The Five Bases for a J-1 Waiver

Federal law recognizes five principal waiver bases:

1. A No Objection Statement from the participant’s home government;

2. A request by an Interested U.S. Federal Government Agency;

3. Persecution;

4. Exceptional hardship to a qualifying spouse or child; or

5. A request by a designated state public-health department or its equivalent under the Conrad State 30 Program.

The Department of State instructs applicants to apply under one waiver basis at a time. The correct basis depends upon why § 212(e) applies, the participant’s profession and immigration history, available government support, family circumstances, country conditions, and the immigration objective the participant intends to pursue.

1. No Objection Statement

A home-country government may issue a formal statement that it has no objection to the exchange visitor:

1. Not returning to satisfy the two-year requirement; and

2. Potentially becoming a lawful permanent resident of the United States.

The statement ordinarily must be issued through the home country’s embassy in Washington, D.C., and transmitted directly to the Department of State’s Waiver Review Division by an authorized embassy official. Alternatively, a designated ministry of the home government may send the statement to the U.S. embassy in that country, which then forwards it to the Waiver Review Division. The participant cannot ordinarily obtain the statement from the embassy and submit it personally.

When Should the No Objection Statement Be Requested?

The participant should ordinarily complete the online Form DS-3035 first and obtain the Department of State waiver case number. That case number allows the foreign embassy or government ministry to identify the correct waiver proceeding when transmitting the statement.

A No Objection Statement Does Not Guarantee Approval

The home government’s lack of objection is important, but it does not compel the United States to recommend or approve the waiver. The Department of State also considers the purpose of the exchange program, its funding, and relevant program and foreign-policy interests. The Department of State cautions that waiver applications involving U.S. government funding are generally denied when the reasons supporting the waiver do not outweigh the government’s program and foreign-policy interests.

Physicians Generally Cannot Use This Basis

A foreign physician who acquired J-1 status on or after January 10, 1977, to receive graduate medical education or training generally cannot obtain a waiver through a No Objection Statement. Such physicians ordinarily must qualify through another waiver theory.

2. Interested U.S. Federal Government Agency Request

A U.S. federal government agency may request a waiver when:

• The exchange visitor is working on a project or activity of interest to the agency;

• The participant’s continued involvement serves the public interest of the United States; and

• Requiring the participant to leave for two years would be detrimental to the agency’s program or activity.

The request must come from the federal agency. A private employer, university, research institution, or exchange visitor cannot simply characterize itself as the interested government agency. The head of the agency or an authorized designee must sign and submit the request directly to the Waiver Review Division.

What Must the Agency Explain?

The agency’s submission generally must explain:

1. Why granting the waiver is in the public interest of the United States; and

2. Why the participant’s required departure would be detrimental to the agency’s program or activity.

The existence of federal funding, a federal contract, or research that could theoretically interest the government does not automatically produce agency sponsorship. The practical challenge is frequently persuading an appropriate federal agency to review the case and agree to assume an affirmative role in the waiver process.

Physicians and Interested Government Agencies

Federal agencies may also request waivers for qualifying physicians who agree to provide medical services in underserved areas or, in certain cases, at federal facilities. Physician cases require additional documentation, commonly including:

• All Forms DS-2019 or IAP-66;

• The physician’s curriculum vitae;

• A qualifying employment contract;

• Evidence concerning the medically underserved area or patient population;

• Evidence of unsuccessful recruitment of a U.S. physician;

• Required declarations; and

• Attorney-representation documentation, if applicable.

The precise requirements depend upon the requesting agency and the physician’s proposed employment.

3. Persecution Waiver

A participant may seek a waiver by demonstrating that returning to the home country would expose the person to persecution because of:

• Race;

• Religion; or

• Political opinion.

These statutory grounds are narrower than the five protected grounds generally recognized in asylum law. Nationality and membership in a particular social group are not independently listed as grounds for a § 212(e) persecution waiver.

