The J1 Home Residency Requirement and its Waiver
This is the second installment of our two-part immigration series. We began with the extraordinary ability visa or the EB1A. This time, we are discussing J1 visas and the home residency requirement that attaches to some of those seeking that visa. Foreign scientists and physicians who come to the United States as part of an exchange or training program sometimes find that they are subject to a two-year home residency requirement after their participation in a trainee program. Before they can apply for the coveted EB1A status or adjust to lawful permanent residence, these exchange program participants need to either satisfy the home residency requirement or get it waived.
This is because these participants, the thinking goes, could take back the skills learned in the United States and benefit their countries, thereby benefiting the relationship between the home country and the United States. Truthfully, it is a laudable goal and program.
On the opposite side of the proverbial coin, however, the two-year home residency requirement has huge immigration consequences on the foreign national. A person subject to the requirement cannot adjust to lawful permanent status, change status in the United States, or adjust to a nonimmigrant family-based status or certain work statuses. Only a few work statuses are available, which in turn seriously limit U.S. employment options for the former J1 program participant.
The two-year home residency requirement does not attach to all visitors who come to the United States through a J1 exchange program. The DS-2019, the main document describing the exchange visitor and the program, will also state whether the exchange visitor’s skills subjects them to the home residency requirement under 212(e) of the Immigration and Nationality Act, as amended. It is not always accurate, but it’s a good starting point in determining whether the requirement applies.
Consulting with the actual ‘Skills List’ under the statute is another step. The Skills List will vary by country and category. The most accurate way of determining whether the exchange visitor is subject to the requirement is to ask for an advisory opinion from the Waiver Review Division of the Department of State. The Department of State is the department responsible for visas and the exchange programs more specifically.
Sometimes the burden of returning to the home country for two years is so heavy that the foreign national seeks a waiver of the requirement. There are six ways a foreign national may obtain a waiver: exceptional hardship to a U.S. citizen or lawful permanent resident (LPR), an interested U.S. government agency, no objection from the home country, fear of persecution or interest from a designated health agency in an underserved area (for physicians). You can only apply for a waiver on one basis at a time. The State Department will review the waiver, then make a recommendation and finally send that recommendation to the United States Customs and Immigration Services for a final decision.
Each waiver has its own complicated requirements. Foreign nationals may not be eligible for all of them or, even if they are, they may not be a viable option for them. A no objection waiver from the home country is usually the most sought after, but elusive depending on the policy of the home country. The exceptional hardship waiver is difficult to obtain in most cases because normal hardship, such as separation from your U.S.-citizen family members, does not meet the standard. The U.S. citizen or LPR must need the foreign family member in an exceptional way. Complicating the decision to grant the waiver is whether and to what extent the program participant received federal funding.
Fear of persecution waivers sometimes overlap with the evidence needed to be presented for exceptional hardship. For instance, I represented a physician who would have subjected his family to danger in the home country had he returned with them. We applied for an exceptional hardship waiver, but this evidence could have been helpful in a fear of persecution waiver. Knowing which basis to pursue is the purview of an immigration attorney. Sometimes a waiver can be obtained by serving underserved communities or a government agency determining that the national interest counsels against the foreign national returning to his home country.
This discussion is obviously for information purposes only and not intended to constitute legal advice or create an attorney-client relationship with anyone. The disclaimer for this blog entry is particularly important because waiver requirements are complicated and a bit counter-intuitive. Case law and good legal instinct will instruct your immigration attorney on the direction, if any, a J1 visa holder should take.