J1 Waiver: Your Top Questions Answered

The J1 visa can be a tremendous visa option for multiple classes of people. However, in certain cases, someone may be subject to a 2-year foreign residency requirement under the J1 visa. However, in certain cases, someone may be eligible for a waiver of this foreign residency requirement. 

In this guide, we will answer some of the most commonly asked questions regarding the J1 waivers , such as: 1. Am I subject to the foreign residency requirement?; 2. Are my dependents subject to the requirement?; and 3. Am I eligible for a waiver?

If you have any questions regarding J1 waivers, or if you have other questions, feel free to contact our law firm. You may call us at +1-818-741-1117 or you may request a free consultation by clicking this link.

Introduction

The J1 visa is a broadly used category for a wide variety of professional opportunities in the United States. Application can range from foreign nations coming for a P.H.D. program, to interns working in professional positions, all the way to Au Pairs and temporary summer jobs for high school students. This broad use of the J1 makes it a very desirable visa for many wishing to temporarily work in the U.S., as the application process does not require USCIS approval. The J1 is, when available, a great option.

Certain individuals holding J1 visas are subject to a 2-year foreign residency requirement, which to many can be a daunting and confusing procedure. This content will address the applicability of the J1 2-year foreign residency requirement, as well as information regarding the waiver process, which certain J1 visa holders may be eligible for.

The 2-year foreign residency requirement, or Section 212(e), denotes J1 visa holders who, upon completion of their time in J1 status, are legally obligated to depart the U.S. and spend two years in their native country. The main reason one might be subject to Section 212(e) is if their home country is on the “Skills List,” referring to a list of countries designated by the U.S. Department of State as countries requiring the skills of the J1 visa holder, learned from their training during the J1 visa period.

Another reason one might be subject to Section 212(e) would be that their J1 visa program received U.S. or foreign government funding for their program. Such programs can include all categories but generally rest in the field of sciences and research, under the professional intern category within the broader J1 family. The final, and certainly less common reason, that an individual might be subject to Section 212(e) would be that the J1 visa holder’s J1 program was related to graduate medical training.

Question 1. Am I Subject to the J1 Foreign Residency Requirement?

The first question about the J1 waiver that is most common is, Am I Subject to the Requirement? If you are in the U.S. in J1 status and uncertain whether or not this rule applies to you, you should look at either J1 visa in your passport, or the form DS-2019 issued to you by the J1 organization with which you worked to acquire your J1 status. Either of these documents will be annotated, reading “Section 212(e) applies” or “Section 212(e) does not apply.” If the annotation is that Section 212(e) applies, you are indeed subject to the requirement.

Question 2. Are my Spouse and Children, also Subject to the Requirement?

The next commonly asked question is, “If I am Subject to the Requirement, are my spouse and children, here in J2 status with me, also subject?” The answer is yes. This requirement applies to any J visa holder, be it principal or dependent, whose J visa is annotated as described above.

Question 3. Who is Eligible for a J1 Waiver?

Having outlined the basic tenets of Section 212(e), we move into the discussion of the waiver of the requirement. If you are in J1 status, or J2 dependent status and working pursuant to the terms of your EAD card, you may wish to stay in the U.S. Possibly, your employer wishes you to remain on a more permanent basis. You may also wish to remain in the U.S. for other reasons related to opportunities and quality of life.

Section 212(e) was prepared along with options for J1 waiver visa holders to apply for a waiver. Anyone subject to Section 212(e) has the option to apply for a waiver. The eligibility for a waiver is as follows:

1. Your home country’s embassy may, in certain circumstances, issue a Statement of No Objection to the waiver. This often applies to countries that are on the Skills List (Skill List by Country), or to J1 visa holders who have received funding from their home country for their J1 visa program.

2. An interested U.S. government agency with whom you are currently working on your J1 may determine that a waiver is necessary in order for you to continue your work with them. This is a less common option for J1 visa holders.

3. If you fear returning to your home country due to persecution, you may apply to USCIS with evidence to show that returning home for two years to your home country would result in harm to you, based on your race, religion, or political views.

4. If you have a U.S. or Lawful Permanent Resident spouse or child residing in the U.S. and need to continue to reside in the U.S. in order to stay with them, you may apply for the waiver on the basis of hardship to them. Again, in this instance you would apply to USCIS, which would make a determination of the hardship to your spouse or child. This is a more common waiver option, and you should note that the term hardship applies somewhat broadly- essentially, if you are married to a U.S. citizen, being forced to live abroad for two years away from your spouse is considered hardship. The same applies with your U.S. citizen/Lawful Permanent Resident children, depending of course on the circumstances and age of the children.

5. The final basis for a J1 waiver, called the Conrad Waiver, is intended exclusively for medical personnel employed by a State Public Health Department, who is interested in continuing your employment full-time beyond the expiration of your J1 status.

The process for the waiver can be commenced at any time within the J1 visa holder’s period of stay. However, if you are wondering whether or not the waiver will afford you further immigration status, the answer is generally no. With the exception of the Interested Government Agency and the Conrad Waiver options (numbers 2 & 5), J1 visa holders who have received a waiver from either the waiver division, or USCIS, must work alongside their employer, or an interested employer, to secure immigration status beyond the termination of their status. This also applies to the J2 dependents who, as discussed above, may be employed pursuant to the terms of their J2 EAD.

If you are an individual in J1 or J2 status and you believe you are eligible for a waiver of the 2-year foreign residency requirement, feel free to contact my office with any question or if you would like our assistance. You may request a free consultation with our firm if you have any questions by clicking this link.