J-1 visiting exchange scholar visa holder can not change status (except for A or G visa), apply for H or L visa, apply for immigrant visa, or file for adjustment of status unless the two year foreign residence requirement is met if such requirement applies.  A mistaken indication on visa holder’s IAP-66/DS-2019 that the holder is not subject to the 2 year foreign residence requirement is not a bar for the requirement to apply if the requirement indeed applies.  Foreign residence means residence in the visa holder’s country of nationality, or last residence, whichever is last, and not in any other country. 

There are four types of waivers of J-1 foreign residence requirement.  They are possible persecution, exceptional hardship, no objection waiver and interested government agency (“IGA”). 

1. Possible Persecution:

J-1 persecution waivers are vey rare and they take a long time to process because there are several internal reviews at Department of State.  An exchange visitor granted asylum under INA §207 may adjust status under INA §209, even if subject to the J-1 foreign residence requirement which would prevent him from adjusting under INA §205(a). 

2. Exceptional Hardship:

Departure from U.S. would impose exceptional hardship on US citizen or Lawful Permanent Resident spouse or child.  In determining a hardship waiver, an applicant must show hardship if spouse/child accompanying him abroad for two years and hardship if spouse/child remain in U.S.  Factors to consider for hardship include economic, physical and emotional factors and loss of employment, educational and health opportunities.

3. No Objection Waiver:

If J-1 visa home country issues a no objection statement regarding the decision not to return home. This waiver is not available to foreign medical graduates except if they came to US as J visa holder to observe, consult, teach, or do research.  If US government provided direct or indirect funding for the purpose of participating in an educational or cultural program, a no objection statement from the home country is generally held insufficient.  A no objection statement is usually obtained through country’s embassy in US.

4. Interested Government Agency

For those who can not secure no objection statement from one’s home country because their current program are funded by US government, interested government agency could be another form of source of waiver for J-1 foreign residency requirement.  The alien’ employer or prospective employer must request a waiver on behalf of the alien through a detailed and convincing statement explaining the reasons why the waiver would benefit the agency’s interests.  The application should explain how granting the waiver will be in the public interest of the nation and the reason why it would be detrimental to the agency’s interest if the alien returns to the home country.  The application should include support letter of recommendation from experts in the fields, supervisors in the program or other sources.  The application will be sent to identified Interested Government Agency.  If the Agency decides to sponsor the waiver, it will send its recommendation letter sponsoring the waiver to the Department of State, Waiver Review Division.  The State Department will review the application and send its recommendation to the USCIS for final determination.  The USCIS will likely to grant a waiver if the State Department’s recommendation is favorable.

 General Procedures:

1) Applicants must first submit a Data Sheet to Department of State/ Waiver Review Division.  

2) DOS sends case number and instruction sheet for waiver application to applicant.  The instruction sheet will depend upon the nature of waiver indicated on the Data Sheet. 

3) For persecution and hardship waiver, file Form I-612 with the USCIS Service Center having jurisdiction over the place of residence of the applicant. For Interested Government Agency and No Objection, apply to the agency or to the foreign government.  The these two agencies will forward the applications to the Department of State

4) DOS will review application and forwards the recommendation to USCIS with a copy to the applicant and J-1 sponsor.

Non-Immigrant Options:

H-1 Cap Exemptions

Institution of Higher Educations can sponsor employees on H-1B Specialty Occupation status without cap limitations.  In another word, institutions of higher educations can sponsor H-1B specialty workers without the limitations put on most other organizations.  

O-1 Extraordinary Ability

For someone who enjoys international or national reputations in their academic teaching or research, an O-1 visa may be a better option.  O-1 visa, once granted, implies that the applicant may well qualify for first priority employment-based visa for advanced researcher or professor or extraordinary ability.  O-1 visa paves the way to faster immigrant visa for qualified individuals without possible backlogs in other lower-priority categories.

Immigrant Options:

Special Handling PERM:  Teachers or professors working for Institutions of Higher Education have the option of special handling of PERM, or labor certification, designed specially for teachers and professors in college and universities.  Only teachers or professors can utilize this procedure.  Special handling PERM requires that the alien goes through a “competitive recruitment and selection process” and the PERM application must be filed 18 month after the selection is made.  Major requirement of the “competitive recruitment and selection process” is at least one advertisement for the job opportunity be placed in a national professional journal that states the job title, duties, and the requirements.   

Regular PERM:  Workers and other professionals who do not work as teachers should apply for regular labor certification.

National Interest Waiver: Teachers can apply for permanent residency through “National Interest Waiver”.  The “National Interest Waiver” seeks to exempt the applicants from the Labor Certification process. National Interest Waiver does not require a job offer or employer sponsorship.  National Interest Waiver applicants are still subject to the visa availability requirement.  Adjustment of status to permanent residency is conditioned on there is visa currently available for this category.  The minimum requirement is that the applicant must have a master degree, a bachelor degree with at least 5 years of progressive working experience, or demonstratable exceptional ability.

Outstanding Professors or Researchers:  Teachers or professors of international recognition in their teaching or research can also apply for Outstanding Professors or Researchers.  There is always visa currently available for this category.  If applicant’s immigration petition is approved, the applicant can file for adjustment of status immediately as there is usually no backlog in this category.  This option always requires the college or university to sponsor the applicant.  This option also requires a permanent job offer from the college and university.

Aliens of Extraordinary Ability:  Teachers or professors of international recognition still have the option to apply for Aliens of Extraordinary Ability.  Similar to outstanding professor or researchers, there is usually no backlog.  The standard of approval for aliens of extraordinary ability is also higher.