J-1 Visa Waivers: Avoid the 2-Year Foreign Residence Requirement

Jun 12, 2021

12

min read

The J-1 visa application process is one of the most important parts of getting a global internship. If you want to have a valuable and rewarding foreign exchange experience in the United States, you’ll need to obtain your J-1 visa, a non-immigrant visa for participants in work-based and study-based exchange programs.

However, the J-1 visa comes with certain rules and requirements. In particular, one of the most common FAQs about the J-1 visa is what happens when it’s over. Because the J-1 visa is a cultural exchange program, J-1 visa holders are usually required to go back to their home country once their exchange program ends. This allows the cultural exchange to go both ways: J-1 participants can share their culture, explore the United States while in their program, return home, and share their new experiences and skills after the program.

More specifically, most people who hold a J-1 visa have a two-year home-country physical presence requirement. You might have lots of questions about this requirement: Do you have to follow it? Can you get a J-1 visa waiver to avoid the requirement?

These questions can be overwhelming and complicated, so let’s walk through the physical presence requirement and the J-1 visa waiver process step by step.

What is the Two-Year Physical Presence Requirement?

Under Section 212(e) of the Immigration and Nationality Act, most J visa holders must comply with a two-year home-country physical presence requirement. The two-year home-country physical presence requirement doesn’t prohibit you from visiting the United States for two whole years. However, it does mean that you can’t do any of the following until you have returned to your home country for at least two years:

You can’t change your status to a nonimmigrant temporary worker (H) or receive an H visa.
You can’t change your status to a nonimmigrant intracompany transferee (L) or receive an L visa.
You can’t change your status to lawful permanent resident in the United States or receive an immigrant visa from a U.S. Embassy or Consulate.
You can’t receive a fiancé (K) visa.

Not everyone with a J-1 visa is subject to this requirement. You have to comply with the two-year home-country physical presence requirement if you:

Participated in a government-funded exchange program, including programs funded by the U.S. government and by your home country’s government.
Participated in a program involving a specialized area of knowledge or skill that appears on the Exchange Visitor Skills List for your home country.
Participated in a graduate medical education or training program.

Your program sponsor should be able to provide more details, and you should also receive more information during your visa interview. However, if you’re not sure whether this requirement applies to you, then you can request an advisory opinion from the Department of State’s Waiver Review Division. To request an advisory opinion, you’ll need to send some materials to the Waiver Request Division:

A written request for an advisory opinion with a description of your J-1 program, program dates, program funding sources, and other relevant information
A copy of all Form DS-2019/IAP-66 that you have received
J-1 visa page of your passport
Supplementary Applicant Information Page
Self-addressed, stamped envelope

Send all these materials to this address:

INA 212(e) Advisory Opinion Request

Waiver Review Division, CA/VO/L/W

U.S. State Department

Visa Office

SA-17, 11th Floor

600 19th Street, NW

Washington, D.C. 20522-1711

If you request an advisory opinion, you should receive a determination within four to six weeks. For a more efficient but less definitive result, you can take the survey on the J Visa Waiver Online website, which will predict whether or not you will have to follow the two-year rule, although it can’t give you an official decision.

If you find out that you are subject to the requirement, then any spouse or child with a J-2 visa will also have to comply with the requirement.

Who Can Get a J-1 Visa Waiver?

Once you’ve discovered whether you are subject to the two-year home-country physical presence requirement, you may have questions about whether you can avoid it. There are five different reasons why you might be eligible for a waiver of this requirement:

No Objection Statement
Request by U.S. Government Agency
Persecution
Exceptional Hardship to a Spouse/Child
Conrad State 30 Program

No Objection Statement

Your home country’s government or a relevant government ministry issues a statement saying they do not object to your waiving the requirement.

Request by U.S. Government Agency

A U.S. federal government agency requests a waiver on your behalf so you can continue working on a project for the agency.

Persecution

If you believe you will face persecution in your home country for your race, religion, or political opinions, then you can apply for a persecution waiver.

