Frequently Asked Questions for J-1 Exchange Scholar Visa and J-1 Waiver
What is the purpose of a J-1 visa?
A J-1 visa is for a non-resident applying to the U.S. as an au pair, camp counselor, international visitor, nonacademic specialist, physician, researcher, student, or summer student in a work/travel program.
What is the period of stay for J (J-1 and J-2) visa?
The original admittance of an exchange visitor, children, and spouse, cannot extend past the timeframe on Form DS-2019, plus a time extension of 30 days for traveling or for the time defined by the USCIS. A child or spouse (J-2) cannot be given admission longer than the primary (J-1) exchange visitor. J-1 exchange visitors are given admission for “duration of status” to finish the job listed on Form DS-2019 and are not assigned a date on their I-94 Departure/Arrival record.
What is the foreign residency requirement and how does it affect a J visa holder?
Many J-1 visa holders are bound by foreign residency requirements and have to leave the U.S. after their visas expire. Any employee classified as a J-1 non-resident who is bound by the foreign residence requirement, but has not yet obtained a waiver of this requirement, is not able to alter his or her non-resident status in the U.S., except when the employee applies to switch to an A or G visa classification. The J-1 non-resident who is bound by the foreign residence requirement is also banned from getting an H or L visa and is banned from trying to apply for a K visa or change of class to permanent residence.
May a J-1 holder get a different non-resident visa in a U.S. Consulate abroad?
The answer is yes, except in the case of H, L or K visas. Though prevented from switching to another non-resident category while in the U.S., the J-1 non-resident who is bound by the foreign residence requirement is allowed to get a non-resident visa (other than H, L or K) at a U.S. Consulate abroad, if qualified.
Who is subject to the two year foreign residency requirement before they can switch to certain other non-resident visa categories or before they can get permanent residency?
The two-year foreign residency requirement is initiated when:
The exchange visitor’s program was funded in whole or part by the government of the person’s home country or country of last residence, or by the U.S. government;
Exchange visitors have abilities particularly needed by their home countries; and
Exchange visitors who entered the U.S. in order to obtain graduate medical education or training.
The children and spouse of a J-1 visa holder are also bound by the requirement.
Under what conditions can a waiver be given?
Exchange visitors bound by the foreign residence requirement can obtain a waiver under one of four conditions:
A waiver can be asked for by a U.S. government agency for the exchange visitor. This is usually expressed in terms of being valuable to the U.S. security interests or citizens.
A waiver can be acquired when the foreign residence requirement would result in extreme hardship to the permanent resident’s child or spouse or U.S. citizen.
If the exchange visitor can prove that he or she would be persecuted in their home country on the basis of nationality, political opinion, religion, race, or membership.
The exchange visitor’s home government releases a letter of “no objection” to remaining in the U.S. (foreign medical graduates are not entitled to this waiver).
When would a J waiver be requested by a government agency on behalf of an exchange visitor?
A U.S. government agency might request a J waiver for a non-resident if they feel that the termination of their visa would be unfavorable for an activity or program relevant to the agency.
Is employment by a government agency a requirement to get an “agency request” J waiver?
The answer is no. A private employer or a government agency can sponsor a waiver for an exchange visitor to the Department of Health and Human Services or Department of Defense who will then make a determination of appropriateness for a waiver.
What procedure should be followed for a government “agency request” J-waiver?
The first step is for an employer to sponsor a waiver and then submit an application to a government agency, i.e., the Department of Health and Human Services or the Department of Defense. If the agency feels that the application is appropriate, then a request is generated and sent to the Department of State to be evaluated. If the DOS recommends the request, it is sent to the USCIS for a final review and determination.
What kind of sponsorship is available for a physician trying to obtain a J Waiver?
Special procedures and guidelines have been developed by various agencies for J-1 physician sponsorship requests. One sponsorship category is defined by the relationship between the J-1 physician and the sponsor, such as the sponsorship program at the Veterans Administration. Another category is founded on the physicians’ obligation to work in medically-deprived regions, i.e., the U.S. Department of Agriculture (USDA) and the Appalachian Regional Commission. A third sponsorship category is centered on the physician’s research in a field that is perceived to be of high importance to the U.S., such as the program through the Department of Health of Human Services.
What signifies an “exceptional hardship” in relation to a J waiver?
The exchange visitor has to prove that a serious on-going adversity is occurring and more than one incidence of difficulty in order to meet the foreign residence requirement. An example of “exceptional hardship” would be a serious medical problem that cannot be effectively treated in the applicant’s home country. Persecution of the applicant or his/her family members could also be considered as a factor of hardship decisions as well as issues dealing with a critical difference in customs or cultural values.
Does separation of a J-holder from a U.S. citizen spouse constitute “exceptional hardship”?
The answer is usually not. The separation of a J-1 holder from his/her U.S. citizen spouse would not be considered a hardship since it would result in the non-resident residing in their home country which would be a normal hardship, not exceptional. This hardship would have been known when the J-1 holder came to the U.S. or when the applicant married. Economic reasons have been used as a hardship when it can be proven that the applicants cannot support their family outside of the U.S. because of the absence of a job and the inability to support two separate households. The existence of U.S. citizen children of the J-1 holder usually aids in the approval of hardship for these cases.
