Immigration Quiz

J-1 Waiver

Q: How do I request a waiver? What are the bases for the waiver?

A: There are five bases for the J-1 waiver:

  • No Objection Statement;
  • Persecution;
  • Exceptional Hardship to a U.S. Citizen (or lawful permanent resident) Spouse or Child of an Exchange Visitor;
  • Request by an Interested U.S. Federal Government Agency; and
  • Request by a Designated State Public Health Department or its Equivalent (Conrad State 30 Program).

According to the U.S. Department of State, you can only apply under one basis at a time.

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Q: What is “No Objection” Waiver?

A: No objection waiver may be granted if your home country government issues a No Objection Statement through its embassy in Washington, DC directly to the Waiver Review Division that it has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement. The No Objection Statement may also be issued by a designated ministry in your home country’s government and sent to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it directly to the Waiver Review Division (“WRD”) of the Department of State.

  • Note: this basis is unavailable to foreign exchange visitors who received graduate medical training sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) as part of J-1 program.
  • Example: I am a foreign medical physician. I came to the U.S. to engage in post-graduate medical residency under J-1 program. I am subject to the two-year rule. Can I get a No Objection waiver?
  • No, No Objection Basis for the Waiver does not apply to J-1 programs for graduate medical training.
  • Example: I received Fulbright scholarship to attend a university in the U.S. under J-1 program. Can I get a No Objection waiver?
  • Generally no. As part of the process, WRD will contact the U.S. agency that has sponsored the J-1 program to inquire whether the agency objects to the waiver. WRD will then weigh the program and policy considerations to determine whether the waiver is warranted. As a practical matter, WRD generally recommends against no-objection waivers when the J-1 program was financed in whole or in part by the U.S. government.

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Q: What is “Persecution” Waiver?

A: You can file a persecution waiver if you believe you would be persecuted based on your race, religion, or political opinion if you return to your home country. This basis is similar to persecution in asylum context. You can apply by filing Form I-612 with USCIS. USCIS will forward its decision directly to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution. The case then goes back to USCIS, which is the final authority on the matter that issues the actual waiver.

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Q: What is “Hardship” Waiver?

A: You need to demonstrate that your compliance with the 2-year home residency requirement will impose exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse and/or child. The hardship must exist both if your relative stays in the U.S. without you and if your relative follows you to your home country for two years.

You can apply for the waiver by submitting Form I-612 directly to USCIS. USCIS will forward its decision directly to the Department of State’s Waiver Review Division. WRD will then weigh program and policy considerations to issue its recommendation. USCIS is the final authority on the matter that issues the waiver.

  • Note: Proving exceptional hardship is not an easy task. What a normal person considers to be an exceptional hardship may not qualify by USCIS standards. The fact that you cannot be with your spouse and/or child is not exceptional hardship. USCIS has held that mere separation, anxiety attendant to separation of family members, inability to find a job abroad, not speaking the foreign language will not suffice for exceptional hardship.
  • Practice Tip: If you have more than one qualifying relative, e.g. you have a USC spouse and child, your chances for the waiver based on hardship are higher because you have to balance the hardships of the family in all travel scenarios: 1) if you go to your home country by yourself leaving your spouse and child behind in the U.S.; 2) if your family joins you in your home country; 3) if you take the child with you while leaving your spouse behind in the U.S.; 4) if you go with your spouse to your home country while leaving the child behind (USCIS even considers this scenario).

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Q: What are the examples of hardships that may be considered?

A: The following hardships to qualifying relatives should be considered with every travel scenario:

  • medical hardships to spouse and/or child including availability of any required medical treatment in the foreign country;
  • psychological hardships to spouse and/or child;
  • career or educational disruptions to spouse and/or child if J-1 applicant has to leave the U.S.– including ability to obtain employment in the foreign country;
  • very serious financial hardships;
  • sociocultural hardships - ties to the U.S. and foreign country, length of residence and community involvement, availability of family members in the U.S. and abroad, age and immigration status of your spouse and/or child and their ability to speak the native language and to adjust life in the country;
  • significant risk of physical harm due to political violence or economic conditions in the foreign country.

None of the factors is determinative and you may wish to consider as many factors as possible. Determination of hardship is made in the aggregate. Thus, if one factor by itself may not be serious enough to qualify for the waiver, the totality of circumstances may warrant favorable hardship determination.

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Q: What is “IGA” Waiver?

