J-1 Waiver Guide: Navigating the H1B Transition

 

What is a J-1 Waiver?

A J1 Waiver is a provision that allows J-1 visa holders to be exempted from the "Two-Year Home-Country Physical Presence" requirement. In simpler terms, once your J-1 Program ends, if you have this waiver, you don't need to stay in your Home Country for 2 years before applying for immigrant or immigrant-intent visas (like H, L, K visas, or green cards).

You will either go to have the J-1 waiver or fulfill the 2-year requirement before you can get an L or H visa, etc.

 

When do you need one?

For scholars who studied or worked in a US institution as an exchange visitor (J-1 visa holder), it is common to grow an intention to continue research, study, or work in the US. Maybe your exchange institution extends an offer to hire you, or you land a job offer after searching for a few months. The Two-Year Home-Country Physical Presence requirement actually restricts you from captivating such opportunities. Because you do not have a work permit like OPT under a J-1 visa, you cannot get H-1B approval due to this rule. Therefore, you need a J-1 waiver to clear these restrictions.

 

Who is eligible for a J-1 Waiver?

Applicants can usually apply for a J-1 waiver through the below 5 methods. Whoever fits the description by Waiver Basis categories or can provide evidence accordingly is eligible for a J-1 waiver ("a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement)

Five Bases for Recommendation of a Waiver

1. No Objection Statement Issued by Your Home Country Government

2. Request by an Interested U.S. Federal Government Agency if You're Working for or with Them:

3. Persecution: Believe You Will be Persecuted if Return to Home Country

4. Hardship to a U.S. citizen or lawful permanent resident spouse or child: Your Departure Will Cause Their Exceptional Hardship.

5. Request by a designated State Public Health Department: for Foreign Medical Graduate

The No Objection Statement is the most common among international students among the five bases.

Other bases are either more challenging for applicants or narrower in eligibility. So, we will only focus on the No Objection Statement to get the J-1 waiver.

Step 1: Prepare for the Application from the US

• Review: Apply for a Waiver of the Exchange Visitor's Two-Year Home-Country Physical Presence Requirement

• Start Application: Complete the Online J Visa Waiver Recommendation Application

• Have the required documents handy:

  • Passport of the exchange visitor

  • Legible copies of all DS-2019 or IAP-66 forms

  • I-94 Departure Record card (if still in the U.S.)

  • Notice of Entry of Appearance as Attorney or Representative (G-28, if applicable)

  • Names and dates of birth of any J-2 dependents (spouse or children)

  • Alien Registration "A" Number (if applicable)

  • IMPORTANT: At the moment, You cannot "submit" the data electronically or pay any fees online. All documentation and fees must be mailed to the Department of State.

• Fill out the DS-3035 form and obtain the bar code you will provide to your home country's government

 

Step 2: Write a Statement of Reason for the DOS

A Statement of Reason is something you write to ask for special permission to stay in the U.S. even after your J-1 visa program ends. Usually, people have to go back to their home countries for two years after the program. But sometimes, there are strong reasons why someone might need to stay in the U.S. instead, like marriage, employment, etc.

In this statement, you explain your special reason for wanting to stay. It's like telling a short story about why going back home for two years would be very hard for you.

The length and detail of your Statement of Reason may vary depending on your specific situation. We think keeping it short and straight to the point is best.

For example, if you have an offer of employment, you can write a statement of reason in such a way

I have been offered a job at Company A and I would like to accept the offer to work for the company in the U.S. I understand the 2 year rule for J-1 scholars, but finding such an employment with growth and learning opportunity in my home country was proved nearly impossible. I also believe in this position I will contribute my expertise for a strong support of the company development...

However, if the U.S. government-funded your exchange program instead of your home country, your case and statement should be more complex. We recommend working with an immigration lawyer for such a case.

You can submit your statement here: J-1 visa waiver online webpage 

 

Step 3: Working with Your Home Country

Know Your Home Country’s No Objection Policy

Getting a No Objection Statement is based on the rules of the applicant's home country. Some countries don't offer these statements, while others approve them fast. So that you know, the applicant checks their home country's policy on No Objection Statements at least 3 months before starting the waiver process.

We see the J-1 Waiver commonly issued for Chinese and Indian students, but keep in mind that every country has very different policies on no-objection statement decisions. Your home country is responsible for directly providing no-objection statements to the US's DOS. So, knowing your country's policies would be a priority for me.

Here are some country's statements on issuing no-objection:

• Australia

• China

• Netherlands

• Ireland

• India

• Jamaica

• Singapore

• South Korea

If you have a hard time contacting or finding a way to contact your home country, we advise you to consult with an immigration lawyer for assistance. Please don't hesitate to contact us for a referral.

Request the No Objection Statement

Now that you have completed the J-1 waiver application through DOS, you should be able to get a case code.

You can now request the no-objection statement from your home country.

How to do that?

1. Applicants must submit their writing support through their home country's application portal. The support should clearly state the original institution you're affiliated with, attached with your most recent resume, what kind of study abroad program you evolved in (self-funded, state-sponsored, institution-sponsored, or other), who you are as a J-1 visitor (visiting scholar, international student, or other), and the reasons for applying for the waiver.

