Understanding The United States’ J-1 Waiver

The J-1 visa is a well-known and sought-after visa for work and study that motivates international students to visit the US briefly to acquire knowledge and abilities to bring back to their own countries. The J-1 visa can be an excellent visa choice for various groups of individuals.

People arriving in the US on a J-1 visa for learning or cultural purposes frequently overlook the intricate immigration processes they will face. A major challenge is meeting the two-year residency requirement in their country of origin. Yet, it is important to consider an essential option: the J-1 waiver.

This means applicants might be required to spend at least two years living in a foreign country as part of the J-1 visa conditions. Nonetheless, specific instances exist where someone might qualify for a J-1 waiver from this requirement to live abroad.

While J-1 waiver is a frequent process, it can be intricate, and the potential consequences of errors are significant, making it a financially and legally risky endeavor. To avoid this, we have provided a guide on the J-1 waiver in the US.

Overview of the J-1 waiver

The J-1 visa covers a broad spectrum of opportunities in the United States. This ranges from international students working on their doctoral degrees to interns in specialized positions. It also includes foreign students participating in cultural exchange programs as au pairs and summer internships for high school students.

The J-1 visa’s broad applicability to various sectors makes it an appealing option for those seeking temporary US employment. Nonetheless, some individuals with J-1 visas are required to live abroad for two years, a rule that might appear daunting and complicated to many.

This section will explore the importance of the J-1 2-year requirement and provide information on the J-1 waiver process, which some J-1 visa holders may be eligible for. The rule mandating a two-year overseas residency affects people with J-1 visas.

They are legally obligated to return to their home country after completing their training, during which they are required to spend two years there. This rule might impact someone if their home country is on the list compiled by the US Department of State. This list includes countries deemed to require the skills the J-1 visa holder learned during their US training.

Additionally, a J-1 visa holder could be subject to this rule if their program was funded by either the US or a foreign government. This is particularly for areas of scientific research and professional internships as part of the broader J-1 visa program.

The final, albeit rare, scenario in which someone might encounter the 2-year rule is if their J1 visa and the related program were connected to their education in medical science.

What should I do if I can’t return to my home country?

Certain situations might make it practically impossible to comply with the two-year rule. These include wars, protests at home, changes in leadership, or prohibitions. But not to worry! The USCIS will take this into account when assessing your compliance. Such determinations are personal and follow consultations with the Department of State.

Who is eligible for the J-1 waiver?

To be considered for a J-1 waiver, you must prove that you meet five specific criteria:

1. Getting a “no objection letter” from your home country. This might be the easiest way to secure a J-1 waiver, as it indicates that your country’s authorities endorse your choice to pursue permanent residency (a green card). However, a no-objection letter alone might not be enough to bypass the two-year living requirement in your home country before applying for permanent residency. This is more so if you have been granted a scholarship to study in the US on J-1 status.
2. A request from a US government body that shows interest in your project could help your case for a waiver. This is especially true if staying in the US is crucial for one of its initiatives. Foreign medical graduates could be eligible for a J-1 waiver from a US government body of interest through the US Department of Agriculture or the Department of Health and Human Services.
3. If your US citizen or green card spouse or child will face extraordinary hardship, you might also be considered for a J-1 waiver. This is true if you can prove that leaving the US would result in severe hardship for them. Nonetheless, the USCIS will require a more substantial demonstration of hardship than just the emotional distress of being separated, such as the financial or language challenges your family would face.
4. People who show they would face persecution when they return to their home country can get a J-1 waiver. The persecution must be based on race, religion, or political views. This J-1 waiver is more stringent than regular asylum applications, in which individuals only have to show a “reasonable fear” of facing persecution. Those applying for a J-1 waiver also need to convince the US government that they would face persecution when they return.
5. International medical school graduates who are hired by a medical center, facing a staff shortage, and promise to work there for at least three years after getting a J-1 waiver might be approved for it.

The J-1 waiver application procedure is intricate and demands persuading US government officials that you belong to a category with ambiguous limits. For success, assistance from a skilled immigration lawyer is advised.

