a determination of probable persecution and sends it to the Waiver Review Division.
- Persecution claims should not be mixed with claims of exceptional hardship.
- Requests to reopen persecution applications are made through the U.S. Citizenship and Immigration Services.
A waiver may be based on exceptional hardship to an alien's American citizen or permanent resident spouse or child.
- The exceptional hardship J waiver must be filed with both U.S. Citizenship and Immigration Services and the Department of State.
- The application to the Department of State should be filed prior to submitting the I-612 to U.S. Citizenship and Immigration Services or after U.S. Citizenship and Immigration Services has acted favorably on an I-612.
- Requests to reopen an exceptional hardship application are made through the U.S. Citizenship and Immigration Services.
State Department of Public Health, CONRAD Waivers
A waiver based on a request from a state department of public health may be requested.
- The state public health department, if it has agreed to sponsor the exchange visitor for a waiver, must send directly to the Waiver Review Division the documents required for the waiver.
- The J-2 spouse and/or child of a J-1 who is subject to the two-year home residence requirement is subject to the same requirements as a J-1.
- If the J-1 receives a favorable recommendation from the Department of State, which is forwarded to U.S. Citizenship and Immigration Services, and U.S. Citizenship and Immigration Services grants the waiver, then the J-2s will also benefit from the waiver.
- J-2 cannot independently apply for a waiver. However, in cases of death or divorce from the J-1, or when a J-2 child reaches age 21, the Waiver Review Division may consider requests for waivers on behalf of the J-2 on a limited case-by-case basis. If the J-2 feels that his or her case merits special consideration by the Waiver Review Division, he or she should submit the appropriate statements of reason. The Division will also need the J-1's DS-2019/IAP-66 forms and divorce decree or death certificate, whichever is applicable. For a dependent J-2 son or daughter who has turned 21 the Division will also need a copy of his/her birth certificate.
Exchange Visitors who do not return to their home but move to another country.
- The country which was the alien's country of legal permanent residence at the time he or she received his or her J-1 status is the country to which he or she must return to fulfill the two-year foreign residence requirement.
- The Waiver Review Division considers the J waiver application complete and ready for review when all the required documents have been received, which usually includes completed DS-3035, payment of the processing fee, required documents from third parties such as a No Objection Statement, Request from an Interested Government Agency Waiver (IGA), a request from a state department of public health, or U.S. Citizenship and Immigration Services findings of exceptional hardship or persecution on I-613, and copies of all DS-2019/IAP-66 forms. And, if there has been U.S. Government funding, input from the U.S. Government funding source.
- When a favorable recommendation for a waiver is made and transmitted by the Waiver Review Division to the U. S. Citizenship and Immigration Services, U.S Citizenship and Immigration Services will make the final decision regarding the waiver and will contact the exchange visitor directly. The most common reason J waiver applications are denied is because the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason waiver applications from exchange visitors who received U.S. Government funding are generally denied.
- There is no appeal process for denials/unfavorable recommendations for a waiver by the Waiver Review Division. However, the alien subject to Section 212 (e) may be eligible to reapply for a waiver under another basis.
- If a J waiver applicant has new information that may affect his or her eligibility for a waiver recommendation the following applies: If the applicant has already received an unfavorable recommendation from the Waiver Review Division, that decision cannot be appealed. However, in exceptional hardship and persecution cases, if the J waiver applicant believes he or she has new relevant information which may result in a different finding, he or she may consider applying again to U.S. Citizenship and Immigration Services, but needs to start the process anew. If the J waiver applicant's application is still pending with the Waiver Review Division and the J waiver applicant has new relevant information, he or she may forward that information on to the Waiver Review Division.
- An advisory opinion is a request for the Waiver Review Division's opinion on whether the Exchange Visitor is subject to the INA 212(e) two-year foreign residence requirement.
- Advisory opinions should be sought when it is unclear whether an exchange visitor is subject to the INA 212(e) two-year foreign residence requirement.