How to Get a J-1 Visa Homestay Waiver and No Objection Statement
Exchange visitors come to the U.S. to pursue short term work or study exchange programs. For many exchange visitors, a visit to the U.S. turns into an opportunity for long-term success in the U.S. Unfortunately, the U.S. generally imposes a requirement that J-1 exchange visitors return to their country for a minimum of two years before returning to the U.S.The two-year home country physical presence requirement can create what feels like an eternity of time between stays in the U.S., and thus many exchange visitors look for an option to stay.
What follows is a general tutorial on the procedure to apply for a waiver of the exchange visitor home-country physical presence requirement and a no objection statement from your embassy.
The application for a Waiver of the Exchange Visitor Two-year Home-country Physical Presence Requirement requires payment of a $215 filing fee (on last review of USCIS policy). To apply for a J-1 Waiver, you must 1) complete the online J Visa Waiver Recommendation Application; 2) Mail your Waiver Application and Fee Payment; 3) Submit Supporting Documents; 4) Check your Waiver Request Status and Update your Contact Information; 5) Provide extra information if the WRD needs more information from you; 6) Wait the necessary processing time; 7) Receive the Department of State Recommendation and Final Determination by USCIS.
Complete a J-Visa Waiver Application Online
First, complete the DS-3035 J-Visa Waiver Application online. You will need the following documents and info:
We recommend that you prepare you answers to the following questions beforehand, and then cut and paste the answers into the online application. Otherwise, your session may time out (after 60 minutes) and you may lose your data.
You will be asked:
Basis for Waiver
No objection statement. Without a no objection statement, applicants must satisfy the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act and return to his or her home country.
State Health Agency Request. If you are a foreign medical school graduate, who has an offer of full time employment at a health care facility and are working in an area experiencing a designated shortage of health care professionals, you may be eligible to apply for a waiver. Please note, to fully qualify for a waiver on this basis, you must agree to begin employment at the health care facility within 90 days of receiving the waiver, and sign a contract to continue to work at the facility full time for no less than three years. Please note that the law permits only medical doctors to apply for a waiver on this basis. However, if the exchange visitor’s government funded their program, the EV must also request a “no objection” statement from the country to which they are otherwise obligated to return.
Request by IGA. If you are working on a project for, or of interest to, a U.S. Federal Government agency, and that agency determines that your contribution and stay in the United States is vital to one of its programs, you may apply for a waiver. Please be advised that your continued stay in the United States must be in the public interest. Please note that if you are a foreign physician who agrees to serve in a medically under-served area, please refer to the Federal Register Volume 62, No. 102 of May 28, 1997 for additional information.
Exceptional Hardship. If you, the exchange visitor, can demonstrate that your departure from the United States would cause exceptional hardship to your United States citizen or lawful permanent resident spouse or child, you may apply for a waiver. Please be aware that mere separation from your family is not considered to be sufficient to establish an exceptional hardship.
Persecution: If you believe that you will be persecuted upon return to your home country because of your race, religion, or political opinion, you can apply for a waiver.
Before submitting the application, verify that all of your information is correct. After you submit your information, a new case number will be generated for you. Once you hit the “display” button, your visa waiver packet will generate; save it first, then print it. Please see the attached sample print out.
Make a copy of all of your DS-2019 or IAP-66 forms; and a copy of the data page of the EV’s current passport containing your name and birth date. Wait for your WRD assigned case number and additional instructions using your SASE. You should receive instructions to submit documents or other information.
Request a No Objection Statement
Your home country’s government must issue a No Objection Statement through its embassy in Washington, DC, stating that it has no objection to you not returning to your home country to satisfy the two-year home-country physical permanent resident. Contact the consular section of your embassy in Washington, D.C. to request that a “no objection” statement be forwarded to the Department of State on your behalf.
To get your NOS, each country has different requirements. Consult your country’s embassy website to determine exactly what you need to submit. For example, you may need to submit the following:
Send all such documents required to your embassy in Washington, D.C. The letter of No Objection Statement will be sent to the U.S. Department of State Waiver Review Division after embassy processing.
We have had some recent interest in J-1 Visa Waivers. Here is the situation, and below find some of the possibilities.
THE SITUATION – The J-1 Squeeze
You are a J-1 Visa Exchange Student. Your duration of stay is coming to a close, and the deadline for your departure is fast arriving. You have made close friends, a significant other, maybe even a home here in the U.S., and the dreaded two year away period is looming. In two years a lot can happen – friends grow apart, couples separate, memories fade. Sometimes, it feels, absence does not make the heart grow fonder. If this situation sounds familiar, there may be some options to help you stay, or at least not have to stay away for two years.
