The Immigration and Nationality Act requires that a person who is admitted to the United States on J-1 visa or who acquires a J-1 visa after admission, and who has received government funding, is on the country's skills list, enters pursuant to a particular program, or enters with the purpose of undertaking clinical medical training, return to his/her home country for a two-year foreign residence requirement, or have that requirement waived upon completion of the exchange visitor program.

The Immigration and Naturalization Service (INS) is authorized to grant a waiver of the two year foreign residence requirement if the United States Information Agency (USIA) recommends that such waiver be granted. If the USIA recommends that a waiver NOT be granted, INS cannot waive the two-year foreign residence requirement. If the USIA recommends a waiver, INS still has the authority to deny their request. Usually, however, INS will follow the USIA's recommendation to grant the waiver.

There are four bases upon which a person subject to the two-year foreign residence requirement can obtain a waiver:

1. The J-1 visa holder cannot return to his/her country of nationality because he/she will be subject to persecution based on race, religion, or political opinion (similar to an asylum application);

2. The J-1 visa holder's U.S. citizen or permanent resident spouse or child would suffer exceptional hardship if the J-1 visa holder were to return to his/her home country to fulfill the two year foreign residence requirement;

3. A federal "interested government agency" (IGA) can request that a waiver of the two-year foreign residence requirement be granted. There are a number of different agencies with different procedures which may be available to different applicants; or

4. The J-1 visa holder can obtain a "no objection" letter from his/her home country government. There are special rules for Foreign Medical Graduates (FMGs) who are in the United States on a J-1 visa for clinical activities. The FMG J-1 cannot use a "no objection" letter to request a waiver. Recently, another alternative has been made available to FMGs. A waiver can be granted to an FMG based upon the recommendation of a State Department of Public Health. Twenty recommendations per state are available.

Obtaining a J-1 waiver is an involved and time-consuming process. Initially, a strong application packet must be assembled. Thereafter, state and federal agencies will have to review the application and supporting documents. Then, the USIA will undertake a complete review of the packet. Finally, INS will review the packet prior to issuing its decision.

The length of time that this process takes is based upon the category under which the waiver is requested and specific processing times at the government agencies. These times vary based upon the workload the particular agency has at the time the applications are filed.

Our office has extensive experience with these types of cases. We will be happy to answer questions you have in this regard