Why You May Need a Waiver

Before reading this document on waivers be sure you have read and understand the concepts and background information on the Two-Year Home Country Physical Presence Requirement.

Finding 212(e) Status

Some, but not all, persons in J-1 status are subject to 212(e). Consular and immigration officers sometimes make mistakes. If you have any doubt as to whether you are or are not subject, you may request an "Advisory Opinion" from the Department of State (DOS) Bureau of Consular Affairs in Washington, D.C.

Examples of possible errors:

  • If you are marked subject based on the Exchange Visitor Skills List or government funding, there may be additional facts that show the consular or immigration determination to be incorrect. For example, a government scholarship or fellowship that could have been used inside the home country or in any other country, and that was not given specifically for the Exchange Visitor Program may not constitute "government funding" for the purpose of making you subject to 212(e).
  • If you are under ECFMG sponsorship but you are not a physician, or if you are participating in nonclincal programs for foreign medical school faculty, you are not automatically subject because of ECFMG sponsorship. However you may be subject due to government funding or the Skills List.
  • If your field of study or research is on the Skills List you are subject even if the consular or immigration officer failed to notice that the Skills List applies.
  • If you were subject in the past and have not met the requirement you are still subject, even if you enter on a new program later. For example, if you previously entered as a J with Fulbright funding under a government sponsored program and then changed to a university program with no government funding, the previous 212(e) subjection still applies. Changing to a new program in the United States or leaving the United States and returning in a new program does not remove it.

Obtaining a Waiver

Congress recognized, when it created the 212(e) home residence requirement, that it might sometimes be necessary or desirable to waive that requirement. Congress provided specific avenues for waiver in the law at INA 212(e), the same section that contains the requirement.

All waiver applicants should realize and remember that waivers are designed primarily to meet the interests of the countries and funding agencies involved, not the interests of the individuals. While it may seem harsh, the law does not support what you want or need; it supports what your country and the United States want. Plan on a long and sometimes difficult process to obtain a waiver.

Waivers are never simple. Often it seems that "everyone has a finger in the pie". The DOS Bureau of Consular Affairs has jurisdiction over the determination of whether you are subject to 212(e) and whether a waiver should be recommended. The Department of Homeland Security (DHS) actually issues all waivers, but it can only do so if DOS has made a favorable recommendation. Depending on the kind of waiver, the J participant’s home government or another United States government agency may have some authority to assist with, delay, or recommend against waivers. In almost all waiver cases at least three government offices and several other organizations may have some jurisdiction over the waiver process. These include, but are not limited to: the home government; the funding organization; the United States DOS; the United States DHS; and other national, binational or international agencies that provided support for or assistance with the exchange visitor’s program participation.

Processing a waiver of 212(e) confers a specific benefit to the requesting individual. Accordingly, DOS charges a fee sufficient to recoup the full costs of the review, regardless of whether DOS ultimately recommends the waiver. The DOS web site has details on fee payment.

Requirements for Waivers

A participant in the "J" Exchange Visitor Program may be granted a waiver on one or more of the following grounds:

  • No objection from the home government
  • The exchange visitor works directly with his/her government
  • The institution or the employer cannot make this request for the exchange visitor

The exchange visitor may ask his/her government to send a "no objection" letter to DOS. The foreign government may charge a processing fee for this service and may ask to be reimbursed for any funding it provided for the exchange visitor. The decision to provide a "no objection" letter is solely that of the foreign government. The letter must go directly from the foreign government to DOS through diplomatic channels, not via the alien applicant. DOS will review it and then decide whether or not to recommend a waiver. Anyone interested in obtaining this type of waiver should contact the embassy or consulate of the home government. The "no objection" letter usually is not sufficient for waiver issuance if United States government funds were used. This avenue for obtaining a waiver is NOT available to foreign medical graduates under the sponsorship of ECFMG. Such physicians may use any of the other avenues listed below.

