If you are in the U.S. as an exchange student in J-1 status, and are interested in applying for a U.S. green card, you may find your way blocked by something called the “two-year home residency” requirement. As discussed in What Is the J-1 Visa Two-Year Home Residency Requirement?, this requirement essentially requires some (but not all) J-1 visa holders to return to their home country for two years before changing or adjusting status (obtaining another nonimmigrant visa or green card) in the United States.
If you wish to escape this obligation and apply for a green card immediately, you will first have to apply for a waiver of the home residency requirement. 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 apply for a waiver, you will have to show that you deserve it under one of the following five grounds:
- No objection from your home government. Unless you are a foreign medical graduate, the easiest way to obtain a waiver may be to have your home government consent to it through a “no objection letter.” In this letter, your government would assert that it does not have a problem with your staying in the U.S. to apply for permanent residence (a green card) – even if it helped finance your exchange program participation. Contact your home country’s embassy in Washington, DC, to request such a letter. Be forewarned, however: A no-objection letter may not be enough by itself to secure 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.
- Request by an interested U.S government agency. If you are 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.
- Fear of persecution in your home country. If you can show that you would be persecuted upon return to your home country due to on your race, religion, or political opinion, you can apply for a waiver. Note that, unlike 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. J-1 waiver applicants, by contrast, must satisfy the U.S. government that they “would be” persecuted upon return.
- Exceptional hardship to your U.S. citizen or permanent resident spouse or child. If your spouse or any of your children are U.S. citizens or permanent residents, and you can show that your departure from the U.S. would cause them exceptional hardship, you may be granted a waiver. However, USCIS will demand a greater showing of hardship than the “mere” emotional pain of separation or economic or language difficulties that your family would suffer. The classic exceptional hardship case is one in which your family member has a medical problem that would be worsened by your departure or by traveling with you to your home country; or where the family member would be persecuted if he or she returned home with you.
- Request for your services as physician by a state department of health. If you are a foreign medical graduate who has an offer of full-time employment at a health care facility in an area that has 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.
As you might suspect, the waiver application process is complex. To succeed, you will likely have to persuade a reluctant U.S. government officials that you fit into a category whose boundaries are not clearly defined. We strongly advise you to get help from an experienced immigration attorney.