Subject: Immigration (USA) FAQ: J Visa questions and answers (part 4 of 6)
Date: 16 Mar 1996 08:15:50 -0500
Summary: Frequently Asked questions for alt.visa.us,misc.immigration.usa (J Visa)
Cc: 

Last-Modified: 25 January 1996

Currently, the USA Immigration FAQ is maintained by 
Rajiv S. Khanna [rskhanna@immigration.com]

Many FAQs, including this one, are available via FTP on the archive site
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        send usenet/news.answers/us-visa-faq/part4
in the body of the message.

Please see part1 of this faq for standard disclaimers.

If you have access to the Web you can also access the FAQ  
http://www.immigration.com

Individuals are encouraged to submit corrections, questions and answers 
to rskhanna@immigration.comt directly.  In many answers below, submitters are 
noted in parentheses at the beginning of comments.  (Comments may be 
slightly edited.)

"WE CLAIM NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. 
APPLICATION OF LAW CAN VARY  DRASTICALLY ACCORDING TO THE FACTS OF A
PARTICULAR CASE.  THE FAQ IS NOT  MEANT TO BE SPECIFIC LEGAL ADVICE.  IT IS
ONLY A STARTING POINT.  MUCH OF THE INFORMATION CONTAINED IN THE FAQ IS
PROVIDED BY LAYPERSONS.  PLEASE USE YOUR OWN JUDGMENT."

Questions marked with a + indicate questions new to this issue; 
those with significant changes of content since the last issue 
are marked by *:

                      J Visa
                      ------

Note that not all J1 visa holders are subject to the two-year home
residency (HRR) requirement.  Examine your IAP-66 form (bottom left
corner) and the visa stamp in your passport.  You are generally
subject to the HRR if you at any time accepted money from either your
home government or (particularly) the US government or if you are on a
special skills list (medical doctors in particular).  The home
residency requirement aims to protect the home government and the
goals of the exchange agreement.

If you changed schools, funding agencies, etc., you may have a
checkmark that the requirement does not apply on your current visa
stamp or IAP-66.  However, "once subject to the HRR, always subject",
i.e., thus, this does not help.

[modified by rskhanna@immigration.com]
Q: On what grounds can I get a waiver?
A: 1) AT the request of a U.S. government agency (NASA, NSA, CIA, ...)
   If a U.S. govt. agency declares an interest in you and petitions the USIA to waive
   the HRR. Could be a very good avenue if you work for that
   agency or do security-related work.

[modified by rskhanna@immigration.com]
   2) extreme hardship to  U.S. citizen or Green Card holder spouse or
child:  This is a good option if the ehardship is likely to be
extraordinary.  Mere desettlement or economic loss may not be sufficient.

   3) political persecution; residents of European countries might
   not want to pursue this. Residents of the PRC have a blanket
   waiver (Pelosi bill?).

   4) NORI/no-objection: the home government issues a statement
   of no-objection; seems to be the common and successful approach
   for Indian citizens.

[modified by rskhanna@immigration.com]
Q: Who makes the waiver decision?
A: It is a combined decsion by USIA and INS (with much weight being given
by INS to the decision of USIA).

Q: What's a NORI?
A: "No obligation to return"; also known as a "no-objection"
   statement. Issued by the home government, usually through their
   consulate. Issued routinely by most European countries, but
   may not help a lot (see next question).

Q: If I get a NORI, will I get a waiver?
A: No. The NORI is a necessary condition (for this particular form
   of waiver), but not sufficient. Generally, the determination is
   up to the USIA. Fulbright students can generally forget a waiver
   unless they fall below the threshold (see next question).

Q: Is there a threshold of money received below which a waiver is
   automatically granted?
A: No, but if you received less than $2000, you at least have a
   chance.  Fulbright grantees' applications have been known to be
   rejected even with grants below that, on the argument that the
   program itself, beyond monies expended on behalf of an individual,
   push each individual above that limit.  Above that limit, you can
   only hope to be from the PRC, or use the other avenues described
   above.

Q: Can I pay back the money I got and get out of the HRR?
A: No. In this respect, Fulbright grants differ from all other
   college grants, which, if you don't live up to your end of the
   bargain, at worst forfeit the loan waiver.

Q: Does marriage to a US citizen help?
A: No. If the US citizen was dumb enough to marry a J1 visa holder,
   her/his problem. (see 'extreme hardship' for unlikely exception).