YOUR OPTIONS TO STAY PAST J-1 DURATION OF STAY DATE
First, take a look at some of the options offered by the USCIS. The following are the main 5 waivers of the foreign residence requirement:
The No Objection Statement
Your initial step may be the easiest: just ask. The No Objection Statement is a declaration by your own government that it has no objection to you not returning to your home country to satisfy the two year requirement AND no objection to the possibility of you becoming a lawful permanent resident (an “LPR”) of the U.S.
According to the USCIS, your home country can just say it’s ok to not come home. If your home country’s government issues a “No Objection Statement” through its DC embassy to the Waiver Review Division, you may be able to waive out of your home stay. You can also try to have a designated ministry in your country send the NOS to the U.S. Chief of Mission, Consular Section at the U.S. embassy abroad.
If you want to start up the NOS process, go to the USCIS website (www.uscis.gov) and download the revised DS-3035, have it filled out and submitted to the Waiver Review Division along with any requisite fees (last checked it was $215). You should be contacted by the Waiver Review Division and given a case number and instructions to contact the consular section of your embassy in D.C. to request that a NOS be sent to the Department of State on your behalf. The USCIS will let you know if you were granted or denied the waiver, usually after about 8 weeks.
Persecution or Exceptional Hardship – The I-612 Application for Waiver of Foreign Residence Requirement
Maybe the NOS process did not work for you. Maybe leaving would create a familial disaster in the U.S. Maybe going home would be disastrous to your physical well-being. Before you apply for asylum or TPS, you may wish to fill out the I-612 Application for Waiver of Foreign Residence Requirement. The I-612 may be available on the grounds of persecution or exceptional hardship to your U.S. citizen/ LPR spouse or child.
To determine whether the I-612 Waiver applies to you, ask yourself two questions: 1) will I be persecuted upon return to my home country based on my race, religion, or political opinion?; and 2) do I have a spouse or child that is a U.S. citizen or lawful permanent resident?
If the answer to either question is yes, you may have a good argument for an I-612 Waiver. You may wish to quickly call an immigration attorney in your area to determine the details of your eligibility. You may also wish to look up Section 212e) of the Immigration and Nationality Act to familiarize yourself with the law on the subject. Jus type “Immigration and Nationality Act” into the search box on www.uscis.gov. There is a link to “(Legal Code)” at the bottom of the USCIS page on the INA law.
Request by an Interested US Agency OR State Public Health Department
If you are eligible for these latter two categories, you probably already know it, because a U.S. agency you are already working at is already requesting your prolonged stay.
The State Public Health Dept. Request is for foreign medical graduates who obtained exchange visitor status to pursue graduate medical training or education. These med students must meet three (3) requirements: 1) have an offer for full-time medical work; 2) agree to begin work within 90 days; and 3) execute a contract to keep working full time for at least three (3) years. These requirements are no small potatoes.
The Interested U.S. Agency Request is for those working on a project for or of interest to a U.S. agency. If the agency thinks your leaving would hurt U.S. interests, the agency itself may request a waiver for you.
If you think that any of these waiver options apply to you, you may wish to research further or contact an immigration lawyer for assistance. In the meantime, here are some other HELPFUL LINKS:
The Bureau provides an online application, a clarification survey, status checks, data change forms, and help creating your statement of reason.
The DS-3035 to start your No Objection Statement application is located at
The instructions for the I-612 application for waiver of foreign residence requirement are located at
I was recently asked whether a person in the U.S. as an E-2 treaty investor employee could somehow “transfer” his or her E-2 visa to a different company; perhaps to a company that is in no way affiliated with his or her present company. The answer is, as is often the case, maybe. Yet, the express law from the CFR does not appear to unambiguously prohibit such transfer.
First, we must ensure that any new company to which the E-2 employee would like to transfer meets the basic requirements for an E-2 visa. If so, according to the USCIS, the following are terms and conditions of E-2 Status:
A treaty investor or employee may only work in the activity for which he or she was approved at the time the classification was granted. However, as regards E-2 transfer to parent or subsidiaries, an E-2 employee may also work for the treaty organization’s parent company or one of its subsidiaries as long as the 1) relationship between the organizations is established; 2) subsidiary employment requires executive, supervisory, or essential skills; and 3) the terms and conditions of employment have not otherwise changed. Thus, it appears that you can also work for a company related to your present company. Unfortunately, that may not be an option or the desired goal.
