What You Need to Know About: J1 Visa Waiver Status

Introduction

Under the Exchange Visitor Program, some J-1 visa-holders are required to return to their home country for at least two years at the conclusion of their program. Individuals who cannot fulfill this requirement may apply for a waiver with the State Department. Ultimately, approval for a J-1 visa waiver comes from US Citizenship and Immigration Services (USCIS).

The State Department currently accepts applications for a J-1 visa waiver online. Once you have submitted your application, you will be assigned a case number to track the status of your application online. If you have already applied for a J-1 visa waiver and would like to check the status of your application, click here. 

The Exchange Visitor Program

Each year, more than 30,000 participants from almost every country in the world travel to the United States under the Exchange Visitor Program. The purpose of the program is simple yet profound—to allow international visitors the opportunity to engage with Americans, share their culture, improve their proficiency with the English language, and develop skills to further their future careers. Depending on the program, participants may spend anywhere from a couple weeks to several years in the United States.

Exchange visitors travel to the United States with a J-1 visa. Spouses and dependents (unmarried children under age 21) who accompany an exchange visitor are issued a J-2 visa. 

The State Department has designated over 1,500 entities—for-profits, non-profits, and governments at the federal, state, and local levels—to conduct approved private-sector programs. These private-sector exchange programs are organized in 13 categories:

• Alien Physicians – foreign medical school graduates who pursue graduate medical education or training at an accredited medical school or scientific institution in the United States, or who pursue qualifying programs that involve consultation, observation, research, or teaching.
• Au Pairs – young adults who live with an American host family for 12 months. The au pair typically provides child care for the host family while taking courses at an accredited post-secondary institution and experiencing US culture.
• Camp Counselors – teachers, youth workers, post-secondary students, and individuals with specialized skills who supervise and interact with children in American youth camps. 
• College & University Students – students who participate in a degree-seeking, non-degree-seeking, or student-internship program at an accredited post-secondary academic institution in the United States.
• Interns – college/university students and recent graduates who experience American culture and US business practices by taking part in professional internships in their occupational field. 
• Professors & Research Scholars – academics who promote the exchange of research, ideas, and linkages between research and academic institutions in the US and foreign countries.
• Secondary School Students – students who study at an accredited high school (public or private) while living with an American host family, or at an accredited boarding school.
• Short-Term Scholars – scholars, professors, and other accomplished individuals who take part in a short-term visit to the United States to consult, lecture, train, observe, or demonstrate special skills at libraries, museums, academic institutions and research facilities. 
• Specialists – experts in a field of specialized knowledge who visit the United States to observe institutions and methods of practice while sharing their knowledge with American colleagues. 
• Summer Work Travel Programs – college/university students from a foreign academic institution who gain firsthand experience by working in temporary or seasonal jobs in the United States.
• Teachers – educators who travel to the United States to teach full-time at an accredited primary school, secondary school, or pre-kindergarten program.
• Trainees – working professionals with a degree, professional certificate, or relevant work experience who experience American culture and receive valuable training in US business practices by taking part in a guided and structured work-based program.

In addition to these 13 privately-funded programs, there are two types of publicly-funded programs that qualify for a J-1 visa:

• International Visitors – exclusively for exchanges that are funded and sponsored by the State Department.
• Government Visitors – a program for distinguished international visitors who travel to the United States to develop and strengthen personal and professional relationships with their American counterparts in federal, state, and local government agencies.

The Two-Year Home Country Physical Presence Requirement

Under §212(e) of the Immigration and Nationality Act, certain exchange visitors with a J-1 visa must return to their home country for a minimum of two years at the conclusion of their exchange program. As of 2018, the following programs and participants are subject to this requirement:

• Government-funded exchange programs – in short, any programs that are partially or fully funded by the US government or the participant’s home-country government. This includes any foreign government agency, US government agency, or any international organizations that receive funding from either the participant’s home-country government or the US government. 
• Graduate medical programs – participants who received graduate medical training or education.
• Specialized programs – participants of programs that involve an area or field of specialized knowledge which is designated as necessary for further development in the participant’s home country. Such programs and specialized skills should be listed on the Exchange Visitor Skills List for each home country.

If you are subject to §212(e), you must return to your home country for at least two years before you can take any of the following actions:

• Adjusting your status in the US to an immigrant visa or lawful permanent resident status
• Applying for a temporary worker visa (H), intracompany transferee visa (L), or fiancé visa (K) at a US embassy or consulate
• Applying for an immigrant visa at a US embassy or consulate
• Changing your status in the US to a non-immigrant temporary worker (H visa) or intracompany transferee (L visa)

Note that §212(e) does not prohibit travel to the United States—it merely applies to the participant’s ability to change their status or apply for a new visa in certain situations. As such, former J-1 visa holders may still be able to travel to the United States with an appropriate non-immigrant visa (such as a B-1 visitor visa for business-related projects).

Requesting a J-1 Visa Waiver

There are five conditions under which someone can apply for a waiver of the two-year home-country physical presence rule: 

1. No Objection Statement – your home country government can issue a No Objection Statement through its embassy in Washington, DC.
2. Interested Government Agency Waiver – if there is a federal government agency that is interested in your project and your departure from the US would be detrimental to its interest, the agency can submit a waiver request to the USCIS.
3. Persecution – if there is a credible threat of persecution based on your race, religion, or political opinions should you return to your home country, you can apply for a persecution waiver.
4. Exceptional Hardship to a US Citizen – you must demonstrate that your departure from the United States would cause exceptional hardship to a spouse or child who is a US citizen or lawful permanent resident.
5. Conrad State 30 Program – if you have an offer of full-time employment at a healthcare facility that serves patients in a designated professional shortage area, you agree to begin employment within 90 days of receiving a waiver, and you sign a contract that you will work at least 40 hours a week for at least 3 years, the State Public Health Department may request a waiver on your behalf.

Call our Immigration team at(480) 626-2388 to discuss your case today.