Residence Requirements and Provisions for Waiver
The foreign residence requirement and provision for waiver are found in Section 212(e) of the Immigration and Nationality Act, and as amended by Public Law 91-225, enacted on 7 April 1970. The pertinent parts of this law as they affect the foreign residence requirement and provision for waiver are quoted as follows:
“(1) No person admitted under Section 101(a) (15)(J) or acquiring such status after admission:
(i) Whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the United States Government or by the government of the country of his nationality or of his last legal permanent residence;
(ii) Who at the time of admission or acquisition of status under 101(a)(15)(J) was a national or legal permanent resident of a country which the Secretary of State, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged [See the most recent “Revised Exchange Visitor Skills List”, at http://exchanges.state.gov/education/jexchanges/participation/skills_list.pdf; or
(iii) Who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until is established that such person has resided and been physically present in the country of his nationality or his last legal permanent residence for an aggregate of at least two years following departure from the United States.
(2) Upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency (or in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, pursuant to the request of a State Department of Public Health, or its equivalent), or of the Secretary of Homeland Security after the latter has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or that the alien cannot return to the country of his nationality or last legal permanent residence because he would be subject to persecution on account of race, religion, or political opinion, the Secretary of Homeland Security may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Secretary of Homeland Security to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, the waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184).
(3) Except in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, the Secretary of Homeland Security, upon the favorable recommendation of the Secretary of State, may also waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last legal permanent residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien. Notwithstanding the foregoing, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs (a) (2) and (e) of this section."
In accordance with the above law, the Department of Defense may, as an interested U.S. Government agency, submit requests for waivers to the Department of State, Waiver Review Division. The Department of State, Waiver Review Division reviews the request from the standpoint of policy, program and foreign relations implications. A favorable review results in a recommendation from the Department of State to the United States Citizenship and Immigration Services (USCIS). If USCIS concurs in the recommendation, USCIS notifies the individual directly that the waiver is granted and also informs him of further steps to be taken.
Department of Defense
Responsibility of Review of Waiver Requests
Waiver requests will be processed only for those individuals working on a Defense contract. The Office of the Under Secretary of Defense for Research and Engineering acts as a clearing house for waiver requests based mainly on the exchange visitor's potential contribution to research and engineering work in defense laboratories, universities and defense industry. The objective is to have a DoD focal point for information and referral purposes and to assure uniformity of review and judgment in the application of standards designed to protect the integrity of the Exchange Program and yet make it possible in compelling cases to retain persons of unique and outstanding qualifications whose services are urgently required for programs of significant official interest to the Department of Defense. It is clearly against national policy to use the Exchange Program as a recruitment source for critical specialists of exceptional caliber who have been tried and proven on the American scene. Additionally, the letter of support from the DoD agency or Service funding the contract must be detailed as far as the criteria below and signed by the agency head, Senior Executive Service (SES) appointee or flag officer (General/Admiral) of the sponsoring Service. It should also clearly state why it is of public interest for the applicant to be in the US and why it is mission critical for the Department of Defense. In accordance with this policy, each waiver request will be individually and strictly evaluated in terms of the following considerations and standards:
I. High priority character of the program or activity involved. The services of the exchange visitor should be needed on a high priority program of official interest to the Department of Defense. The documentary evidence submitted by the employer and supported by the sponsoring Defense activity should indicate the nature, scope, specialized personnel requirements and national security interests serviced by the program. Waivers should not be requested to overcome a local manpower shortage or a recruitment problem of an institution or firm.
II. Essential relationship of the exchange visitor to the program. The exchange visitor should be needed as a principal participant in the program or activity involved. The documentary evidence should clearly indicate specifically how the loss or unavailability of the exchange visitor's services would be seriously detrimental to the initiation, continuance, completion or success of the program or activity.
III. Critical qualifications of the exchange visitor. The exchange visitor should possess unique and outstanding qualifications, training and experience, including a clearly demonstrated capability to make original and significant contributions to the program. In the case of scientists and engineers, this generally involves specialized training at the doctoral or postdoctoral level for a position on the Department of Labor List of Critical Occupations; recognition of excellence and originality in the international scientific and engineering community and through professional publications; and abilities and skills that are urgently needed and not otherwise available.
