J-1Visa
The J-1 Visa allows those who are approved to participate in an “exchange program” to temporarily remain in the U.S. for the duration of the program. J-1 program categories range from au pair, scientist, student to physician, and can also provide for summer employment. Often, but not always, the J-1 nonimmigrant is expected to return to his home country for two years after completion of his program, in order to utilize the experience and skills he had acquired. However, this two-year requirement only applies to obtaining an H or L visa or permanent residence in the United States.
Often, it is possible to obtain a J waiver to eliminate this two-year requirement.
The J program is administered by the US Department of Status. In order to apply for a J-1 visa, you need to obtain form DS-2019 from your sponsoring agency. You need to ask either the
Responsible Officer (RO) or the Alternate Responsible Officer (ARO) what documents do you need in order to obtain from DS-2019.
Spouses and children of J-1 visa holders may be obtained J-2 status. Persons with J-2 status may apply for employment authorization documents although their income may not be used to support the J-1 visa holder. Persons with J-2 status should apply for their work permits using form I-765.
J waivers may be obtained by the following means: (1) No Objection Letters (Not for IMGs); (2) Exceptional Hardship; (3) Persecution; and (4) Interested Government Agencies (IGAs).
Exchange Visitor Categories
· Au Pairs
· Camp Counselors
· Government Visitors
· International Visitors
· Physicians
· Professors and Research Scholars
· Secondary School Students
· Short-Term Scholars
· Specialists
· Summer Work Travel
· Trainees and Flight Training
J Waivers
The major drawback of the J visa is that some exchange visitors are permitted to enter the U.S. only on the condition that they exit this country for a minimum of two years after their program is completed. Exchange visitors are subject to the two home residency requirements if:
1. They obtained money from either their home government or the U.S. government; 2. Their occupation is listed on the Exchange Visitor Skills; or
3. They are coming to the U.S. to obtain graduate medical education or training.
It is sometimes difficult to obtain a J waiver or an exception, to this two-year foreign residency requirement. This is true even if the foreign national has married a U.S. citizen during the course of his or her stay in the United States. Nevertheless, in many cases, J visa holders can obtain waivers. The latest State Department procedures regarding J waivers should be followed.
Misconceptions Abound
Prior to discussing waivers, it is important to clarify several misconceptions about the J visa. First, most J programs do not subject the foreign national to the two-year residency requirement. Only three types of programs contain this requirement. One of these programs is for aliens who obtain J status in order to receive graduate medical education or training in the U.S. There are special rules pertaining to J visas and waivers for physicians who are International Medical Graduates. The second is for all persons whose J programs are financed by the U.S. government or by the visa holder’s government. The last is for persons whose occupations or courses of the study appear on the Exchange-Visitor Skills List published by the
State Department which administers all J programs. Foreign countries in need of certain skills place them on this list. Exchange visitors who participate in a program involving these designated skills are subject to the foreign residency requirement.
In addition, many people assume that the affected alien must return to his home country for two years immediately following the completion of the program, and may not set foot in the U.S. during those two years. In reality, the foreign residency requirement bars the alien, for a period of two years, solely from obtaining H (temporary worker), L (intracompany transferee), or permanent residence status in the U.S. The alien may return to his home country and reenter the U.S. as a visitor, student, or another status. However, any time spent in the U.S. or a third country does not count toward the two-year residency requirement. For example, if an International Medical Graduate (IMG), after finishing a medical residency in the U.S. moves to Canada to avoid the two-year residency requirement and now wishes to re-enter the U.S., he will still be obstructed by the two-year rule.
It also should be noted that the foreign residency requirement attaches not only to the principal alien but to the spouse and children who are present in the U.S. in dependent J-2 status. However, if the spouse and children never obtained J-2 status, they are not subject to the foreign residency requirement.
Obtaining Waivers
There are four methods by which a foreign national may obtain a waiver of the two-year residency requirement. Each method requires the approval of one or more U.S. government agencies.
1. No Objection Letters
The government which financed the alien’s program, or which requested that the alien’s skill be placed on the Skills List, may write a letter to the State Department stating that it has no objection to a waiver of the foreign residency requirement for a particular alien. If both the State Department and the Bureau of Citizenship and Immigration Services (CIS) concur, the waiver is granted. However, graduates in medical education are ineligible to receive a waiver based upon a no-objection letter.
2. Hardship Waivers
The alien may obtain a waiver if the imposition of the foreign residence requirement would impose “exceptional hardship” on his or her U.S. citizen or permanent resident spouse or children. For example, a hardship waiver might be granted if the alien were married to a U.S. citizen, had one or more citizen children, and the family would be forced by the residency requirement either to separate or to reside together in a war-torn country. A hardship waiver might also be granted if a family member were suffering from a life-threatening disease for which treatment was not available in the country where the alien was a citizen. Persons facing dramatically negative situations due to family conditions or conditions in their home country may consider this option.
3. Persecution Waivers
The foreign residency requirement may be waived by the CIS where it is determined by the State Department that the alien cannot return to his country of nationality or last residence
because of persecution he or she would be likely to encounter, based on race, religion, or political opinion.
4. Interested Government Agency Waivers
An agency of the U.S. government may write to the State Department requesting a waiver of the foreign residency requirement for a particular alien. For instance, the Department of Health and Human Services (HHS) could write such a letter on behalf of a physician with a job offer in a medically-underserved area or a scientist if it was shown that the scientist’s research might lead to a vaccine or cure for a serious disease. If the State Department and the USCIS agree, and they almost invariably do, the waiver would be granted.
Besides the Department of Health and Human Services (HHS), the other federal government agencies most likely to sponsor J waivers for IMGs are the Veterans Administration (VA), the Appalachian Regional Commission (ARC) and the Delta Regional Authority (DRA).
Individual states may sponsor up to 30 physicians per year for J waivers through their Departments of Health. All 50 states as well as the District of Columbia, Puerto Rico, and Guam have established “Conrad 30” programs for physicians.
Helping You Manage the Application Process
It is often difficult, though not impossible, to obtain a waiver of the two-year residency requirement. Before obtaining J status, you should determine whether you will be subject to the residency requirement and, if so, whether any alternative immigration status is readily available to you. Immigration law involves many bureaucratic twists and turns that may make the process confusing for those without legal expertise. Ellie Azhang is a knowledgeable immigration lawyer who at the Law Offices of Azhang & Associates, Inc. can take care of the application process in your stead so you can focus on preparing for your new life in the United States. Contact us today by calling (949) 296-7660 or contact us online to get started
Green Cards Through Employment
The Law Office of Azhang & Associates, Inc., has represented many employers across the US, assisting them in sponsoring employees for both temporary working visas and green cards. During the past 26 years, we have assisted numerous individuals in obtaining green cards through employment.
US immigration law allows 140,000 persons annually to obtain green cards through employment. This number includes both the principal worker and immediate family members (spouse and unmarried children). Persons born in a particular country cannot use more than 7% of the quota in each of the 5 employment-based (EB) categories. This has led to long backlogs in the EB categories for persons born in India, mainland China and the Philippines.
In general, before an EB-2 or EB-3 preference petition on behalf of a prospective immigrant can be submitted to the US Citizenship and Immigration Service (USCIS), an employer must obtain the approval of a PERM Application issued by the US Department of Labor. This represents a determination that no minimally-qualified US workers are ready, willing and able to fill the job and that the employment of an immigrant will not adversely affect the wages and working conditions of US workers