How can a “no objection” letter help an exchange visitor obtain a J Waiver?
When an exchange visitor is bound by a two-year foreign residency requirement, the USCIS will usually still grant a waiver if they receive a no objection letter, even if the skill area is on the home country’s skill list and the exchange visitor received funding from their home country for education or training in the U.S.
On the other hand, if the funding was received from the U.S. government instead of the home country, it is more difficult to receive the J Waiver. If U.S. funding was obtained, the program sponsor or funding agency is asked for an opinion on the necessity of the waiver. The U.S. agency will usually oppose the request, so the DOS recommendation for denial is upheld by the USCIS.
What is the process of applying for a J Waiver?
There are several steps involved in the waiver application process. The first step is to go online and file the J-1 Visa Waiver Recommendation Application, Form DS-3035, with the DOS. After the form is completed online, a data bar code page is received by the applicant which must be printed and submitted with the application fee and all required documents to the Waiver Review Division of the DOS. It is recommended that all required documents be submitted simultaneously. A “no objection” letter must still be submitted by the embassy from the applicant’s home country and an agency request form must be directly from the relevant agency. When a determination is made, the Waiver Review Division will send its recommendation directly to the USCIS. If the DOS has made a recommendation for approval, the USCIS usually follows the recommendation and approves the waiver. In the event of a denial, the applicant can appeal to the USCIS’s Administrative Appeals Office.
What documents must be submitted with the “no objection” waiver application?
The exchange visitor’s home country has to submit a “no objection” letter. Foreign consulates and embassies in the U.S. usually have personnel that are familiar with the process and are delegated to handle these requests. The proper channels have to be utilized to submit the letters to the DOS.
What documents must be submitted with the “agency request” J Waiver application?
Applicants must submit proof of agency sponsorship after a sponsor has been obtained. There are many different review standards and requirements depending upon which agency is involved. Some agencies have review boards and forms to submit. Because of this, the required documentation varies greatly between agencies.
What documents must be submitted with the “exceptional hardship” J Waiver application?
Evidence that supports persecution and hardship claims must be submitted with hardship and persecution waivers (Form I-612) to the USCIS. This documentation must be filed with the appropriate Service Center based on the applicant’s residence. If the application is approved, it is forwarded along with the recommendation on Form I-613 to the DOS.
How do I determine the funding source of my exchange visitor program?
The responsible program officer should be able to assist you with this determination. If your program participation was partially or fully funded by your home government, the U.S. government, or an organization that received funding from your home government or the U.S. government, then you are bound by the two-year home country physical presence requirement.
How should I file a J Waiver online?
To file a J Waiver online, follow these steps:
Complete an online J-Visa Waiver Recommendation Application: Use the online instructions to complete the application (Form DS-3035), available on the J-Visa Waiver Online webpage. Note: This application must be filled out online. Other versions of Form DS-3035 will not be accepted. If you submit an incorrect version of Form DS-3035, it will be returned without the non-refundable processing fee.
Mail your Waiver Application and fee payment: the processing fee is $215.
Submit Supporting Documents.
Check your Waiver Request status and update contact information.
Provide more information: if the Waiver Review Division requests more information.
Department of State recommendation and final determination by USCIS is received.
What is the processing time for a J Waiver?
The processing time for DOS Waiver Review Division recommendations varies depending upon the reason for the two-year home country physical presence requirement.
The processing time is 6- 8 weeks for a “no objection” waiver. The processing time is 4- 8 weeks for an “agency request” waiver. The processing time is 3- 4 months for a “persecution and extreme hardship” waiver. The processing time is 4- 6 weeks for a “conrad program” waiver.
If my waiver recommendation application was denied, can I ask for an appeal or reconsideration of the decision?
The answer is no. Since waiver recommendation applications are meticulously reviewed, the Waiver Review Division does not reexamine applications once it reaches a final decision. There is also no policy for appealing the determination. If another reason for a waiver applies to your case, you can reapply based on the alternate reason.
Why would an application be denied by the Waiver Review Division?
If the reasons for requesting a waiver recommendation are not greater than foreign policy and program considerations, then the applications are usually denied. Thus, applications from any exchange visitors who obtained funding from the U.S. government are typically denied.
I have received new information that may affect my eligibility after my waiver application was denied. Can I send it to the Waiver Review Division and ask for a reconsideration?
A waiver recommendation application that was denied cannot be appealed or reconsidered except under one condition. This condition is if the waiver was requested based on exceptional hardship or persecution to a U.S. citizen’s child or spouse or a legal permanent resident’s child or spouse, and there is new information which could affect the decision of the application. Under this condition, you can reapply to USCIS. Please remember that a new waiver recommendation application is required along with all evidence from Steps 1 through 3 from the instructions along with the required processing fee.
What is the filing fee of a J Waiver?
The J Waiver filing fee is $215.
What is the attorney fee of a J Waiver?
Please refer to the following legal fee chart from Aria Law Group