Waivers of Two Year Foreign
Residence
Requirements for J Visa Holders
Frequently Asked Questions
By: Allen E. Kaye
Types of J Waivers and How to Apply
Q. What are the bases upon
which I can obtain a waiver of the two-year residence requirement?
A. There are five statutory
bases upon which you can apply for a waiver of the two- year
foreign residence requirement:
- a no objection statement from your host government,
- a request from an interested U.S. Government agency on
your behalf,
- a claim that you will be persecuted if you return to
your country of residence,
- a claim of exceptional hardship to a U.S. citizen or
permanent resident spouse or child if you are required to
return to your country of residence, and
- a request by a designated State health agency or its
equivalent.
No Objection Statements
Q. How do I request a "no objection"
statement and where do I send it?
A. You may contact the consular
section of your embassy in Washington, D.C., and request a
"no objection" statement to be forwarded to the Department
of State on your behalf. The Embassy must forward the "no
objection" statement directly to the Waiver Review Division
at the Department of State.
Q. When in the application
process should I request a "no objection" statement?
A. You may request a "no objection"
statement only after you have submitted your data sheet and
fee, and received an information packet from the Waiver Review
Division of the Department of State.
Q. What if I cannot get a "no
objection" statement from my former country of residence?
A. You may apply for a waiver
in any of the remaining statutory bases. If none of the other
bases applies to your situation, you must return home to fulfill
the foreign residence requirement.
Q. Can anyone apply for a waiver
based upon "no objection" from the host country?
A. No. Foreign medical graduates
sponsored by the Educational Commission for Foreign Medical
Graduates (ECFMG) to do their clinical training cannot apply
for a waiver based on a "no objection" statement.
Q. Why are foreign medical
graduates ineligible to apply for a waiver based on a "no
objection" statement from their government?
A. In accordance with Public
Law 94-484, exchange visitor physicians who are admitted to
the U.S. in exchange visitor status, or who acquire such status
after admission on or after January 10, 1977, for the purpose
of receiving graduate medical education or training are subject
to the two-year foreign residence requirement of Section 212(e)
of the INA. Before their medical training under the sponsorship
of the Educational Commission for Foreign Medical Graduates
(ECFMG), their country must provide a letter of need attesting
to that country's requirement for trained physicians. Therefore,
the exchange visitor physicians are not eligible to apply
based on "no objection" statements.
Q. How can I be sure that you
have received the "no objection" statement?
A. You can ask the embassy
from which you requested the "no objection" statement if it
has been sent to the Waiver Review Division. The Waiver Review
Division unfortunately does not have the resources to notify
each applicant when a "no objection" letter has been received
on his/her behalf.
Q. My "no objection" statement
application was denied. Can I ask for reconsideration?
A. No. Waiver applications
are exhaustively considered, and it is the policy of the Waiver
Review Division not to reconsider "no objection" statement
applications once a final determination has been made. You
may, however, reapply using another statutory basis for waiver
should another one apply to your situation.
Interested
U.S. Government Agencies
Q. What is required for a waiver
based on an interested U.S. Government agency (IGA) application?
A. 1) A letter from the designated
official of the interested U.S. Government agency, explaining
why granting such a waiver is in the public interest of the
U.S. and why it would be detrimental to the agency if the
exchange visitor returns to the home country to fulfill the
two-year requirement; and 2) all DSP/IAP-66 forms, 3) the
data sheet application, and 4) two self-addressed stamped
envelopes.
Q. If I am an exchange visitor
physician and I plan to work in an underserved area in the
U.S., what must be presented to obtain a waiver based on an
interested U.S. Government agency application?
A. You will need to gather
the following:
• Data sheet
• Processing fee - cashier's check or money order for
$230 • IAP-66 forms
• Curriculum vitae
• Physician statement-A statement signed by the physician
that should read as follows: "I,__________(name of exchange
visitor) hereby declare and certify, under penalty of the
provisions of 18USC.1101, that: (1) I have sought or obtained
the cooperation of_______(enter name of U.S. Government agency
which will submit/is submitting an IGA request on behalf of
the exchange visitor to obtain a waiver of the two-year home
residence requirement); and (2) I do not now have pending
nor will I submit during the pendency of this request, another
request to any U.S. Government department or agency or any
equivalent, to act on my behalf in any matter relating to
a waiver of my two-year home residence requirement." Statement
must be signed and dated.
• Form G-28 or letter from a law office if an attorney
represents the applicant.
• Two self-addressed, stamped, legal-size envelopes.
