The No-Objection Pathway for a J-1 Visa Holder to Apply for a Home Residency Waiver

The following no-objection pathway applies to those exchange visitors who are in the United States lawfully on a J-1 visa. At present, unless the United States Citizenship and Immigration Service (USCIS) grants a waiver for a specified reason, J-1 exchange visitors must complete a two year period of residence in their own home country before changing their immigration status. This period of residence is called the 212(e) two-year foreign residence rule.

The barriers to this requirement can be waived under certain circumstances. These include:

  • obtaining a no-objection statement from your own home government;
  • proving that you face persecution of some kind if you had to return;
  • a federal agency showing interest in you staying in the U.S.;
  • if denial of a waiver would cause exceptional hardship to a child, or wife who was a legal U.S. citizen or resident.

The easiest of these four ways that a waiver might be granted is the first one, obtaining a no-objection statement from your home government. Such a statement is basically a formal way of saying that your government will not put any obstacle in your path if you wish to remain in the U.S.

Every country has different procedures that it uses to establish whether it is prepared to issue a no-objection statement, so it is important that if you decide to take this route that you find out exactly what your own home country’s government’s procedures actually are. Some countries, such as India, for instance, have a particularly bureaucratic and long-winded method to follow before a no-objection statement is released and some countries categorically refuse to issue any no-objection statement at all.

Also note that some categories of J-1 exchange visitor, such as foreign doctors who came to the U.S. to further their medical training, will not be granted a waiver by the USCIS.

How to go about applying for a waiver using the no-objection

There are two different U.S. federal agencies that have a say in granting you a home residency waiver. Both agencies must agree in turn. The first you have to deal with is the Department of State (DOS) and the final one is the USCIS. It is quite possible, although not likely that you will have your waiver application accepted by the DOS only to find that it is turned down by the USCIS. Once this happens, you cannot appeal. If you do decide that you would like to change your visa status you will have no alternative to completing the 2 years back at home.

The first step is as mentioned before you check out your home country’s government’s procedure for providing a no-objection statement carefully first. There may be things you have to do that can smooth the process out later on. Your own government may not wish to provide a no-objection statement, for instance, if you owe your government money, a criminal charge has been laid against you while you were outside the country or you have yet to complete military service.

The second step is to complete an online J-visa waiver application and send it to the DOS. This is form DS-3036 and must be completed electronically as it contains a unique bar code without which your application for a waiver will be rejected. You fill it in online, print it off, and then send it off in the mail to the DOS together with a check or other payment and supporting documentation. On receipt of the form, the DOS generates a case number, which is basically a formal confirmation that your application is in the pipeline.

The third step is to complete a “Statement of Reason,” print it off and send it t the DOS. You cannot complete this step until the DOS has received your DS-3035 and issued you with a case number. The “Statement of Reason” is found on the same DOS website as the J-visa waiver application form. You don’t need to say anything particularly elaborate here. Just stick to the truth and keep it relatively short and simple.

The fourth step is to request a no-objection statement from your home country’s government. You will already have found out how to d this. It will probably mean filling in forms that your own country issues, paying a fee and also providing the DS case number you have already received. Depending on your citizenship, this procedure may vary somewhat. Once the statement has been issued by the relevant ministry or department in your own country it will be sent directly, most likely via your own country’s embassy, to the DOS Waiver Review Division. You are not allowed to obtain it yourself and send it on to the DOS.

What comes next?

Once the no-objection statement has been received by the DOS, they will take a few weeks (typically between 4 and 9) to make a decision about whether they approve of your reason for applying for a waiver. If they recommend your waiver application they will then send this n t the USCIS and send you a copy at the same time. While they are reviewing your waiver application, you are able to track progress using your case number and the DOS website.

The USCIS is the final decision maker in the waiver application process. However, they do not usually spend much time reviewing a recommendation by the DOS and in most cases will approve the application and grant you an I-612 waiver approval. As has been already mentioned, if approval is denied, you cannot appeal the decision although you may be able to apply all over again if you think you fit another category in the home residency requirement waiver list.

Act on your immigration status as soon as you have a copy of the DSOS’s recommendation

Note that as soon as you are sent a copy of a DOS waiver recommendation, you will need to think about your immigration status. You can start applying for a change of status as soon as you get the recommendation copy. The USCIS will still make a decision about the waiver first and then if the waiver is granted act on the change of status you apply for.

As in all cases of U.S. immigration applications, it is best to seek out an experienced immigration lawyer to provide you with detailed information and help in processing your home residency waiver.

EXPERTS IN IMMIGRATION LAW