J-1 Visa Waivers
The 212(e) requirement, often referred to as the “two-year home-country physical presence requirement,” is a condition attached to certain J-1 exchange visitors in the United States. This requirement is outlined in Section 212(e) of the Immigration and Nationality Act. Exchange visitors subject to this requirement must return to their home country or country of last permanent residence for an aggregate of two years before being eligible to apply for certain U.S. immigration benefits, such as H, L, or immigrant (permanent residency) visas.
Here are key points about the 212(e) requirement:
Applicability: The 212(e) requirement applies to J-1 exchange visitors who participate in programs that are funded by the U.S. government, their home government, or an international organization. Exchange visitors subject to the 212(e) requirement include those who participated in programs related to skills list (skills deemed necessary by the home country), medical education or training, or graduate medical education or training. While the default is for J-1 visa holders to fulfill the two-year home-country physical presence requirement, they may be eligible to apply for a waiver. Waivers are granted based on certain criteria, such as:
No Objection Waiver
No Objection Waiver is one of the waiver options available to J-1 exchange visitors who are subject to the two-year home-country physical presence requirement (212(e)) and wish to apply for a waiver of this requirement. The No Objection Waiver is based on obtaining a statement of no objection from the foreign government or embassy of the exchange visitor’s home country. It should be noted that this option is not available for physicians.
- The first step in the process involves contacting the embassy or consulate of the exchange visitor’s home country in the United States to request a No Objection statement. This statement indicates that the home country does not object to the exchange visitor’s request for a waiver.
- Home Government Approval: The home government reviews the request and decides whether to issue the No Objection statement. If approved, the embassy issues the statement and forwards it to the U.S. Department of State.
- U.S. Department of State Review: The U.S. Department of State reviews the No Objection statement and other supporting documentation. If the department finds the request acceptable, it may recommend the waiver to the U.S. Citizenship and Immigration Services (USCIS).
- USCIS Decision: USCIS makes the final decision on whether to grant the J-1 No Objection Waiver. If approved, the exchange visitor is no longer subject to the two-year home-country physical presence requirement and can pursue other immigration benefits, such as adjustment of status or change of status.
Persecution Waiver
Application Process:
- The exchange visitor applies for the waiver directly with the U.S. Department of State’s Waiver Review Division (WRD). The application typically includes a personal statement explaining the fear of persecution, supporting documentation, and any evidence that substantiates the claim.
- USCIS Approval: If the Waiver Review Division approves the persecution waiver, they recommend it to the U.S. Citizenship and Immigration Services (USCIS). USCIS makes the final decision on whether to grant the waiver.
If the Persecution Waiver is approved, the exchange visitor is no longer subject to the two-year home-country physical presence requirement and can pursue other immigration benefits, such as adjustment of status or change of status.
Hardship Waiver
- Eligibility Criteria: To qualify for the National Interest Waiver, the foreign national must have an advanced degree or exceptional ability in their field (arts, sciences, business, education, or athletics).
The individual must demonstrate that their work is of “substantial intrinsic merit” and that it benefits the United States to a degree that outweighs the national interest served by the labor certification process.
- Work in the National Interest – applicant must show that their work is in the national interest by meeting at least one of the following criteria:
- Advanced degree professionals or individuals with exceptional ability must demonstrate that their work benefits the U.S. economy, cultural or educational interests, or welfare of the nation; or
- Individuals with exceptional ability in the sciences, arts, or business must show that their work benefits the national interest to a substantial degree.
- Self-Petitioning: Unlike many other employment-based green card categories, individuals applying for an EB-2 National Interest Waiver can self-petition. They do not need a specific job offer or employer sponsorship. The applicant directly files Form I-140 (no PERM labor certification required) with the U.S. Citizenship and Immigration Services (USCIS) to request the National Interest Waiver.
- Adjustment of Status or Consular Processing: Once the I-140 petition is approved, the foreign national can proceed to apply for adjustment of status if they are already in the U.S., or go through consular processing if they are outside the U.S.
Obtaining an EB-2 National Interest Waiver can be a complex process, and applicants are often advised to seek legal advice to ensure that they meet the eligibility criteria and properly document their contributions to the national interest. As immigration policies can change, it’s advisable to consult with an immigration attorney or check with the relevant government agencies for the latest information.
- Qualifying Relationship: There must be a qualifying relationship between the foreign employer and the U.S. employer. Typically, this involves the U.S. entity being a subsidiary, affiliate, or branch of the foreign company, and both entities must continue to operate during the transfer.
- Employment Abroad: The individual must have been employed abroad for at least one continuous year within the three years preceding their admission to the U.S.
- Managerial or Executive Capacity: The individual must have been employed in a managerial or executive capacity, and the position in the U.S. must also be managerial or executive.
- Transfer to a U.S. Office: The individual must be coming to the U.S. to work in a managerial or executive capacity for the same employer, or a subsidiary or affiliate of the employer, that employed them abroad.
Similar to other employment-based green card categories, the EB-1C process involves the submission of a petition, typically by the U.S. employer, providing evidence of the individual’s qualifications, the qualifying relationship between the U.S. and foreign entities, and other required documentation.
It’s important to note that the EB-1C category is designed for multinational managers and executives and is distinct from other employment-based categories, such as the EB-2 and EB-3 preference categories, which have different eligibility criteria.
