A J1 visa holder who is subject to INA §212(E) must either return to his or her home country upon expiration of the J1 visa or obtain a J1 waiver before he or she may change his or her status to H1B visa, L1 visa or adjust their status to permanent resident (green card).
INA §212(E)
Exchange visitors may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act for one or more of the following reasons:
- They received funding from the United States Government, their own government, or an international organization in connection with their participation in the Exchange Visitor Program.
- The education, training, or skill they are pursuing in this country appears on the Exchange Visitor Skills List for their country.
- They acquired J1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
If a participant in an exchange program is subject to the two-year foreign residence requirement, his or her spouse and unmarried minor children who were admitted as exchange visitors or acquired such status after admission are also subject to this requirement.
Advisory Opinion
If you are unsure if you are subject to §212(e), you may obtain an advisory opinion from the government. This advisory opinion is authoritative. If your DS-2019 form states that you are subject to §212(e) then you are subject to §212(e). However, if your DS-2019 form does not state that you are subject to §212(e), you may still be subject to §212(e).
The government processing time is roughly four to six weeks.
Exchange visitors who are subject to, but do not wish to comply with, the two-year home country residence requirement, may apply for a J1 waiver of that requirement under any one of the five applicable grounds provided by the United States immigration law:
- No Objection Statement
J1 visa holders may obtain a waiver of the two-year foreign residence requirement by obtaining a letter from their home government stating that there is no objection to the J1 visa holder remaining in the US without returning home for two years.
This option is available to all J1 visa holders subject to §212(e) except for medical doctors who came to the US for graduate medical training
The government processing time is roughly six to eight weeks.
- Interested Government Agency (IGA)
J1 visa holders who wish to obtain a waiver through this method do not need to actually work for the government agency who will sponsor the waiver. To qualify for an IGA waiver, the J1 visa holder must have an important role in a research project where the J1 visa holder’s §212(e) requirement to return home for two years would negatively impact that project. Government Agencies who have an interest in seeing that you complete your research, may sponsor your waiver petition.
IGA waivers may also be obtained by medical doctors who will agree to work in VA Hospitals or other medical facilities located in designated underserved areas in urban or rural settings.
The government processing time is roughly four to eight weeks.
- Persecution
J1 visa holders who believe that he or she will be persecuted upon return to their home country due to race, religion, or political opinion may obtain a waiver of the two-year foreign residence requirement.
The government processing time is roughly three to four months.
- Hardship to J1 visa holder’s US Citizen spouse or child
J1 visa holders who can demonstrate that his or her departure from the United States would cause extreme hardship to his or her United States citizen or lawful permanent resident spouse or child, may obtain a waiver of the two-year foreign residence requirement.
The government processing time is roughly three to four months.
- Request by a designated State Department of Health
Medical doctors who have an offer of full-time employment at a health care facility in a designated health care professional shortage area, and who agree to begin employment at the facility within 90 days of receiving such waiver, and who sign a contract to continue to work at the health care facility for a total of 40 hours per week and not less than three years, may apply for this type of waiver. Only medical doctors may apply for this type of waiver.
The government processing time is roughly four to six weeks.