Proving hardship for J-1 waiver

Proof of hardship for the J-1 waiver is a legal rule that permits individuals with J-1 visas to ask for a bypass of the two-year requirement to be physically present in their home country. This requirement can be bypassed if the individual can demonstrate that their US citizen spouse would face extraordinary difficulties if they had to leave the US or if the couple needed to move to another country.

It is crucial to understand that the hardship your spouse would face must go beyond the usual level of difficulty anticipated if you were to be apart for two years. In cases of exceptional hardship, the USCIS typically takes into account several factors when deciding whether to grant a J-1 waiver:

• The level of distress, isolation, and financial instability the qualifying family member faces, which goes beyond what is typically considered normal hardship;
• The situation in the country where the family would have to live if they were forced to leave the US;
• The health conditions of the qualifying family member(s), especially if the medical care available in the foreign country is insufficient or if the health issues could worsen outside the US and
• Any other pertinent information submitted by the applicant.

For J-1 visa holders who are married to US citizens, the idea of being separated for two years can be overwhelming and impact their emotional health and financial security. The J-1 waiver provides a way for families to remain united. Individuals on J-1 visas and their spouses need to grasp this process, as it significantly affects their ability to establish a life together in the US.

J-1 waiver and the 90 days rule

Even if you have a J-1 waiver and plan to wed a US citizen, you might encounter challenges because of the 90-day rule. This regulation is enforced by immigration officials when a foreign national on a J-1 visa wishes to get a green card during their initial 90 days in the US. It was established to identify and prevent dishonest marriage-related green card petitions.

Should you submit a green card application for a marriage that occurs within the initial three months of your arrival in the US, the immigration authorities might subject your application to a more thorough examination. In certain situations, you might even be suspected of falsely stating your desire to relocate to the US.

You are considered to be within 90 days from your first entry into the US on a J-1 visa, not any other visa type. At times, you might refer to your I-94 arrival/departure record if you find it difficult to recall the exact date of your arrival. For instance, if you came to the US on September 1, 2024, the 90-day period would begin on that date and last until November 30, 2024.

If your initial entry into the US was on a different visa before you were issued a J-1 visa while present in the country, then your 90-day period would start from the date of your first entry on the non-J-1 visa.

The application process for J-1 waiver through hardship

Submitting a request for a J-1 waiver based on hardship means showing the severe difficulties your US citizen spouse would encounter. This could involve financial problems, medical requirements, emotional support, or other major obstacles. The steps to apply include:

• Gathering evidence: Gathering and providing detailed proof to back up your case. This should include proof of a qualifying bond with your US citizen or permanent resident spouse, medical reports, financial documents, messages from loved ones, and any other proof confirming your relationship’s strength and the hardships your spouse would face.
• Filing the application: Submitting the J-1 waiver application to the US Department of State (DOS) and US Citizenship and Immigration Services (USCIS).
• Waiting and following up: Reviewing your application can take a long time and require much effort. It is often helpful to seek advice from an immigration lawyer who focuses on J-1 waivers to help you deal with the intricacies of your case.

Once you have turned in a basic J-1 waiver request (form I-612), the required paperwork, and the associated costs, the USCIS will examine your application and pass it on to the Waiver Review Division in the US Department of State. This division will examine the case before returning its conclusive advice to the USCIS. Should it be concluded that you satisfy the conditions for the J-1 waiver, your application will be approved.

Get help!

Individuals who secure a J-1 waiver have a new avenue of opportunities. Liberated from the requirement to return to their home country for a period of two years, they are free to pursue a change in their immigration status, which could ultimately lead to becoming permanent residents and, in some cases, citizens.

At Gehi and Associates, we provide tailored support for those applying for J-1 waivers. Beyond assisting with the application submission, we develop a comprehensive legal document outlining why you deserve a J-1 waiver. We will make a strong argument for the approval of your J-1 waiver.

With a history of aiding numerous people in their journey to the US, our experienced immigration lawyers can offer crucial advice and reduce the risk of encountering unnecessary setbacks or rejections. Connect with us now!