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Asylum, Law & Forms, Study Visas

J-1 Waiver of Foreign Residence Requirement – How to Stay Past J-1 Deadline


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:

  1. No Objection Statement;
  2. Request by an Interested U.S. Federal Government Agency;
  3. Persecution;
  4. Exceptional Hardship; and
  5. Request by a designated State Public Health Department.

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 of Consular Affairs provides this J Visa Waiver Online at https://j1visawaiverrecommendation.state.gov/

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

http://travel.state.gov/pdf/ds3035.pdf

The instructions for the I-612 application for waiver of foreign residence requirement are located at

http://www.uscis.gov/files/form/i-612instr.pdf

Best of luck!
Miami International Attorneys, P.L.
abernhard@miapl.com
P.O. Box 191057
Miami Beach, FL 33119
Tel: 786-566-1969.

For more answers to your questions, contact MIA at abernhard@miamivisahelp.com or Miami International Attorneys at www.miamivisahelp.com.

Miami International Attorneys, P.L.

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Miami International Attorney

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Andrew John Bernhard, Esq.

Welcome to MiamiVisaHelp.com’s Blog!

Welcome to MiamiVisaHelp.com’s law blog … discussing everything visa from the perspective of those that have a need, desire, or tendency to move from country to country for the purpose of work, survival, education, living, play, and everything in between. Please feel free to send Andrew John Bernhard, Esq. a message! We are always trying to enhance your experience, and help all of us movers, migrators, immigrants, ex-pats and travelers have an easier, happier, and more satisfying experience in the often confusing world of U.S. Immigration. Please feel free to visit our friends at USImmigrationMiami.wordpress.com and TheMitochondrialMigrator.wordpress.com to see more from similar minded people like yourself! Most of all…ENJOY! - Andrew John Bernhard, Esq.

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