If you are in the United States on a J-1 visa and you would like to change your immigration status to a lawful permanent resident you could face a great hurdle. Based on the kind of exchange visitor program you are in, you might need to return to your home country for two years; before you become eligible for a U.S. green card or any other U.S. visa.
Take note that the two-year period spent in your home country must be continuous. An aggregation of two years in your home country could be enough to qualify for a waiver and then obtain lawful permanent residency. However, you cannot get around the requirement by spending two years in another country or by switching to a different visa while in the U.S.
If you are looking to try and escape from this obligation completely you will need to first file for a waiver of the home residency requirement.
To successfully apply for a waiver, you will need to demonstrate that you are deserving of a waiver under five grounds as explained below, which include:
● a no-objection waiver from your home country
● a waiver based on a Petition from an interested government branch
● a waiver based on a fear of persecution in your home country
● a waiver on the basis of extreme hardship to your immediate family relatives in the U.S. who are recipients of citizenship or lawful permanent resident status and a
● petition from a state department of health.
A No-Objection Based Waiver from One’s Home Country Government
Unless you are a foreign medical graduate, the most direct manner to get a waiver of the J-1 home-residency requirement is to have your home country’s government provide an authorization through what’s called a “no-objection letter.”
The letter must affirm that your government has no concern with you staying in the U.S to apply for a green card in spite of having provided you financial support for your exchange program participation. Note that a no-objection letter might not suffice to get you a waiver of two-year home residency requirement. This is especially true if you accepted scholarship funding to come to the U.S under a J-1 visa status.
Waiver Based on a Petition by an Interested U.S. Government Organization
If you are working on a project that is of interest to a U.S government agency and that company decides you are an essential part to their program it could 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.
Waiver Based on Fear of Persecution in Your Home Country
Once you can prove that you would be persecuted in your home country based on your race, religion, or political opinion, you can apply for a waiver. Applicants for asylum in the U.S may not be eligible for a waiver if their fear of persecution is based only on nationality or membership to a particular social group. Also, the standard is higher than an ordinary asylum case in which foreigners will need to prove a reasonable fear of persecution. By contrast you will need to show that you would be persecuted upon your return.
Waiver Based on Extreme Hardship to Your U.S. Citizen or Permanent Resident Spouse or Child
If your spouse or any of your children who are U.S. citizens or lawful permanent residents will extremely suffer because of your departure; you may be approved for a waiver. This means that just emotional hardship will not be enough to show extreme hardship. You will need to show the United States Citizenship and Immigration Services (USCIS) that your spouse and children have a medical problem that will require your undivided attention, medical care and financial support. If you leave the U.S., their medical conditions will worsen.
Waiver Based on a Petition by a State Department of Health
If you are a foreign medical graduate with an offer for full-time employment at a healthcare facility in a region that has been classified with a shortage of doctors and you agree to continue work full-time for three years within the 90 days of having received a waiver, you may obtain a waiver. This is known as the Conrad State 30 Program and is an important source of doctors in U.S. rural areas.
Seek Legal Advice
The process for waiving the J-1 two year home residency requirement is quite complicated and it is wise to seek the help of an immigration attorney. In most cases it will demand that you are persistent so that government officials can see you are deserving of a waiver. It is highly recommended to ask an expert immigration lawyer for assistance. Do not hesitate to contact the Gambacorta Law Office today at 1-847-786-2599.