The interested U.S. Government agency will need to gather
and send directly to the Waiver Review Division the following:
• Letter of request from head of the agency, or designated
official stating why it is in the public interest that the
exchange visitor be granted a waiver of section 212(e) of
the INA.
• Signed contract for no less that three years and 40
hours a week between physician and facility.
• Evidence that the clinic/facility is located in a U.S.
Department of Health and Human Services designated Health
Professional Shortage Area (HPSA) or Medically Underserved
Area (MUA).
• "No objection" statement from the visitor's government
only in cases where the foreign government funding
is involved.
• Facility statement - A statement signed by
the head of the facility at which the foreign medical graduate
will be employed stating the facility is located in a designated
HPSA or MUA area and provides medical care to both Medicaid
and Medicare eligible patients, and indigent uninsured patients.
The statement should also include the Federal Information
Processing Standards county code and census tract or block
numbering area number (assigned by the Bureau of Census) or
the 9-digit zipcode of the area where the facility is located.
• Evidence that unsuccessful efforts were made to recruit
an American physician for the position (medical journal advertisements;
labor certification or language in cover letter stating efforts
to recruit an American physician have been unsuccessful).
• Department of Veterans Affairs requests on
behalf of J-1 physicians to serve in VA hospitals.
1. VA hospitals do not have to be in an underserved area
2. Must include a memorandum of agreement between physician
and a hospital in lieu of three-year contract.
For quicker processing of the waiver application, the interested
U.S. Government agency may submit both its and the applicant's
required documentation together. Please note the CORRECT
ADDRESS to send the documentation.
Claims of Persecution
Q. How do I apply for a waiver
based on my fear of persecution if I were to return to my
home country?
A. Apply directly to the INS
on Form I-612. If your waiver is granted, INS will notify
you directly.
Q. Do I need to send anything
to the Waiver Review Division?
A. No.
Q. Can I apply for a waiver
based both on my fear of persecution and the exceptional hardship
that my having to return to my home country would cause my
family?
A. No. Persecution claims should
never be intertwined with claims of exceptional hardship.
Q. How can I check on the status
of my application based on fear of persecution?
A. You may call 202-663-1600.
If additional documentation is needed, the Waiver Review Division
will contact you directly. When a final determination has
been made, you will be notified. Until you hear from the Waiver
Review Division, therefore, the status of your case is considered
"open." You should make whatever plans you need to make regarding
your work, life in the U.S. or return to your home country
on the assumption that you will not/not be recommended for
a waiver.
Claims of Exceptional
Hardship
Q. How do I apply for a waiver
based on the exceptional hardship my American citizen or permanent
resident family members face if I must return to my home country?
A. Apply directly to the INS
on Form I-612.
Q. Do I need to send anything
to the Waiver Review Division?
A. No.
Q. Can I apply for a waiver
based both on the exceptional hardship that my having to return
to my home country would cause my family and my fear of persecution?
A. No. Persecution claims should
never be intertwined with claims of exceptional hardship.
Q. How can I check on the status
of my application based on exceptional hardship?
A. You may call 202-663-1600.
If additional documentation is needed, the Waiver Review Division
will contact you directly. When a final determination has
been made, you will be notified. Until you hear from the Waiver
Review Office, therefore, the status of your case is considered
"open." You should make whatever plans you need to make regarding
your work, life in the U.S. or return to your home country
on the assumption that you will not/not be recommended for
a waiver.
State Health Agency
Requests
Q. How do I apply for a waiver based on a request from a
State health agency?
A. The applicant is responsible for gathering the following:
• Data sheet
• Processing fee: cashier's
check or money order for $230 • IAP-66 forms
• Curriculum vitae
• "No objection" statement from the visitor's government
in cases in which foreign government funding is involved.
• Form G-28 or letter from a law office if applicant
has an attorney
• Two self-addressed stamped, legal-size envelopes.
The State health agency must gather and send directly to
the Waiver Review Division the following:
• A letter from the State health department's designated
official (designated by the state governor) which states it
is in the "public interest" that the exchange visitor physician
remain in the U.S. and includes the following:
- Exchange visitor's name
- Country of last legal permanent residence
- Name of medical facility
- Address of facility
- U.S. Department of Health and Human Services designated
Health Professional Shortage Area (HPSA) ID number of medical
shortage area
• A letter from the facility that wishes to hire physicians.
• Evidence that the facility is in a Health Professional
Shortage Area (HPSA) or a Medically Underserved Area (MUA)
• A signed contract for no less than 40 hours a week
for three years between the facility and the physician, with
signatures of physician and head of the facility.
For quicker processing, the State health agency may submit
both its and the applicant's required documentation together.