Interested United States Government Agency. The employer of the exchange visitor requests such a waiver using the procedures established by the particular agency. The alien does not have standing to make the request in his/her own behalf. If a United States government agency believes that the exchange visitor’s knowledge or skills are of vital interest to the United States and that the exchange visitor’s departure from the United States would be detrimental to a program of one of these United States agencies, then that agency may request a waiver recommendation from DOS. At educational and health care institutions, the Department of Education (DOEd) and the Department of Health (HHS) and Human Services are the most common agencies to request such waivers. Both of these agencies have waiver review boards that examine applications based upon a set of established criteria. Note also that even though government agencies may have procedures for waiver in place administratively, they sometimes suspend processing or stop accepting applications for periods of time.

Persecution

The exchange visitor files this request in his/her own behalf. The employer does not have standing to file this request. An exchange visitor who can prove to DHS and DOS that he/she would be subject to persecution upon returning to the home country can be granted a waiver. These waivers require a great deal of documentation and seldom are granted. The exchange visitor must provide strong evidence that intentional persecution by the government or with the government’s approval would occur. Showing that life would be more difficult or inconvenient or that the income or standard of living would be lower or that a different ethnic, religious, or cultural group would harass them is not sufficient for a waiver. These waivers are not granted for those claiming economic hardship or inability to advance in their professions. Persons wishing to file for a waiver on the ground of persecution may send a completed Form I-612 to DHS. If DHS deems the request to have merit, it refers the case to DOS, and if DOS also concludes that persecution will occur, then DHS likely will grant a waiver. Those seeking a waiver based on persecution are strongly advised to consult an experienced immigration attorney for assistance. Attempting to file for this waiver without appropriate legal assistance could result in serious delays or a denial. For more information on working with immigration attorneys.

Exceptional Hardship

The exchange visitor files this request in his/her own behalf. The employer does not have standing to file this request.

Note that the hardship must be to a United States citizen or permanent resident spouse or child if the alien returns home. It does not refer to hardship on the alien. The alien must prove that if he/she returns to the home country, that compliance with 212(e) would subject a United States citizen or permanent resident spouse or child to true and profound hardship rather than to mere inconvenience, change of lifestyle, or a period of separation of the family. Exceptional hardship is very difficult to prove. Neither unfamiliarity with the language, customs, or culture of the alien nor the inability to work or pursue a career in the alien’s home country is a basis for a hardship waiver. Neither is separation of the citizen or resident family from the alien relative, should the alien return abroad and the family remain in the United States This kind of cultural adjustment or separation is viewed as substantially the same as military, diplomatic, or international corporate employee families where one member is posted abroad and the family chooses to accompany him/her or remain behind. The United States citizen or resident is required neither to live abroad nor to live in the alien’s home country. He/she may remain in the United States while the alien fulfills the 212(e) requirement in the home country. Each choice is just that – a choice. To apply for a hardship waiver the exchange visitor may file Form I-612 at the DHS office that has jurisdiction over his/her place of residence. If DHS determines that exceptional hardship exists, DHS forwards the request to DOS for concurring recommendation. Those seeking a waiver based on exceptional hardship are strongly advised to consult an experienced immigration attorney for assistance. Attempting to file for this waiver without appropriate legal assistance could result in serious delays or a denial. For more information on use of immigration attorneys, please review the links in the "Related Topics" section below.

Under-served Areas and Conrad 20

Only the "under-served area" employer, through appropriate federal or state channels, may file this request. The alien does not have standing to file. This waiver applies only to physicians. It is not available to anyone else.

Physicians willing to work in federally identified under-served areas or willing to work in state identified areas of need may obtain waivers on that basis. However, these waivers are "conditional" and require three to five years of service before the physician can obtain Lawful Permanent Resident (LPR or "green card") status. The rules for this kind of waiver are quite complicated. Those seeking "under-served area" or "Conrad" waivers are strongly advised to consult an experienced immigration attorney for assistance, or be very sure that the employer has knowledge and experience in this area. Attempting to file for this waiver without appropriate assistance could result in serious delays or a denial. For more information on use of immigration attorneys, please review the links in the "Related Topics" section below.

Questions and Concerns

If you have questions or concerns on this issue, please contact Duke Visa Services. You can reach us by sending a message to visahelp@duke.edu or by calling our office at 681-8472.

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