29 Oct Overcoming the J Visa Foreign Residence Requirement
By Attorneys Gregory J. Boult & Nancy E. Miller
The ‘J’ or exchange-visitor visa is a broad visa category designed to enhance cultural exchanges with other countries. Aliens coming to the U.S. with a J visa can engage in teaching, studying, internship and other training programs. While ‘J’ visas afford many unique opportunities for non-immigrants; for some, these opportunities come at a high cost. This is a result of the foreign residence requirement which attaches to some exchange visitors and requires them to return to their home country for a period of two years before they are eligible to obtain a different type of non-immigrant visa or a green card. Not all J visa recipients are subject to the two-year residency requirement. However, many are. Those exchange visitors who are subject to the two-year foreign residence requirement may be able to avoid having to leave the United States for two years through the grant of a waiver.
The most common waiver application is based upon the receipt of a ‘no objection’ letter from the exchange visitor’s home country. This process is initiated when the government of the exchange visitor’s home country issues an official letter which declares that it has no objection to the granting of the waiver. Such a letter is significant because one of the underlying purposes of the ‘J’ visa is for the exchange visitor to return home with a new set of experiences and/or skills which can be shared with her fellow citizens. For that reason, however, many countries are reluctant to issue such a letter. In addition, the no-objection letter by itself may not result in the grant of a waiver. It is not uncommon (and is a good idea) to request a waiver under more than one category.
A waiver may also be granted if the exchange visitor can establish that his or her spouse
or child, who is a citizen of the United States or a lawful permanent resident, would suffer “exceptional hardship” if the waiver was denied. Such a waiver can be based upon separation (the exchange visitor departing the United States for two years while a qualifying relative remains in the United States) or through the relocation abroad of a qualifying relative with the exchange visitor for the two year period. It is the waiver applicant’s burden to provide evidence that clearly shows that his qualifying relative will suffer financial, medical, physical, emotional or other similar hardship. The evidence must prove that the hardship the relative would suffer is far beyond that which is normally to be expected by the two-year separation.
A waiver of the foreign residence requirement may also be granted if an exchange visitor can establish an inability to return to his or her home country due to the threat of being persecuted on account of race, religion, or political opinion. The waiver application must provide persuasive, relevant documentation showing the probability of persecution upon the applicant’s return home. An application for a waiver based upon persecution is similar to an application for asylum, however there are some significant differences.
A waiver may also be granted to an exchange visitor if his departure would be adverse to a program or activity conducted by a government agency (state or federal) in the United States. Such a waiver is commonly filed by foreign medical school graduates who come to the United States as interns or residents and work in medically underserved areas here. It is of crucial importance to establish that the public interest would be served if this waiver was granted.
Obtaining a waiver of the two-year foreign residence requirement is a complex process
which requires interaction with the Department of State as well as with Citizenship and Immigration Services. As an initial matter, an exchange visitor must determine whether he or she is subject to the two-year foreign residence requirement. Then, if subject to the foreign residence requirement, the exchange visitor must establish whether he or she is eligible for one or more types of waiver. If the answer to both of those questions is yes, the exchange visitor will want to submit a waiver application that is professionally and expertly prepared so as to ensure the best chances of success. The wise J-visa recipient will seek the help of a knowledgeable and experienced immigration lawyer who is well-versed in the complex area of J visa waivers. This affords the applicant the best opportunity to avoid the two-year involuntary interruption of the life he has been building in America.