Do I need a J-1 waiver?
by Adam Cohen
Notice above, if you will, the language “Is Subject to Section 212(e) Two-Year Rule.” This is an example of language that sends American-trained talent out of the U.S. and into the arms of other nations to reap the benefits. The foreign residence (or home residence) requirement is a feature unique to J-1 visas and can be found under Section 212(e) of the Immigration and Nationality Act. Essentially, individuals who are subject to this requirement must either return to their home country for two years at the conclusion of their J-1 program or find some means to waive the requirement.
The J-1 visa primarily has its roots in the Smith-Mundt Act of 1948, which was largely a PR campaign to share American culture and education with the world. That is a laudable mission, but in today’s competitive global market, this country puts itself at a disadvantage by sending talented physicians and other professionals packing, especially after having invested financial and other resources into their training.
Physicians in J-1 visa status who enter graduate medical education or training under an ECFMG-sponsored program become subject to a two-year home residence requirement. This education or training is clinical in nature and involves patient care.
In less common cases, a physician will come to the U.S. to participate in a non-clinical exchange program, either with no patient care or contact, or where patient contact is only incidental to the physician’s primary activity of teaching, research, consultation, or observation. This non-clinical J-1 physician is not automatically subject to the home residence requirement, but may be subject if (1) the program is being financed by the U.S. or foreign government, or (2) the individual’s field of specialized knowledge and skills appears on the Exchange Visitor Skills List for his or her home country (supposedly demonstrating that the field is necessary for the development of the home country). Government financing and the Exchange Visitor Skills List are also reasons why non-physician J-1 visa holders might be subject to the home residence requirement.
Note that U.S. government funding for a J-1 visa holder (such as a Fullbright scholarship) not only subjects the J-1 visa holder to the home residence requirement but also substantially lessens the chance that this individual will secure a J-1 waiver, even by demonstrating exceptional hardship to a U.S. citizen or permanent resident spouse or child. It seems that the more money the U.S. government has given to this individual, the more likely this individual will be forced out of the U.S. This strange policy is only rivaled by the existence of an Exchange Visitor Skills List for competitors such as China. See the most recent Exchange Visitor Skills List here.
The home residence requirement places a heavy restriction upon those physicians and other professionals who are subject to it. They cannot change status in the U.S. to any other nonimmigrant classification (other than the T and U humanitarian-style classifications), and they cannot apply for permanent residence. Further, they cannot apply for an immigrant visa, H visa, or L visa.
The fact that most J-1 physicians undergo clinical rather than non-clinical training, combined with the burdens of the home residence requirement, mean that most J-1 physicians will need a J-1 waiver. Further, a great many non-physician J-1 professionals will likewise need a J-1 waiver. In further posts, I will talk about the various waivers available.