J-Visa Waiver

J visas are cultural exchange visas for a variety of reasons commonly issued to foreign students who work in the U.S. during summer breaks or for studies under scholarships, such as the Fulbright Program. Medical doctors being trained in the U.S. or even au pairs often enter the U.S. on J-visas.

J-Visa Home Restriction

Many J visas have a 2-year home restriction, which means the foreigner must depart the US shortly upon expiration of the J visa status, and then be in the home country for a minimum of 2 years before immigrating to the U.S.

During the home restriction period, it might be possible to come to the U.S. on a non-immigrant visa such as a B1/B2 visitor visa. However, the home restriction still applies and must be satisfied before immigrating to the U.S.

Check the visa located in the passport to determine whether or not a two-year home restriction (under INA §212(e)) applies. If the home restriction does not apply then it can be possible to either

  1. change status being in U.S. to marriage based U.S. Permanent Resident Green Card holder or
  2. immigrate to the U.S. from abroad.

If the two-year home restriction applies, then your foreign partner is normally required to return to her native country, or country of last residence, for 2 years before immigrating to the U.S. based on marriage.

Allan Scott Lolly

managing attorney

Sometimes, a home restriction is improperly placed on the J visa. The notation on the visa is likely accurate, but is not always accurate. I need to know the circumstances to decide. There are times we can challenge the home restriction and have it removed.

Call for Assistance — We handle J-Visa waiver applications and changes of status, typically as part of our efforts to obtain adjustment of status, fiancee or spouse visas for family members of U.S. citizens.

Home Restriction Can Be Waived Under Some Circumstances

No Objection Letters

A waiver is possible if there is no governmental interest served in returning the foreigner home. No objection letters must be obtained from the U.S. and the home country. The two-year home requirement waiver is unlikely in this instance of if either government significantly funded the foreigner’s visitor program.

A waiver is also less likely if the foreigner learned skills in the U.S., which would benefit the home country. In this case it is required for the foreigner to share what was learned in the U.S. with their home country for a period of 2 years.

Exceptional Hardship

A waiver is possible if the failure to waive will create an exceptional hardship on the U.S. citizen or Lawful Permanent Resident (Green Card holder) fiancé, spouse, or child.

A waiver based on hardships is not easy to obtain. The J-1 visa holder must show that their U.S. citizen, or green card holding, spouse or child would suffer exceptional hardship that is worse than the usual hardship of separation. It is important to note that a common reason for hardship waivers to be denied is because an exceptional hardship was not proven to exist in both the home country and the U.S. Some examples of exceptional hardships:

  1. A physical or mental health condition of the family members, specifically when sufficient treatment is unavailable in the J-1 visa holder’s home country
  2. War or civil strife existing in the home country
  3. Natural disaster in the home country
  4. Interruption of the spouse’s established career here in the U.S.
  5. Any resulting economic consequences in the home country or the U.S.
  6. Conditions of sever racial, religious, or gender discrimination in the home country that would limit the U.S. citizen family member’s educational opportunities

If the U.S. Citizenship and Immigration Service (USCIS) approves the waiver, it is further recommended to the Department of State (DOS). The DOS can deny all types of waivers at this stage. A common instance when the DOS denies a hardship waiver is when the hardship only applies to the U.S. citizen spouse because the spouse knew of the J-1 requirements before marriage.

Governmental Interest

If the foreigner works for any U.S. Federal Government agency and the work is deemed to be in the U.S. government’s interest. The Interested Government Agency must make the request, explaining how the absence of the J-1 visa holder would be detrimental to the Federal Agency’s interest. (In addition to other J visa holders, those who are physicians and who work in underserved areas of the U.S. may qualify under this category.)

Conrad State 30 Program

A designated State Public Health Department or its equivalent, can make a request for a waiver for a foreigner who comes to the U.S. to pursue graduate medical training or education if the foreigner

  1. has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area,
  2. agrees to begin employment at that facility within 90 days of receiving a waiver and
  3. signs a full time contract for at least 3 years.

Call for Assistance — Our initial consultation is FREE so we can learn more about your situation and discuss possibilities.

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    To date, the immigration law firm of Allan S. Lolly & Assoc. P.C. has successfully obtained well over 15,000 K1 fiance visas, CR marriage visas, green cards, immigration bar waivers, VAWA benefits, Asylum benefits, and other family and employment visas.

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