Simply because you have been a participant in a J-1 program does not mean that you are subject to the two-year home residence requirement. The first step is to analyze whether or not you are subject either based on the terms of the J-1 program or under the skills list of the country of your last residence. Our analysis will include determining whether or not:
- Your home country or country of last residence is on the State Department Skills list
- Your actual area of study, research, or work is included on skills list
- Your actual field of work, study or training is included on the Skills List
- Your program was directly (wholly or partially) funded by government sources
- Your program was indirectly funded by a government entity
If you are a physician, we will determine whether:
- Your program was sponsored by the Educational Commission For Medical Graduates (ECFMG)
- Your program was a graduate clinical medical training program
Depending on the facts of the situation, we may advise requesting an advisory opinion from the Department of State regarding the applicability of the home residence requirement applies.
If you are subject to the home residence requirement, we can assist you with seeking a waiver of that requirement. The process of seeking the waiver will vary greatly depending upon the basis of the obligation.
If you are subject to the two-year home residence requirement because you are subject to the skills list or foreign government funding, we can assist you in obtaining a waiver based on a ‘no objection statement’ from the foreign government. After confirming the country’s no objection statement policies and procedures, you must first obtain a file number from the State Department’s waiver division. This case number must be provided to the foreign government along with any other required documentation and information. The foreign government will forward the statement directly to the State Department. Assuming a favorable decision, the State Department will forward the recommendation to the USCIS. The USCIS makes the final decision on the waiver, but it almost always follows the State Department’s recommendation. The USCIS will send an ‘I-612’ approval notice upon final adjudication of the waiver.
Interested Government Agency Waiver (Non-physicians)
Any federal agency is eligible to request a waiver, but in practice there are only a few that regularly act as interested government agencies for waivers.
Interested Government Agency Waiver (Physicians)
If you are a physician subject to the two-year home residence requirement because you received clinical medical training through the ECFMG, you may be able to obtain a waiver by providing service in geographical areas with a shortage of physicians or for a medical underserved population. There are a number of different programs available. The choice of program depends upon a number of factors including your practice area. A brief summary of the possible programs is set out below.
State Programs – Conrad 30 Waiver Program
Many states participate in the Conrad 30 Waiver Program. Each state has specific policies regarding the type of physician they will support, when applications will be considered and what supporting evidence must be provided. Generally, all programs require, at minimum:
- Forty hours a week of clinical care
- Clinical care to be provided in a Health Professional Shortage Area (HPSA) or to a Medically Underserved Area/Population (MUA/P). States also have ‘Flex’ spots that allow physicians to work outside of specific geographic areas
- Three year term of service
- Medical practice in a primary care area, though many states will also consider specialties if specialists are also considered to be in short supply.
The State reviews the application and, assuming a favorable review, issues a recommendation in the form of a public interest letter that is forwarded directly to the U.S. State Department. The Department of State will review the case and forward its recommendation to the USCIS who will in turn issue the waiver.
There are a number of federal agencies that will act as an interested government agency (IGA) for physicians. Like the states, each agency has different policies and procedures for the application. It is crucial that the procedures are closely followed in order to have a favorable adjudication. Again, like the states, the agencies will impose a service requirement. These are federal agencies that currently sponsor physician waivers:
- U.S. Veteran’s Administration
- U.S. Department of Health and Human Services
- Appalachian Regional Commission
- Delta Regional Authority
Waivers based on Hardship or Persecution
A hardship application is submitted directly to the USCIS. If it finds hardship, it will forward the recommendation to the Department of State for its views. Assuming the Department of State supports the claim, it will inform the USCIS and the USCIS will issue the waiver. The hardship standard is not easy to meet. First, the hardship must fall upon a U.S. citizen or permanent resident spouse or child, not the person subject to the home residence requirement. The standard is ‘exceptional hardship’ which is more than ‘mere separation.’ Basically, you must establish that the U.S. citizen or legal permanent resident would suffer exceptional hardship if he or she accompanies you to the foreign country or stays in the U.S. while you complete the foreign residence requirement. The factors considered are economic, physical and emotional hardship as well as loss of employment, educational and health opportunities.
You may also apply for a waiver of the home residence requirement if you would be subject to persecution on account of race, religion or political opinion. This avenue is extremely difficult and should be considered only as a last resort.