What are Waivers?

In U.S. immigration, waivers are exemptions or concessions that allow certain individuals who would otherwise be ineligible to enter the U.S. or adjust their status to overcome legal barriers. Waivers are crucial for those facing obstacles such as inadmissibility due to health issues, criminal background, prior illegal presence in the U.S., or other violations of immigration law.

Who can apply?

Waivers can be requested by individuals who:

• Have been declared inadmissible to enter the U.S. due to a specific immigration law violation, such as illegal presence, entry without inspection, or criminal conviction.

• Need to adjust their status to permanent residency but face legal impediments that would otherwise make adjustment impossible without a waiver.

• Are applying for certain types of visas that have specific admissibility requirements, such as the K-1 Fiancé(e) Visa or immigrant visas.

J1 Visa Waiver - Elimination of the 2-Year Requirement

For J1 visa holders, who are participants in cultural exchange programs, there is a requirement known as the "Two-Year Home Country Physical Presence Requirement." This requirement mandates that the J1 holder return to their home country and reside there for at least two years after the program ends before they can apply for certain types of immigration or non-immigration visas, such as H, L, K visas, or adjustment of status to permanent resident.

However, under certain circumstances, it is possible to request a waiver to eliminate this two-year requirement. Circumstances that may justify requesting a waiver include:

• No Objection Statement: If the government of the J1 holder's home country issues a statement indicating that it does not oppose the waiver of the two-year requirement, the holder may request a waiver.

• Request from a U.S. Employer: If a U.S. employer wishes to hire the J1 holder in a position of national interest, a waiver may be requested.

• Persecution: If the J1 holder can prove they will face persecution in their home country based on race, religion, or political opinion, they can request a waiver.

• Extreme Hardship to a Family Member: If the J1 holder has a U.S. citizen or permanent resident spouse or child who would suffer extreme hardship if the holder were required to fulfill the two-year requirement, a waiver may be requested.

• Request from a U.S. Government Agency: If a U.S. government agency determines that the work of the J1 holder is of critical interest to the country, a waiver may be requested.

How does the application process work?

The process for requesting a waiver for J1 visa holders involves the following steps:

• Submit Form DS-3035: The J1 holder must initiate the process by submitting Form DS-3035, "Application for Waiver of the Two-Year Foreign Residence Requirement."

• Obtain Supporting Documentation: Depending on the basis for the waiver request, the applicant must provide necessary documentation, such as a No Objection Statement, evidence of persecution, or proof of extreme hardship.

• Review by the State Department and USCIS: The application is reviewed by the U.S. Department of State and, in some cases, by USCIS, which will determine whether the waiver will be granted.

Benefits of Waivers

Waivers allow individuals to overcome significant legal barriers to obtain or maintain legal status in the U.S. These benefits include the possibility of adjusting status to permanent residency, avoiding prolonged family separation, and addressing legal issues that would otherwise result in deportation or ongoing inadmissibility.

Waivers, especially for J1 visa holders, are essential tools that provide significant flexibility in the U.S. immigration system, allowing cultural exchange participants to continue their lives in the U.S. without having to meet the two-year home country return requirement.