Please note the CORRECT ADDRESS to send the documentation.
Q. Which U.S. Government agencies
can apply for the waiver on behalf of foreign medical graduates?
A. Appalachian Regional Commission,
Department of Agriculture, Department of Veterans Affairs
and Department of Interior for Indian Reservations. Foreign
medical graduates may also apply through an individual State's
department of health that participates in the Conrad State
20 program.
Q. Which U.S. Government agencies
apply for waivers on behalf of exchange visitors?
A. In the past the waiver office
has received requests from the following agencies:
• Department of Education for teachers/professors,
• Department of Health and Human Services for medical
researchers, pharmacy research, post-pediatrics/endocrinology
researchers,
• Department of Energy for physicists working in the
fields of mineral/metallurgical engineering, nuclear engineering,
treatment and disposal of radioactive wastes,
• Department of Defense for workers in the fields of
computers, economics or electrical engineering,
• National Aeronautics and Space Administration for
workers in air/space fields,
• Department of Interior for environmental specialists
and civil engineers,
• Department of Transportation for workers in the fields
of chemical/civil engineering, aviation and
• National Science Foundation for physicists, atmospheric
earth scientists, economics specialists, and specialists in
science education.
Extensions of J-1 Status
Q. How can I extend or change
my status, or change programs?
A. The Program Designation
Branch in the Bureau of Education, Cultural Exchanges and
Academic Programs (ECA) handles J-1 extensions, category changes,
and program transfers. You will need to contact them directly
if you have further questions about one of these issues. They
can be reached at 202-401-9810.
Q. How does an exchange visitor
acquire an extension of the 30-day voluntary departure status?
A. You will need to contact
INS for an extension of the 30-day, post-program, voluntary
departure status period.
Q. How do I acquire an extension
beyond the maximum limitation of stay of my exchange visitor
program?
A. You will need to contact
the responsible officer/alternate responsible officer at your
institution concerning an extension.
Q. Where can an exchange visitor
obtain copies of his/her lost DSP/IAP-66 forms?
A. Your responsible officer
or alternate responsible officer of the exchange visitor program
in which you participated while on the J-1 visa should be
able to supply you with a copy of your lost DSP/IAP-66 form.
Dependent Spouses
and Children/J-2 Questions
Q. I am the J-2 spouse and/or
child of a J-1 who is subject to the two-year home residence
requirement. Am I subject also?
A. Yes. A J-2 is subject to
the same requirements as a J-1.
Q. If the J-1 obtains a recommendation
for waiver of the two-year home residence requirement, will
that apply to the J-2 derivative applicants?
A. Yes, if the J-1 applies
for and receives a favorable recommendation, members of the
immediate family, if applicable, will be included.
Q. Can a J-2 apply independently
from the J-1 for a waiver of the two-year home residence requirement?
A. In cases of death or divorce
from the J-1, or when a J-2 child reaches age 21, the Waiver
Review Division may entertain requests for waivers on behalf
of the J-2. The Division will need a completed data sheet,
DSP/IAP-66 forms of the J-1, divorce decree or death certificate,
whichever is applicable, and, for a dependent son or daughter
turning 21, a copy of his/her birth certificate.
Processing Fee Questions
Q. Who must pay the processing
fee?
A. Only the applicant must
pay the processing fee, not the dependent spouse or children.
Q. If I have already applied
for a waiver review once and been denied, do I have to pay
the processing fee again if I reapply using a different basis
for the waiver?
A. Yes. Once you have received
a final determination on your application from the Waiver
Review Division, any subsequent applications must be completely
re- submitted, including the $230 processing fee.
Q. How much is the processing
fee and in what form must it be paid?
A. The fee is $230 and it must
be paid in a U.S. currency cashier's check or postal money
order drawn on a U.S. financial institution. The check should
be made payable to "U.S. Department of State."
Q. Where do I send the processing
fee?
A. Send the cashier's check
or money order to:
Postal Service
US Department of State
Waiver Review Division
P. O. Box 952137
St. Louis, MO 63195-2137
Courier Service
US Department of State
Waiver Review Division
(Box 952137)
1005 Convention Plaza
St. Louis, MO 63101-1200
Q. At what point in the application
process is the processing fee sent?
A. The fee should be sent with
the Data sheet application at the beginning of the application
process.
Q. Should I fax or mail a copy
of my data sheet to the Waiver Review Division?
A. Absolutely not. If you mail
or fax extra copies of the data sheet tot he Waiver Review
Division, it will not be processed. The Waiver Review Division
will accept only the data sheet from the bank in St. Louis.
Q. Should I send the fee in
several times just to make sure you've received it?
