Many persons who come to the U.S. as J-1 Exchange Visitors are subject to a requirement that precludes them from changing to many other major non-immigrant visa categories or adjusting to permanent resident status unless they have spent two years after completing their stays in their home country of last residence. The IAP-66 Form issued by a J-1 program sponsor provides for a consular or immigration official to make a preliminary determination regarding the applicability of the home residency requirement. This determination may also be stamped or written next to the visa stays in the passport. Note, however, that this determination is only preliminary and should not necessarily be relied on without carefully reviewing whether the J-1 visa holder falls into one of three exclusion categories.
Am I Subject to the Home Residency Requirement?
Three categories of J-1 visa holders are subject to the home residency requirement. The first category is for J-1s whose field of training and expertise appears on a Skills List maintained by the U.S. Information Agency. The list is periodically revised by the State Department (most recently on July 28, 1993) and includes countries where various skills are in short supply. Most industrialized countries do not appear on the Skills List. A J-1 visitor is subject to the home residency requirement if his skill was on the Skills Lest at the time the J-1 entered, even if the skill is later removed. J-1 s who receive funding either from their home government or a U.S. government agency for participating in their J-1 program are subject to the home residency requirement. Any amount of funding triggers the requirements. Financing includes monetary payments, even in the form of loans, as well as other forms of financial aid such as covering expenses for tuition, books, insurance, etc. Any J-1 who enters the U.S. to receive “graduate medical education or training.” Such education or training includes residency or fellowship programs involving health care services to patients. Programs involving observing, consulting, researching or teaching with no patient care are not considered “medical education or training.” J-1 medical education or training programs are sponsored by the Educational Commission on Foreign Medical Graduates.
Am I eligible for a Waiver?
Waivers of the home residency requirement are available if (1) the requirement would result in exceptional hardship to a U.S. citizen or permanent resident alien spouse or child, (2) the requirement will result in persecution to the alien on the basis of race, religion or political opinion, (3) the alien’s home country government indicates no objection to the alien’s not returning, or (4) an interested government agency recommends the waiver as being in the national interest.
In order to demonstrate exceptional hardship to a U.S. citizen or permanent resident spouse or child, the J-1 must shown severe medical hardship, persecution of the U.S. citizen or permanent resident if they go to the J-1’s home country, as well as other hardships. Lesser hardships such as spousal separation, separation from children and language problems by themselves may not be enough to prove hardship. Rather, the totality of hardship must be measured and a greater degree of hardship must be measured. and a greater degree of hardship must be found in cases involving foreign medical graduates or those receiving U.S. government funding. Also, the hardship must arise both upon a separation of family members or if the family is together in the J-1’s home country.
A waiver is available if the J-1 will face persecution in his or her home country due to race, religion or political opinion. The criteria are similar to asylum claims. However, the burden of proof in a persecution-based waiver claim is higher than for an asylum claim. Consequently, most people pursue asylum applications rather than a J-1 waiver based on persecution. Furthermore, asylum claims usually lead to permanent residency status while this is often not true for a J-1 waiver.
Waivers may be granted if a J-1 visa holder obtains a “no objection” letter from the exchange visitor’s country of nationality or last permanent residence. The “no objection” letter is a formal, diplomatic statement from the home country to the State Department. Most foreign embassies in Washington have officials designated to handle these statements. The procedures vary widely from country to country and may take up to a year or more. Note that a “no objection” letter is not a basis for a waiver when the exchange visitor came to the U.S. to receive “graduate medical education or training.”
A statement from a U.S. government agency to the United States Information Agency that the granting of a waiver would be in the public interest and that two years of home residency would jeopardize the agency’s interests is a basis for a waiver. This is usually available if the agency employs the J-1, but an agency may request a waiver even if it does not employ that individual. The USIA almost always grants waivers in these cases.
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