Grounds for Waiver of Home Residency Requirement

• No Objection Statement
• Interested Government Agency (IGA) Request
• Persecution
• Exceptional Hardship
• State Health Agency Request

There are currently five bases for applying for a waiver of the two-year home-country physical presence requirement.

1. "No Objection " Statement: More than half of J HRR waiver applications fall into the "No Objection" category. These waiver requests originate when the Waiver Review Branch receives a diplomatic note from the applicant’s home government stating that government's "No Objection" to the grant of a waiver.

It is important to distinguish between "No Objection" statements issued on behalf of visitors who are subject to the two-year home-country physical presence requirement because their area of study/work appears on the Skills List, and "No Objection" statements submitted in support of visitors who have received USG funding (see Note on Government Funding, below). In the absence of USG funding, a "No Objection" statement from the home country is likely to result in a favorable waiver recommendation.

If, however, the requested information indicates that the applicant received direct or indirect USG funding, the sponsor providing such funding will be contacted for its views regarding the grant of a waiver.  If the sponsor objects to a waiver, a "No Objection" statement from a home country has limited effect, and the Agency will generally make an unfavorable recommendation to USCIS. Back to top.

The "No Objection" statement option is unavailable to exchange visitors who acquired J-1 status on or after January 10, 1977 for the purpose of receiving graduate medical education or training. Waiver requests from foreign doctors based upon exceptional hardship, however, are reviewed in the same manner as other similar requests.

Generally, waiver requests based upon "No Objection" statements are processed within 4-8 weeks of the Waiver Review Board's receipt of all required documentation. Back to top.

Q&A on No Objection Statements.

2. Interested Government Agency (IGA) Requests: This is the second most prevalent (approximately 30%) basis upon which waivers are sought. A request by an interested U.S. Government agency or department (IGA) must explain that: (a) the granting of the waiver is in the public interest, and (b) the exchange visitor's compliance with the two-year home-country physical presence requirement would be detrimental to a program or activity of interest to that Federal agency. Upon receipt of an IGA request, DOS reviews the file to see whether USG funding is involved; if it is, DOS then requests the views of the USG agency or department providing such funding are sought. If the funding agency or department does not object, DOS is most likely to forward a favorable waiver recommendation to INS. Back to top.

If the agency or department that funded the applicant does object, however, the Waiver Review Branch forwards the application to the Waiver Review Board for a decision. The Board, in turn, weighs the program, policy and foreign relations aspects of the application against the agency and public interest aspects underlying the IGA request. In these circumstances, the IGA request will be subject to increased scrutiny, as is the amount of funding that underlies the sponsor's objection to the grant of the waiver. However, in years past, approximately one-third of such applications have still been granted.

Waiver applications based upon an IGA request should have strong supporting documentation regarding why the IGA has a special interest in the project at issue, and why this exchange visitor is uniquely qualified to fill his/her position as opposed to American applicants or other foreign nationals who are not subject to a two-year home-country physical presence requirement. Back to top.

A labor certification and/or evidence of unsuccessful attempts to fill the position should be included in the application. As in all waiver applications other than those alleging persecution, USG funding weighs heavily in the determination.

In general, IGA waiver requests are processed within 4-8 weeks of the Waiver Review Board's receipt of all required documentation. Back to top.

3. Persecution: A very small percentage of requests for waiver of the home residency requirement are based upon fear of persecution on account of race, religion or political opinion upon return to the home country. These requests should be originated with USCIS (formerly INS). If USCIS makes a preliminary finding of probable persecution, the applicant’s file is forwarded to DOS, which, in turn, refers the request to the Department of State's Bureau of Democracy, Human Rights and Labor, Office of Asylum Affairs for consideration. State heavily upon State's determination, which generally serves as the principal basis for USIA's recommendation to USCIS.

The time frame for processing of this type of waiver request is approximately 3-4 months. Back to top.

4. Exceptional Hardship: This type of waiver request represents approximately 5% of all requests. Waiver requests based upon exceptional hardship to a U.S. citizen or legal permanent resident spouse or child or children originate with an USCIS filing. If USCIS determines that exceptional hardship does exist, it forwards the file to DOS. DOS estimates that they make favorable recommendations on such applications slightly less than half of the time. Back to top.

If either direct or indirect USG funding is involved, DOS will seek the views of the funding agency on the waiver request. The Waiver Review Branch then balances program, policy and foreign relations considerations against the exceptional hardship that would befall the U.S. citizen or legal permanent resident spouse or child or children if the HRR were enforced. No two waiver requests based upon hardship are identical, even those with the same underlying facts; in cases with the same underlying facts, program, policy and foreign relations considerations extant at the times of consideration may lead the to different outcomes. Back to top.

The processing time for this type of request depends upon DOS’s receipt of information and views from other Federal Government agencies.

Exceptional Hardship Waiver Application Contents. DOS has provided the following possible factors for consideration of an exceptional hardship waiver; the Agency has emphasized that these factors have no particular weight or order. Back to top.

• amount and source of funding received by waiver applicant;

• general country conditions affecting health, safety or general welfare of U.S. citizen/legal permanent resident spouse or child or children;

• absence of any objection by waiver applicant's home government to grant of a waiver;

• chronic medical condition in U.S. citizen/lawful permanent resident spouse, child or children, and lack of adequate medical treatment in applicant's home country (DOS will submit such information to the Department of State's Medical Services division for expert evaluation of available medical facilities in that country);

• presence of threat to safety of U.S. citizen/legal permanent resident spouse, child or children due to political or religious considerations in applicant’s home country;

• existence of a custody order that would prevent U.S. Citizen or legal permanent resident from removing minor children from a court's jurisdiction;

• service in U.S. Armed Forces that would prevent U.S. Citizen spouse/legal permanent resident alien from accompanying waiver applicant to his/her home country; and/or,

• waiver applicant's marital status and whether s/he has any children. Back to top.

Note that separation from a U.S. Citizen or legal permanent resident spouse or child in and of itself is not likely to outweigh program, policy and foreign relations considerations in favor of the physical presence requirement. This includes applications alleging extreme hardship to a spouse due to inferior employment opportunities in the home country. In addition, the fact that a U.S. Citizen family member is a naturalized citizen of the U.S. and a native of the waiver applicant’s home country is likely to influence consideration of arguments alleging that a family member will have problems adjusting to life abroad.

The timeframe for this type of waiver application is approximately 3-4 months. Back to top.

Q&A on Exceptional Hardship.

5. Request by Designated State Health Agency or Its Equivalent: Foreign medical graduates with an offer of full-time employment at a health facility in a designated health professional shortage area who agree to begin employment at such facility within 90 days of receiving such waiver, and who sign a contract to continue working at the health care facility for a total of 40 hours per week for not less than three years may obtain a waiver. For information on State Health Agency requests and the Conrad program for J-1 physician waivers, contact the person designated in your state of interest.

Only physicians may apply for a waiver on this basis. State Health Agency Request Waivers take approximately 6-8 weeks to process. Back to top.

See Physician Waivers.

Note on U.S. Government Funding

In all waiver cases except those based upon fear of persecution, the Waiver Review Branch requests the views of the U.S. Government (USG) program sponsor if the exchange visitor's program has been financed directly or indirectly by an agency of the USG.   In general, all "G" programs have government funding, as do a number of "P" programs.  Note also that sponsorship by LASPAU, AMIDEAST and IIE, among others, may involve U.S. government funds. Back to top.