New York Lawyer's Legal Updates

J1 Home Residency Requirement And Waiver

Author: New York Immigration Lawyer Alena Shautsova

A J1 visa is one of the most common visa types which is used for a variety of purposes: see J1 visa options. Some of the J1 visas come with a undesirable “home residency requirement” which means that a person, upon completion of the J1 program would have to return back to their country of nationality or residence for 2 years. If the person’s country of nationality and residence are two different countries, than a person has to return to their country of residence. Importantly, the home residency requirement can be fulfilled only in a person’s home country. For example, if Olga (a national of Ukraine) came on J1 visa with a 2 year requirement, and then received an offer of internship from Germany to follow the US program, Olga still would have to “serve” her home residency in Ukraine, and not Germany for further immigration purposes in the United States. The same is true for residents of the EU: one who resides in Germany, would have to comply with the requirement in Germany, and not, let’s say France.

Generally, one “triggers” the two-year home residency requirement due to “participation in the program for which [the exchange visitor] came to the United States was financed in whole or in part, directly or indirectly, by ... the government of the country of his nationality or his last residence.

Or:

(ii) At the time of the issuance of an exchange visitor visa and admission to the United States, or, if not required to obtain a nonimmigrant visa, at the time of admission as an exchange visitor, or at the time of acquisition of such status after admission, the alien is a national and resident or, if not a national, a legal permanent resident (or has status equivalent thereto) of a country which the Secretary of State has designated, through publication by public notice in the Federal Register, as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien will engage during the exchange visitor program

Or:

The alien acquires exchange visitor status in order to receive graduate medical education or training in the United States.

INA 212(e ).

The J 1 holders that fall into one of these categories will be banned from applying for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until is established that such person has resided and been physically present in the country of his nationality or his last legal permanent residence for an aggregate of at least two years following departure from the United States.

There is, however, a possibility of a waiver for the 212(e ) requirement based on exceptional hardship upon a USC or LPR spouse or a child of the requester; or possibility of prosecution of the requester in their home country; non-objection letter by the government of the requestor which sponsored his studies in the US (except in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training); a special waiver for medical trainees.

It is possible to apply for a waiver based on numerous grounds, in most cases.

Instead of filing for a waiver, a qualified applicant may choose to apply for asylum. If his/her application is ultimately successful, there would be no need for a waiver for 212( e ) requirement.

25 October 2016
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