Overview : J-1 Visa Waivers (Part 3)
Posted Jun 06, 2003

This article continues our Overview series on visa categories for the benefit of MurthyBulletin and MurthyDotCom readers. As a follow-up to our J-1 Overview, Part 2, we now explain waivers for the two-year home residency requirement (HRR). This analysis includes general information on waivers based on a statement of "No Objection" from the home country government and waivers based on hardship or a fear of persecution. Included also is information on Interested Government Agency waivers, focusing on programs specifically designed for medical doctors.

TYPES OF WAIVERS

No Objection Waiver

A commonly pursued waiver to the HRR is the "No Objection Waiver." Issuance of a No-Objection Waiver is proper when the exchange visitor’s home country attests that it does not oppose the visitor's choice to remain in the U.S. Under such circumstances, the home country is expected to issue a No-Objection statement. If the applicant is in the U.S., s/he will make application through the appropriate embassy. Each country has its own procedures for issuing No-Objection statements. Some countries never issue such statements. Accordingly, it is important that an individual who is applying for a No-Objection Waiver research the home country’s specific procedures.
 
Although the No-Objection Waiver is fairly common, there are specific exchange visitors who are categorically ineligible for this waiver. For example, foreign physicians who receive U.S. graduate medical training are statutorily ineligible. Individuals directly or indirectly funded by the U.S. government are not eligible for the No-Objection Waiver, unless they are able to provide the No-Objection statement to the funding agency and that agency, in turn, does not object.

Hardship to Relatives

A J holder subject to the two-year HRR may also receive a waiver if returning to his/her home country will cause “exceptional hardship” to his/her U.S. citizen or lawful permanent resident spouse or child. Hardship to the J holder is not taken into consideration.

It is important to note that the applicant must demonstrate “exceptional” hardship. Normal hardships associated with separation, or readjustment to the home country, do not suffice. This waiver is particularly difficult to obtain because the J holder must demonstrate that the hardship would result whether the spouse or child accompanies her/him abroad or if the family member stays in the United States while s/he is abroad.

A number of factors are considered when determining whether the anticipated hardship meets the high bar of “exceptional” hardship. Any mental and physical conditions that the spouse or child may have requiring treatment, which cannot be provided in her/his home-country, normally will sway the determination. Other relevant factors include: home-country conditions, discrimination and educational opportunities, income contribution of each spouse (particularly that of the exchange visitor), and interruption of the spouse’s career. To have any chance of success in obtaining this waiver, each factor that may apply should be well documented.

Persecution Waiver

Exchange visitors subject to the two-year HRR may apply for a waiver if they would be subject to persecution in their respective home countries on account of race, religion, or political opinion. The persecutor may be either the government itself or a group that the government is unwilling or unable to control. The criteria required for the persecution waiver is similar to that required for an asylum grant. However, the standard for the persecution waiver appears to be far more stringent, as asylum is based upon a reasonable fear of persecution.
 
Interested Government Agency (IGA)

Any United States Government Agency able to demonstrate that either the exchange visitor’s departure would be detrimental to one of its programs or the J-1 visitor’s stay in the United States is vital to one of its programs may facilitate an IGA waiver. The rationale for an IGA waiver is that it is in the public’s interest to have the visitor remain in the United States. The exchange visitor need not be an employee of the agency.

Under certain circumstances, the U.S. Department of State (DOS) itself will act as an IGA. For instance, the DOS may request a waiver on behalf of a J-2 spouse whose marriage to a J-1 visitor has ended by either death or divorce.

Exchange visitors who wish to pursue an IGA waiver should research thoroughly and be as innovative as possible. Submission of an IGA waiver should include (a) information about the Agency’s program or service for which the exchange visitor is needed, including its priority within the agency; (b) a description of the exchange visitor’s involvement in, or connection to, the particular program or service; or (c) the exchange visitor’s outstanding credentials, including both education and employment history.

Some federal government agencies frequently serve as IGAs, including: Appalachian Regional Commission (specifically, for physicians), Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services (specifically, for physicians), Department of Housing and Urban Development, Department of Interior, Department of Transportation, Department of Veterans Affairs, Library of Congress, National Endowment for the Arts, NASA Headquarters, National Science Foundation, and the Smithsonian Institution. This list, by no means, is exhaustive and should be used merely as a guide. Watch for a subsequent MurthyBulletin article on this topic, in which we will explain the IGA waivers for physicians in greater detail. Visitors to MurthyDotCom will be able to find this on our WebSite by searching "waiver."

Conclusion

If a J-1 exchange visitor subject to the HRR finds that a waiver is needed, there are many options available. There is no guarantee, however, that any waiver will be approved. Some waiver applications require that no other waiver applications be filed for the applicant. Most waivers have additional requirements that must be met to avoid cancellation of the waiver. It is important that a person seeking a waiver carefully choose the option/s right for her/him in order to maximize the likelihood of success.

[See also, J-1 Overview : Part 1 and Part 2 in this series.]