A. Absolutely not. If you do
this, you are very likely to pay more than once for the same
service since we will not be able to retrieve your duplicate
payment and refund the money to you.
Questions Concerning
Permanent Residents of Canada
Q. I came to the U.S. from
a country other than Canada on a J-1 visa, and after completion
of my J program I moved to Canada and acquired landed immigrant
status in Canada. Which country am I subject to return to
for my two-year residence requirement • my former country
of residence or my current one, Canada?
A. You are subject to return
to your former country of residence. J-1 regulations stipulate
that an exchange visitor is subject to the country of his/her
legal permanent residence at the time that the visitor acquires
the J-1 status. The visitor must return to his/her former
country of residence in order to fulfill the two-year home
residence requirement or he/she must receive a waiver of the
requirement.
Processing Times/Status Inquiries
Q. How long should it take
before I get a decision on whether you will recommend a waiver
in my case?
A. The processing times will
vary depending on the type of application you have submitted.
The times given below are estimates only from the date of
receipt of all documentation necessary to process the application.
No objection - 4-8 weeks
Interested U.S. Government agency - 4-8 weeks
State department of health - 4-8 weeks
Exceptional hardship - 3-4 months
Fear of persecution - 3-4 months
Advisory opinions - 8-12 weeks
Q. If I sent a fax or another
document for my case, can I call and check to make sure that
you have received it?
A. This is not necessary and
we unfortunately do not have the resources to answer these
inquiries. If you want confirmation that we have received
a document, you will need to send it certified or registered
mail. Please also remember to provide your waiver case number
on both the documentation and the outside of the envelope,
if mailed. Please note the CORRECT ADDRESS
to send the documentation.
Q. Where can I get information
on the status of my application?
A. You may call 202-663-1600.
If additional documentation is needed from you, the Waiver
Review Division will contact you directly. When a final determination
has been made in your case, you will be notified. Until you
hear from the Waiver Review Division, therefore, the status
of your case is considered "open." You should make whatever
plans you need to make regarding your work, life in the U.S.
or return to your home country on the assumption that you
will not/not be recommended for a waiver.
Final Determinations
of Waiver Applications
Q. After a favorable recommendation
for a waiver is made and transmitted by the Waiver Review
Division to the INS what is the next step?
A. INS will make the final
decision regarding the waiver and will contact the exchange
visitor directly.
Q. Will I be notified by the
Waiver Review Division that my application has been forwarded
to INS?
A. Yes. You will receive a
copy of the recommendation.
Q. If my application is denied,
will I be notified of the reasons why?
A. Yes.
Q. What is the reason most
applications are denied?
A. Applications are denied
because the reasons given for requesting the waiver do not
outweigh the program and policy considerations of the exchange
visitor program. For this reason, "no objection" applications
in Fulbright/USAID funded programs are generally denied.
Q. Is there an appeal process
for denials/unfavorable recommendations for a waiver by the
Waiver Review Division?
A. There is an internal agency
review process but there is no formal appeal process for the
applicant. However, the visitor may be eligible to reapply
based on another statutory ground, e.g. if the first application
was based on a "no objection" statement from the applicant's
home country and then reapplies based on an interested U.S.
Government agency (IGA) request, a claim of exceptional hardship
to a U.S. citizen or legal permanent resident spouse or child(ren),
or based on a fear of persecution if the applicant is required
to return to his/her home country.
Q. What if I have new information
that may affect my eligibility for a waiver recommendation?
Can I just send that to the Waiver Review Division and ask
for a reconsideration of my previously denied application?
A. If you have already received
a final determination from the Waiver Review Division that
denies your request for a waiver recommendation, you will
need to apply again from the beginning for a waiver recommendation.
You can use this new information to support your reapplication.
You will need to follow all of the procedures for reapplication
that you followed for your first application, including paying
the $230 fee. If your application is still pending with the
Waiver Review Division and you have not received a final determination
yet, you should send that information on to the Waiver Review
Division for their consideration with your file. Please remember
to write your waiver case number on any documentation you
send and on the outside of the envelope. Please note the CORRECT
ADDRESS to send the documentation.
Q. My exceptional hardship
application was denied by INS. Can I ask for reconsideration?
A. Yes. Requests to reopen
an exceptional hardship application are made through the INS.
If INS determines the new information warrants a reopening
of the case, INS will forward a new Form I-612 application
to the DOS for its consideration.
Q. My application based on
fear of persecution was denied by INS. Can I ask for reconsideration?
A. Yes. Requests to reopen
persecution applications are made through the INS. If the
INS determines that new information warrants reopening of
the case, INS will forward a new Form I-612 application to
the Department for its consideration.