Q: How do I go about applying for a waiver?  Do I have to work for 
    the sponsoring agency?
A: [From Isidore Rigoutsos, rigoutso@watson.ibm.com]
   It is *not* true that you have to work for the sponsoring agency.  Of 
   course, if you do work for them it helps.  More specifically, the 
   following can happen: one works for a certain company doing research or 
   other work that will lead into the development of a product or of a 
   technology that will give the US a market edge  or a technological edge.  
   Clearly, any such claim will have to be backed up by company statements, 
   descriptions, recommendation letters etc. Then, an alternative route is 
   through the Department of Commerce.  The latter will examine the case and 
   decide whether they want to apply for a waiver on your behalf with USIA. 
   Actually, that was my case; I am currently in the period where USIA has 
   recommended the waiver to INS but the latter have not yet decided. In case 
   you are wondering about the type of my research, I do work on 
   computational/molecular biology and pattern matching.  Two more alternatives
   that I know of are waiver applications sponsored by the Department of Health
   (for those that are in health science fields), and by the Department of
    Defense.
   

Q:  How long does the whole process take?
A: [From Isidore Rigoutsos, rigoutso@watson.ibm.com]
     The period between the day you file with the Department of Commerce and 
     the day USIA makes a decision is in the order of 4 months.  To this one 
     should add an overhead of 3 months or so during which period one is 
     preparing the application package: supporting documents, recommendation 
     letters, etc.

Q: Do I need to hire a lawyer to apply for a waiver?
A: [From Isidore Rigoutsos, rigoutso@watson.ibm.com]
   Probably not a good idea given that the necessary overhead (paperwork) is
   probably more than one can handle.

[modified by rskhanna@immigration.com]
Q: When can an interested U.S. Govt. agency sponsor me for 
   a waiver of the HRR?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   In most cases, you need to work directly for the interested Government
   agency or work for them through a contractor.

Q: Can I get an extension of my J-1 visa status if I apply for a
   waiver of the HRR?
A: [From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil]
   An extension of the J-1 status is possible if the extension is
   requested before you apply for a waiver. If the USIA has any proof
   of intent to abandon the exchange program, the J-1 status extension
   will be refused.

Q: Can I change my visa status from J-1 to O-1 (temporary alien
   worker of extraordinary ability) if I am subject to the HRR?
A: [From Muralidhar Rangaswamy, rangaswamy@plh.af.mil]
   In a recent change to the law, the INS in their release of
   August 30, 1994 specifically addressed this issue. The rule
   pertaining to section 212(e) of the Immigration and Nationality
   act now includes the O-1 visa status as well. Therefore, the
   answer to the above question is definitely NO.

Q: Can an interested U.S. Government agency sponsor me for 
   a waiver if I work for a private company?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   Certainly. Your company needs to demonstrate that by hiring you, 
   the USA gets a technological or market edge. Relevant documents 
   should be submitted to the Dept. of Commerce which will then make 
   a decision to sponsor you or not.

Q: If an interested U.S. Govt. agency sponsors me, will I get a waiver?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   I am not aware of anyone who has been refused an IGA 
   (Interested Govt. Agency) waiver.

Q: How long does it take for me to obtain the waiver once I submit 
    my papers to the interested Govt. agency?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   Approximately 4-6 months (There is no standard time frame though).

Q: What is the procedure followed in an IGA waiver?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   You first submit the necessary forms and supporting documents to the 
   interested U.S. Government agency. If they decide to sponsor you for 
   a waiver, they send their recommendation to the USIA directly and 
   advise you of their action. The USIA sends you a `Data Sheet' which you 
   need to complete for their review. The USIA then makes a recommendation 
   to the INS to grant the waiver or otherwise.

Q: How often can I apply for a waiver?
A: Every six months.

Q: What happens after the USIA makes a favorable recommendation for
   the waiver of the HRR?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   The USIA forwards its recommendation directly to the local INS 
   office (the one listed in your data sheet). The immigration then 
   sends you a notice form I-797C indicating the receipt of the 
   recommendation and informs youthat it takes 30-60 days to 
   process your case.

Q: Do I need to submit additional documents to the INS for the waiver?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   No. Just sit back, relax and await the final letter from the INS.

Q: How long does it take for the INS to grant the waiver?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   Usually 30-60 days from the date the INS receives the USIA's 
   recommendation.  In my case, the INS received the USIA's 
   recommendation (dated March 23, 1994) on April 25, 1994. I 
   received the final waiver letter from the INS (dated June 2, 1994) 
   yesterday. Therefore, it is approximately 6 weeks processing time.

Q: Can I petition for change of status from J-1 to H-1 as soon as I 
   receive the USIA's recommendation or do I need to wait for the final 
   waiver from INS?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   You don't have to wait for the final waiver from INS for petitioning 
   for the change of status. You can do it as soon as you receive a favorable
   recommendation from the USIA.

Q: Has anyone been refused a waiver by the INS after the USIA has made a
   favorable recommendation?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   I don't know of any such case. INS usually accepts the USIA's 
   recommendation.

Q: I have already been denied a waiver based on a "no objection" statement.
    Will it help me get a postive response to an application based on a
    "no objection" statement if I am able to demonstrate that a University
    is interested in hiring me?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   Your employer can write a supporting letter and make you the 
   beneficiary of a petition with an interested U.S. Government agency. 
   The interested U.S. Government agency can then sponsor you for a waiver.