A: IGA (Interested Government Agency) waiver may be granted if a U.S. government agency requests the waiver stating that your departure for two years would be detrimental to that agency’s interest, e.g. if you work for that agency or if your work is in the agency’s interests.

Any U.S. federal government agency may request a waiver under this basis. The Interested Government Agency request must be signed by the head of the agency or his or her designee and submitted directly to the Waiver Review Division. WRD then makes a recommendation to USCIS, which ultimately decides whether to approve the waiver.

For physicians, State Health Departments may request IGA waiver from the DOS (see below “Conrad 30 Program) or any other federal agencies, such as for example Department of Health and Human Services, Department of Veterans Affairs, etc.

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Q: What is “State Health Department” (Conrad 30 Program) Waiver

A: Referred to as “Conrad 30,” this waiver basis is actually the subpart of IGA waivers and is available to foreign medical graduate who obtain exchange visitor status to pursue graduate medical training or education. State health departments serve as interested government agencies that may file waivers to the DOS.

Under this program, each department is allowed to request 30 such waivers per federal fiscal year for physicians who agree to work full-time for 3 years in a medically underserved area (MUA). 10 of the 30 requests may be for exchange visitor physicians who will serve at facilities which may not be located within a designated health care professional shortage area but which serve patients who live within such a designated area.

Generally, under Conrad 30 Program you must:

  • have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area;
  • agree to begin employment at that facility within 90 days of receiving a waiver; and
  • sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.

Physician will not be eligible to adjust status to a green card holder until completion of the 3-year commitment to work in underserved areas.

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Q: What agency makes the determination on J-1 waiver?

A: USCIS is the final waiver authority. Even if the DOS provides a favorable recommendation, it does not yet mean that the waiver is granted. USCIS makes the final determination.

With the No Objection, IGA waivers and Conrad 30 program, the case first goes to the DOS that makes a recommendation before forwarding the case to USCIS for final determination.

With the Exceptional Hardship and Persecution waivers, the case is filed with USCIS on Form I-612. First, USCIS makes the finding whether hardship or persecution exists and then forwards the case to the DOS. DOS then makes its recommendation by weighing the program and policy considerations and sends its decision to USCIS. At that time, USCIS makes the final determination on the waiver.

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Q: My J-1 program was financed by the U.S. government. Can I obtain a waiver of the 2-year requirement?

A: It may be tough. In situations where U.S. government funding is involved, DOS will normally contact the organization that has sponsored the J-1 program to inquire about the financial sponsor’s views on the waiver. In cases where the organization objects to the waiver, DOS will normally refuse to recommend the waiver on the basis of program and policy considerations. In such cases, an interested government agency waiver may be the most appropriate strategy because DOS typically gives deference to the IGA’s requests.

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Q: I have filed Form I-612 based on exceptional hardship. It was denied by USCIS. Can I ask for reconsideration?

A: If your basis for the waiver is either persecution or exceptional hardship and your I-612 was denied by USCIS, you may file a motion to reopen or reconsider with USCIS.

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Q: My waiver recommendation application was denied. Can I ask for reconsideration or appeal the decision?

A: No. If WRD of the DOS denies your case, there is no policy to reconsider or appeal denied applications once a final determination has been made. You may, however, reapply using another basis for the waiver, if applicable or try submitting another waiver application based on the same basis if there are new or changed circumstances.

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Q: Why would a recommendation application be denied by the Waiver Review Division?

A: Recommendation applications are denied when the reasons given for requesting the waiver do not outweigh the program and foreign policy considerations of the exchange visitor program. For this reason, waiver recommendation applications from exchange visitors who received U.S. government funding are generally denied.

  • Practice Tip: It is strongly advised to address public interest in grating the waiver in each case regardless of the waiver basis. If WRD decides that the public interest will be better served if the waiver is granted and that it outweighs J-1 program and policy considerations, WRD will recommend approval of the waiver.
  • What does public interest mean?
  • Practically speaking, if your (J-1 holder’s) current work or your spouse’s work is so important to the interests of the U.S. that it cannot be interrupted, that would show a strong public interest consideration for granting the waiver. For example, there is strong public interest if you or your husband works on a scientific research project sponsored by the NIH on development of medicine.
  • Even if you do not believe that there are any public interest arguments in your case, you may include any volunteering, community involvement or any other activities you or your spouse or children are involved in that benefit the U.S. economy, cultural or educational interests or the welfare of the U.S.

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