Advisory Opinions
Q. What is an advisory opinion
for a waiver recommendation case?
A. An advisory opinion is a
request for a statement from the Waiver Review Division as
to whether an exchange visitor is subject to Section 212(e)
of the Immigration and Nationality Act, as amended.
Q. When should I request an
advisory opinion?
A. You should only request
an advisory opinion after you have participated in a J-1 program
and you have doubts whether you are or are not subject to
Section 212(e).
Q. Can anyone request an advisory
opinion on my behalf?
A. Yes. Your attorney or your
responsible/alternate officer may request an advisory opinion
for you.
Q. What information should
I include in my request for an advisory opinion?
A. You should mail legible
copies of all your DSP/IAP-66 forms along with the written
request for an advisory opinion. We do not recommend sending
your request by fax because DSP/IAP-66 forms frequently become
illegible during the fax process.
Q. Where do I send the request?
A. You should send your request
to the following address:
U.S. Department of State
CA/VO/L/W, Visa Services
2401 E Street, NW, (SA-1)
Washington, DC 20522-0106
The request for an advisory opinion should be made by letter
and must provide legible copies of all of the exchange visitor's
DSP/IAP-66 forms for the entire time he/she was in J status.
You should provide a self-addressed, stamped envelope for
where you would like the advisory opinion sent.
Skills List Questions
Q. What is the Exchange Visitors
Skills List?
A. The skills list is a list
of occupations that are needed in the exchange visitor's home
country.
Q. How does an exchange visitor
determine if his/her country has a skills list?
A. The current skills list
is published in the Federal Register, Volume 62, No. 11, January
16, 1997 (pages 2448 to 2516). The 1972 skills list appeared
in Vol. 37, No. 80, April 25, 1972, 8099-8117. The 1984 skills
list appeared in Vol. 49, No. 114, June 12, 1984, 24194-24249.
Amendments to the skills lists were published in the following
Federal Registers: Vol. 43, No. 29, February 10, 1978, 5910-
5912; Vol. 51, No. 189, September 30, 1986, 34701; Volume
52, No. 24, February 5, 1987, 37444; Volume 52, No. 53, March
19, 1987, 8700; Volume 53, No. 242, December 16, 1988, 50619;
Volume 58, No. 143, July 28, 1993, 40466.
Q. Which country's skills list
applies to me?
A. The country of your last
legal permanent residence where you obtained your J-1 visa
applies to you.
Q. How do I determine if the
funding I received for my program was government provided?
A. You should consult your
program's responsible officer for assistance in making this
determination.
Q. Does funding provided by
an international organization make me subject to the two-year
home residence requirement?
A. Yes.
Miscellaneous Questions
Q. Can I serve my two-year
home residence requirement in the US or a third country?
A. The period of time a former
exchange visitor spends in the US or a third country may count
towards fulfillment of the two-year home residence requirement
if the person is employed by his or her government in its
military service or career foreign service and that person
is serving in a country other than the home country at the
behest of his/her government. Before the Department can determine
that the individual has satisfied the foreign residence requirement,
we require a written statement from an official of the home
government (through the home-country's embassy in Washington,
D.C.) that the individual was or will be serving in the U.S.
or third country in the service of his/her home country and
at that government's request.
Q. How do I know what my case
number is?
A. The case number is at the
top portion of the letter you will receive after you have
submitted your Data Sheet application and the processing fee.
The letter will explain the procedures and documentation necessary
for your waiver review request. If there were prior applications,
the case number remains the same no matter how long the case
history becomes.
Q. Can you tell me which areas
have been designated underserved by the U.S. Department of
Health and Human Services?
A. We do not have this information.
Please contact the U.S. Department of Health and Human Services,
the agency which determines underserved areas.
Q. How do I get a copy of the
Data Sheet?
A. Please visit our website
travel.state.gov/jvw and search for the datasheet.
Q. If I come in person to the
Visa Office in Washington, D.C., will someone be able to speak
to me about the status of my case?
A. No. Please do not travel
to Washington, D.C. for this purpose. The Visa Office unfortunately
does not have an "in-person" information service. You may
obtain your application's status from our automated system
by calling 202-663-1600. If you need to speak to an officer
about the waiver review process, you may contact the Public
Inquiries Division at (202) 663-1225. Again, however, there
is no need to check on the status of your application. You
will be contacted if anything is needed from you and you will
be notified when a final determination has been made. Until
you are notified that your request for waiver recommendation
is approved, you must consider yourself without a waiver of
the 212(e) home- residence requirement and act accordingly.
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