If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). Choose the one that you qualify for or applies to your situation.
* Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor:
* No Objection Statement (NOS):
The EV’s home country government issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the EV not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement and does not object to the possibility of the EV becoming a resident of the U.S. The NOS may also be issued by a designated ministry of the EV’s home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The EV has the responsibility for obtaining a no objection statement from his/her home government.
Note: The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
* Request by an interested government agency (IGA):
If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor’s departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the EV for sake of public interest. The IGA request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The EV has the responsibility for obtaining an IGA request from a U.S. Federal Government agency.
Note: For IGA applications on behalf of foreign physicians, who agree to serve in medically under-served areas, please refer to Federal Register Volume 62, No. 102 of May 28, 1997.
* Persecution
If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the EV may apply for a persecution waiver. This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (CIS), within Department of Homeland Security. Only if CIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis. Once CIS makes a decision, it will forward directly to the Waiver Review Division its decision on Form I-613.
* Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor:
If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.) This waiver basis requires that the EV submit Form I-612, Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (CIS), within the Department of Homeland Security. Only if CIS makes a finding of exceptional hardship will the Waiver Review Division proceed with the waiver case under this basis. CIS will forward its decision directly to the Waiver Review Division on Form I-613.
* Request by a designated State Department of Public Health or its equivalent, CONRAD:
Pursuant to the requirements of Public Law 103-416, a foreign medical graduate who has 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, and agrees to begin employment at that facility within 90 days of receiving such a waiver, and who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years, may apply for a waiver under this basis.
The EV must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the thirty requests may be for EV physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated health care professional shortage area. The state public health department will forward the Conrad requests directly to the Waiver Review Division if agrees to sponsor the EV for such a waiver.
Note: Only foreign medical doctors who received their J-1 status to pursue graduate medical education or training may apply for a waiver under this basis.
If your fiancee is subject to the 212(e) as a previous J-1 visa holder, contact our law firm at 626-771-1078 to see how we can assist in removing the condition. This must be addressed before your fiance(e) can enter the U.S. on a K-1 fiancee visa.