IV. Need for special clearance for person on an official Exchange Program of the U.S. Government. In the case of an exchange visitor who came to the United States on an official Exchange Program of the U.S. Government, the documentary evidence should include information on satisfactory clearance with the sponsoring agency. For example, a recipient of a Fulbright Travel Grant through the Conference Board of Associated Research Councils needs to request their permission to forfeit the return potion of his grant and possibly to repay his travel to the United States. This will be determined by the Fulbright Commission in his own country which is generally reluctant to release a grantee from the pledge to give his country the benefit of his U.S. training for two years. If the Commission approves his request, the Conference Board will generally release him from his obligations to them as his Exchange Program sponsor.
V. Relevance of other factors. Consideration of waiver requests is not restricted to the professional aspects of the exchange visitor's present or potential contributions to programs of official Defense interest. Other relevant facts concerning the exchange visitor's nonimmigrant status, his commitment to return home, the attitude of his government, and the prospects for making effective use of the knowledge and capabilities acquired in the United States will be taken into account. The objective is to reach a sound and equitable Defense decision in terms of all relevant factors.
VI. Application of policy to exchange visitor's dependents. Waiver requests for an exchange visitor's dependents, when required, will be included in the Defense request on behalf of the exchange visitor. Normally, when granted, the waiver will apply to the requester and his dependents. The exception is when a wife is also an exchange visitor in her own right (J-1 status) and not as her husband's dependent (J-2 status), a separate fact sheet should be completed for her. In order for DoD to sponsor a waiver, she/he must be working on a Defense contract.
VII. Hardship waivers. Waiver requests based on the exceptional hardship provision of section 212(e) of the Immigration and Nationality Act should be made directly to the nearest District Office of the Immigration and Naturalization Service which has sole jurisdiction in such cases.
Obtaining waivers for Medical Doctors. Applications for a waiver of the two-year residence requirement must be processed through and endorsed by the interested Government Component's Surgeon General's Office. The USIA will not process the application without this endorsement.
Application Process and Checklist
Application with supporting documentation
Defense sponsor letter with contract # and title (MUST HAVE) and MUST be signed by SES or flag rank level (exception - applicant working in a Defense lab, Defense university, or Defense facility).
Copies of all DS2019 forms or formally IAP-66 forms must be included.
Copy of DS 3035 form and Third Party Barcode Page.
Full copy of the applicant's passport is requested (all pages).
The U.S. Exchange Visitor Program
During the post-war period, the International Educational Exchange Program has increasingly become one of the most creative and valuable means of international cooperation and mutual assistance between the U.S. and over 100 countries participating in the program. U.S. policy and support for the program are set forth in the Mutual Educational and Cultural Exchange Act of 1961 (75 Stat. 535). Under the auspices of the Exchange Program, large numbers of foreign nationals come to the U.S. as students, visiting professors, lecturers and research scholars for educational assignments in U.S. colleges, universities, hospitals and industrial laboratories. As part of the same program an increasing number of U.S. faculty members and students go on educational assignments to foreign countries.
The U.S. scientific and engineering community and the Department of Defense, particularly through its extensive program of basic research contracts with universities, have benefited substantially from the doctoral and postdoctoral research of the foreign exchange scientists and engineers associated with these contracts. Defense industry contractors have also gained substantially from the participation of these highly qualified exchange scientists and engineers in industrial research and development programs during the 12-18 month practical training period generally permitted exchange visitors upon the completion of their academic studies.
Basic to the integrity and success of the Exchange Program is the fulfillment of the commitment that exchange visitors return home at the completion of their program and utilize to the benefit of their own countries the knowledge and skills acquired in the U.S. Scientific and engineering talent is an important national asset which participating countries lose, and can ill afford to lose, when their gifted students and research scholars wish to remain in the U.S. and are encouraged to do so by Americans.
Applications should be completed and forwarded with appropriate documentary evidence through a sponsoring Department of Defense activity to:
Office of the Under Secretary of Defense for Research and Engineering
ATTN: Dr. Bindu Nair, Basic Research Office
4800 Mark Center Drive, Suite 17E08
Alexandria, VA 22350-1401
Please notify the J-1 Program via email to confirm that your package has been mailed. Please send your confirmation email to the following mailbox: email@example.com
Note: Do not send your full application to this mailbox.
For further information, please contact the DoD J1 Visa Waiver Program Mailbox:
If using a commercial carrier (i.e. FedEx, UPS, DHL), use the zip code 22311