As a J-1 visa holder, navigating the various requirements and obligations of your exchange program can be challenging. For example, one aspect that often confuses exchange visitors is the two-year foreign residence requirement.
While some individuals are required to spend a minimum of two years outside the U.S. before returning on a dual-intent visa, others may be exempt from this obligation. The key to determining your situation is obtaining an advisory opinion from the U.S. State Department. In this blog post, we’ll explain the significance of the J-1 Advisory Opinion and how it can provide the clarity you need regarding your eligibility for an adjustment of status.
What is a J-1 Visa?
The J-1 visa is a non-immigrant visa designed to foster relationships between the United States and other countries through an exchange visitor program focused on educational experiences and professional training. Established in 1961, the J-1 Exchange Visitor Program allows individuals to visit the U.S. for short periods to gain practical training or complete their education so they can utilize their newfound skills upon returning to their home countries.
To be eligible for a J-1 visa, individuals must fall into specific categories within approved public and private sector programs, such as:
Applicants for J-1 visas must meet certain requirements, including English proficiency and sponsorship by a government program, private organization, or university. In addition, some J-1 visa categories allow dependents, such as unmarried children under 21 and spouses, to accompany the J-1 visa holder to the U.S. These dependents are granted J-2 visas and must follow the same application procedures.
The U.S. Department of State oversees the J-1 visa program; it designates and approves exchange programs that can act as sponsors. Each sponsoring agency has a responsible officer (RO) who certifies the eligibility of exchange visitors. In addition, the RO guides applicants on the necessary documents required to obtain Form DS-2019, the certificate of eligibility for exchange visitor status. Once the RO issues this form, it can be submitted to a U.S. consulate or embassy to apply for a J-1 visa. Upon receiving the visa, individuals can enter the U.S. within 30 days of their program’s start date.
Understanding the Home Presence Requirement
Some J-1 visa holders must return to their home countries for a minimum of two years before returning to the United States, as outlined in Section 212(e) of the Immigration and Nationality Act. In addition, you’re subject to the home presence requirement if any of the following conditions apply to your J-1 visitor exchange program:
If your J-1 visa was issued on or after June 28, 2009, you can determine whether it falls within the skills clause of the home presence requirement by referring to the 2009 skills list. However, if you entered the U.S. before that date, you’ll need to consult the older skills lists, which can be accessed on the State Department’s website.
If you’re unsure whether you’re subject to the home residence requirement, you can request an advisory opinion from the U.S. State Department. However, if the requirement applies to you, it is crucial to comply accordingly. During this time, you’re prohibited from changing your status to an intracompany transferee or a non-immigrant temporary worker. Additionally, you can’t adjust your status to become a lawful permanent resident, obtain an immigrant visa from a U.S. Consulate or Embassy, or acquire a fiancé visa.
How to Request an Advisory Opinion
To request an advisory opinion, you’ll need to send a written request to the Waiver Review Division. The request should include specific details about your J-1 program(s), including program dates, sources of funding, and any other pertinent information. It’s also important to provide the following:
To ensure a prompt response, enclose a self-addressed, stamped envelope (SASE) along with your documents. Mail your complete request to the following address:
INA 212(e) Advisory Opinion Request
Waiver Review Division, CA/VO/L/W
U.S. State Department
Visa Office
SA-17, 11th Floor
600 19th Street, NW
Washington, D.C. 20522-1711
The Waiver Review Division will review your documents to determine whether the two-year home residence requirement applies to you. Then, you’ll receive the final decision in the mail, typically in five to eight weeks.
Suppose the advisory opinion determines you’re subject to the two-year home presence requirement. In that case, you’ll have two options: either return to your home country for two years before pursuing a change in your visa status or apply for a J-1 visa waiver, which allows you to waive the requirement.
Understanding J-1 Visa Waivers
J-1 visa waivers are typically granted under specific circumstances, which include:
No-objection statement
You’ve received a statement from the embassy or designated ministry in your home country stating it doesn’t object to waiving the home presence requirement.
U.S. government interest
You’ve worked on a project that’s of interest to a U.S. government agency, and that agency submitted a request for a waiver on your behalf.
Persecution
If you have a credible fear of persecution based on political beliefs, religion, or race upon returning to your home country, you can apply for a waiver on the grounds of persecution. This requires submitting Form I-612 to the U.S. Citizenship and Immigration Services (USCIS).
Exceptional hardship
If your absence would cause extreme hardship to your U.S. citizen or lawful permanent resident spouse or child, you can request an exceptional hardship waiver by submitting Form I-612 to the USCIS.
Foreign medical graduates
State public health departments can request a waiver on behalf of foreign medical graduates who’ve received a job offer at a hospital in an area with a medical shortage. Applicants must agree to start working within 90 days of receiving the waiver and commit to working there for at least three years.
The Benefits of Working with an Immigration Lawyer
Due to the complexities surrounding advisory opinions and J-1 visa waivers, working with an experienced immigration lawyer can be extremely beneficial. Immigration lawyers possess in-depth knowledge of the J-1 visa program, including its specific requirements and obligations. They can guide you through the process of obtaining an advisory opinion from the U.S. State Department and ensure that all the necessary documents are submitted correctly and that your case is presented effectively.
An immigration lawyer can interpret the advisory opinion and help you understand its implications for your case. If you’re subject to the two-year home presence requirement, your lawyer can help determine whether you qualify for a J-1 waiver. Having an immigration lawyer on your side can also provide peace of mind and alleviate the stress associated with the J-1 visa process. They can answer your questions, address any concerns you may have, and advocate for your interests throughout the advisory opinion or waiver application process.
If you’d like assistance with your case, contact the Ranchod Law Group to schedule a consultation. Call us today at (916) 613-3553 or email us at info@j1visawaiver.net.