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The J1 Waiver Process: How to Bypass the Two-Year Rule

by Phil on Apr 26, 2024 2:24:17 PM

The J1 Waiver Process: How to Bypass the Two-Year Rule
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At a Glance

The J1 visa program encourages cultural and educational exchange and enables participants from abroad to engage in work- or study-based opportunities in the United States. The J1 aims to promote mutual understanding through educational and cultural exchanges, enriching both the visitor’s experience and the American communities that host them.

However, the J1 program carries a unique stipulation–a two-year home country physical presence requirement obligating certain J1 visa holders to return home following their exchange program. Under this rule, certain participants must spend at least two years in their home country before they can apply for certain other U.S. visas or residency. This requirement aims to benefit the participant’s home country with the experiences and skills gained in the United States.

Overview of the Two-Year Rule

What Is the Two-Year Rule?

The two-year home country residence requirement requires participants to return to their home country for two years before seeking certain visas within the United States, including H1B or L visas, or U.S. permanent residency. This condition seeks to distribute the benefits of international exchange by ensuring that knowledge and skills gained in the United States are shared in the participant’s home country. However, former exchange visitors may still pursue other nonimmigrant visa types or J1 status extensions.

Who Is Affected by the Two-Year Rule?

The U.S. Department of State determines who is subject to the two-year home country residence requirement through U.S. law and agreements with other countries. In general, this requirement applies due to:

  • Participation in an exchange program financed by the United States or the participant’s home country.
  • The development or exercise of skills in a field requested by the visitor’s home country and approved by the Department of State.
  • Participation in graduate medical education or training in the United States under the Alien Physician category.

On occasion, the Department of State imposes the two-year rule on exchange visitors by mistake. Those who believe they are affected can request an advisory opinion from the Department of State during or after their J1 status.

Can You Waive the Two-Year Requirement?

The J1 program allows participants to request a waiver of the two-year home country physical presence requirement under specific circumstances:

Federal Agency Request Waiver

For beneficiaries involved in projects critical to U.S. federal agencies, the head of the agency–or another authorized official–can request a waiver of the two-year rule. This exemption seeks to prevent significant setbacks to the project if the J1 participant were to leave the country.

State Public Health Department Request Waiver

Individuals who obtained their J1 visa for graduate medical training can seek a waiver through a State Public Health Department, provided they meet certain requirements, including:

  • Securing a full-time H1B position in a hospital within a Health Professional Shortage Area or similar underserved region.
  • Starting work within 90 days of waiver approval.
  • Committing to a three-year tenure in the new position.

Eligibility requirements may vary by state.

No Objection Statement Waiver

A No Objection Statement from the J1 participant’s home country can serve as the basis for a waiver request. This statement indicates the home country’s consent for the J1 visa holder to remain in the United States and pursue residency.

Persecution-Based Waiver

J1 beneficiaries fearing persecution upon return to their home country–due to race, religion, or political views–may apply for a waiver. This process involves submitting Form I-612, Application for Waiver of the Foreign Residence Requirement, to demonstrate the persecution risk.

Exceptional Hardship Waiver

The exceptional hardship route allows J1 participants to request a waiver if returning to their home country would cause undue hardship for their spouse or child, provided that the spouse or child is a U.S. citizen or lawful permanent resident. Eligibility for this waiver requires more than the hardship of separation and involves filing Form I-612 for consideration.

Navigating the Waiver Process

J1 Waiver Application Process

To apply for a waiver of the two-year requirement, applicants must file Form DS-3035. This online form initiates the waiver process by providing the applicant’s information.

Filing Form DS-3035

Filing Form DS-3035 involves submitting a $120 application fee, a printed application with a barcode, copies of DS-2019/IAP-66 forms, and two self-addressed stamped envelopes. After filing, applicants should provide any additional requested documentation based on the basis of their waiver application.

Special Conditions for Form I-612

Form I-612 is required for those citing exceptional hardship or persecution as their reason for seeking a J1 waiver. Applicants should submit this form to the USCIS, which then forwards the decision to the Waiver Review Division. Applicants can submit this form either before or after Form DS-3035.

Evidence for Form I-612

When filing Form I-612, applicants must include a $1,100 filing fee, a copy of their Form I-94, copies of any DS-2019/IAP-66 forms, and a detailed written statement explaining the persecution or exceptional hardship. Those claiming exceptional hardship must also prove their marriage to a U.S. citizen or permanent resident and provide evidence of their spouse’s and children’s status, if applicable.

Final Steps and Processing

Applicants can check their waiver status using their case number. If additional information is required, the Waiver Review Division will contact the applicant. Applicants should also be prepared for a possible biometrics appointment and additional fees.

Conclusion

The J1 visa program exemplifies the spirit of international collaboration, enriching American communities while cultivating educational and cultural understanding across borders. The two-year home country physical presence requirement aims to extend the benefits of the program across the globe.

While this requirement is a fundamental part of the J1 program, those with compelling reasons to remain in the United States can apply for a waiver. This waiver acknowledges the unique individual circumstances of J1 participants and ensures the program remains flexible and responsive to the evolving needs of international exchange, assuring the J1 remains a bridge between diverse cultures and perspectives.
Topics: J1 Visa

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