If your goal is to work at an unrelated but qualifying E-2 company, you may have a few choices. One option that I have seen discussed is to apply to change from E-2 to B-1 and then back to E-2 again. This may buy you time, particularly if you are leaving your initial E-2 company and have not secured new status. Another option is to do a direct change of status where your new company petitions an E-2 for you.
The express law on point may leave room to apply for a change of status from E-2 at Company A to E-2 at unaffiliated Company B. As already discussed above, the Code of Federal Regulations, 8 CFR 214.2(e), states that “a treaty employee may engage only in employment which is consistent with the terms and conditions of his or her status and the activity forming the basis for the E treaty status”. Notwithstanding, pursuant to 8 CFR 214.2(e)(8)(iii), prior Service approval must be obtained where there will be a substantive change in the terms or conditions of E status. In such cases, a treaty alien must file a new application on Form I-129 and E supplement, in accordance with the instructions on that form, requesting extension of stay in the U.S. In support of an alien’s Form I-129 application, the treaty alien must submit evidence of continued eligibility for E classification in the new capacity. Alternatively, the alien must obtain from a consular officer a visa reflecting the new terms and conditions and subsequently apply for admission at a port-of-entry.
Pursuant to 8 CFR 214.2(e)(8)(vi), if an application to change the terms and conditions of E status or employment is approved, the Service shall notify the applicant on Form I-797. An extension of stay in nonimmigrant E classification may be granted for the validity of the approved application. The alien is not authorized to begin the new employment until the application is approved.
Please note that employment is authorized only for the period of time the alien remains in the U.S. If the alien subsequently departs from the U.S., readmission in E classification may be authorized where the alien presents his or her unexpired E via together with the Form I-797, Approval Notice, indicating Service approval of a change of employer or a change in the substantive terms or conditions of treaty status or employment in E classification. The other exception may be where the alien is applying for readmission to engage in the new treaty activity after an absence not exceeding 30 days solely in contiguous territory (pursuant to 22 CFR 41.112(d))
Finally, pursuant to 8 CFR 214.2(e)(8)(vii), an unauthorized change of employment to a new employer will constitute a failure to maintain status.
Thus, the Code appears to contemplate change of employment to a new employer, albeit rather ambiguously, and applying for permission for the same through an I-129+E Supplement. I have found some notes in the USCIS files discussing how Section 214.2(e)(8) does permit change of employment to an unaffiliated company within the U.S. Moreover, the fact that working for subsidiaries will not be deemed to constitute a substantive change, pursuant to Section (8)(ii), indicates that the substantive change provisions of (8)(iii) contemplate working for non-affiliated companies.
Changing specific employers, so long as requirements (such as nationality and percentage interest) were maintained, may not run afoul of other E-2 employee express requirements either. For example, the employee must intend to depart the U.S. upon the expiration of E-1 or E-2 status, and such would remain the same independent of the particular company involved.
Having an acquaintance with the express code is at least a first step to providing a foundation for your E-2 endeavors. Should you wish to change companies and seek legal counsel on the matter, most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.
Potential TPS Petitioners Take Precaution! Before you let your status lapse, consider the options, the financial stresses, and the immigration risks.
We have recently been fielding questions regarding TPS filings and the effect of a TPS application on an alien’s current immigration status. Predominantly, these questions have involved individuals with nonimmigrant visas determining whether to renew their nonimmigrant status or risk lapse during an application for TPS.
Those seeking TPS should first note that a decision either granting or denying your TPS status may take 3 months or more. Thus, if your status is set to expire within the next 6 months, it may be worthwhile to renew rather than risk it.
Please also note that the USCIS states that where an alien has periods of time without lawful immigration status before or after being granted TPS, those periods of out-of-status or unlawful presence may adversely affect the alien’s ability to adjust to permanent status or attain other immigration benefits, depending on the circumstances of each specific case. Although the alien may petition for a waiver of inadmissibility (where based on unlawful presence), this is no safe bet. Moreover, there does not appear to be an express provision tolling the expiration of your current nonimmigrant status during your TPS application. What on-point equitable tolling there does appear to be, it seems to be dependent on a successful TPS application, a determination of prima facie eligibility, or government error.
If you still feel determined to risk living out-of-status, you may wish to research your options under INA Section 245i and 245k, cancellation of removal, or asylum. You may have other options if you are an immediate relative of a U.S. Citizen. If you get into a bind (e.g. removal proceedings), you may also wish to research rules on equitable tolling of removal. But these efforts may be difficult routes to pursue.
