Here’s another edition of “Dear Sophie,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder, or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
I’m a Fulbright Scholar on a J-1 visa. I’ve been told that after my J-1 ends, I’m required to return to my country for two years.
Is there a way I can stay in the U.S.? Can I apply for an O-1A or green card even if I have to go back to my country?
— Seeking to Stay
Summary: You can file for a waiver of the two-year home country residency requirement under certain circumstances. However, Fulbright scholars and students very rarely receive waivers. If the waiver is granted, an employer can sponsor you for a non-immigrant work visa, but once your J-1 expires, you must leave the U.S. and return to your home country if the work visa is still pending. You can apply for an EB-1A extraordinary ability green card or an EB-2 NIW green card from your home country. To find out how to build a strong case for these green cards, register for our Extraordinary Ability Bootcamp course. Use code DEARSOPHIE for 20% off.
Full Dear Sophie article:
Congrats on joining the ranks of the Fulbright Scholars! You’re in great company: 61 Fulbright alumni have gone on to become Nobel Laureates. Being selected for the highly-competitive, highly-prestigious Fulbright Scholar Program is a great accomplishment that will likely bolster an eventual green card application!
However, being a Fulbright Scholar also comes with a cost – I have never seen a Fulbright Scholar get a 212(e) waiver for the J-1 two-year foreign residency requirement. 😂🙏 (If you are a Fulbright scholar who got the waiver approved, please message me!)
I recently chatted with Anthony Pawelski, the senior international advisor at Mass General Brigham, which consists of 16 institutions, including Harvard- and Tufts-affiliated teaching hospitals. In that role, Pawelski prepares thousands of J-1 and other non-immigrant visa applications each year. He says he has only had a few experiences getting a waiver granted for a Fulbright scholar. In one instance, the scholar had a child with special needs who was a U.S. citizen and needed care that is only available in the United States. Even waiver requests for Fulbright scholars that were filed by NASA and the National Science Foundation have been denied.
Pawelski also notes that India will not support J-1 waivers for medical doctors educated in India and that Thailand and the Philippines are very strict about supporting waivers.
Before I share more about your visa and green card options to work in the U.S. after your exchange visit ends, here’s a primer on the J-1 two-year home residency requirement and the process to seek a waiver for those who are eligible. A word of caution: the J-1 is very clearly a nonimmigrant intent visa, so people who have the intention to seek a green card or live permanently in the U.S. are denied for J-1 visas.
Two-year home residency requirement
As you probably already know, the J-1 educational and cultural exchange visa has several benefits, such as being open to individuals in a range of fields and allowing a J-1 spouse to apply for a work permit. While the benefits of the J-1 can far outweigh the drawbacks, the biggest limitation of the J-1 can be the one you’re facing: the two-year home residency requirement. Section 212(e) of the Immigration and Nationality Act requires some J-1 recipients to return to their home country for at least two years after their J-1 program ends before they can get certain visas, such as an H-1B, or a green card.
The two-year home residency requirement applies to individuals who participate in a J-1 program that:
- Is funded all or in part by:
- the U.S. government,
- your home country’s government,
- or an international organization that receives funding from either the U.S.
- or your home country’s government.
- Involves study, training, or skills in a field that your home country deems important.
- That provides graduate medical education or training.
The Fulbright Scholar Program is funded by the U.S. government, so all Fulbright scholars and students are required to return to their home country for at least two years after the conclusion of their exchange to actually bring back the knowledge and experiences they have gained and share them with others.
Individuals who are subject to 212(e) cannot change their status to another visa or green card while they’re in the United States.
J-1 212(e) Waiver
Individuals who are subject to 212(e) can apply for a waiver recommendation from the U.S. Department of State Waiver Review Division online based on certain situations. If the Waiver Review Division approves, they will send a recommendation to U.S. Citizenship and Immigration Services (USCIS) to grant a waiver.
For people considering trying a 212(e) waiver application, I recommend you work with an experienced immigration attorney. A waiver may be granted based on one of the following:
- No Objection Statement:
- If your home country’s government is fine with you remaining in the U.S. and possibly becoming a permanent resident of the U.S., your attorney can request they send a No Objection Statement either through its embassy in Washington, D.C., to the U.S. Department of State Waiver Review Division or to the U.S. Embassy in your home country. Foreign medical physicians are ineligible to use the No Objection Statement waiver.
- Interested Government Agency Waiver:
- If you are working on a project of significant interest to a U.S. government agency and your departure for two years would be detrimental to the project, then that agency may request a waiver on your behalf.
- Persecution Waiver:
- If you believe you will be persecuted based on your race, religion, or political opinion if you return to your home country, you can apply by submitting Form I-612 (Application for Waiver of the Foreign Residence Requirement) and the filing fee directly to USCIS. USCIS will send its decision to the Waiver Review Division.
- Exceptional Hardship Waiver:
- You may apply for this waiver if you can show you’re leaving the U.S. would cause hardship for your U.S. citizen or permanent resident spouse or child. Hardship due to separation is not enough to qualify. To apply for this waiver, you must submit Form I-612 and the filing fee directly to USCIS. USCIS will send its decision to the Waiver Review Division.
- Conrad State 30 Program Waiver:
- If you are a foreign medical graduate who obtained a J-1 visa for graduate medical training or education, a State Public Health Department can request a waiver on your behalf. You must also have a full-time job offer at a healthcare facility in an area that has a shortage of healthcare professionals, agree to take the job at that facility within 90 days of receiving a waiver, and sign a contract to work there for 40 hours per week and at least three years.
How to navigate a visa and green card
I’ve helped many people obtain O-1A visas to work in the U.S. after their J-1 program ended, or even green cards, even if they are subject to the two-year foreign residency requirement and even if they can’t get a waiver.
If you are eligible for a work visa, such as an O-1A (but not H-1Bs, K-1 fiance visas, or green cards), consular processing of the nonimmigrant visa is required if you are subject to 212(e). To make progress toward fulfilling the two years of foreign residence, it’s very helpful to make a plan to work remotely for extended periods in your country to accrue time (you can add time on separate trips together, and it doesn’t expire).
If you move back to your country to fulfill the two-year residency requirement, you can probably start the green card process pretty soon if you qualify. Often Fulbright scholars will self-petition an EB-1A extraordinary ability green card or an EB-2 NIW (National Interest Waiver) green card, which is typically a process that will take at least a few years. You can start the immigrant visa application process once the I-140 petition is approved and your 212(e) requirements have been waived or fulfilled.
Neither the EB-1A nor the EB-2 NIW petitions require an employer to sponsor you or even a job offer. Check out this previous Dear Sophie column in which I provide more detail about these green card options.
Again, I recommend you consult an immigration attorney who can evaluate your situation and prospects for each pathway.
You’ve got this!
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
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