Exchange visitors who come here on a J-1 visa may sometimes be subject to the 2 year foreign residency requirement. This could be seen in either of two places – the DS-2019 (or IAP-66) and the visa itself.
For the DS-2019, there will be a check mark on the lower left part of the first page on being subject to the 2-year foreign residency requirement, and it will also indicate the reason why you are subject, such as the skills list or government funding.
On the J-1 visa, there will be a note there that says whether you are subject to INA 212(e) or not.
Note that there are many instances where the DS-2019 says you are not subject, but your visa does. Or vice versa – the DS-2019 says you are subject, but the visa does not. We have encountered many of these instances. Do not just assume you are not subject if one of those 2 does not say you are subject.
To verify, it is best to file an advisory opinion to the Department of State to check whether you are subject to the 2-year foreign residency requirement. Often, in these situations where only one of the two documents state that you are subject, the advisory opinion still comes back to state that you are indeed subject. These requests are free anyway.
The advisory opinion is a written request to the Waiver Review Division asking that they conduct an advisory opinion to determine whether the two-year home-country physical presence requirement applies to you. A written request, copies of all DS-2019s and IAP-66s, plus a self-addressed envelope must be sent to
INA 212(e) Advisory Opinion Request
Waiver Review Division, CA/VO/L/W
U.S. State Department
2401 E Street, NW
Washington, D.C. 20522-0106
Adjustment of Status and Non-Immigrant Visa Implications
So what if you are subject to the two year foreign residence requirement and an employer wants to do an H-1B petition for you? Or what if you are married to a US Citizen and wish to be petitioned and apply for adjustment of status?
With the 2-year requirement, you cannot change or adjust status here without coming home for 2 years or getting a waiver. That is actually the importance of getting a waiver, the succeeding relief or application sought. You won’t be able to get some of these changes or adjustments of status in the States without a waiver.
No Objection Statement
One way to get a waiver is through the no objection statement process. The essential part of this is that the applicant’s foreign embassy would issue a “no objection statement” to the Department of State, who then recommends a waiver of the 2-yr requirement to the CIS, who then issues the actual I-612 approval. That eventual approval is what you submit together with the Adjustment of Status application or non-immigrant change of status application.
Every country has their own procedure for obtaining the no objection statement. Some do not even issue it at all.
For the Philippines for example, there are so many steps. The original documents should first be authenticated by the Secretary of State. Then, the Philippine Embassy with jurisdiction over that document should also authenticate it. Then, the packet should be sent to the EVP office in the Philippines. Then, the EVP would send the recommendation to the Philippine Embassy in Washington DC, who then issues the no objection statement to the Department of State.
A person subject to the 2-year foreign residency requirement is ineligible to apply for adjustment of status unless she returns home and physically resides in her country for 2 years following departure from the U.S. or obtains a waiver. An alien who is subject to the foreign residency requirement and who believes that compliance therewith would impose exceptional hardship upon her spouse or child who is a citizen of the United States may apply for a waiver on Form I-612
In determining a hardship waiver, the applicant must show: (1) hardship if the child accompanies her abroad for two years; and (2) hardship if the child remains in the U.S.
Courts have effectuated Congressional intent by declining to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad.” Keh Tong Chen v. Attorney General, 546 F. Supp. 1060, 1063 (D.D.C. 1982).
Some of the factors in analyzing extreme hardship are as follows: age of the subject, family ties in the U.S. and abroad, length and residency in the U.S., health / medical conditions, conditions in the country of removal – economic and political, financial status – business and occupation, position in / ties to the community. Matter of Anderson, 16 I&N Dec. 596 (BIA 1978).
J-2 Waiver through the Interested Government Agency Route
People who come here as a “J-1 dependent” come on a J-2 visa. If you are a J-2 visa holder and your J-1 relative was subject to the 2 year requirement, then you too are subject to the 2 year requirement.
If you are divorced from your J-1 spouse, or your J-1 spouse died, or you came as a minor through your parents and you are now over 21, then you can also apply for a waiver through the Interested Government Agency route.
We’ve had clients who are in a situation where they came on a J-2 and fell in one of those 3 instances above (divorce, death of spouse, over 21), and who either wanted to apply for an H-1B visa or wanted to adjust status based on marriage to a US Citizen. And getting a waiver through the IGA route, not through no objection or hardship, is how it’s done.
Consultations with our firm are free. So if you have any questions at all with J-1 waiver or J-2 waiver applications, feel free to contact us by phone, email, or even visit our firm.
Should you eventually wish to retain our firm, we are experienced in preparing and filing all kinds of J-1 and J-2 waivers. For no objection waiver cases, our firm will do not just the forms, but also the documentation and preparation needed to obtain a no objection statement for your specific country.
For J-1 waivers based on hardship, to us one of the most important parts of a J waiver hardship application is the hardship affidavit. This is not just a statement of the hardships involved. We will make sure all issues are addressed, from hardship to the qualifying relative while he or she remains in the US while there is separation, to hardship to the qualifying relative should you and the qualifying relative go back to your home country. Those issues are all addressed. We will also provide you with suggestions as to which supporting documents should be submitted to strengthen the case. We will make sure that you provide as much detail as possible in your affidavit
Our firm has had clients all over the United States for J-1 and J-2 waiver cases, from no objection, to exceptional hardship, to IGA cases. Feel free to contact us if you have any questions.
If you have any questions, please fill out the free consultation form below, and we will respond as soon as possible privately.