2. If the applicant has an original sponsor institution, they must commit to having settled all economic and housing relations with their former institution and have negotiated and resolved any outstanding issues.

3. If the applicant has received funding from the National Scholarship Funds Committee, they must clearly state the conditions of their state-sponsored study, settle their relationship with the National Scholarship Funds Committee, and fulfill their obligations, etc.

Required Documents by Home Country for No Objection Statement

• The current all valid pages of your passport

• Your most recent I-94 card upon entry

• The first and current DS2019 forms (formerly IAP-66)

• The U.S. Department of State Waiver Number page (THIRD PARTY BARCODE PAGE)

• Supporting documents for the waiver application. This could include support letters from relevant entities for H1B applications, proof of the applicant's own green card application, marriage certificates, and identity documents of the spouse (such as a passport or birth certificate).

If your request gets approved, your home country's embassy or consulate will send a piece of paper called a no-objection statement straight to the U.S. DOS Waiver Review Division. You can't send this paper yourself; it must be sent directly from one government to the other. The average wait time varies across countries but generally is 1 to 3 months.

After the U.S. office gets the no-objection statement, they will start processing the case you submitted earlier. You can check how things are going online using their case number. Eventually, USCIS will be the party to determine your J-1 waiver approval; the DOS will forward all checked documents to them. Hence, we're looking at 12 to 16 weeks for an official review time from DOS and a couple more days for USCIS to approve your case.

 

Step 4: Mail Your Application to DOS

After you submit a request for a no-objection statement to your home country, you can mail your application to the US Government. The documents include:

Signed DS-3035 form, barcode page, statement of reason, supplementary applicant Information page, copies of passport valid pages, copies of all DS-2019s and I-20s

Tips on Mailing at a USPS post office: You can purchase two self-addressed envelopes with tracking from the post office's Priority Mail (white with red edges, made of hard paper material, $9.35 each). You can use the post office's Priority Mail Express 1-Day for mailing materials. (white with blue edges and made of waterproof material, around $30 each)

Be sure to mail both the application and the payment to one of the below locations:

Postal Service

U.S. Department of State

Waiver Review Division

Box 952137

St. Louis, MO 63195-2137

Courier Service

U.S. Department of State

Waiver Review Division

P. O. Box 952137

1005 Convention Plaza

St. Louis, MO 63101-1200

 

Complete J-1 Waiver Application Timeline

• October 6, 2022: Filled out the necessary documents, obtained a case number and a bar code page, and submitted the application to the Chinese government.

• October 7, 2022: Mailed all the documents via UPS. UPS indicated that the package would be received within three days. However, I was unable to track any information on the website.

• November 29, 2022: Emailed 212e waiver department to inquire about the status of the application, as it had been two months since it had been updated.

• November 30, 2022: I received a reply from 212e the next day. They requested proof that my check had been cashed. So, I went ahead and went to the bank to obtain the necessary proof and resent all the documents in electronic format to 212e.

• December 1, 2022: The status of the Statement Of Reason, Form DS-2019, Form DS-3035, and the fee finally updated to 'received.'

• December 5, 2022: The status of the No Objection Statement was updated to 'received'.

• December 14, 2022: The status was updated to 'Favorable Recommendation Sent'.

• December 21, 2022: The case was received at another USCIS Office.

• December 24, 2022: Received the notice letter confirming the case was received.

• January 13, 2023: The case was approved 23 days after the previous update.

 

What to Do if No Objection Statement is Denied?

A no-objection statement is crucial for individuals who have participated in the J-1 exchange visitor program and wish to change their visa status or apply for a U.S. visa without returning to their home country. However, obtaining this statement is only sometimes guaranteed, and several factors could lead to a denial.

1. Some countries have a strict policy in place and do not issue no-objection statements to their citizens under any circumstances. This is often due to the country's desire to ensure that their citizens return home after their program in the U.S. to contribute to the development of their home country with the skills and knowledge they have acquired. One such country that is known for having this policy is India. Indian citizens often face challenges in obtaining a no-objection statement because the Indian government is keen on having their nationals return to India after their J-1 program.

2. Your application for a no-objection waiver may be denied if you have received funding from either the U.S. government or your home country's government during your J-1 program. This is because the purpose of the J-1 visa is to promote cultural exchange, and receiving government funding implies a commitment to return to your home country and share the experience and knowledge gained during your stay in the U.S. If you have received government funding, the authorities may view this as a binding agreement, and your request for a no-objection statement may be denied.

Can I Appeal the Denial?

Currently, you cannot appeal for the denial or reapply for the same basis of reason for J-1 waiver. However, you are still eligible to explore another basis for your J-1 waiver application.

 

When Can I Start the Change of Status Application to Other Visa Types?

You can start changing your visa to F-1, H-1B, L-1, or another type without waiting for your application’s final decision, using the Department of State’s (DOS) recommendation letter. If you qualify for a green card, for example, through marriage to a U.S. citizen or resident, you can also begin that application process. If your waiver gets approved, USCIS will continue with your application to change or adjust your status.

However, if you are not in the U.S. anymore, you need to wait for USCIS to fully approve your application before applying for a visa at a U.S. embassy or consulate using the approved Form I-612.