J-1 to Green Card is a common transition but it can be complicated by the residency requirement. Exchange visitors who are subject to the two-year home residency requirement are not allowed to apply for a Green Card unless the two-year requirement is satisfied, or a waiver is obtained.
J-1 Background
The J-1 visa allows foreign nationals to enter the US as an exchange visitor to receive training or participate in internships. At present, the are 15 exchange categories in which foreign nationals may participate. Participants may only engage in activities authorized for their program. Each year, approximately 300,000 foreign visitors from 200 countries and territories participate in the exchange visitor program. The Student and Exchange Visitor Program (SEVP) is part of US Immigration and Customs Enforcement within the Department of Homeland Security and manages the Student and Exchange Visitor Information System (SEVIS). SEVIS tracks and monitors nonimmigrant exchange visitors.
Does the Residency Requirement Apply?
The first step in determining if the residency requirement applies is to review the Certificate of Eligibility for Exchange Visitor Status. The Certificate of Eligibility is the basic document that supports an application for an exchange visitor. Only State Department-designated sponsors are authorized to issue a Certificate of Eligibility. Usually, the Certificate of Eligibility will state whether the requirement applies. However, the Certificate may be incomplete or contain inaccuracies. As such, it is helpful to further understand when the residency requirement applies.
A J-1 is subject to the residency requirement if he/she falls into one of the three categories below:
- International Medical Graduate: A physician who came to the US for the purpose of graduate medical education (ex: residency or fellowship).
- US or Home Country Funding: A J-1 whose participation was financed in whole or in part, directly or indirectly, by the US or by the government of his/her nationality or of last residence.
- Skills List: The J-1 participated in an exchange program in a field that is on the skills shortage list for the home country or country of last residence
When the residency requirement applies, the simplest route to a Green Card is for the J-1 to fulfill the requirement by returning to the country of citizenship or country of last residence for an aggregate period of two years. It does not need to be a continuous two years and brief trips to the US are allowed. After the requirement has been fulfilled, the individual can proceed with their Green Card application. However, practically, leaving the US for two years is often not an option. When fulfillment is not feasible, the J-1 should consider applying for a waiver.
J-1 Waiver
There are four primary grounds for qualifying for a J-1 waiver.
- Persecution: If in returning home, the J-1 would be subject to persecution on account of race, religion or political opinion.
- Exceptional Hardship: If departure from the US would impose exceptional hardship on a US citizen or Legal Permanent Resident spouse or child.
- No-objection: Country issues a non-objection statement regarding the J-1’s decision to remain in the US.
- Request by US Federal Executive Agency: An interested US agency shows that a waiver is in the public interest and that complying with the residency requirement would be detrimental to the interest of the agency.
There is also the Conrad 30 Waiver Program, which allows doctors who have completed the J-1 program to be exempt from the 2-year residency requirement. To be eligible for a Conrad waiver, the doctor must work in an under-served area within 90 days of receipt of the waiver and obtain a “no objection” letter from his or her home country if the J-1 program was government funded. The doctor must practice medicine full-time (40 hours per week) in the under-served area for at least three years. In March 2019, Amy Klobuchar (D-MN), Susan Collins (R-ME) and Jacky Rosen (D-NV) introduced legislation to extend the Conrad 30 program until 2021.
A more detailed review and analysis of the J-1 visa and waivers can be found in the Amazon Best-Selling book, Navigating US Immigration in Modern Times: A Review and Analysis of Work Visas. If you are preparing to make the transition from a J-1 to a Green Card and require assistance, book a phone call for your free consultation with a US immigration attorney.