There are different ways to apply for a waiver.
- If you are a current J1 visa holder, please check the visa stamp on your passport to see if you have a 212e exemption. What it means? With an exemption, you won't have to go home for 2 years to change to another visa.
- If you are a current J1 visa holder and subject to the 212e rule, applying for a waiver - if you qualify- is an option.
But, why apply for a WAIVER?
After the J1 visa program, you have to go home for 2 years before you can apply for another J1 program or apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa. You want a waiver because it will give you permission to apply for H1b or green card. But without a sponsor of "another visa", waiver is useless, you still go home when your visa expires.
There are currently five bases for applying for a waiver of the two-year home-country physical presence requirement, namely:
1) "No-Objection Statement" (NOS) from the Home Country - https://evpcommittee.ph/programs-and-services/no-objection-statement-nos-application
With the exception of J exchange visitors who came to the United States for the purpose of receiving graduate medical training and those who changed to J-1 status for such purpose, J exchange visitors may request a waiver of the foreign residence requirement based on a statement by the government of the country of the applicant's nationality or last legal permanent residence that it has no objection if the applicant does not return to the country upon completion of the program. This official statement is commonly known as a "no objection" letter.
A no objection letter is generally insufficient to warrant a favorable recommendation from the DOS-WRD when U.S. government funding was involved in the exchange program.
Requirements
Applicants may not submit a no objection letter directly to USCIS. USCIS rejects letters submitted directly to USCIS by the exchange visitor along with instructions on the proper channels for submission.
No objection letters must be sent directly from the J-1 exchange visitor's home country to the DOS-WRD through official diplomatic channels. DOS-WRD then sends its recommendation to USCIS.
Evidence
Upon receipt of the no objection letter and the DOS-WRD recommendation, officers should review the case to ensure that documentation is in order and that the waiver is appropriate for the exchange visitor's circumstances (for example, ensure that the applicant did not come to the United States as an exchange visitor, or later acquire such status, in order to receive graduate medical training or education). If the exchange visitor is eligible for the waiver, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval.
Resource: https://www.uscis.gov/policy-manual/volume-2-part-d-chapter-4
2) Interest of a U.S. Government (USG) Agency - The Government agency (your school district) has the ability to request the waiver by suggesting that the applicant’s return to their home country would be detrimental to agency projects/work. - https://www.immi-usa.com/j1-visa-waiver/j1-waiver-iga/
Any U.S. IGA may request a waiver if the IGA is able to demonstrate that either the J-1 exchange visitor's departure would be detrimental to one of its programs or the exchange visitor's stay in the United States is vital to one of its programs.
The rationale for an IGA waiver is that it is in the public interest to have the exchange visitor remain in the United States. The exchange visitor need not be an employee of the agency unless the agency has internal guidelines requiring that the exchange visitor be employed by it before it may recommend a waiver.
The head of the agency (or their designee) must sign the letter requesting the waiver and submit it to the DOS-WRD. DOS-WRD forwards its recommendation to USCIS.
3) Fear of Persecution - If you fear being persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver. - https://www.immi-usa.com/j1-visa-waiver/j1-waiver-persecution/
J-1 exchange visitors subject to the foreign residence requirement may apply for a waiver if they would be subject to persecution in their respective home countries on account of race, religion, or political opinion. The persecutor may be either the government itself or a group that the government is unwilling or unable to control.
The standard for a J-1 persecution waiver requires the exchange visitor to show that they would be subject to persecution on account of race, religion, or political opinion.
Evidence
To request a foreign residence requirement waiver based on persecution, applicants must file the waiver application with USCIS. Applicants must submit evidence that they are in fact subject to the requirement and that they would be subject to persecution in their home country because of their race, religion, or political opinion.
Resource: https://www.uscis.gov/policy-manual/volume-2-part-d-chapter-4
4) Exceptional Hardship - To qualify under exceptional hardship, the applicant would have to be inflicting difficulties on the U.S. spouse’s career, home-country conditions, income contribution of each spouse, discrimination, and educational opportunities. Economic or extreme psychological hardship, loss of health opportunities and loss of employment resulting in hardship - https://www.nolo.com/legal-encyclopedia/j-1-visa-holder-get-exceptional-hardship-waiver-two-year-home-residency-requirement.html
Exchange visitors may be eligible for a waiver of the foreign residence requirement if they can establish exceptional hardship to their U.S. citizen or LPR spouse or child.
Exceptional hardship must be beyond the normal hardship expected from a temporary relocation or separation.
There are different levels of hardship. In the context of general immigration waivers, there is
- exceptional hardship
- extreme hardship, and
- exceptional and
- extremely unusual hardship
When determining whether the applicant has established that the foreign residence requirement would result in an exceptional hardship to the U.S. citizen or LPR spouse or child, USCIS officers must evaluate whether:
- The qualifying spouse or child or children would experience exceptional hardship if they were to relocate with the applicant to the country of foreign residence; and
- The qualifying spouse or child children would experience exceptional hardship if they were to be separated from the applicant for the 2-year foreign residence requirement period.
Evidence
- To request a waiver based on exceptional hardship to the U.S. citizen or LPR spouse or child, applicants must file a Foreign Residence Requirement waiver application with USCIS.
Applicants must submit evidence to demonstrate that:
- The applicant and their dependents, if any, are subject to the foreign residence requirement;
- There is a qualifying relationship (U.S. citizen or LPR spouse or child); and
- Exceptional hardship would occur for the qualifying relative.
If the applicant fails to provide such evidence, the officer issues a Request for Evidence (RFE), allowing the applicant to submit the requested documentation or information.
If the applicant fails to respond to the RFE or does not provide the requested documentation or information, the officer denies the waiver for failure to establish exceptional hardship.
While no single factor is usually determinative with exceptional hardship findings, USCIS generally considers the following when adjudicating the foreign residence requirement waiver application:
- Whether the anxiety, loneliness, and altered financial circumstances of the qualifying family member are greaterthan normal hardship;
- The country conditions of the country of foreign residence;
- Medical conditions of the qualifying family member or members where treatment in the country of foreign residence is insufficient or where the medical problems would be worse in the country of foreign residence than in the United States; and
- Other relevant evidence submitted by the applicant.
5) The Conrad State 30- This waiver option is called the State 30 Program because it is limited to 30 foreign medical graduate waivers per state per year.
Reasons for Denial: https://www.immi-usa.com/j1-waiver-denied/
Resource: https://www.uscis.gov/policy-manual/volume-2-part-d-chapter-4
IMPLICATIONS WITH J1 SPONSORSHIP :
Information about the WAIVER from the visa sponsor:
Related Post: https://www.pinoyteacherstories.com/2022/09/applying-for-j1-waiver-with-cfo-nos.html
Thank you so much ma'am Gemma for all you've shared ideas regarding waiver in J1 visa...in God's perfect time am very much interested in this program.
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