J-1 Waiver: Forego the Two-Year Requirement

Are you in the United States on a J-1 visa and wanting to become a permanent resident? Are you considering applying for a J-1 waiver, but do not know when you should apply? The law is unclear to the specific time frame to file a J-1 visa waiver.

J-1 visitors may remain in the United States until the end of their exchange program, as specified on form DS-2019. Once a J-1 visitor’s program ends, he or she may remain in the United States for an additional 30 days, often referred to as a “grace period,” in order to prepare for departure from the country. Upon their departure from the United States, many J-1 visa holders are required to complete a mandatory two-year home-country physical presence prior to re-entry into the United States under dual intent visas, such as H1-B.

If you are unable to return to your home country to fulfill the two-year requirement, you must obtain a J-1 waiver approved by the Department of Homeland Security prior to changing status in the U.S. or being issued a visa in certain categories for travel to the U.S.. The 30 grace period does not extend the deadline for obtaining a waiver, it strictly permits the J-1 visitor to pack his/her things up and prepare for departure. You must obtain the waiver prior to the expiration of your J1 visa.

A J1 visa holder can apply for a waiver based on any one of the five statutory bases: 1) “No objection” statement from visitor’s home country; 2) request from an Interested U.S. Government Agency; 3) claim of persecution in home country if visitor returns; 4) claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if visitor returns to home country; and 5) request from a designated State health agency. A waiver can take anywhere from three months to a year or more depending on the category you fall in, and the caseload of the different agencies involved. If you are unsure whether you are subject to the two-year home country physical requirement then you can seek an Advisory Opinion.

It would be wise to begin the waiver process with a year left on your J-1 visa. There is no penalty for filing a waiver early, but filing for a waiver more than a year out may affect satisfying one of the five categories. For example, a J-1 visiting researcher program may last up to three (3) years. In this example, the IGA Waiver should be initiated at the end of year two. First, the basis for your IGA is the claim that you are an important part of the research program and your anticipated absence, due to the limited duration of the J-1 program, will jeopardize the research project. If there is more than one year remaining in your J-1 program, this point is hard to argue because the research project may be completed within the year. Second, some time is necessary for you to publish articles which are necessary supporting evidence for your application. Third, you may need time to become acquainted with your project colleagues who will be writing recommendation letters on your behalf.

In order to obtain a J-1 waiver, you must first obtain a case number from the Department of State. Upon receiving your case number, the applicant must submit several documents to support his/her claim. The length of the No-objection process depends on your particular home country. Some countries process the letter quickly and provide you with a response in a few months, other require up to six (6) months for a No-Objection determination. According to the State Department’s website, the processing time for a no objection waiver is 6-8 weeks, once ALL documents have been submitted to the State Department. However, some countries have their own policies regarding when to intiate the No-Objection Process, in which case it may take up to a year to obtain a waiver.

The Velie Law Firm has been successful in obtaining J-1 visa waivers for their clients. If you have any questions or concerns to the timing of filing for a J-1 waiver, or to the eligibility for a J-1 waiver please feel free to contact our office at 405-310-4333, my direct email at nicholas@velielaw.com or visit our website OnlineVisas and we would be happy to discuss your situation.