J-1 Visas for Exchange Visitors
The purpose of this visa category is to promote the sharing of knowledge and skills in the fields of education, the arts, and sciences. Sponsoring entities must be accredited through the Exchange Visitor Program.
Those qualified to seek J-1 visas include:
The Two-Year Foreign Residency Requirement
Exchange Program participants are generally expected to return to their home country to use the experience and skills they acquired while in the US. This two-year foreign residency requirement means that the participant must return to his or her last country of residence or nationality and be physically present there for two years before being eligible to obtain an H-1B or L-1 nonimmigrant visa or a green card. There are, however, waivers available for the two-year foreign residency requirement under specific circumstances. We will be happy to advise you on how your foreign residency requirement might be waived or help you explore other visa options.
Who is subject to the Two-Year Foreign Residency Requirement?
Only specific Exchange Visitors are subject to the home residency requirement. Exchange visitors who were financed directly or indirectly by the United States or a foreign country's government are subject to the requirement. If the exchange visitor is engaged in a field that is designated by the exchange visitor's government as being in short supply (i.e. the field is listed on the country's "skills list"), the visitor is subject to the requirement. All exchange visitors who come to the US for their graduate medical studies also are subject to the two-year foreign residency requirement. The J-2 spouse or child of an exchange visitor is subject to the requirement only if, and only as long as, the J-1 holder is subject.
However, in the case of medical graduates especially, there are waivers which will allow you to stay on in the US. Please call us today so we can discuss options that would allow you to stay and work in the US.
WAIVERS OF THE TWO-YEAR FOREIGN RESIDENCY REQUIREMENT
If a J-1 visa holder determines that he or she is subject to the foreign residency requirement, there are several options available to have that requirement waived. Each waiver request is a multi-step process and requires approval from multiple International, US and state departments and agencies to ensure the integrity of the Exchange Visitor Program. The following is a general list of waiver options:
No-Objection Waivers: Available to exchange visitors who are subject based on the skills list designation or because they received direct or indirect funding from the government of the home country and/or the US.
Foreign Medical Graduates are not eligible for a No-Objection Waiver. For this waiver, the foreign residency requirement may be waived if the home country issues a statement stating that it does not object if the exchange visitor does not return to that country for the two-year period. The statement that the home country does not object may be beneficial or required for other waiver applications.
Hardship Waivers: Available to exchange visitors who are able to demonstrate that returning to the home country would impose exceptional hardship on the United States Citizen or Legal Permanent Resident spouse or child.
Foreign Medical Graduates are eligible for the hardship waiver. The hardship to the spouse or child must be more than the ordinary hardships associated with moving to a new place. Examples of situations that may lead to exceptional hardships:
- Medical conditions (e.g., medical conditions of the US citizen child that cannot be treated in the home country)
- Psychological conditions
- Political conditions in the home country
- Religious conditions in the home country
- Country conditions (such as war, terrorism/threats to US citizens, etc.)
- Economic conditions
- Social conditions
Persecution Waivers: Available to exchange visitors who are able to demonstrate that they cannot return to the home country because they would be subject to persecution on account of race, religion, or political opinion.
Foreign Medical Graduates are eligible for the persecution waiver. This waiver should be considered if the exchange visitor does not have a US Citizen or Legal Permanent Resident spouse or child.
Interested Government Agency (IGA) Waivers: Waivers sponsored by IGAs who demonstrate that the exchange visitor's departure from the US would be detrimental to the program. Each IGA has its own rules and requirements for waiver. Foreign Medical Graduates are eligible for IGA waivers. See below for more details.
WAIVERS FOR THE TWO-YEAR FOREIGN RESIDENCY REQUIREMENT SPECIFIC TO FOREIGN MEDICAL GRADUATES PURSUING GRADUATE MEDICAL EDUCATION
Waivers for physicians, other than hardship and persecution waivers, are generally sponsored by a state or federal agency. Typically, to qualify for the waiver, the sponsoring employer must demonstrate that it has attempted to recruit qualified US workers for 3 to 6 months prior to the filing of the waiver application. Once approved, the exchange visitor is then required to work for the sponsoring employer for a minimum of three years, 40 hours per week, on an H-1B visa.
Conrad State 30 Program:The State 30 Program allows State Health Agencies to serve as IGAs for thirty Foreign Medical Graduates per year. The physician agrees to work with an employer that is located in a designated Health Professional Shortage Area (HPSA) or designated Medically Underserved Area (MUA) for three years. States may make recommendations for waiver for primary care physicians, as well as a limited number of sub-specialty physicians. The physician must begin working with sponsoring employer within 90 days of waiver approval.
Department of Veterans Affairs: The VA will recommend waivers for physicians providing patient care when the loss of the physician's services would create the discontinuance of a program or a major phase of it. Physician may also have parallel appointment with affiliated university so long as the physician commits 5/8 time to providing patient care. This waiver is not limited to primary care physicians.
Appalachian Regional Commission:Similar to the State 30 Program, the physician agrees to work at a facility located in a Health Professional Shortage Area in a county under the jurisdiction of the ARC. The ARC includes counties in the following states: Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia. This waiver is limited to primary care physicians only.
Delta Regional Authority: Similar to the State 30 Program, the physician agrees to work at a facility located in a Health Professional Shortage Area in a county under the jurisdiction of the DRA. Unlike the ARC, the DRA waiver is not limited to primary care physicians. The DRA includes counties in the following states: Mississippi, Louisiana, Alabama, Arkansas, Tennessee, Kentucky, Missouri, and Illinois.
GENERAL PROCESS FOR REQUESTING A WAIVER OF THE TWO-YEAR FOREIGN RESIDENCY REQUIREMENT
- Determine if Exchange Visitor is subject. If subject, determine which waiver is most suitable. May require finding an employer willing to sponsor exchange visitor for the waiver.
- Request to the Department of State for a Waiver Review File Number. Applicants requesting a waiver must complete the Waiver Data Sheet, pay the filing fee to DOS, and state the reasons for the waiver request. The DOS then issues a unique waiver number and instructions on how to proceed with the waiver process.
- Applications for waiver are then made directly to the agency sponsoring the waiver. Each agency has specific requirements for the documents necessary to complete the waiver application.
- Once the IGA approves the waiver request and demonstrates that the loss of the exchange visitor would be to the detriment of the IGA, the waiver request is then sent to the DOS for approval.
- The DOS makes a recommendation as to whether the waiver application should be approved (Form I-613) (ie, that the interests of the exchange program will be served by granting the waiver). If recommended for approval, the I-613 is sent to the USCIS.
6. The USCIS issues the final Form I-612 Approval Notice.
7. If required, the sponsoring employer then files an H-1B, nonimmigrant visa, petition on behalf of the exchange visitor.
8. Hardship Waiver and Persecution Waiver applications are initially filed with the USCIS, which makes the preliminary decision before sending the application to the DOS for its recommendation. If recommended for approval, the application then goes back to the USCIS for issuance of Form I-612 approval.
9. The waiver applicant may file an H-1B or for the green card with an I-613 recommended approval.