Useful links:
• Department of State: J-1 Visa Waivers web page
• J-1 interested government agency waiver options for foreign medical graduates
• 3RNet: J-1 programs state by state

All J-1 exchange visitors (and their J-2 dependents) must have an intent to return to their home country upon completion of their period of J-1 stay in the United States. In addition, some J-1 exchange visitors (and their J-2 dependents) are legally subject to a two year home country return requirement. The reasons that a J-1 exchange visitor may become subject are the following:

• they entered the U.S. to train, research, etc. in a field that is on the U.S. Department of State Skills List for their home country (please see our J-1 visa page for a link to the Skills List);
• they received funding either from their home country, the United States, or a bi-national commission (e.g., Fulbright Commission); or
• they entered the U.S. in J-1 status to engage in graduate medical training.

Individuals who currently or previously held J-1 (or J-2 dependent) status which made them subject to the home country requirement either must return to their home country for two years, or they must obtain a waiver of that requirement, before they are eligible for a H-1B or L-1 visa, or permanent resident status.

The bases upon which someone who is subject to the home country requirement can apply for a waiver are the following:

• “no objection” statement from the home country (this option is not available if the basis for becoming subject is graduate medical training, and is unlikely to be sufficient if the basis is government funding);
• interested Federal or state government agency sponsorship;
• exceptional hardship to a U.S. citizen or permanent resident spouse or child; or
• the individual would be subjected to persecution if he or she returned to the home country.

While a no objection waiver is often the most straight-forward option, this requires that the home country consulate would be willing to issue a no objection statement; if the consulate is not willing, the other, more complicated waiver options must be considered.

Generally, an interested government agency waiver requires that a Federal or state government agency decide that the individual’s continued work is so much in that agency’s interest that it will submit a waiver application on behalf of the individual. For a listing of common interested government agency waiver programs, please see our J-1 waiver programs page.

Exceptional hardship requires a showing that the qualifying U.S. or permanent resident relative will suffer exceptional hardship, both if the subject individual returns to his or her home country, and if the U.S. or permanent resident relative accompanies the individual to the home country.

The persecution waiver involves a higher standard than an asylum application; as a result, few individuals resort to this type of waiver application.

Due to the potentially dramatic consequences of obtaining J-1 exchange visitor status, it is advisable to consider in advance whether the J-1 visa would make an individual subject to the home country requirement.

This information is provided as general background only; if you would like a legal opinion on whether a proposed or existing J-1 program would subject the individual (and his/her dependents) to the two year home country residence requirement, please contact our office to schedule a consultation.
This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.