Chapter 4 - Waiver of the Foreign Residence Requirement

Exchange visitors who are subject to the foreign residence requirement may apply for a waiver. There are five bases for waiving the requirement:

• Exceptional hardship to U.S. citizen or lawful permanent resident (LPR) spouse or child;
• Persecution;
• No objection;
• Interested U.S. government agency (IGA); and
• Federal, state, and Conrad 30 programs for foreign medical graduates.

The filing of an application for a waiver of the 2-year foreign residence requirement does not terminate an exchange visitor's nonimmigrant status. [1]

Applicants are required to submit the Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended) (Form I-612), to USCIS only if requesting a waiver on the basis of exceptional hardship or persecution. If USCIS determines that the applicant has established exceptional hardship or persecution, it transmits the information to the U.S. Department of State’s (DOS) Waiver Review Division (DOS-WRD). DOS-WRD makes a recommendation after reviewing the program, policy, and foreign relations aspects of the case and transmits its recommendation to USCIS.

If USCIS denies the waiver before the referral to the DOS, the applicant may appeal the decision to the USCIS Administrative Appeals Office (AAO). If a waiver is denied due to a negative DOS recommendation, there is no appeal, but it may be possible for the applicant reapply for a waiver. [2]

DOS-WRD makes a recommendation for waivers based on the remaining grounds, no objection, IGA, or federal, state, and Conrad 30 programs for foreign medical graduates, and transmits the recommendation to USCIS. USCIS reviews and issues the decision to the applicant and if applicable, to the applicant’s attorney. If a waiver is denied due to a negative DOS recommendation, there is no appeal of that denial, but it may be possible for the applicant to reapply on a different basis. [3]

B. Exceptional Hardship

Exchange visitors may be eligible for a waiver of the foreign residence requirement if they can establish exceptional hardship to their U.S. citizen or LPR spouse or child. Exceptional hardship must be beyond the normal hardship expected from a temporary relocation or separation.

There are different levels of hardship. In the context of general immigration waivers, there is exceptional hardship, extreme hardship, and exceptional and extremely unusual hardship. [4] Exceptional hardship is more than normal hardship (general disruption), but less than extreme or exceptional and extremely unusual hardship. [5]

When determining whether the applicant has established that the foreign residence requirement would result in an exceptional hardship to the U.S. citizen or LPR spouse or child, USCIS officers must evaluate whether:

• The qualifying spouse or child or children would experience exceptional hardship if they were to relocate with the applicant to the country of foreign residence; and
• The qualifying spouse or child children would experience exceptional hardship if they were to be separated from the applicant for the 2-year foreign residence requirement period.

1. Evidence

To request a waiver based on exceptional hardship to the U.S. citizen or LPR spouse or child, applicants must file a Foreign Residence Requirement waiver application with USCIS. [6]

Applicants must submit evidence to demonstrate that:

• The applicant and their dependents, if any, are subject to the foreign residence requirement; [7]
• There is a qualifying relationship (U.S. citizen or LPR spouse or child); [8] and
• Exceptional hardship would occur for the qualifying relative. [9]

If the applicant fails to provide such evidence, the officer issues a Request for Evidence (RFE), providing the applicant an opportunity to submit the requested documentation or information. If the applicant fails to respond to the RFE or does not provide the requested documentation or information, the officer denies the waiver for failure to establish exceptional hardship.

While no single factor is normally determinative with exceptional hardship findings, USCIS generally considers the following when adjudicating the foreign residence requirement waiver application:

• Whether the anxiety, loneliness, and altered financial circumstances to the qualifying family member is greater than normal hardship; [10]
• The country conditions of the country of foreign residence; [11]
• Medical conditions of the qualifying family member or members where treatment in the country of foreign residence is insufficient or where the medical problems would be worse in the country of foreign residence than in the United States; [12] and
• Other relevant evidence submitted by the applicant. [13]

Such evidence could include DOS travel alerts, medical diagnosis and prognosis from physicians, and comprehensive bank records. In addition, USCIS officers may consult with DOS-WRD in cases where the DOS-WRD has better access to information necessary for the adjudication, or if DOS-WRD has made a recommendation that appears to be based upon incomplete or inaccurate information (for example, where an applicant failed to mention previously participating in a J-1 program funded by the government).

2. Adjudication

If the evidence establishes a prima facie [14] case of exceptional hardship, officers must notify the DOS-WRD of USCIS’ determination, so that DOS-WRD can make a recommendation based on the program, policy, and foreign relations considerations. USCIS may not approve the foreign residence requirement waiver application without a favorable recommendation from DOS-WRD.

Cases that USCIS sends to DOS-WRD for recommendation must include:

• A completed Request for Waiver Review Division Recommendation (Form I-613);
• A copy of the waiver application; and
• Copies of supporting documentation, if applicable.

The dependent family members of a principal applicant (J-1) who have been in J-2 status during a time when the principal applicant was subject to the foreign residence requirement must be included on the Form I-613 sent to DOS-WRD. Officers should review the Arrival/Departure Record (Form I-94) for each dependent family member to make that determination. Where the application includes such dependent family members, officers should designate USCIS as the interested agency recommending their inclusion in the waiver request on Form I-613.

Burden of Proof

In all cases, applicants have the burden of proving eligibility for a waiver and must demonstrate by a preponderance of the evidence that they are fully qualified for the waiver. [15]

Officers generally should not apply leniency in the adjudication of exceptional hardship waivers, including in cases where the applicant uses a marriage occurring in the United States, or the birth of a child or children, to support the contention that the applicant’s departure from this country would cause personal hardship. [16]

3. Decision

If the applicant cannot establish a prima facie case of exceptional hardship through the documentary evidence submitted, USCIS does not send the case to DOS-WRD, but, rather, denies the application. Applicants may appeal this determination to the AAO.

If the applicant establishes a prima facie case of exceptional hardship, but DOS-WRD does not recommend approval, USCIS denies the application. There is no appeal right from this type of denial because the unfavorable recommendation came from DOS-WRD, not from USCIS.

If the applicant establishes a prima facie case of exceptional hardship and DOS-WRD recommends approval, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval.

C. Persecution

J-1 exchange visitors subject to the foreign residence requirement may apply for a waiver if they would be subject to persecution in their respective home countries on account of race, religion, or political opinion. The persecutor may be either the government itself or a group that the government is unwilling or unable to control.

The standard for a J-1 persecution waiver requires the exchange visitor to show that they would be subject to persecution on account of race, religion, or political opinion. [17] This is a higher standard than persecution claims filed under the asylum provisions of the INA. [18] Notably, INA 212(e) requires the applicant to establish that the applicant would be subject to persecution upon a return to the home country, whereas an applicant under INA 208 must only establish a well-founded fear of persecution.

1. Evidence

To request a foreign residence requirement waiver based on persecution, applicants must file the waiver application with USCIS. [19] Applicants must submit evidence that they are in fact subject to the requirement and that they would be subject to persecution in their home country because of their race, religion, or political opinion. [20]

2. Adjudication

If USCIS determines that the applicant would be persecuted upon return to the home country, it then transmits the information to DOS. DOS may choose not to recommend an approval of a waiver based on program, policy, or foreign relations aspects of a case, even if USCIS finds that the J-1 exchange visitor would be subject to persecution. [21]

Burden of Proof

In all cases, applicants have the burden of proving eligibility for a waiver and must demonstrate by a preponderance of the evidence that they are fully qualified for the waiver. [22]

3. Decision

If the applicant cannot establish a prima facie case of persecution through the documentary evidence submitted, USCIS does not send the case to DOS-WRD, but, rather, denies the application. Applicants may appeal this determination to the AAO.

If the applicant establishes a prima facie case of persecution, but DOS-WRD does not recommend approval, USCIS denies the application. There is no appeal right from this type of denial because the unfavorable recommendation came from DOS-WRD, not from USCIS.

If the applicant establishes a prima facie case of persecution and DOS-WRD recommends approval, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval.

D. No Objection

With the exception of J exchange visitors who came to the United States for the purpose of receiving graduate medical training and those who changed to J-1 status for such purpose, J exchange visitors may request a waiver of the foreign residence requirement based on a statement by the government of the country of the applicant’s nationality or last legal permanent residence that it has no objection if the applicant does not return to the country upon completion of the program. [23] This official statement is commonly known as a “no objection” letter.

A no objection letter is generally insufficient to warrant a favorable recommendation from the DOS-WRD when U.S. government funding was involved in the exchange program.

1. Requirements

Applicants may not submit a no objection letter directly to USCIS. USCIS rejects letters submitted directly to USCIS by the exchange visitor along with instructions on the proper channels for submission. [24] No objection letters must be sent directly from the J-1 exchange visitor’s home country to the DOS-WRD through official diplomatic channels. DOS-WRD then sends its recommendation to USCIS.

2. Evidence

Upon receipt of the no objection letter and the DOS-WRD recommendation, officers should review the case to ensure that documentation is in order and that the waiver is appropriate for the exchange visitor’s circumstances (for example, ensure that the applicant did not come to the United States as an exchange visitor, or later acquire such status, in order to receive graduate medical training or education). If the exchange visitor is eligible for the waiver, USCIS approves the waiver and notifies the applicant and the applicant's legal representative, if applicable, of the approval. [25]

E. Interested Government Agency

Any U.S. IGA may request a waiver if the IGA is able to demonstrate that either the J-1 exchange visitor's departure would be detrimental to one of its programs or the exchange visitor's stay in the United States is vital to one of its programs. [26] The rationale for an IGA waiver is that it is in the public interest to have the exchange visitor remain in the United States. The exchange visitor need not be an employee of the agency unless the agency has internal guidelines requiring that the exchange visitor be employed by it before it may recommend a waiver.

The head of the agency (or their designee) must sign the letter requesting the waiver and submit it to the DOS-WRD. [27] DOS-WRD forwards its recommendation to USCIS.

F. Foreign Medical Graduates – Federal, State, and Conrad 30 Programs

1. General Requirements

Upon completion of the J-1 exchange visitor’s program, a foreign medical graduate (FMG) may obtain a waiver of the foreign residence requirement pursuant to INA 214(l) through a recommendation of a state or federal agency interested in facilitating the FMG’s employment in a federally designated shortage area as an H-1B nonimmigrant. [28] To be eligible for the waiver, the FMG must:

• Agree to be employed full time [29] in H-1B nonimmigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP).
• Practice medicine at the health care facility named in the waiver application for at least 3 years, and generally in HHS-designated shortage areas. [30]
  • An FMG who fails to fulfill the 3-year contract is ineligible for an immigrant visa, lawful permanent resident status, or change of status to another nonimmigrant classification without meeting the 2-year foreign residence requirement unless the failure was due to extenuating circumstances, such as the closure of the facility or hardship to the FMG, and the FMG relocates to another qualifying area for the balance of the 3-year term. [31]
  • If the U.S. Department of Veteran's Affairs (VA) requests the waiver so that the FMG could practice medicine with the VA, the FMG must practice medicine with the VA for at least 3 years, but does not need to do so in an HHS-designated shortage area.
  • If an interested federal agency requests the waiver so that the agency can employ the FMG full time to practice clinical medicine, the FMG may fulfill the obligation by working for the agency for at least 3 years in that capacity, rather than by practicing medicine in an HHS-designated shortage area.
  • If an interested federal or state agency requests the waiver for an FMG who agrees to practice specialty medicine in a facility located in an HHS-designated geographic area, the FMG may fulfill the obligation by practicing specialty medicine in such a facility for at least 3 years. [32] In such a case, the request must demonstrate a shortage of health care professionals able to provide services in the appropriate medical specialty to the patients who will be served by the FMG
  • Obtain a no objection letter from the FMG’s home country if the home government funded the FMG’s exchange program.
  • Agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date the FMG’s J-1 visa expires.
    • Employment is not required to begin within 90 days of receipt of the waiver. The FMG must agree to begin employment within this 90-day period. [33]

    The maximum number of INA 212(e) waivers that may be granted under INA 214(l) at the request of each state is limited to 30 during each fiscal year (the Conrad 30 program). There is no limit to the number of waivers granted to FMGs under the federal program. An FMG who obtains a waiver under INA 214(l) may not obtain permanent residence, whether by an immigrant visa or by adjustment of status, until the FMG has satisfied the statutory service obligation.

    To prevent claims that an FMG did not know the obligations that accompany a waiver under INA 214(l), the foreign residence requirement waiver application approval Notice of Action (Form I-797) contains an addendum. This addendum specifies the terms and conditions imposed on the waiver and identifies the appropriate public law number to indicate whether a state department of public health or an IGA made the request for a waiver. In addition, the applicable public law number is listed on the approval notice.

    2. Evidence

    Before FMGs may engage in employment, the petitioner must submit a Petition for a Nonimmigrant Worker (Form I-129) along with the DOS-WRD favorable recommendation letter, in order to request a change of the FMG’s J-1 nonimmigrant status to H-1B nonimmigrant status.

    If a spouse or child of the FMG waiver recipient wishes to change status in the United States from J-2 to H-4, then they must submit an Application to Extend/Change Nonimmigrant Status (Form I-539). The waiver recipient must practice medicine for at least 3 years in an area designated by HHS as a HPSA, MUA, or MUP.

    Once the FMG waiver recipient has fulfilled the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, the waiver recipient (and any H-4 dependent family members) becomes eligible to apply for:

    • An immigrant visa;
    • Lawful permanent residence; or
    • An H or L nonimmigrant visa or status.

    If the FMG waiver recipient fails to fulfill the terms and conditions imposed on the waiver, the waiver recipient (and any H-4 spouse and child) once again becomes subject to the 2-year foreign residence requirement.

    Footnotes

    [^ 1] Occasionally, the foreign residence requirement is not correctly annotated on the Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or on the visa foil or both. The absence or inclusion of such a notation on a DS-2019 or visa foil that the exchange visitor is subject to the requirement is not conclusive. Officers must look to the Exchange Visitor Skills List, funding, or other reasons that may make a J-1 exchange visitor subject to the requirement when making a determination as to whether the J-1 exchange visitor is eligible for change of status to certain classifications, or adjustment of status.

    [^ 4] For more information on extreme hardship, see Volume 9, Waivers and Other Forms of Relief, Part B, Extreme Hardship [9 USCIS-PM B].

    [^ 5] Compare the INA 212(e) exceptional hardship waiver standard with waivers of criminal grounds of inadmissibility involving violent or dangerous crimes. See 8 CFR 212.7(d), “[t]he Attorney General, in general, will not favorably exercise discretion under section 212(h)(2) of the Act (8 U.S.C. 1182(h)(2)) to consent to an application or reapplication for a visa, or admission to the United States, or adjustment of status, with respect to immigrant aliens who are inadmissible under section 212(a)(2) of the Act in cases involving violent or dangerous crimes, except in extraordinary circumstances, such as those involving national security or foreign policy considerations, or cases in which an alien clearly demonstrates that the denial of the application for adjustment of status or an immigrant visa or admission as an immigrant would result in exceptional and extremely unusual hardship. Moreover, depending on the gravity of the alien’s underlying criminal offense, a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion under section 212(h)(2) of the Act.”

    [^ 6] See 8 CFR 212.7(c)(5). If an applicant erroneously submits the foreign residence requirement waiver application requesting a waiver based on an exceptional hardship claim but submits documentation to establish persecution, or vice versa, officers should issue a request for evidence asking that the applicant either correct the basis for the waiver request indicated on the waiver application or submit documentation supporting the basis indicated.

    [^ 7] Applicants should indicate the reason or reasons they are subject to the foreign residence requirement on the waiver application. Applicants may be subject to the requirement for multiple reasons. For example, an applicant whose exchange visitor program was financed by the government of the applicant’s country may also have participated in graduate medical education or training. When applicable, USCIS evaluates whether multiple grounds apply.

    [^ 8] See 8 CFR 212.7(c)(6). The foreign residence requirement waiver application contains fields to collect information on the qualifying relative (U.S. citizen or LPR spouse or child). If the application is based on exceptional hardship to the applicant's spouse or child, then the applicant must document the name, date, and place of birth, and the U.S. citizenship or LPR status of the qualifying relative. See information about specific documentation to establish family relationships and U.S. citizenship and LPR status in the instructions to Application for Waiver of the Foreign Residence Requirement (under Section 212(e) of the Immigration and Nationality Act, as Amended) (Form I-612).

    [^ 10] See Keh Tong Chen v. Attorney General of the United States, 546 F. Supp. 1060 (D.D.C. 1982) (“Courts have effectuated Congressional intent by declining to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a two-year sojourn abroad.”), and Matter of Vicedo (PDF), 13 I&N Dec. 33 (Dist. Dir. 1968). Hardship was found for purposes of an INA 212(e) waiver where evidence showed that the two U.S. citizen children would be deprived of the love and care of their parents, and the father could not pay transportation to the Philippines or maintain the family there.

    [^ 11] See Matter of Gupta (PDF), 13 I&N Dec. 477 (Dep. Assoc. Comm. 1970). Exceptional hardship was found where a prior visit of the U.S. citizen child to India resulted in medical disorders due to climatic conditions and the unavailability of foods to which the child was accustomed.

    [^ 12] See Matter of Ambe (PDF), 13 I&N Dec. 3 (Dist. Dir. 1968). Exceptional hardship was found where the U.S. citizen child was allergic to the smallpox vaccine, and smallpox was endemic to the home country. Waivers were accordingly granted under INA 212(e). See Matter of Amin (PDF), 13 I&N Dec. 209 (Reg. Comm. 1969). Exceptional hardship was not found where the mother's skin condition did not in the past impair her ability to care for her U.S. citizen children, and treatment for the condition was available in her home country.

    [^ 14] See Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 4, Burden and Standards of Proof [1 USCIS-PM E.4]. This means that the applicant has come forward with the facts and evidence which show that, at a minimum, and without any further inquiry, the applicant has proven initial eligibility for the benefit sought.

    [^ 16] This standard is outlined in Keh Tong Chen v. Attorney General of the United States, 546 F. Supp. 1060, 1064 (D.D.C. 1982): “Courts deciding [section] 212(e) cases have consistently emphasized the Congressional determination that it is detrimental to the purposes of the program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers including cases where marriage occurring in the United States, or the birth of a child or children, is used to support the contention that the exchange alien’s departure from this country would cause personal hardship.” H.R. Rep. 87-721 (1961). Courts have declined to find exceptional hardship unless the degree of hardship expected was greater than the anxiety, loneliness, and altered financial circumstances ordinarily anticipated from a 2-year stay abroad. See Mendez v. Major, 340 F.2d 128, 132 (8th Cir. 1965), and Talavera v. Pederson, 334 F.2d 52, 58 (6th Cir. 1964).

    [^ 20] If an applicant erroneously submits the foreign residence requirement waiver application requesting a waiver based on an exceptional hardship claim but submits documentation to establish persecution, or vice versa, officers should issue an RFE asking that the applicant either correct the basis for the waiver request indicated on the waiver application or submit documentation supporting the basis indicated.

    [^ 21] DOS may not change the type of filing (for example, persecution to exceptional hardship) at this stage.

    [^ 23] See 22 CFR 41.63(a)(3) and 22 CFR 62.27(g)(2). See 9 FAM 302.13-2(D)(1), No Objection Statement from Foreign Government.

    [^ 24] To initiate the waiver process, the exchange visitor must follow the instructions provided by DOS to complete the Visa Waiver Recommendation Application. See the Apply for a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement webpage for more information about the process of requesting a no objection statement. In general, the applicant contacts their country’s embassy in the United States to request the no objection statement. DOS reviews the application and forwards the recommendation to USCIS and sends a copy to the exchange visitor and the J-1 sponsor.

    [^ 25] A no objection case is the only situation where USCIS allows the applicant to file an adjustment application concurrently with waiver request.

    [^ 26] For information about IGA waiver requests from the U.S. Department of Veterans Affairs (VA) on behalf of an exchange visitor physician to serve in a VA hospital and IGA waiver requests for a foreign physician who agrees to serve in a medically under-served area, see Section 5, Foreign Medical Graduates – Federal, State, and Conrad 30 Programs [2 USCIS-PM D.4(F)].

    [^ 27] To initiate the waiver process, the exchange visitor must follow the instructions provided by DOS to complete the Visa Waiver Recommendation Application. For more information about the IGA waiver process, see the Apply for a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement webpage.

    [^ 29] Officers may consider non-traditional schedules as full time for the purpose of meeting INA 214(l). Officers should review the totality of the circumstances when determining whether the non-traditional schedule is consistent with the requirement for full-time employment. If the evidence establishes that the noncitizen physician averages, or will generally average, 40 hours per week, but a minimum of 35 hours per week, over the course of the year (or any iteration of this, for example, 160 hours per month), officers may conclude that the employment is full time.

    [^ 30] There is a limited exception: states may fill up to 10 flex slots, where physicians may be selected to work in an area that is not a HPSA or MUA, or MUP, yet still serves patients who reside in underserved areas.