Waivers of Foreign Home Residency

You may be participating in the type of exchange visitor program that makes it mandatory for you to spend two years residing in your home country after completing your program before you are eligible to apply for a green card or other U.S. visa. If you wish to escape this obligation and apply for a green card immediately, you will first have to apply for a waiver of the home residency requirement. You cannot get around the requirement by spending two years in a third country or by switching to a different visa status within the U.S.

There are special procedures which must be followed in applying for a waiver of the home residency requirement. Although the presence of this requirement is considered a ground of inadmissibility in green card cases, you should not follow the standard procedures for waivers of inadmissibility.

Under present immigration law there are five grounds that include:

• No objection from your home government. Unless you are a foreign medical graduate, the easiest way to obtain a waiver is by having your home government consent to it through a “No Objection Letter.” In this letter, your government would assert that it doesn’t mind your staying in the U.S. to apply for a green card — despite the fact that it may have helped finance your exchange program participation. Contact your home country’s embassy in Washington, DC to request such a letter.

• Request by an interested U.S Government Agency. If you’re working on a project of interest to an agency of the U.S. government, and that agency decides that your continued stay is vital to one of its programs, it may support your request for a waiver.

• Fear of persecution in your home country. If you can show that you would be persecuted upon return to your home country based on your race, religion or political opinion, you can apply for a waiver. Note that, unlike applicants for political asylum, you cannot qualify if you fear persecution based only on your nationality or membership in a particular social group. Also, the standard is higher than in ordinary asylum cases, in which applicants need only prove a “reasonable fear” of persecution—you, by contrast, must show that you “would be” persecuted upon return.  If you meet this standard, you’d probably be better off skipping the waiver process and submitting a separate application for political asylum.

• Exceptional hardship to your U.S. citizen or permanent resident spouse or child. If your spouse or any of your children is a U.S. citizen or permanent and you can show that your departure from the U.S. would cause them exceptional hardship, you may be granted a waiver. However, the INS will demand a greater showing of hardship than the “mere” emotional pain of separation, or economic or language difficulties. The classic exceptional hardship case is one in which your family member has a medical problem that would be worsened by your departure or by traveling with you to your home country; or if the family member would be persecuted if he or she departed with you.

• Request by a state department of health. If you’re a foreign medical graduate with an offer of full-time employment at a healthcare facility in an area that’s been designated as having a shortage of doctors, and you agree to begin working there within 90 days of receiving the waiver and to continue working there full-time for at least three years, you may be granted a waiver.

If and only if the DOS agreed that your waiver should be granted, you can continue with your application to the USCIS.  This is done by submitting USCIS Form I-612, together with a copy of your I-94 card, proof of any included family members’ relationship to you (marriage or birth certificates) documents supporting your claim, including the DOS recommendation, and a fee to the USCIS service center for your geographical region.

As you can see, the waiver application process is complex and often depends on persuading reluctant government officials that you fit into a category whose boundaries are not clearly defined. For this reason, before you attempt to apply for a waiver of the home residency requirement, we strongly advise you to get help from an experienced immigration lawyer. Contact us now.

Please contact us now if you need a waiver of the 2 year residency under J-1 visa classification. Our immigration attorneys have successfully handled a number of such waiver cases. Call us now to speak with an immigration lawyer.