Although having to renew your nonimmigrant status may be costly financially, consider the benefits: you may still file for other immigration benefits during TPS, including non-immigrant petitions, adjustment of status, asylum, or otherwise. TPS is considered lawful nonimmigrant status during its pendency, and thus does not affect other applications.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.
The Recent Appeal On Burden Of Proof Of Persecution
In a recent Removal Proceedings Appeal, an Egyptian citizen successfully appealed an Immigration Judge’s denial of her application for asylum. Her appeal was based on worsening conditions in Egypt, particularly for the Christian community. The IJ in that case stated that evidence presented did not establish a pattern or practice of persecution against the Christian community in Egypt (the woman was beaten unconscious, her son nearly kidnapped, she received threatening calls at home and discrimination at work). Moreover, the IJ indicated that the evidence did not show that the Egyptian police expressed an unwillingness or inability to address the Egyptian citizen’s reported abuses.
The appellate court remanded the case back to court to reconsider the asylum application. In particular, the Court found that the IJ may have imposed an unreasonable expectation for the Egyptian citizen to establish the exact basis for her underlying abuse.
Importantly, the Court held that a persecutor may have several motives for harming a victim and proving the exact reason for the past or feared persecution may be impossible in some cases. Thus, such inability may not bar an asylum application.
The Court ordered the IJ to review whether the Egyptian citizen’s mistreatment could form a viable asylum claim due to her religion or other protected ground. The Egyptian woman’s asylum claim was based on her testimony that she was an active member in a religious organization, known as Lost Lambs, that assisted Christian girls who had been abused by Islamic jihadists.
The motivation of the persecutors can be proven by testimonial evidence, supporting documents, and corroborative background evidence. The Court also ordered the IJ to provide a clear and explicit analysis of the Egyptian citizen’s well-founded fear claim.
Thus, if you are involved in a similar asylum application during removal proceedings, you may wish to ensure that your testimony on the statutory central reason for asylum is given full consideration and weight by the immigration judge. Also keep in mind that an IJ’s failure to give such proper consideration may be grounds for an appeal.
The Code Used In The Case
The Immigration and Nationality Act (the “INA”) Section 208 provides for the authority to apply for asylum; exceptions to such authority; conditions for granting asylum, including eligibility, the burden of proof and exceptions; asylum status and termination; and the asylum procedure, including consideration of asylum applications.
Section 208(b)(1)(B)(i) states that an asylum applicant must establish that one of the INA’s statutory grounds was or will be at least one central reason for the claimed persecution. These statutory grounds are race, religion, nationality, membership in a particular social group, or political opinion.
Testimony of the person applying for asylum may be sufficient to sustain the above burden of proof, even where such testimony has no corroboration.
INA Section 241 provides for the detention and removal of aliens ordered removed. Section 241(b)(3) discusses the restriction on removal to a country where an alien’s life or freedom would be threatened. This rule states that the Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.
However, this restriction does not apply if the Attorney General decides that the alien was involved in similar persecution of individuals, the alien is a danger to the U.S. community; the alien is believed to have committed a serious nonpolitical crime outside the U.S.; or the alien is believed to be a danger to U.S. security.
Those individuals who are considering applying for asylum would be well served by reviewing the law on asylum, particularly the full provisions of INA Section 208 and 241. The full text of the INA is available online for free. You can go to www.USCIS.gov and type in “INA” in the search box.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.
It was recently announced that adjustments have been cut off for China-mainland and India EB-2 with priority dates on or after August 15, 2007. That’s right, the announcement is that no further EB-2 visas will be authorized for these China and India applicants. In February, 2012, the official visa bulletin announced that nationals from India and China could file for I-485/EAD/AP as long as their priority dates fell on 12/31/09 or earlier. EB2 waiting time had purportedly been cut by have, from 4 to 2 years. The reason allegedly given by the Department of State was the low level of new I-485 filings. In other words, these economically booming countries were providing internal outlets for their citizens with advanced degrees and exceptional abilities.
Compare the discussion on NPR yesterday regarding China’s vision of the U.S. and the complexity of the two countries’ relationship. The debate centered on whether China’s government considered the U.S. as a country already in decline or a country that had peaked but would start its decline in approximately 10 years. The report was titled “Strategic Distrust”. Among the noted the asymmetries between the U.S. and China, the report indicated that China sees the majority of U.S. international actions as an attempt to frustrate China’s assumption of global power.
Query how the USCIS’s immigration policies towards China play into this strategic mistrust.
