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J-1 Visa & Waiver

J-1 Visa & Waiver

The Immigration and Nationality Act (INA) provides a nonimmigrant visa category for persons to participate in exchange visitor programs in the United States. The “J” visa allows foreign nationals to enter the U.S. to participate in exchange programs to promote the sharing of knowledge and skills with other countries. There are two types of “J” visas: (1) the visas that do not have “HRR” (Home Residency Requirement) restriction; and the visas that contain the “HRR” restriction. Exchange visitors who are subject to the “HHR” restriction are obligated to return to their country of nationality or permanent residence for an aggregate of at least two years upon completion of their program. This article will cover general questions regarding “J” visas eligibility, limitations and different types of J-1 waivers.

Client: Who is eligible for a “J” visa?

Attorney: Eligible participants include: students at all academic levels; trainees obtaining on-the-job training with firms, institutions, and agencies; teachers of primary, secondary, and specialized schools; professors coming to teach or do research at institutions of higher learning; research scholars; professional trainees in the medical and allied fields; and international visitors coming for the purpose of traveling, observing, consulting, conducting research, training, sharing, or demonstrating specialized knowledge or skills, or participating in organized people-to-people programs.

: How do I know if I am subject to the two-year foreign residence requirement?

Attorney: An exchange visitor may be subject to the two-year foreign residence requirement for one or more of the following reasons:

• The exchange visitor’s participation in an exchange program was funded by the United States Government, exchange visitor’s own government, or an international organization.
• The education, training, or skill the exchange visitor is pursuing in an exchange program appears on the Exchange Visitor Skills List (1997 Amendment) for exchange visitor’s country.
• The EV acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

Client: I am subject to the two-year foreign country residence requirement, can I change my status?

Attorney: If you are subject to the two-year foreign residence requirement, you may not change your status to certain types of nonimmigrant categories such as that of H, L, K, or immigration visas until you have fulfilled the two-year foreign residence requirement by going back to your home country or applying for a waiver. Once the residency requirement has been fulfilled you are now free to re-enter the U.S. in any nonimmigrant visa category for which you are qualified.

Client: Can I apply for a waiver of the two-year foreign residence requirement?

Attorney: Yes, you may be able to obtain a J-1 waiver if you are subject to the two-year residence requirement. The Department of State provides five (5) statutory bases that J-1 holders may use to waive the two-year foreign residency requirement.

1. A no objection statement from your home government
2. A request from an interested U.S. Government agency on your behalf,
3. A claim that you will be persecuted if you return to your country of residence,
4. A claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your home country, and
5. A request from a state public health department, or its equivalent, on your behalf (only applies to foreign medical graduates who obtained J-1 status for graduate medical training or education).
If your situation qualifies for any one of the five grounds, the two-year foreign residency requirement may be waived.

Client: Can I change from J-1 status to another non-immigrant visa outside the U.S. if I am subject to the two-year residency requirement?

Attorney: Yes, you could obtain a non-immigrant visa such as O, E or F visa from a U. S. Consulate located in a foreign country. However, you may not obtain an H, L, K or immigrant visa until you have received either a J-1 Waiver or until you have completed the two-year foreign residency requirement.

Obtaining a J-1 waiver is a complex and time consuming process. The total number of the available waivers is limited. Timing is also an important part of the application since they are granted on a “first come first serve” basis. Petitioners and foreign nationals who want to know whether they are qualified for procedures discussed in this article should consult an experienced and knowledgeable U.S. immigration attorney.