If you are a J-1 exchange visitor who is subject to the 212(e) two-year foreign residence requirement, you face strict barriers to spending more time in the U.S. -- even if it’s in another status -- after your J-1 stay is over. This article discusses one of the ways to overcome these barriers, called a “no-objection” waiver.
More specifically, until you, as a J-1 visitor, have either spent two years outside the U.S. or received a waiver of the two-year home residence requirement, you will not be permitted to receive either:
- a nonimmigrant visa or change of status to the category of temporary worker (H) or intracompany transferee (L)
- an immigrant visa or green card (lawful permanent residence or LPR status), or
- a fiancé (K) visa.
You will have to comply with the two-year foreign residence requirement regardless of whether you planned to apply for the new status from within the U.S. or at an overseas U.S. embassy or consulate.
Now, for how some J-1s can have this rule lifted in their case. U.S. immigration law provides five different bases upon which you may apply to the U.S. Department of State (DOS) to waive the 212(e) two-year foreign residence requirement:
- no-objection statement from applicant’s home government
- request by an interested U.S. federal government agency
- showing that you would face persecution if returned to your home country
- exceptional hardship that denial of your request would cause to a U.S. citizen or legal permanent resident wife or child, or
- request by a designated State Public Health Department (CONRAD State 30 Program).
Of the five waiver options, the easiest to get is typically the no-objection statement from one’s home government. Such a statement simply expresses your government’s lack of objection to the possibility of you remaining in the United States.
The only type of J-1s who cannot acquire a waiver under the no-objection category are foreign medical physicians who acquired their J-1 for the purpose of receiving graduate medical education or training in the United States.
Applying for a No-Objection Waiver
Applying for a waiver based on a no-objection statement from a home government entails four basic steps:
- STEP 1 – Determine your home government’s no-objection procedure.
- STEP 2 - Complete the online J visa waiver recommendation application.
- STEP 3 – Submit a statement of reason.
- STEP 4 – Request that a no-objection statement from your home government be sent to the DOS.
STEP 1: Determining your home government’s no-objection procedure
The first step in this process is to make yourself familiar with the system by which your home government awards no-objection statements. (You won’t actually request the statement until farther along in the process, as explained below.) Although the DOS expects your home government to send a no-objection statement directly from its embassy in Washington, DC to the DOS Waiver Review Division, each country has its own (often intricate) procedure for doing so.
For example, India requires that the applicant obtain multiple forms bearing the official seal of the Indian Embassy in New York City, send the form to three separate places in India -- the applicant’s state government, the central government of India, and the passport office within the person’s home state -- and then wait until the forms have all been returned to the applicant in the U.S. before making an official application to the Indian embassy in Washington, DC.
Your home government’s unique no-objection statement process can be discovered by contacting your embassy in the U.S. or going online to the embassy’s website. If your home government funded your J-1 program, it may be necessary to reimburse those monies before it will agree to issue the no-objection statement.
Some countries have a universal policy of refusing to issue no-objection statements. If your country has adopted this policy, or it declines to issue you a no-objection statement after you apply, then you can try to receive a waiver based on one of the other categories (exceptional hardship, fear of persecution, or request by an interested U.S. government agency). If none of the other categories fit your situation, then you will be required to fulfill the two-year home country physical presence requirement before changing to the H, K, L, or LPR category.
STEP 2: Completing the online J visa waiver recommendation application
The next step is to complete the online J visa waiver recommendation application (Form DS-3035). Its purpose is to create and reserve a case number for your waiver application.
The application and instructions are located on the DOS’s J visa waiver online page. Form DS-3035 must be completed electronically, printed, and sent to DOS. In fact, if you send a non-electronically completed paper form (one without a barcode, as explained below) and the required application fee, DOS will reject the application, but keep (and cash) your check!
You’ll be asked to enter biographical information and choose the category under which you will be applying for the waiver. The system will assign a case number and barcode to your application.
The system will also give you document packets and barcoded coversheets to place over required documentation. A complete list of the documents that you must include with your application will be given to you in the application instructions. Mail the printed application, required documentation, and the application fee ($215 as of early 2014) to the DOS Waiver Review Division.
STEP 3: Submitting a statement of reason
You cannot complete step three, submitting a statement of reason to DOS, until after having filled in the waiver recommendation application (see STEP 2) and received a case number.
A statement of reason is exactly what it sounds like -- the reason, in your words, why you are applying for a waiver of the 212(e) two-year foreign residence requirement. Your statement of reason should stick to the narrow facts of why you wish to receive a waiver of the two-year foreign residence requirement. It should include the simple statement that your home government has no objection to your waiver and, if applicable, that you have repaid all monies given to you by your home government.
