Dear Sophie: How can I get my 2-year foreign residency requirement for my J-1 waived?

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Dear Sophie:

I’m entering my second year in the U.S. under a five-year J-1 research visa from Italy. When we came we thought it would be temporary, but our plans have changed and now we want to try to stay in the U.S. My husband started his own company here on his J-2 visa work permit, and our daughter was born here. However, we’re supposed to return to Italy for two years. How can we get a 212(e) waiver?

—Positive in Palo Alto

Dear Positive:

Congrats on your accomplishments — the birth of your daughter, your research position and your husband’s startup. Happy to share about the J-1 visa, the two-year home residency requirement (a section of the law called “212(e)”) and obtaining a waiver so you can seek a green card or another type of visa. For more background, check out my podcast on the two-year foreign residency requirement and filing a waiver and last weeks’ Dear Sophie column with an overview of the types of J-1 visas. The earlier you begin preparing your waiver application, the better.

The J-1 Educational and Cultural Exchange Visa is intended for people from around the globe to work or study in the U.S. and then take their newly acquired knowledge and skills back to their home country. Given that, it is not a direct path if you decide after your arrival to remain longer term in the U.S. I recommend working with an experienced immigration lawyer to devise a strategy for reaching your goals beyond getting a waiver. I also recommend talking with your employer to assess whether they can later sponsor you for a green card.

If you’re subject to the waiver, you’ll probably see it on your J-1 visa foil in your passport, as well as on your DS-2019 forms. It’s always good to confirm whether you are “subject to 212(e)” by consulting with an attorney.

If you “are subject,” there’s no limit on how early you can file for a waiver from the J-1 two-year foreign residency requirement, which is a good thing since it can take a year or more to get a decision on your waiver application depending on the reason. You should only file one waiver at a time, but if it is denied, as there is no appeals process, you could file a second waiver in that situation.

Under the law, J-1 visa holders and their J-2 visa spouse and children can qualify for a waiver from the J-1 two-year foreign residency requirement based on any of the following reasons:

1. If your home country does not object to you and your family remaining in the U.S. or becoming legal permanent residents of the U.S.
2. If you are working on a project for or in the interest of a U.S. government agency and your departure would be detrimental.
3. You have at least one spouse or child who is either a U.S. citizen or a legal permanent resident and would face exceptional hardship if you had to leave.
4. You received graduate medical training or education and a state public health agency has offered you a full-time job at an underserved healthcare facility and you agree to work there for at least three years.
5. You fear persecution based on race, religion or political opinion in your home country (similar to asylum).

Based on what you’ve said, I’m assuming that option #4 does not apply to you, so I’ll discuss the others.

The process for requesting a no-objection statement varies by country. The first step is to retain an immigration attorney, who will then work with your home country’s government to obtain the no-objection statement and then prepare the application for your U.S. Department of State J-1 visa waiver application. This is an online application but there are additional steps to mail documents to the State Department. Your attorney will also prepare an explanation of why you are seeking a waiver. It’s a multistep process with different government agencies and can typically take a year, so it’s good to start early, be very thorough and keep organized records.

The strongest case for a waiver is if you’re working on a project for or in the interest of a U.S. government agency. If this applies, discuss it with your attorney and you may also need to loop in your employer. If you work for a federal government agency or your research is of interest to a federal agency, the agency would need to submit a letter directly to the Waiver Review Division explaining how your contribution is in the public interest of the U.S. and how the waiver would benefit the agency. The request letter must include evidence and recommendation letters from superiors in your field.

Alternatively, if you’re making the case for exceptional hardship based on a qualifying relative, it’s important to demonstrate strong legal arguments regarding various personal, economic, physical and emotional factors such as potential loss of employment, education, and physical and mental health. Family separation alone is not enough to show exceptional hardship so it’s important to work with an attorney to gather the right evidence.

For the asylum-style prong, you would need to explain and show how you and your family would be persecuted or oppressed by your home country’s government or a group that the government is unable to control. On the State Department’s Bureau of Democracy, Human Rights, and Labor website, you can review reports on human rights practices by country. Persecution arguments could be added to a waiver application for extreme hardship, and this is most definitely one that could use the support of an attorney.

Wishing you all the best as you explore the 212(e) waiver process!

Sophie

Have a question? Ask it here. We reserve the right to edit your submission for clarity and/or space. The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer here. You can contact Sophie directly at Alcorn Immigration Law.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major podcast platforms. If you’d like to be a guest, she’s accepting applications!