Form I-612 Is Required

A persecution-waiver applicant files Form I-612, Application for Waiver of the Foreign Residence Requirement, with USCIS. USCIS initially evaluates whether the applicant has established the required likelihood of persecution. If USCIS makes the necessary finding, it forwards the matter to the Department of State’s Waiver Review Division. The Waiver Review Division considers a favorable recommendation only after USCIS makes the persecution finding.

A Persecution Waiver Is Not an Asylum Application

A persecution waiver and an asylum application are legally distinct. They involve different statutory provisions, protected grounds, procedures, deadlines, benefits, and consequences. Evidence relevant to one proceeding may also be relevant to the other, but approval or denial of one does not necessarily decide the other. A participant should not treat Form I-612 as a substitute for analyzing possible asylum, withholding of removal, or Convention Against Torture protection.

4. Exceptional-Hardship Waiver

A waiver may be available when requiring the exchange visitor to satisfy the two-year requirement would cause exceptional hardship to the participant’s:

• U.S.-citizen spouse;

• Lawful-permanent-resident spouse;

• U.S.-citizen child; or

• Lawful-permanent-resident child.

Hardship to the exchange visitor is not independently sufficient. Parents, siblings, employers, fiancés, and other relatives are not qualifying relatives under this waiver basis.

Ordinary Separation Is Not Enough

The Department of State expressly warns that ordinary separation from a spouse or child does not establish exceptional hardship. The applicant must demonstrate consequences materially beyond the hardship normally expected when a family member must live abroad.

Both Family Scenarios Matter

A thorough exceptional-hardship case ordinarily examines two potential scenarios:

1. The qualifying spouse or child remains in the United States while the exchange visitor returns abroad; and

2. The qualifying spouse or child accompanies the exchange visitor abroad.

Potential evidence may address:

• Serious medical conditions;

• Mental-health or developmental needs;

• Availability and affordability of medical treatment abroad;

• Educational disruption;

• Disability-related services;

• Financial dependence;

• Loss of employment or health insurance;

• Caregiving obligations;

• Dangerous or unstable country conditions;

• Discrimination or legal restrictions affecting the qualifying relative;

• Language and cultural barriers; and

• The cumulative effect of multiple hardship factors.

No single hardship factor must necessarily carry the entire case. The strength of the application often depends upon documenting how several circumstances interact.

Form I-612 Is Required

Exceptional-hardship applicants file Form I-612 with USCIS. USCIS first determines whether the required exceptional hardship exists. If USCIS makes a favorable hardship finding, the case proceeds to the Department of State for its waiver recommendation.

5. Conrad State 30 Waivers for Physicians

The Conrad State 30 Program allows a designated state public-health department or equivalent agency to request a waiver for a qualifying foreign physician who received J-1 status for graduate medical education or training. Each state may sponsor a limited number of physicians during each federal fiscal year. States maintain their own filing periods, substantive priorities, documentary requirements, and methods of allocating waiver slots.

General Conrad Requirements

A qualifying physician generally must:

• Obtain an offer of full-time employment at a qualifying health-care facility;

• Agree to begin employment within the required period after receiving the waiver;

• Work at least 40 hours per week;

• Enter into a contract for at least three years of qualifying service; and

• Satisfy the applicable shortage-area or underserved-patient requirements.

Some states use “flex” slots for facilities located outside a designated shortage area when the facility serves a substantial number of patients who reside in qualifying areas.

State Sponsorship Is Discretionary

A qualifying job offer does not guarantee that the state will sponsor the physician. States may prioritize particular medical specialties, geographic areas, safety-net facilities, rural communities, or patient populations. Many states also impose filing windows and employer requirements beyond the federal minimums.

Home-Government Funding Can Add Another Requirement

If the physician’s exchange program received funding from the home-country government, the Department of State may also require a No Objection Statement specifically supporting the Conrad State 30 request.

The Service Obligation Matters

A Conrad waiver does not simply erase the two-year requirement without conditions. The physician generally accepts a substantial employment and service commitment in exchange for the waiver. Failure to begin or complete the required service can create serious immigration consequences unless a legally recognized exception applies.