A strong statement of reason will present the ways that you will benefit the U.S. if you are allowed to remain. For example, if you have a degree in science, technology, engineering, or mathematics and will be a member of the U.S. workforce, you will want to include this fact in your statement of reason. The point of the statement is to convince the DOS that the value of allowing you to remain in the U.S. outweighs the value of you returning home to share goodwill toward America with your fellow countrymen.
When you are ready to create your statement of reason, click the “Create a Statement of Reason” link at the J visa waiver online web page. We suggest drafting the statement beforehand and having it ready to copy and paste into the online form. The form will first ask you for personal information and then ask you to type in your statement of reason. When you are done, be sure to include the printed statement of reason with the waiver recommendation application packet described in STEP 2.
STEP 4: Requesting the no-objection statement
At last, you’re ready to actually request the no-objection statement from your home government. Because you already familiarized yourself with its procedures in STEP 1, this should be easy. Send all necessary documentation, any associated fees, and the DOS waiver recommendation application number (STEP 2) to your home country’s embassy in Washington, DC (unless your home country’s procedure dictates otherwise).
If it approves your request, your government’s embassy will send the no-objection statement directly to the DOS Waiver Review Division. The statement cannot come from you. You will receive a copy of the no-objection statement from your embassy.
If you happen to be residing outside of the U.S., the no-objection statement may instead come from a designated ministry in your home country’s government, which will need to send it to the U.S. Chief of Mission in the U.S. Embassy within your country for forwarding to the DOS Waiver Review Division in Washington, DC.
Waiting for a DOS Recommendation on Your Waiver Request
Once the DOS Waiver Review Division receives the no-objection Statement from your country’s embassy and your documentation and fees from STEP 2, it will begin processing your case. You can track your case on the DOS website using your application number. You may also get DOS requests for additional information consisting of anything it feels it needs to determine your case.
Approval is not guaranteed. The DOS Waiver Review Division looks at whether your reasons given for requesting the waiver outweigh the programmatic and foreign policy considerations of the J-1 exchange visitor program. This is the reason that J-1s who received U.S. government funding (such as Fulbright recipients) typically have a tougher time obtaining a waiver. Nevertheless, many Fulbrighters have successfully obtained waivers under the no-objection category by combining their request with one in another waiver category. If you accepted funding from the U.S. government, you should get help from a knowledgeable immigration lawyer in order to request the J-1 waiver.
DOS will send its recommendation on whether to approve or deny your case to U.S. Citizenship and Immigration Services (USCIS) and send a copy to you. At this point, your role in the process is finished and you do not need to send anything to USCIS.
The process from start (when DOS receives a complete waiver application file), to finish (when it sends a recommendation to USCIS), ordinarily takes about four to eight weeks.
Even before USCIS makes a final determination on your case, you can use your copy of DOS’s waiver recommendation letter to apply to either change status while in the U.S. to the nonimmigrant categories of temporary worker (H) or intracompany transferee (L), or to adjust status while in the U.S. to a lawful permanent resident. USCIS will handle this by deciding on your waiver request first, then if it approves the waiver, issuing a waiver approval notice and adjudicating your change of status or adjustment of status case.
The opposite is true if you are applying to receive a visa (whether immigrant or nonimmigrant) at a U.S. embassy or consulate. You must have the final, I-612 approval notice in hand before proceeding with a visa application from outside the United States.
Waiting for USCIS’s Decision on Your Waiver Request
USCIS is the final authority when it comes to approving or denying a 212(e) two-year foreign residence requirement waiver. However, in the no-objection category, USCIS really has nothing to adjudicate. As soon as DOS recommends the waiver, USCIS will typically send an I-612 waiver approval notice.
You Cannot Appeal a USCIS Denial
If USCIS denies your no-objection-category waiver application, you cannot appeal, nor can you request that USCIS reconsider its decision. DOS similarly prohibits you from applying again under the no-objection category.
However, the USCIS denial does not prohibit you from applying for the waiver based on of one of the other categories (hardship to family, fear of persecution, or request by an interested U.S. government agency). If none of these fit your situation, then you will be required to fulfill the two-year home country physical presence requirement before pursuing a different immigration status.
Maintaining Your J-1 Status While Applying for a Waiver
It is important to carefully time your waiver application. Your J-1 status is immediately restricted when DOS makes a favorable recommendation to USCIS. You are no longer eligible for program extensions nor a renewal of the J-1 visa for travel. For a detailed explanation of how your J-1 visa status is affected by applying for the waiver, see “Will my waiver application hurt my current J-1 status?”.