J-1 Waiver Updates
Posted Jun 30, 2000
 
As some of you may be aware, several professionals at the Law Office of Sheela Murthy, P.C. attended the annual AILA (American Immigration Lawyers Association) conference held in Chicago, Illinois in mid-June 2000. One of this year’s hot topics was the recent (October 1999) merger between the U.S. Information Agency (USIA) and the Department of State (DOS). This merger has drastically affected J-1 waiver processing times and procedures.
 
Many persons in the U.S. on J-1 are subject to the two-year home residency requirement (HRR) found in section 212(e) of the Immigration and Nationality Act. Under 212(e), before a person on a J-1 with the HRR can change to nonimmigrant status (H1B or L1, for example), or adjust to permanent resident status, the J-1 person must either return to the country of last residence for two years or obtain a waiver of the HRR. Several factors determine whether or not one is subject to 212(e). These include funding by the U.S. or a foreign government; whether one's field of expertise is on the "skills list" for one's country; and whether the program involves graduate medical training (such as a residency program). 
 
There are a variety of options for waivers. The simplest procedure is through a letter of "no objection" from one's government, referred to as the No Objection Certificate, or "NOC." This process is not available to those in the U.S. for graduate medical training. Also, if one's government provided funding for the program, even if that government is willing to issue the NOC, the DOS will usually not grant the waiver. Other waivers can be issued through interested government agencies -- any U.S. federal government agency willing to take up the cause. Finally, waivers can be granted based upon hardship or fear of persecution. For medical doctors, there is also a waiver program through certain state government agencies, referred to as the CONRAD 20 Program.
 
Although most of the information discussed at the AILA panel on J-1 waivers has already been addressed in past editions of the MurthyBulletin, some new and interesting facts and figures have been issued regarding some of the more interesting waiver options: hardship waivers and interested government agency Waivers through the United States Department of Health and Human Services (DHHS).
 
The hardship waiver is rarely granted and should be considered carefully before it is selected as a waiver option. In 1998, the INS reported that only 50% of all hardship waivers were approved out of all cases received. 
 
The DHHS waiver is also among the most difficult to obtain. Joyce Jones, the Administrator of the Waiver Review Board at the DHHS, reported that only 40% of all submissions were approved and submitted to the Department of State for their recommendation. Three scientists from the NIH who are familiar with the applicant's field of expertise typically convene to discuss the merits of each case. Right now, an average case is estimated to take between 6 and 9 months to adjudicate at the DHHS. This is in addition to any necessary processing time with the DOS and the INS.
 
After the interested government agency considers the HRR waiver request, the file is then passed on to the DOS. The DOS recommendation goes to INS, which issues the final decision. Generally, the INS decision is aligned with the DOS recommendation.
 
The J-1 waiver has evolved into an extremely time-consuming process. The typical interested government agency case, such as the DHHS waiver mentioned above, can now take up to 9 months to adjudicate. Once the case reaches the DOS, processing times for interested government agency waivers are estimated at 4.5 months, and the hardship waiver at 8 months. If the DOS recommends a waiver, most INS Service Centers will take about 120 to 180 days to issue the final waiver approval. In sum, a waiver case can take about 2 years to obtain.