A J-1 exchange visitor is defined in the Immigration and Nationality Act of 1952 (INA) as an alien “having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist or leader in a field or specialized knowledge or skill” and the broad category encompasses 13 subcategories within the J-1 provision.
The INA originally required all exchange visitors to return to their home country, or country of last residence, for a period of two years before being able to acquire temporary worker H status, intracompany transferee L status, or permanent resident status. Provisions to waive the two year foreign residence requirement has evolved when in instances compliance would cause an exceptional hardship to the alien’s US citizen or permanent resident alien spouse or child, or result in persecution to the alien on the basis of race, religion, or political opinion.
Are you subject to the two-year foreign residence requirement?
An exchange visitor (EV) may be subject to the two-year foreign residence requirement of INA for one or more of the following reasons. The alien’s participation in the exchange program was funded by the US government, the alien’s own government, or an international organization. The other reason is the education, training, or skill the alien is pursuing appears on the Exchange Visitor Kills List for the alien’s country. Additionally, the alien acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
If you are subject, what does that mean?
If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, or K, or to immigrant or legal permanent status until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement.
If you are subject to the INA 212(e) and want a waiver of the two-year foreign residence requirement, there are five grounds for waivers.
No Objection Statement (NOS): The alien’s home country government issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the waive the requirement. The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
Request by an interested government agency (IGA): If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor’s departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the alien for sake of public interest.
Persecution: If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the alien may apply for a persecution waiver.
Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor: If an alien can demonstrate that his or her departure from the US would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver.
Request by a designated State Department of Public Health or its equivalent, CONRAD: Pursuant to the requirements of Public Law 103-416, a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area, and agrees to begin employment at that facility within 90 days of receiving such a waiver, and who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years, may apply for a waiver under this basis.