What is a J1 Persecution Waiver? - J1 Visa Waivers

What is a J1 Persecution Waiver?

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J-1 visa holders are usually subject to the two-year foreign residence requirement, which requires them to return to their home country for two years after their J-1 visa expires. After meeting the two-year residency requirement, individuals may return to the United States. However, the requirement to return to their home country may be waived for five reasons, one of them being fear of persecution in an individual’s home country. Other causes include the following:

  1. No objection statement
  2. Request by an interested United States Federal Government Agency
  3. Exceptional Hardship to a U.S. citizen (or permanent resident) spouse or child of an exchange visitor
  4. Request by a designated state public health department or its equivalent 

How Do You Know If You’re Subject to the Foreign Residence Requirement?

If your J-1 program falls under any of the following categories, you’re subject to the foreign residence requirement:

  • Your program was financed by the U.S. federal government or the government of your home country
  • You participated in J-1 medical training or education for doctors
  • Your home country needs the skills you learned during the J-1 program.

If you meet the conditions for persecution, however, the foreign residence requirement can be waived, and you won’t need to leave the U.S. to continue living and working here. 

Fear of Persecution

You may qualify for a J1 waiver if you can clearly state the source of the persecution you would encounter.

The fear of persecution must be based on your membership in an established religious, ethnic, political, and professional group. Some common sources of persecution include:

  • Your home country’s government
  • Certain groups or individuals in your home country
  • Religious intolerance in your home country

In some cases, the persecution may be targeted at an immediate relative rather than yourself. You may receive a J-1 waiver if you can prove that relocating to your home country could cause the persecution of your U.S. citizen spouse or child due to their lifestyle, political views, or religious beliefs. 

Case Studies

Mr. Andrich is a citizen of Ukraine who obtained sponsorship from the government to come to the United States with a J-1 visa to complete his Ph.D. at the University of New York. Before coming to the United States, a nearby country invaded and declared war against Ukraine. Mr. Andrich and many of his peers were persecuted during the war for political and professional reasons. Some of his colleagues were apprehended and taken as prisoners. Still, Mr. Andrich timely arrived in the United States for his Ph.D. program at the University of New York. While in the United States, he worked in the Research and Development team at the University. Because the government sponsored Mr. Aldrich’s program, he is subject to the foreign residence requirement and must spend two years in Ukraine. Due to the war conflict in Ukraine, Mr. Andrich has a well-founded fear of persecution based on his membership in an established political and scientific group, he believes that he will be persecuted and that his life would be in danger if he returns to Ukraine. Mr. Andrich could qualify for a J-1 waiver based on persecution.

Preparing Your J1 Persecution Waiver Application

To apply for a J-1 waiver, you’ll need to complete Form DS-3035 and gather the required supporting documents. In addition, you’ll need to provide evidence to support your claims of persecution. Some examples include:

  • A written statement detailing why you would be persecuted if you were to return to your home country to fulfill the two-year residence requirement. 
  • Medical reports and evaluations from qualified healthcare professionals
  • Official documents that establish your ethnicity, religion, and nationality
  • Photos and detailed affidavits from you, your family members, and close friends that establish the harm you’ve suffered from persecution
  • Police reports on incidents involving your persecution
  • Proof of your political party or other group membership and affiliations
  • Proof of attempts to obtain documents
  • Form G-28 or a letter from your attorney’s law office

After submitting your application, the processing is typically around 3-4 months. The U.S. Waiver Review Division will complete the review process and forward its recommendation to USCIS. You’ll also receive a copy of the recommendation. If USCIS finds that you’re likely to experience persecution, you’ll be notified of the approval (or denial) through the mail at your listed address. If your waiver is denied, you may appeal the decision. 

Persecution Waivers and J-2 Dependents

If you have a J-2 dependent, their J-2 visa is linked to your visa, and the same restrictions apply. Once your J-1 visa expires, theirs will as well, and they’ll also be subject to the two-year residence requirement. If you apply for a J-1 persecution waiver and it’s approved, your J-2 dependent will also benefit from the waiver. 

There are some circumstances when a J-2 dependent may apply for a persecution waiver without the J-1 visa holder applying:

  • The J-2 visa holder’s J-1 spouse dies
  • The J-1 and J-2 visa holders get divorced
  • The J-2 child turns 21

J-2 waiver applications will be considered on a case-by-case basis by the Waiver Review Division. The J-2 visa holder should submit a detailed statement that explains why they would like to apply for a waiver without the J-1 spouse or parent. 

Do You Need an Immigration Attorney for a J-1 Waiver?

Although it’s not necessary to work with a lawyer for your J-1 waiver, doing so can significantly increase the chances of your waiver getting approved. Immigration law is very complex; making small mistakes on your application can cause significant delays or result in your waiver being denied. J-1 waivers, in particular, are one of the most complicated areas of immigration law, and as a result, there aren’t as many lawyers who specialize in them. 

When it comes to J-1 waivers, an essential factor in achieving approval rests on how well your case is argued on paper. It’s not enough to state the facts; you’ll need to present them in a way that clearly shows how they fulfill the legal requirements of the waiver. In addition, since processing times for J-1 persecution waivers can take months, it’s essential to ensure all the paperwork is filed correctly and provide the proper evidence — especially if your visa is set to expire soon. 

Contact Ranchod Law Group for Assistance with Your J-1 Persecution Waiver

At Ranchod Law Group, we draft a detailed legal brief, audit, and guide on supporting documentation that can make or break the case. We understand that the two-year residence requirement can disastrously impact your life, family, and career. Our immigration attorneys have helped countless clients get their J1 waivers approved so they could continue to live and work in the U.S. If you feel you could benefit from legal counsel regarding your case, contact Ranchod Law Group at 916-613-3553 or email us at info@ranchodlaw.com.