Exceptional Hardship to a spouse/child

If you have a spouse or child who is a U.S. citizen or lawful permanent resident, and if you think that leaving the U.S. would cause them exceptional hardship, you can apply for an exceptional hardship waiver.

Conrad State 30 Program

J-1 visa holders who are pursuing graduate medical training or education in the U.S. can request a waiver through the Conrad State 30 program, in which you work for three years at a health care facility in an area with a health care professional shortage.

How to Apply for a J-1 Visa Waiver

Each of the five bases for a waiver for the J-1 visa has a different J-1 visa waiver application, as well as a different J-1 visa waiver processing time. In general, you’ll need to go to the J Visa Waiver website, fill out an online J-1 visa waiver recommendation application (also known as Form DS-3035), and mail the completed application and additional documents to the U.S. Department of State’s Waiver Review Division.

However, the process looks different for each type of J-1 visa waiver. The interested government agency and Conrad State 30 waivers require you to work in a specific field; they also require a federal agency or state public health department to request a waiver on your behalf. The other options can be a bit more complex for the J-1 visa holder who’s completing the application. Let’s explore the no-objection, exceptional hardship, and persecution waivers for the J-1 visa in more detail.

Applying for a No-Objection Waiver

The no-objection statement is typically the easiest way to get a J-1 visa waiver. This type of waiver simply says that your government doesn’t object to your remaining in the United States. However, you cannot receive this waiver if you are a foreign medical physician who got your J-1 visa to receive medical education or training in the U.S.

There are four main steps to applying for a no-objection statement from your home country:

Determine your country’s procedure.
Fill out the J-1 visa waiver application.
Create a statement of reason.
Request a no-objection statement.

The first step to obtaining a J-1 visa waiver is to figure out your country’s J-1 visa waiver requirements. Some countries have a complex series of steps that you’ll need to follow before they will send a no-objection statement to the Department of State.

For example, South Korea requires you to send in a number of documents: an application form, five copies of your statement of reason, two copies of your resume, two copies of your passport, three copies of your IAP-66 or DS-2019, three copies of your case number, a confirmation letter, and a $25 J-1 visa waiver fee. India’s process requires you to send different forms to different locations. And some countries refuse to issue no-objection statements no matter what, requiring you to follow a different process to waive the J-1 visa requirements.

Although the procedure varies by country, you should be able to determine your country’s J-1 visa waiver process, as well as their J-1 visa waiver timeline, by visiting their embassy’s website or contacting their embassy in the United States.

Once you understand the process for your home country, you should fill out the online J-1 visa waiver recommendation application, also known as Form DS-3035.

Although there are more detailed instructions on the website, in essence, you will need to fill out some biographical information and select the reason for your J-1 visa waiver: in this case, “no objection.” This form will reserve a case number for you and generate the document packets and cover sheets you need to apply for a waiver for the J-1 visa. It will also provide you with a more complete list of instructions, including the documents you’ll need to send to the Waiver Review Division.

Before you complete the application, make sure you have all of these documents available:

Your passport
DS-2019 or IAP-66 forms
Names and dates of birth of any J-2 dependents (spouse or children)
I-94 Departure Record card (if you’re still in the U.S.)
Alien Registration "A" Number (if applicable)

You only get 90 minutes to complete the application, so it’s important to have all of your information on hand.

Once you’ve completed the form online, you will print it out, gather the required documentation, and send everything (including the $120 J-1 visa waiver fee) to the Department of State’s Waiver Review Division.

As part of this process, you’ll need to create a statement of reason. The statement of reason is just that: an explanation of why you want to waive the two-year home-country physical presence requirement. If you’re applying for a no-objection waiver, then you don’t need to be too worried about this step: if your home country won’t object to your waiver, the United States probably won’t, either. Just make sure to be truthful and factual.

You can create a statement of reason on the J Visa Waiver website once you have your waiver review case number from step two. You’ll need to print it out and submit it as part of the mailed application.

