Exchange visitors who hold a J-1 visa may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act. This requirement compels the J-1 visa holder to return to his or her home country upon the expiration of the J-1 visa. For instance:
- if an individual received funding from the United States Government, their own government, or an international organization in connection with their participation in the Exchange Visitor Program, or
- if the education, training, or skill they are pursuing in this country appears on the Exchange Visitor Skills List for their country or
- if the individual acquired J1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training, then the exchange visitor is subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act. (If a participant in an exchange program is subject to the two-year foreign residence requirement, his or her spouse and unmarried minor children who were admitted as exchange visitors or acquired such status after admission are also subject to this requirement.)
However, the exchange visitor may be able to acquire a J-1 waiver to bypass the two-year requirement and go on to seek to change his or her status to H-1B, L-1, or a green card to adjust their status to permanent resident. An exchange visitor can seek a J-1 waiver on the following grounds:
- No Objection Waiver: These waiver requests originate when the Waiver Review Branch receives a diplomatic note from the applicant's home government stating that government's "No Objection" to the grant of a waiver.
- Interested Government Agency (IGA) Requests: A request by an interested U.S. Government agency or department (IGA) must explain that: (a) the granting of the waiver is in the public interest, and (b) the exchange visitor's compliance with the two-year home-country physical presence requirement would be detrimental to a program or activity of interest to that Federal agency.
- Persecution: A request for waiver of the home residency requirement based upon fear of persecution on account of race, religion or political opinion upon return to the home country.
- Exceptional Hardship: A request for waiver of home residency requirement based on exceptional hardship that would befall the U.S. citizen or legal permanent resident spouse or child or children if he or she if the two-year requirement were enforced.
- Request by Designated State Health Agency or its Equivalent: A request from physicians or medical doctors for waiver from a designated State Department of Health, or its equivalent.
The time frame for processing J-1 waivers varies with each type of waiver and with each type of circumstance. If the J-1 visa holder is not successful in qualifying for a J-1 waiver, they may obtain an O-1 or F-1 visa through third country processing. Contact the attorneys at Harrison Alo, Attorneys at Law if you have questions regarding the J-1 visa process.