IGA (Interested Government Agency)
- IGA (Interested Government Agency) J-1 Waiver is a specific category of waiver available to J-1 exchange visitors who are subject to the two-year home-country physical presence requirement (212(e)) and wish to apply for a waiver of this requirement. This waiver is based on the request and recommendation of a U.S. government agency that has an interest in the exchange visitor’s skills and expertise. To be eligible for an IGA J-1 Waiver, the J-1 exchange visitor must secure a job or contract with a U.S. government agency that agrees to sponsor the waiver on their behalf. The agency must have a vested interest in the skills and expertise of the exchange visitor.
- Job Offer and IGA Request: The U.S. government agency provides a job offer or contract to the exchange visitor and submits a request for the J-1 waiver to the U.S. Department of State’s Waiver Review Division (WRD). The agency’s support is crucial for the success of the waiver application.
- Waiver Approval: If the Waiver Review Division approves the IGA J-1 Waiver, they recommend it to the U.S. Citizenship and Immigration Services (USCIS).
- IGA waivers for physicians are different.
NO OBJECTION Waivers
- The first step in the process involves contacting the embassy or consulate of the exchange visitor’s home country in the United States to request a No Objection statement. This statement indicates that the home country does not object to the exchange visitor’s request for a waiver.
- Home Government Approval: The home government reviews the request and decides whether to issue the No Objection statement. If approved, the embassy issues the statement and forwards it to the U.S. Department of State.
- U.S. Department of State Review: The U.S. Department of State reviews the No Objection statement and other supporting documentation. If the department finds the request acceptable, it may recommend the waiver to the U.S. Citizenship and Immigration Services (USCIS).
- USCIS Decision: USCIS makes the final decision on whether to grant the J-1 No Objection Waiver. If approved, the exchange visitor is no longer subject to the two-year home-country physical presence requirement and can pursue other immigration benefits, such as adjustment of status or change of status.
Hardship Waivers
- Eligibility Criteria: To qualify for the National Interest Waiver, the foreign national must have an advanced degree or exceptional ability in their field (arts, sciences, business, education, or athletics).
The individual must demonstrate that their work is of “substantial intrinsic merit” and that it benefits the United States to a degree that outweighs the national interest served by the labor certification process.
- Work in the National Interest – applicant must show that their work is in the national interest by meeting at least one of the following criteria:
- Advanced degree professionals or individuals with exceptional ability must demonstrate that their work benefits the U.S. economy, cultural or educational interests, or welfare of the nation; or
- Individuals with exceptional ability in the sciences, arts, or business must show that their work benefits the national interest to a substantial degree.
- Self-Petitioning: Unlike many other employment-based green card categories, individuals applying for an EB-2 National Interest Waiver can self-petition. They do not need a specific job offer or employer sponsorship. The applicant directly files Form I-140 (no PERM labor certification required) with the U.S. Citizenship and Immigration Services (USCIS) to request the National Interest Waiver.
- Adjustment of Status or Consular Processing: Once the I-140 petition is approved, the foreign national can proceed to apply for adjustment of status if they are already in the U.S., or go through consular processing if they are outside the U.S.
Obtaining an EB-2 National Interest Waiver can be a complex process, and applicants are often advised to seek legal advice to ensure that they meet the eligibility criteria and properly document their contributions to the national interest. As immigration policies can change, it’s advisable to consult with an immigration attorney or check with the relevant government agencies for the latest information.
- Qualifying Relationship: There must be a qualifying relationship between the foreign employer and the U.S. employer. Typically, this involves the U.S. entity being a subsidiary, affiliate, or branch of the foreign company, and both entities must continue to operate during the transfer.
- Employment Abroad: The individual must have been employed abroad for at least one continuous year within the three years preceding their admission to the U.S.
- Managerial or Executive Capacity: The individual must have been employed in a managerial or executive capacity, and the position in the U.S. must also be managerial or executive.
- Transfer to a U.S. Office: The individual must be coming to the U.S. to work in a managerial or executive capacity for the same employer, or a subsidiary or affiliate of the employer, that employed them abroad.
Similar to other employment-based green card categories, the EB-1C process involves the submission of a petition, typically by the U.S. employer, providing evidence of the individual’s qualifications, the qualifying relationship between the U.S. and foreign entities, and other required documentation.
It’s important to note that the EB-1C category is designed for multinational managers and executives and is distinct from other employment-based categories, such as the EB-2 and EB-3 preference categories, which have different eligibility criteria.
Persecution Waivers
Application Process:
- The exchange visitor applies for the waiver directly with the U.S. Department of State’s Waiver Review Division (WRD). The application typically includes a personal statement explaining the fear of persecution, supporting documentation, and any evidence that substantiates the claim.
- USCIS Approval: If the Waiver Review Division approves the persecution waiver, they recommend it to the U.S. Citizenship and Immigration Services (USCIS). USCIS makes the final decision on whether to grant the waiver.
If the Persecution Waiver is approved, the exchange visitor is no longer subject to the two-year home-country physical presence requirement and can pursue other immigration benefits, such as adjustment of status or change of status.
IGA WAIVER (Interested Government Agency)
Application Process:
- The exchange visitor applies for the waiver directly with the U.S. Department of State’s Waiver Review Division (WRD). The application typically includes a personal statement explaining the fear of persecution, supporting documentation, and any evidence that substantiates the claim.
- USCIS Approval: If the Waiver Review Division approves the persecution waiver, they recommend it to the U.S. Citizenship and Immigration Services (USCIS). USCIS makes the final decision on whether to grant the waiver.
If the Persecution Waiver is approved, the exchange visitor is no longer subject to the two-year home-country physical presence requirement and can pursue other immigration benefits, such as adjustment of status or change of status.