New York J Waiver FAQs Attorneys

  • 1. Who is subject to the two year home residency requirement?
    • The J Visa holder is required to return to his or her home country or country of last residence if any of the following applies:
      • i. The program in which the visitor was participating was funded in whole or in part either directly or indirectly by the United States government or the visitor's home country's government.
      • ii. The visitor came to the United States to receive graduate medical education training sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG).
      • iii. The U.S. Department of State designated the visitor's specialized skill or knowledge as in short supply and necessary for development in the visitor's home country.
  • 2. On what basis can I obtain a waiver of the two year home residency requirement?
    • There are five bases to apply for a waiver of the two year home residency requirement. They are:
      • i. A no objection statement from the applicant's home country or country of last residency.
      • ii. A request from an interested government agency on the applicant's behalf stating that a waiver of the two year home residency requirement would serve the public good.
      • iii. A persecution waiver, stating that the applicant will be subject to persecution if he or she fulfills the two year home residency requirement.
      • iv. An exceptional hardship waiver claiming that fulfilling the two year home residency requirement would pose exceptional hardship to a U.S. citizen or permanent resident spouse or child.
      • v. A Conrad 30 waiver made on the applicant's behalf by a state public health department stating that the applicant will serve a medically underserved population (only applies to applicants who obtained J status for graduate medical training, residency or fellowship).
  • 3. What options does a J Visa holder have if a waiver application was denied?
    • If he or she qualifies, the J Visa holder has the option of moving forward with one of the other bases for a waiver of the two year home residency requirement. If the application was for exceptional hardship or persecution, the J Visa holder may also have the option to apply again through USCIS if he or she believes there is new information pertaining to the case.
  • 4. What is a no objection statement?
    • A no objection statement is an official diplomatic communication to the United States Department of State from a J Visa holder's home country which states that the home country does not object to the J Visa holder remaining in the United States and not returning for the two year home residency requirement. Each country has different rules and regulations concerning when or if they will issue no objection statements.
  • 5. Where do I request a no objection statement?
    • Contact your embassy in Washington, D.C. and request a no objection statement.
  • 6. Who can request a no objection statement?
    • Graduate medical student J Visa holders sponsored by the Educational Commission for Foreign Medical Graduates to do clinical training cannot apply for a waiver based on a no objection statement. All other J Visa holders may apply for a waiver on this basis.
  • 7. What is required to obtain a waiver under the Interested U.S. Government Agency basis?
    • The J Visa holder must apply directly to a federal agency willing to assert that fulfilling the two year home residency requirement would be detrimental to the federal agency and that waiving this requirement would serve the public interest.
  • 8. How does a J Visa holder apply for a waiver based on persecution?
    • The visa holder must apply to both USCIS and the U.S. Department of State and show a well-founded fear of persecution.
  • 9. What must a J Visa holder show in order to get a waiver based on persecution?
    • A visa holder must show that upon returning to his or her home country to fulfill the two year home residency requirement, he or she would be subject to persecution on account of either race, religion or political opinion. In order to show this, the applicant must show four things:
      • i. The J Visa holder possesses a belief or characteristic targeted by a persecutor who seeks to overcome this belief or characteristic by means of harm;
      • ii. The persecutor is already aware, or could easily become aware, that the individual possesses this belief or characteristic;
      • iii. The persecutor has the capability of harming the individual; and
      • iv. The persecutor has the inclination to harm the individual.
  • 10. What is required to obtain a waiver through the exceptional hardship basis?
    • In order to obtain a waiver based on exceptional hardship, the J Visa holder must show that complying with the two year home residency requirement would cause exceptional hardship to a U.S. citizen or lawful permanent resident spouse or child. Exceptional hardship, which must encompass more than the normal hardships expected when leaving the country or being separated from a spouse or child for two years, must be present in these two scenarios: (1) the U.S. citizen accompanying the J Visa holder to his or her home country and (2) the U.S. citizen remaining in the U.S. apart from the J Visa holder.
  • 11. What elements are considered in determining whether or not exceptional hardship exists?
    • Exceptional hardship means that the hardship experienced is more substantial than the hardship traditionally associated with a separation from a spouse or child for two years, or the hardship typically associated with the spouse or child leaving the U.S. for two years to accompany the J Visa holder during the two year home residency requirement. The following may be considered when determining if exceptional hardship exists:
      • i. Physical or mental conditions for which treatment is unavailable in the home country;
      • ii. Natural disaster or civil war in the home country;
      • iii. The need to stay in the U.S. to care for a dependent relative;
      • iv. The inability to provide financial support to family members if they stay behind in the U.S. or accompany the J Visa holder to his or her home country.
  • 12. Can a J Visa holder apply for a waiver on the grounds of both persecution and exceptional hardship simultaneously?
    • No, these two bases to obtain a waiver should be kept separate and should not be applied for at the same time.
  • 13. What options does a J Visa holder who was sponsored by the ECFMG for graduate medical training have to waive the two year home residency requirement?
    • A J Visa physician has two options to apply for a waiver of the two year home residency requirement.
      • i. First, he or she may apply for a National Interest waiver through one of five available federal agencies:
      • ii. A J Visa holder may also apply to a state department of health through the state's Conrad 30 program. This program allows for each state to recommend 30 J Visa physicians every year to the USCIS for a waiver of the two year home residency requirement. In exchange, the foreign doctor must agree to work for three years in a medically underserved area, as designated by the U.S. Department of Health and Human Services. The program is open to J Visa physicians who have completed a residency in one of the following areas of medicine: family practice, general practice, general internal medicine, psychiatry, obstetrics, or gynecology.