What is the foreign residence requirement?
According to the two year foreign residence requirement, exchange visitors are expected to return to their home country for a period of two years before they are eligible to obtain a different type of non immigrant visa or a green card. However, such exchange visitors may be able to avoid having to leave the U.S. for two years through the grant of a waiver. The primary reason for granting a J visa is to provide an outlet for American cultural exchange. But with a waiver, an opportunity for a cultural exchange would be lost and would go against the purpose for which the J visa was approved.
It is not easy to acquire a waiver of the foreign residence requirement, because one must obtain an exemption from the government of the home country as well as the American Government, neither of which are keen on granting such a reprieve easily. The exchange visitor will need to submit a waiver application that is professionally prepared to ensure a good chance of success. It is good to consult an immigration lawyer with experience in the area of J visa waivers.
How to get a waiver from the foreign residence requirement?
A foreign exchange visitor can apply for a waiver based on three statutory bases, the most common among them being the “No objection” letter from the visitor’s home country. The foreign residency requirement may be waived if the visitor’s home country issues a “No objection” letter to the U.S. State Department declaring that it has no objection to the granting of the waiver. However, there is an exception; a waiver is generally not available to medical residents or interns who received their medical training in the U.S.
A hardship waiver may be granted if the exchange visitor can establish that he or his family members would suffer exceptional hardship if the waiver was denied. The exchange visitor must provide evidence that his qualifying relatives would suffer financial, medical or emotional hardship in their home country if they were required to return without the exchange visitor for the two year period. It must also be established that the family would suffer exceptional hardship if they remained in the U.S. without the J visa holder for two years.
A waiver may also be granted if it is determined that the exchange visitor is not in a position to return to his or her home country due to a threat of persecution based on race, religion or political opinion.
If the departure of an exchange visitor would prove to be adverse to a program or activity conducted by a government agency in the U.S., then, a waiver may be granted. Such waivers are usually granted to medical school graduates of other countries who come to the U.S. as interns or residents to work in medically undeserved areas.
But how does one find out if he or she is subject to the two year foreign residence requirement? First, one should check the Certificate of Eligibility which was received from the program sponsor and also the J visa which will state one’s foreign residence requirement. It is good to seek the help of an immigration lawyer in case of any doubts, to avoid the risk of losing any benefits.