J-1 Waiver Update : June 2003
Posted Jun 27, 2003
Over the next few weeks we will be sharing with you all some of the highlights from the American Immigration Lawyers Association (AILA) 2003 Conference in New Orleans, which was attended by several attorneys from The Law Office of Sheela Murthy, June 18-22. Here, we recount the J-1 Waiver information provided at the conference. Panelists included representatives from the U.S. Department of State (DOS), as well as AILA attorneys. These practitioners and officials discussed their insights on the J-1 waiver process and shared updates. They also reviewed some previously released, important information.
Current processing times for J-1 waivers at the U.S. Department of State are as follows: no objection waivers 4 - 6 weeks, IGA waivers 4 - 8 weeks, Conrad State 30 waivers 6 - 8 weeks, hardship and persecution waivers - several months. DOS Advisory opinions take approximately 6 - 8 weeks. These processing times are also provided on the DOS WebSite. We would note that the processing times reflect the amount of time the cases take at the DOS only. For hardship and persecution waivers, a separate filing is made with the Bureau of Citizenship and Immigration Service (BCIS). The final decision on such cases is issued by BCIS, but no case will be approved without the consent of both the DOS and BCIS.
The DOS is currently re-designing their online status-check system for J-1 waivers. The new website is expected to be operational sometime between mid-July and August 2003. It will have many added features and will show all of the major steps in the waiver application process. This is welcome news, particularly for those with waivers pending, such as hardship, that have been pending for many months.
The J-1 waiver review office has been restructured. It is now divided by waiver type, whereas it previously was divided by country. The number of waiver applications has doubled in the last three years, but there has been no corresponding increase in personnel at the waiver review office. In spite of this, the DOS processes certain waiver requests relatively quickly. They were applauded for their reengineering efforts to streamline their J-1 waiver review process.
Notations on the visa, the Form DS-2019, and IAP-66 regarding whether the J-1 holder is subject to the home-residency requirement are not reliable. For errors on the IAP-66, the individual should contact the sponsor to request corrections. Our Overview : J-1 Visas (Part 2), available on MurthyDotCom, outlines factors to be analyzed in determining whether one is subject to the home-residency requirement.
There have been 9 different "skills" lists used since the inception of the J program. When referring to the skills list to determine whether a J-1 holder is subject to the home-residency requirement, the skills list that was valid on the J-1 holder’s date of entry to the U.S. should be used.
When a J holder is required to fulfill the home-residency requirement, and his or her country of last permanent residence is different from the home country, s/he cannot choose between the countries. Fulfillment of the home-residency requirement must take place in the country where the J holder last lived, i.e. the home country or the country of last permanent residence. DOS agreed with AILA representatives to revisit this issue if there are exceptional circumstances that may warrant a different result.
Where the J-1 holder is subject to the home-residency requirement, the J-2 dependents are also subject. A J-2 dependent cannot apply for a waiver on his or her own, without the J-1 holder, other than in certain limited cases involving death or divorce. Again, DOS agreed to consider other exceptions after discussion with AILA.
When a physician receives a federal Interested Government Agency waiver for serving in a Medically Underserved Area (MUA) or Health Professional Shortage Area (HPSA), the medical facility itself must be located in the MUA or HPSA. It is not sufficient that the patients come from such areas.
If a person is unsure whether the J-1 residency requirement applies, s/he may request an advisory opinion from the DOS. This may save the applicant time, expense, and uncertainty. This provides a definitive answer. It is wise to resolve this issue prior to filing any change of status or application to adjust status to permanent residence.
This is an example of the ongoing negotiations and discussions in which AILA is involved that influence changes to the policies and procedures at the various governmental departments. In sharing these updates with MurthyDotCom and MurthyBulletin readers, we also hope to highlight the fluid nature of immigration law and the importance of keeping up to date on various important developments affecting one's life.© The Law Office of Sheela Murthy, P.C.
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