Question: I am a Russian national who held J-1 exchange visitor status. How can I determine whether I need a waiver of the two-year home-country physical presence requirement?
Short answer: First confirm whether INA §212(e) applies. Not every J-1 exchange visitor is subject to the requirement. If it applies, the person may request a waiver recommendation under one of the five recognized bases, but eligibility depends on the program history, funding, supporting evidence, and the rules for the selected basis.
When does INA §212(e) apply?
The requirement may apply because the exchange program involved qualifying government funding, graduate medical education or training, or a field listed on the applicable Exchange Visitor Skills List. The visa annotation and Forms DS-2019 are important records, but they may not resolve every question. If the answer is uncertain, the exchange visitor can request an advisory opinion from the Department of State’s Waiver Review Division.
See the Department of State’s waiver eligibility guidance.
What are the five waiver bases?
The Department of State identifies five bases for a waiver recommendation:
- A No Objection Statement from the relevant home government.
- A request by an Interested US Federal Government Agency.
- Persecution based on race, religion, or political opinion.
- Exceptional hardship to a US citizen or lawful permanent resident spouse or child.
- A request by a designated state public health department or its equivalent under the Conrad State 30 program, which applies to qualifying physicians.
The applicant should select the one basis that fits the case. The five routes have different requirements and are not interchangeable.
How does a No Objection Statement work?
A No Objection Statement must state that the relevant government has no objection to the exchange visitor not returning to fulfill the two-year requirement and no objection to the possibility of the person becoming a US lawful permanent resident. The exchange visitor generally starts the Department of State’s online Form DS-3035 process and obtains a waiver case number. The statement must then be sent through the official channel identified by the Department of State, usually by the home government’s embassy in Washington, DC or through an authorized ministry and US diplomatic mission. Do not assume that a letter handed to the applicant can be submitted directly in its place.
Russian nationality alone does not establish that Russian authorities will issue a No Objection Statement, or that US authorities will recommend or approve a waiver. Confirm the current procedure with the relevant Russian government authority before relying on this route. If a No Objection Statement is unavailable, another waiver basis may be considered only if the facts satisfy its legal requirements.
Important limits and decision points
- Foreign medical physicians who acquired J-1 status on or after January 10, 1977 to receive graduate medical education or training generally cannot use the No Objection Statement basis.
- A No Objection Statement does not guarantee a favorable recommendation. US government funding can weigh strongly against a favorable recommendation.
- The Department of State makes a recommendation; USCIS makes the final waiver decision.
- The two-year requirement remains in effect until the requirement is fulfilled or USCIS approves a waiver.
Before choosing a route, review all DS-2019 forms, program funding, field of study, any graduate medical training, and the current government instructions. The applicable Skills List and the person’s program dates may also matter.
Need to assess a J-1 waiver strategy? Messersmith Law Firm can review the DS-2019 history, funding, §212(e) basis, and available waiver routes before a filing strategy is chosen.
Primary authorities: Department of State, Waiver Eligibility; How to Apply for a Waiver; J-1 Waiver FAQs.