Juxtapose immigration court decisions in 2006 with immigration decisions in 2012. You might recall the 2006 case of Gao v. Gonzalez (2d Cir., 2006), wherein the Court held that women sold into marriage in China should be considered a Social Group. There, a Chinese woman sought asylum and Convention Against Torture protection after her parents allegedly sold her into marriage at age 19 to pay off debt. Initially the immigration judge denied asylum and CAT protection, indicating that an intra-familial dispute was not grounds for asylum. However, the Second Circuit Court held that the Chinese woman belonged to a particular social group requiring protection. Citing widespread human trafficking in China and the Chinese government’s failure to combat the problem, the Court overturned the immigration judge’s ruling against asylum. You may also recall a case regarding violation of confidences because the INS had provided the Chinese government with a Chinese asylum-seeker’s asylum documents (Lin v. U.S. Dep’t of Justice, 2d. Cir., 2006). In these cases, the Chinese petitioner’s asylum rights were vindicated and supported. Six years ago, it may have appeared that fleeing Chinese citizens needed U.S. support.
Compare a recent decision regarding another Big 5 asylum petition, this time from Ukraine. In Lyashchynska v. U.S. Attorney General, issued April 4, 2012, the Court refused to extend the same type of asylum and CAT protection to the suffering Ukranian woman, citing failures in credibility and evidence. Although the distinction of decisions might be clearer to an American attorney, one must wonder how such actions appear to Chinese government officials.
In another recent case, Chen v. Holder (2012), a Chinese man facing removal proceedings claimed that China’s 2007 Country Profile did not properly reflect the changed country conditions of China. The Chinese man produced letters from family members recounting human rights violations and persecution, and alleged that the Department of State was intentionally working with the Chinese government to defeat family planning asylum claims. Faced with such a direct affront, the 1st Circuit Court denied the asylum claim.
It appears that the post-recession courts may be changing their tune.
Of course, recent changes in the U.S.’s attitude toward Chinese immigration may also reflect the March, 2012 release of Estimates of the Unauthorized Immigrant Population Residing in the U.S. In that recent report, the number of unauthorized immigrants coming from Asia had increased, while those coming from Europe had flat-lined. However, the report compares numbers from the year 2000 to the year 2011, and neither Europe nor Asia compared the the near doubling effect sustained from North America-born immigrants.
Notwithstanding, there can be no doubt that after having surpassed Japan and Germany as the dominant economic contender on the global scale, China is on America’s radar; or maybe it’s the other way around. To be sure, Chinese-American relations will be the hotspot in international relations for the foreseeable future.
Share your thoughts!
Not a bad move by the DHS. As the international community cracks down on the currently seated Syrian government, the ripple effects of nonmilitary sanctions have hit the pocketbooks of the Syrian people. Many of those affected include the families of F-1 nonimmigrant students now living and studying in the U.S. With funds cut short from home, many of these Syrian students are having difficulty paying their rent and eating, much less paying for textbooks. The DHS has taken some action to relieve the financial crunch.
Recently, the Dept. of Homeland Security Secretary announced that the DHS has suspended some of the regulatory requirements for Syrian F-1 nonimmigrant students. In particular, the announcement appears to be the result of severe economic hardship experienced by Syrians as a result of the civil unrest in their country.
The slackening of requirements is aimed at helping Syrian F-1 nonimmigrant students to pursue employment authorization, work increased hours while in school in the U.S., and reduce course load while maintaining F-1 status.
For example, Syrian F-1 nonimmigrant students may be qualified as taking a full course of study despite only satisfying a minimum course load requirement, provided that such students are working instead.
To review the legal foundation of the DHS decision, you should check out 8 CFR 214.2(f)(6)(i)(F) or visit the ICE website.
If you are a Syrian F-1 student and want to apply for the above program, please make sure that you are presently enrolled in a SEVP certified school; that your F-1 status is current; and put together some paperwork that may indicate the economic hardship you are facing due to the civil unrest back home.
Most immigration attorneys will provide a consultation free or for a limited fee to discuss your case in more detail.
What is the RFE and how should I react to the RFE?
During you visa application, a USCIS adjudication officer will review or visa application. If the adjudication officer feels that something is insufficient in the visa application, the officer may issue an RFE letter. This usually spells delays, but such delays can be overcome.
Common circumstances for issuance of an RFE letter are: unclear descriptions in your application, missing documents in your application, and out-of-date documents or information in your application. The officer may also wish for you to provide an affidavit swearing to the bona fide nature of a relationship at the foundation of your application, or simply evidence of eligibility, vaccination, or birth country.