J-1 Waiver – Lin & Valdez L.L.P.

1. NATURE

A very special status under the immigration law of the U.S., J-1 status allows exchange visitors of foreign countries to come to the U.S. to participate in exchange programs. The foreigners can be in the U.S. as student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill under this status. They can be in the U.S. under J program for teaching, instructing or lecturing, studying, observing, conducting research, consulting, and demonstrating skills.

2. FOREIGN RESIDENCY REQUIREMENT UNDER SEC. 212(e) of INA

Unlike other non-immigrant statuses, some people in J status are subject to a unique restriction on change of status or adjustment of status in the U.S. Such a restriction is provided under Section 212(e) of the INA. Under that provision, unless a waiver is obtained, a J visa holder can not apply for adjustment of status or apply to change to H or L status unless the person has resided and physically present in the country of his nationality or his last residence for at least two years.

3. PEOPLE SUBJECT TO SEC. 212(e) RESTRICTION

People subject to foreign residence requirement provided by Sec. 212(e) include:

(i) The program for which he came to the U.S. was financed in whole or in part, directly or indirectly, by an agency of the Government of the U.S. or by the government of the country of his nationality or his last residence;

(ii) The person was a national or resident of a country which the Director of the USIA had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged;

(iii) The person came to the U.S. in order to receive graduate medical education or training.

4. WAIVER SPONSORED BY INTERESTED GOVERNMENT AGENCY

If the alien’s country of nationality or country of last residence furnishes USIA a no-objection statement as to the waiver of foreign residence restriction, the Director of USIA can accordingly issue such a waiver to the alien. Nevertheless, frequently visiting scholars or researchers have difficulties obtaining such a statement from their own country. Under such circumstances, the visiting scholars’ only practical option will be to seek the sponsorship of an “Interested Government Agency” who will sponsor an application of the alien to waive the Sec. 212(e) foreign residence requirement.

Over the years, our firm has built up substantial experiences in seeking such sponsorship from government agencies. A government agency is willing to sponsor a J-1 waiver application if they have deep interest in the research of the alien scholar. To obtain such a waiver, the applicant must prove both the importance of his research to the U.S., especially to the specific government agency, and the credential of the applicant. Each government agency has its own procedure in processing the waiver application. Time required from government agencies for processing waiver cases also varies. For example, NIH and NASA may very well take up to ten months to issue the final approval while Department of Defense takes less time to process the applications. Contact and talk to us and you will know in more detail about the procedure.

5. APPLICATION PROCEDURE

Each government agency has its own procedure and requirement in processing the waiver applications. However, all applications start with obtaining a case number from USIA. The application entails a lot of documents from the applicant. The applicant should firstly acquire the full support of the program he is in now. The applicant should also be prepared to establish the importance of his research to the government agency, the funding sources of the research project, and the achievement of himself. Step by step, we assist our clients prepare for the application and meander through the administrative jungle.

6. ADVISORY OPINION

While the lower left corner of the front page of IAP-66 bears the remarks whether a J-1 holder is subject to the Sec. 212(e) restriction, this remark is only made by the consular officer and could be incorrect and not conclusive. As such if any J-1 holder is not sure of the correctness of the remark on IAP-66, he can request an advisory opinion from USIA to verify whether he is really subject to the restriction. In response to such a request, the Waiver Review Branch will clarify conclusively whether the alien is subject to the residence requirement. In the past, it takes lengthy time to receive the advisory opinion from the USIA. It seems that the response time has been much improved recently.

7. CHANGE TO O-1 AND THE NEXT AFTER WAIVER

Since J-1 waiver application may take months, it is common that the applicant faces the expiration of his J-1 status in the interim. In that event, the alien will have to leave the U.S. unless he changes his status before the expiration of his J status. Since J holder is not allowed to change to H or L status, the only remaining choice for the scholar to maintain his research and working is to change to O-1.

If a waiver is obtained, the alien can then either change to O-1 or H-1 and seek ways to eventually obtain permanent residence. Frequently, the alien will later apply for classification as an alien of extraordinary ability in science, or as an outstanding researcher, under the first preference of the employ-based category. The alien may also seek national interest waiver under second preference. For all applications, waiver sponsored by an interested government agency is like an endorsement from the government about the importance of the alien’s research. It certainly is a great boost to the alien’s next step of application.