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Some, but not all, persons in the J-1 visa class are subject
to the two-year Home Country Physical Presence Requirement,
often called the HCPPR or the Section 212e. Before attempting
to obtain a waiver, it is wise to confirm that you are, indeed,
subject to the requirement. Consular and immigration officers
make these determinations based upon the information available
at the time they are issuing visas or adjudicating forms.
Mistakes sometimes are made. Please note that the OIE-IS does
not become involved in the process of obtaining a waiver for
persons in the J-1 visa class, unless his/her department is
working with an interested government agency. The questions
and answers below provide useful information on the process.
Who has the authority to grant the waiver?
The Department of State (DOS) Bureau of Consular Affairs
in Washington, D.C., is the final authority for determining
whether one is subject. If the subjection is based on the
Exchange Visitor Skills List or government funding, there
may be additional facts that show the consular or immigration
determination is incorrect.
For example: A government scholarship or fellowship given
for use inside the home country or in any country outside
the home country that is not given specifically for the Exchange
Visitor Program may not constitute “government funding”
for the purpose of making one subject to the requirement.
If there is a question about whether a determination is correct,
the DOS can be contacted in writing to provide an advisory
opinion.
If one is subject to the HCPPR, it is sometimes possible
to obtain a waiver. One should realize, however, that this
is often a long and difficult process. The administration
of the “J” Exchange Visitor Program lies in the
hands of the DOS, therefore the department must recommend
a waiver. In all cases, the USCIS makes the final decision
to grant waivers; however, they often follow the DOS’
recommendation.
How does one qualify for a waiver?
A participant in the “J” Exchange Visitor Program
may be granted a waiver of the following grounds:
1. No objection from the home government
The exchange visitor may ask his/her government to send
a “no objection” letter to the DOS. Often the
foreign government will ask to be reimbursed if it provided
funding for the exchange visitor. The decision to provide
a no objection letter is solely that of the foreign government.
The no objection letter must go directly from the foreign
government to the DOS through diplomatic channels. The DOS
will review it and then decide whether or not to grant a
waiver. Anyone interested in obtaining this type of waiver
should contact the embassy or consulate of the home government.
The no objection letter usually is insufficient for waiver
issuance if U.S. government funds were used. This avenue
for obtaining a waiver is not available to foreign medical
graduates under the sponsorship of ECFMG. (See Item 5 below.)
2. Interested United States government agency
If the exchange visitor’s knowledge or skills can
be considered of vital interest to a U.S. government agency
and/or if the exchange visitor’s departure from the
U.S. would be deemed detrimental to a program of one of
these U.S. agencies, a request that a waiver be recommended
for this person can be initiated by the appropriate agency.
At educational and health care institutions, the Department
of Education and the Department of Health and Human Services
are the most common agencies to request such waivers. Both
of these agencies have waiver review boards that examine
applications based upon a set of established criteria. It
is important to note that the employer of the exchange visitor
must request such a waiver on the appropriate form. The
request may not come from the alien.
3. Persecution
An exchange visitor who can prove to the USCIS and the DOS
that he/she would be subject to persecution upon returning
to the home country can be granted a waiver. These waivers
require a great deal of documentation and seldom are granted.
The exchange visitor must provide these agencies strong
evidence that persecution would occur. These waivers are
not usually granted for those claiming economic hardship
or inability to advance in their professions. Persons wishing
to file for a waiver on these grounds need to send a completed
Form I-612 to the USCIS. If the USCIS deems the request
to have merit, it refers the case to the DOS, and if the
State Department also concludes that persecution will occur,
the USCIS likely will grant a waiver. Those seeking a waiver
based on persecution are advised to consult a good immigration
attorney for assistance.
4. Exceptional hardship to a U.S. citizen or permanent resident
spouse or child if the alien returns home
Usually these waivers are granted only if the exchange visitor
can prove that complying with the HCPPR would leave a U.S.
citizen or permanent resident spouse or child without necessary
medical care, subject them to persecution or otherwise subject
them to true and profound hardship rather than mere inconvenience
or change of lifestyle. Exceptional hardship is very difficult
to prove. The exchange visitor must demonstrate that his/her
departure from the U.S. would cause severe harm. Unfamiliarity
with the language, customs or culture of the alien or the
inability to work or pursue a career in the alien’s
home country are not grounds for a hardship waiver. Neither
is separation of the citizen or resident family from the
alien relative, should the alien return abroad and the family
remain in the U.S. This kind of cultural adjustment or separation
is viewed as not substantially different from military or
diplomatic families, where one member is posted abroad and
the family chooses to accompany him/her or remain behind.
Those seeking waivers based on hardship are advised to consult
a good immigration attorney for assistance.
One can file for this type of waiver on Form I-612 at the
USCIS office that has jurisdiction over the place of residence
of the exchange visitor. If exceptional hardship is proven
to the USCIS, the request is forwarded to the DOS for final
recommendation.
5. Physicians working in underserved areas
Physicians who are subject to the HCPPR may qualify for
waivers based on employment in medically underserved areas.
The rules for this kind of waiver are quite complicated.
For further information, consult a good immigration attorney.
How does one apply for a waiver?
It has been determined that review of requests for a waiver
of the two-year HCPPR confers a specific benefit to the requesting
individual. Accordingly, the DOS requires a fee sufficient
to recoup the full costs of conferring this specific benefit.
A fee of $215 must be rendered for all requests for a waiver
of the two-year HCPPR. Checks should be made payable to: U.S.
Department of State, and this fee is the responsibility of
the J-1 exchange visitor making the waiver request.
For more information, including instructions on how to file
for a waiver, the “J” waiver data sheet and the
exchange visitor skills list, visit the State
Department Web site.
Waiver requests should be mailed to:
Waiver Review Division
U.S. Department of State
Bureau of Consular Affairs
Visa Office - CA/VO/L/W
2401 E St., N.W. - Rm. L 603
Washington, D.C. 20522
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