Extending Your Stay On A J-1 Visa

Waiving Section 212(E) Can Allow A Foreign National Extended Stay In The United States

The J-1 Visa is an international visitor visa granted to people who intend to participate in an approved program in the United States. At the end of their program, beneficiaries are required to return to their home countries for two years before visiting the U.S. or trying to change or adjust their status in the states. If a foreign national wishes to remain in the United States they will need to apply for an exemption from Section 212(e), which is the requirement that forces visa holders to go back to their home countries. An individual can successfully waive section 212(e) by obtaining a no objection letter from home country or filing a hardship waiver through Form I-612. If a person is unsure if they can qualify for a waiver they can make a written request to the Department of State for an advisory opinion. The basic process of all these different methods of waiving section 212(e) begins with filing a J visa waiver recommendation application. Doing so will create and reserve a case number for the waiver application.  

No Objection Statements Provided By Foreign Governments Can Be Used To Support A Waiver Claim

In trying to obtain a No Objection Statement, foreign nationals must first familiarize themselves with the unique process their government follows. Many nations require applicants to obtain multiple forms with official government seals and some other countries do not offer No Objection Statements at all. After submitting all the necessary documents to their home country, foreign nationals can be issued a No Objection Statement that states that their government does not have an objection to them not returning home and will not object if they wanted to become a lawful permanent resident of the United States. The statement must be issued directly from a foreign government through its embassy in Washington, D.C. to the Waiver Review Division and cannot be sent by an individual. Alternatively, it can be issued by a designated ministry in an individual’s home government and sent to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country to be forwarded to the Waiver Review Division.

Hardship-Based Waiver Can Help Foreign National Change Or Adjust Status In The United States

Form I-612 can be used as a waiver of the two-year foreign residence requirement of Section 212(e) based on exceptional hardship to exchange visitor’s spouse or children. A petitioner must provide evidence that a dependent holds U.S. citizenship or lawful permanent resident status and would suffer if the petitioner had to go back to his or her home country for two years. Cases are submitted directly to the BCIS who makes a preliminary judgment before sending it to the Waiver Review Branch. The strongest cases tend to include medical conditions; however, economic, political, religious and social issues can also qualify as extreme hardships and will be considered on a case-by-case basis.

Advisory Opinions Can Help Clarify If An Individual Is Obligated To Abide By The Two-Year Home-Country Physical Presence Requirement

Uncertainty of waiver eligibility can be clarified through an Advisory Opinion in which the Waiver Review Division helps determine if a person is subject to the requirement to go home for two years. With a written request, legible copies of very From DS-2019/IAP-66, and a self-addressed, stamped envelope a foreign national can receive an opinion from the Waiver Review Division in about 4 to 6 weeks.

J-2 spouse and children can also remain in the country if a waiver is approved

If a J-1 visa holder is granted a waiver, their dependents holding J-2 visas will automatically be given an exemption to stay in the U.S. In some cases, such as when a J-1 spouse dies, when the J-1 and J-2 couple divorces, and when a J-2 child turns 21, a J-2 visa holder can independently apply for waiver recommendations. Like with a J-1 waiver, each request is adjudicated on a case-by-case basis.

Interested in finding out more? This D’Alessio Law Group blog is here to educate our readers on all immigration topics but we understand that sometimes this can create more questions. Give our office a call at (310) 909-3934 or e-mail us at trendingnow@dlgimmigration.com for more information and we can book you a consultation with one of our attorneys!


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