Exchange Visitors (J-1) and Waivers of the Two-Year Foreign Residence Requirement

Immigration Attorneys in Los Angeles, Lawyer, Lawyer, Attorney > Non Immigrant Visas > Student Visas > Exchange Visitors (J-1) and Waivers of the Two-Year Foreign Residence Requirement

It is the policy of the United States government to promote the exchange of ideas and culture with foreign nationals and facilitate interaction with American citizens. More than 200,000 people each year come to the United States through thousands of exchange program opportunities. The Department of State (DOS) oversees the exchange visitor (J-1) visa program that offer opportunities for post-secondary students, postdoctoral academic training, business and industrial training, professors and scholars, flight school trainees, and for summer work/travel. Exchange program sponsors provide the foreign national with the DS-2019 Certificate of Eligibility for Exchange Visitor (J-1) Status. The form is electronically produced through SEVIS. The foreign national applies for the J-1 visa at the American Consulate that has jurisdiction over the place where the foreign national resides. The American Consul can access the DS-2019 through the SEVIS system.

Some exchange programs require that at the end of the foreign national’s stay in the United States that he or she return to the country of last residence for a period of two years. This requirement is found in the immigration laws at Section 212(e) and is commonly referred to as the “two year foreign residence requirement”. Regulations require that the foreign national accrue a total of two years in the country of last residence before he or she can obtain an H, L, or P non-immigrant visa or obtain permanent resident status. Periods spent outside the country of last residence do not count towards fulfilling the two-year requirement.

It is not always clear whether an exchange visitor is required to return to his or her country for the residence requirement or not. Mistake in determining the applicability of Section 212(e) are often made by the program sponsors and also by the American Consul who issues the visa. An opinion can be obtained from the DOS in cases of confusion.

Exchange visitors that are subject to the two-year foreign residence requirement may seek a waiver of the requirement so that he or she may change to another nonimmigrant category, such as H-1, or to adjust his or her status to permanent residence. The Citizenship & Immigration Services (CIS) grants waiver requests after the DOS makes a favorable recommendation to the CIS.

There are four grounds for requesting the waiver:

1. Possible Persecution—“Would be subject to persecution on account of race, religion or political opinion.” Under this section, DOS has the authority to deny a waiver on “program and policy” grounds even if CIS finds that the exchange visitor would be subject to persecution. An exchange visitor granted political asylum is eligible for a waiver of the two-year foreign residence requirement if he or she applies for adjustment of status as an asylee based upon humanitarian or family unity considerations.
2. Exceptional Hardship—Departure from U.S. would impose exceptional hardship on the United States citizen or permanent resident spouse or child. The applicant must show the hardship if spouse and or child accompanying him or her abroad for two years; and also the hardship if spouse or child remain in U.S.
   
3. No objection waiver–The country of the applicant’s nationality issues a no objection statement regarding applicant’s decision not to return home. This option is not available to foreign medical graduate except if they came to U.S. to observe, consult, teach, or do research. However, a no objection statement from the home country is generally insufficient if the U.S. government provided direct or indirect funding for the purpose of participating in an educational or cultural program. However, the amount of money received from the U.S. government, whether the funds have been earmarked for exchange purposes, and the exchange visitor’s contributions to the U.S., are relevant. Applicants usually request the no objection statement from their country’s Embassy in the United States.
4. Request by U.S. Agency—An interested government agency may request the granting of a waiver if in the public interest and compliance with the two year foreign residence requirement would be clearly detrimental to a program or activity of official interest to the agency. An example of a government agency that often supports waivers is HHS, which has broadened its program to include waivers for primary care physicians and general psychiatrists in medically undeserved areas.