If you are in the U.S. with a J-1 exchange visitor visa, and interested in applying for a green card or certain other nonimmigrant visas, you face a potential hurdle. Depending on the type of exchange visitor program you’re in, you may be required to spend two years residing in your home country after completing your program before you are eligible to apply for a green card or other U.S. visa.
This two-year period need not necessarily be an unbroken stretch of time. An aggregation of two years in your home country is also sufficient. However, you cannot get around the requirement by spending two years in a third country or by switching to a different visa status within the United States.
To successfully apply for a waiver, you’ll have to show that you deserve it under one of the five grounds described below.
Unless you are a foreign medical graduate, the most straightforward way to obtain a waiver is by having your home government consent to it, through what’s called a "no objection letter."
In this letter, your government would assert that it doesn’t mind your staying in the U.S. to apply for a green card – perhaps despite the fact that it supplied some of the money that financed your exchange program participation. Contact your home country’s embassy in Washington, DC, to request such a letter. Be warned, however, that a no-objection letter may not be enough to get you a waiver of the two-year home residence requirement. This is particularly true if you accepted scholarship funding to come to the U.S. in J-1 status.
If you’re working on a project of interest to an agency of the U.S. government, and that agency decides that your continued stay is vital to one of its programs, it may support your request for a waiver. Foreign medical graduates may qualify for an interested government agency waiver, through the U.S. Department of Agriculture or the Department of Health and Human Services.
If you can show that you would be persecuted upon return to your home country based on your race, religion, or political opinion, you can apply for a waiver. Note that, unlike regular applicants for asylum in the U.S., you cannot qualify if you fear persecution based only on your nationality or membership in a particular social group. Also, the standard is higher than in ordinary asylum cases, in which applicants need only prove a "reasonable fear" of persecution. You, by contrast, must show that you "would be" persecuted upon return.
If your spouse or any of your children are U.S. citizens or permanent residents (green card holders), and you can show that your departure from the U.S. would cause them exceptional hardship, you may be granted a waiver of the two-year home country requirement. However, U.S. Citizenship and Immigration Services (USCIS) will demand a greater showing of hardship than the "mere" emotional pain of separation or economic or language difficulties. The classic exceptional hardship case is one in which a family member has a medical problem that would be worsened by the J-1 visa holder’s departure or by traveling to the J-1 visa holder’s home country; or where the family member would be persecuted if he or she moved to the J-1’s home country.
If you’re a foreign medical graduate with an offer of full-time employment at a health care facility in an area that’s been designated as having a shortage of doctors, and you agree to begin working there within 90 days of receiving the waiver and to continue working there full-time for at least three years, you may be granted a waiver. This is known as the Conrad State 30 program, and is an important source of doctors in U.S. rural areas.
The process of applying for a waiver of the two-year home country requirement is highly complex. It often depends on persuading reluctant government officials that you fit into a category whose boundaries are not clearly defined. You are strongly advised to see a qualified immigration attorney to get legal help with your waiver application.