After all of that, you’ll finally be ready to request the no-objection statement from your home country. Use the information you gathered in step one to complete your country’s unique application. If all goes well, your government’s embassy (or designated government ministry) will send the no-objection statement straight to the Waiver Review Division. They should also send you a copy.

That’s where your role in the process ends. You can check your J-1 visa waiver status on the waiver website, but you’ll usually have to wait four to eight weeks to get an answer from the Waiver Review Division once you’ve sent in a complete application file. The Waiver Review Division will send their recommendation to the United States Citizenship and Immigration Services (USCIS). USCIS will make a final decision and send you a waiver approval notice if all goes well. ‍

Applying for a Persecution or Exceptional Hardship Waiver

If you are applying for a J-1 visa waiver on the basis of persecution or exceptional hardship, the process looks a little different. As a reminder, you can apply for these types of waivers if you believe:

You would experience persecution for your race, religion, or political opinion if you returned to your home country
Returning to your home country would cause exceptional hardship to a spouse or children who are U.S. citizens or lawful permanent residents. Notably, being separated from family is not a sufficient reason to establish exceptional hardship.

In some ways, the process is very similar to the no-objection visa waiver application: you will need to go to the J Visa Waiver website, fill out their online J-1 visa waiver recommendation application, and wait for the Waiver Review Division to make a decision.

However, for these types of J-1 visa waivers, you will also need to fill out Form I-612 and send it to USCIS. This form has a $930 non-refundable filing fee. You can fill it out on your computer or by hand, so long as you use black ink.

If you are applying for a J-1 visa waiver on the basis of persecution, you’ll also need to submit some additional information:

A signed and dated statement explaining why you believe you would face persecution in your home country
Any available evidence that demonstrates the threat of persecution
Copies of all IAP-66/DS-2019 forms and your Certificate of Eligibility for Exchange Visitor Status
Your Form I-94 Arrival-Departure Record, if you are in the United States

If you are applying for a J-1 visa waiver on the basis of exceptional hardship, you’ll need different documentation:

A signed and dated statement explaining why the home-country residence requirement would cause exceptional hardship for your spouse or children
Evidence of U.S. citizenship or lawful permanent resident status for your spouse/child, such as a birth certificate, naturalization certificate, or Permanent Resident Card
Evidence of the relationship between you and your spouse/child
Copies of all IAP-66/DS-2019 forms and your Certificate of Eligibility for Exchange Visitor Status
Your Form I-94 Arrival-Departure Record, if you are in the United States

More detailed instructions are available on the Form I-612 website. After completing the form, send it to:

USCIS California Service Center

I-612 Unit

P.O. Box 30112

Laguna Niguel, CA 92607-0112

Once it receives the form, USCIS will decide whether or not to accept your claims of persecution or exceptional hardship. It will forward its decision to the Department of State’s Waiver Review Division. If USCIS accepts your claims, the Waiver Review Division will then make a waiver recommendation. You will also receive a notification of the decision from USCIS.

You cannot apply for a persecution waiver and an exceptional hardship waiver at the same time. If you think you qualify for both, try to determine which claim you have better evidence of and which is more likely to receive an acceptance.‍

What Comes Next?

Applying for a J-1 visa waiver can be complicated. Having all the information about how to waive the J-1 visa home-country residence requirement can help. In addition, it’s always a good idea to keep a few general reminders in mind:

Be sure to carefully check for messages from the Waiver Review Division and USCIS, both of which might ask for more information or an interview as part of the J-1 visa waiver application review process.
Time your applications carefully: once you’ve waived the two-year residency requirement, you can’t apply for a J-1 visa extension or a J-1 visa renewal for travel.
Keep your options open: It’s never a guarantee that your application will be accepted. Figure out in advance what decisions can be appealed and what you will do if your application fails. For example, you cannot re-apply for a no-objection waiver or appeal a USCIS denial or your no-objection waiver application. However, you can still apply for a J-1 visa waiver on the basis of exceptional hardship or persecution, if either of those applies to your situation.

And if you want more information about the J-1 visa in general or the J-1 visa waiver process in particular, check out these additional resources: