Many J-1 visa holders are all subject to the two-year foreign residency requirement. The two-year foreign residency requirement requires the visa holder to reside in his or her home country for a minimum of two years when the J-1 visa has expired. This must be conducted before the holder is eligible to return to the United States. However, the two-year requirement can be waived on five different bases, one of which is persecution. This article explains how you can get a J-1 waiver under the persecution category.
What is the J-1 Home Country Physical Presence?
The essence of the J-1 home country physical presence requirement is to make sure that certain exchange visitors return home for their countries to benefit from the knowledge they have acquired during their J-1 stint. Participants subject to this requirement must spend at least two years in their home country before they can be eligible to return to the United States under any immigrant or nonimmigrant classification.
J-1 Visitors Subject to 2-Years Home Country Physical Presence
You are subject to this requirement if your J-1 program falls under any of the following categories:
- Your program was financed in whole or in part by the government of your home country or U.S. federal government
- The skills you gained or developed during your program are needed by your home country, as determined by the Exchange Visitors Skills list published by the DOS. You can find the list of skills needed by your home country here.
- You participated in J-1 medical training or education for doctors.
However, if you meet the criteria for persecution or other bases, the home country presence requirement can be waived and you won’t have to spend time in your country before being eligible to continue living and working in the United States.
Source of Persecution
Of the other bases for a J-1 visa waiver, the persecution waiver option can seem harder to prove because evidence of persecution must be convincing. This is due to the fact that you will need to clarify the source of the persecution. The following are some of the common sources of persecution that may deserve being granted a J-1 visa waiver:
Your Home Country’s Government
It is possible for a J-1 exchange visitor to have issues with their home country government that may put their life and wellbeing at risk. If there is evidence that supports this, you may prove that your government will persecute you if you return to your home country.
In some cases, persecution or the fear of it might not be from the government, but rather from certain groups of individuals in your home country. If the reason for the persecution is due to your political beliefs, religious beliefs, or race, there is a greater chance that your J-1 persecution waiver application will be approved.
There have been cases where some J-1 visitors renounced their home country’s faith during the course of their program in the U.S. If such a person is from a place where there is religious intolerance, they may face persecution if they return home.
In some instances, the persecution may not be directly targeted at you, but rather an immediate relative. You can prove that your relocation to your home country might result in persecution for a U.S. citizen or green card holding spouse or child.
For instance, some people’s lifestyle, political views, or religious beliefs may not be welcome in some countries. In these cases, there is a higher chance that the person will face persecution. If you can prove this with strong supporting evidence to back it up, you will likely get an approval for your J-1 persecution waiver application.
J-1 Waiver Persecution Requirements:
Demonstrating a case for Fear of Persecution is somewhat similar to demonstrating a case for asylum. However, some professionals believe it’s more difficult to prove persecution.
- The Persecution category is a probable option if the applicant feels that he/she will be oppressed based on the applicant’s race, religion, or political beliefs. Other factors may include economic hardship, medical, social, psychological, etc. Due to the subjective nature of these cases, it’s important to look at the case from two angles. The first angle is the effect on the qualifying family members should the J-1 visa holder be forced to return to their home country. The second facet to consider is how the family member(s) would be affected should they have to leave the U.S. with the visa holder.
- Prosecution/oppression must occur from the home country’s government or a rebel group that the government is unable to control.
- The applicant is obligated to provide evidence of probable persecution.
J-1 Waiver Persecution Application Process:
Prepare Your J-1 Waiver Request
- Go to the Department of State Waiver Application webpage, and register a case number. Make sure you write down and keep the number, as you are going to need it later.
- Complete Form DS-3035 online first and then print it out after filling it. The printout will contain a barcode, which you will keep because you will need it later. Do not make the mistake of printing out a blank, unfilled form and then filling it later by hand. It must be completed online.
- Gather all the supporting documents needed for the application, which include the following biographical documentation:
- Copy of biographical passport page (a page that contains picture I.D. and personal information)
- Copy of U.S. Visa I.D. Page (if applicable)
- Copy of I-94 Arrival/Departure Record (if applicable)
- Copy of Form DS-2019, Certificate of Eligibility for Exchange Visitor Status
- Copy of birth certificate and translated version
Evidence in Support of Persecution Claims
- Written statement detailing the circumstances arising from your persecution claim if you were to return to your country to fulfill the two-year rule.
- Medical reports and evaluations from healthcare professionals.
- Pictures and detailed affidavits from applicant, close friends, and family – establishing that applicant has suffered harm.
- Police reports – indicating applicant’s involvement
- Government established documents – establishing the applicant’s ethnicity, religion, nationality
- Proof of applicant’s party or group membership or affiliations
- Proof of attempts to obtain documents
- Form G-28 or letter from a law office, if you designated an attorney to represent you
Mail Your Waiver Application and Fee Payment
You will need to file Form I-612, Application for Waiver for the Foreign Residence Requirement which is required to obtain a J-1 waiver under persecution. You can mail the petition using any of the following alternatives:
- Complete Form I-612 first, forward it to USCIS and wait until they send you an approval notice. After that, file your Form DS-3035 with the U.S. Department of Waiver Review Division. Before your application can be approved, both your I-612 and DS-3035 must be approved by USCIS and the Department of Waiver Review Division, respectively.
- Another option is to file both forms at the same time with the appropriate authority for each. That is I-612 with USCIS and DS-3035 to the Department, simultaneously. The simultaneous option is faster but may cost you more. This is because if you file simultaneously and USCIS rejects your I-612, the Department of Waiver Review will not refund your money.
Mail both the waiver application with the bar code, nonrefundable fee payment, and supporting documents to one of the following addresses:
Via postal service:
Department of State J-1 Waiver
P.O. Box 979037
St. Louis, MO 63197-9000
Via courier service to:
Department of State J-1 Waiver
P.O. Box 979037
1005 Convention Plaza
St. Louis, MO 63101-1200
Mail form I-612 directly to USCIS at one of the following addresses:
Via US Postal Service to:
USCIS California Service Center
I-612 Unit P.O. Box 30112
Laguna Niguel, CA 92607-0112
Via courier service to:
USCIS California Service Center
24000 Avila Road
2nd floor, room 2312
Laguna Niguel, CA 92677
The U.S. Department of State Waiver Application has the option of either being filed before the applicant submits the I-612 form to the USCIS or after the USCIS has given its decision. Though it’s important to note that if the applicant submits the Waiver Application to the Department of State prior to the submission of the I-612, the Department of State will not refund the fee if the USCIS does not find a case of persecution.
Forward Supporting Documents
It is your responsibility to ensure that supporting documents are forwarded to Waiver Review Division on your behalf by the USCIS and mailed to:
Waiver Review Division
U.S. Department of State
SA-17, Floor 11
Washington, DC 20522-1711
After submitting the application and ensuring that supporting documents were forwarded, you can then check your application status to confirm that your fee payment, application, and supporting documents have been received.
The estimated processing time is about three to four months with exceptions depending on the case. When the Waiver Review Division completes the waiver recommendation review process under the Persecution category, they’ll forward their favorable or unfavorable recommendation to USCIS. The applicant will also receive a copy of the recommendation to the address listed on the online form DS-3035. If the USCIS finds that the applicant is liable to persecution, the USCIS will notify the applicant of approval or denial at the listed address.
Frequently Asked Questions
Am I allowed to submit a waiver that is on the grounds of both fear of persecution and exceptional hardship?
No, it’s not advised to combine these two waivers.
Am I allowed to appeal the denial of my waiver based on fear of persecution?
The USCIS does accept appeals for denials on the basis of J-1 waiver persecution.
Is it advised for Form I-612 to be submitted prior to Form DS-3035?
You can either file them simultaneously or file DS-3035 after receiving approval for I-612. If you submit the Waiver Application to the Department of State prior to the submission of the I-612, the Department of State will not refund the fee even if the USCIS does not find a case of persecution.
If my application for a waiver is denied, can I use the same fee for another waiver request?
No, you cannot. Once you make a payment for a waiver, you cannot request to use it for the processing of another waiver application after you have received a denial for the first application. In other words, you will have to pay another processing fee for your new waiver application. However, you have to use the case number of your first application on your subsequent requests.
Does the two-year rule also apply to the dependents of a J-1 visa holder?
Yes. The same restrictions on J-1 visa holders apply to the individuals who entered the U.S. as J-2 dependents. Once the J-1 holder’s visa is terminated, then the J-2 visa of any dependents will also be terminated. Also, if the J-1 persecution waiver request is approved, the J-1 holder dependents will also benefit from the waiver.
Can family members visit me while on J-1 status?
Family members that want to come visiting should apply for a B-1 or B-2 visitor visa unless they are your children under 21 or a spouse.
Can a J-1 visa holder dependent (J-2 visa holder) file for a waiver when the primary applicant on a J-1 visa is not applying?
Normally, the J-1 visa holder is the one that can request a waiver, and the result of his or her request (approval or denial) applies to the dependents (J-2 visa holder) too. However, in the following circumstances, the U.S. Waiver Review Division (WRD) will consider the J-2 waiver application on a case-by-case basis:
- If the J-1 visa holder, who is the spouse of the J-2 visa holder, dies.
- If the J-1 and J-2 spouses divorce.
- If the J-2 child clocks the age of 21.
In any case, you (the J-2 visa holder) should submit a detailed statement on why you want to request a waiver when your J-1 spouse or parent does not. You should also explain why your situations deserve consideration for the waiver. It is worth noting that you have to provide proofs to back up your claims.
How VisaNation Law Group Can Help:
VisaNation Law Group’s immigration attorneys are highly knowledgeable on J-1 waiver persecution cases. Their lawyers understand the necessary documentation and government forms required for a successful petition. If the applicant experiences a case denial, the immigration attorneys have the resources and experience to assist with a persecution reconsideration.
VisaNation Law Group’s J-1 visa lawyers are capable of providing legal representation for complex and difficult circumstances. We understand that the J-1 waiver persecution process can be challenging, but VisaNation Law Group’s lawyers have an in-depth comprehension of the required procedures in order to avoid potential delays.