Q: How likely is it that a philosophy gradute will be able to get a waiver
    by having a University tell the Department of Education they need his or 
    her services and "having" the Department of Education apply to USIA?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   The University must demonstrate through extensive documentation that by
   hiring you, the U.S. will get a significant edge in terms of your 
   contributionsto the education field or the lack of your efforts would 
   significantly impact the successful completion of a project of great 
   interest to the Department of Education.

Q: Can I accept a tenure track university position under the premise that
    I will complete the first 18 months on a J-1 visa as practical training, 
    then return to home country for 2 yrs, and then come back?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   I don't see why not. However, for you to come back, you must ensure that 
   one of the following happens
   (1) Your employer is willing to wait for 2 yrs and keep the position 
       open and is willing to sponsor you for an H-1 visa for you to return 
       to the USA.
   (2) You have applied for a waiver of the HRR (and you are reasonably 
       certain to get it). Then you can have your employer sponsor you for 
       an H-1 visa.

   If I was in your situation, I would pursue the second option. Try for a 
   waiver while you are on the practical training and convert to the H-1 visa. 
   There is alegislation (to be decided on in July 1994) submitted to the U.S. 
   congress seeking significant changes to the approval and adjudication of 
   H-1 petitions. If this goes through, obtaining H-1 visas will be more 
   difficult.

Q: If I win a green card in a lottery, am I no longer subject to HRR?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   Once subject to the HRR, always subject. Therefore, even if you win the
   lottery, you cannot change status to permanent residence until you submit
   evidence that
     (1) The 2yr HRR has been waived.
     (2) You have served the 2yr HRR sentence.

Q: One can not appeal a denial to an application for a waiver based on a
    "no objection" statement. Can one apply again on the same grounds?
    Is there any hope of success in such a case?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
   Don't know about this one. The law merely says that you can apply for a
   waiver every 6 months. I don't know if there is a restriction on the
   # times you can apply. Also, I am not sure if you can apply on the same 
   groundsmore than once. You may want to consult an attorney.

Q: Will it help me to get a waiver to switch to F-1 visa (rather than 
    just to a different sponsor)?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
.[modified by rskhanna@immigration.com]
   Changing status to F-1 will not help.

Q: I am a PH.D student in the humanities. After I finish my studies, how 
    long is my practical training period on J-1? 18 months? 3 yrs?
A: [From Muralidhar Rangaswamy, RANGASWAMY@zircon.plh.af.mil]
    Not sure about this one too.

Q: What do I need to show after the two years to prove that I 
   resided and worked in my home country?
A: Good question. Anybody know?

Q: Can I apply for H-1B, permanent residency, etc. while serving the
   HRR?
A: Yes. The visum will be issued the day your two years are up. This
   is particularly advisable for those who can get visas without
   labor certification (family preference). You can apply at the
   US consulate in your home country.

Q: Can I visit the United States while serving my two-year sentence?
A: Yes, but the time is (supposedly) subtracted from your residence time.
   Vacation in a third country is o.k.

Q: Do I have to return to my home country?
A: Yes. More precisely: country of citizenship or last residence
   prior to entering the United States.

Q: Can I reside in my home country and work in another country?
A: Currently not. Apparently, there are rumblings about making
   residency and work in any of the European Community countries
   equivalent, but that has not happened. 

[modified by rskhanna@immigration.com]
Q: Can I work for a company of my home country in another country?
A: Not sufficient.

Q: Does writing to your congress person help?
A: No, you just get a longer letter of denial.

Q: What is USIA's address?
   [from Michael Galperin, MYGALP01@ulkyvm.louisville.edu]
A: YOU DON'T WRITE TO USIA. It is done either by your embassy or by 
   interested US agency (NIH, DHHS, DOE etc). Anyway, the address is 
   (courtesy of our International Center):
 
        US Information Agency
        Office of the General Counsel
        Waiver Review Office
        Washington DC 20547
        Phone (202)-475-2385 

Q: Does a J1 have any advantages?
A: Yes. You get 36 months of practical training (instead of 12 months
   for an F1). Also, your spouse may work on a J2 visa during your
   stay after getting permission from INS.

Q: What constitutes intent to abandon the exchange program?
A: [From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil]
   Any of the following 5 conditions is sufficient proof of intent to
   abandon the exchange program.
   (1) The USIA receives through diplomatic channels a no-objection
       statement from the J-1 holder's home government.
   (2) The USIA receives a statement from the INS stating that the
       J-1 holder or his/her U.S. citizen (or permanent U.S. resident)
       spouse will be subject to considerable hardship on account of the
       HRR.
   (3) The USIA receives a statement from the INS stating that the
       J-1 holder will be persecuted in his/her home country on account
       of his/her political or religious beliefs.
   (4) The USIA receives a statement from an interested U.S. Government
       agency stating that the imposition of the HRR would be detrimental
       to its interests and therefore, requesting a waiver on the J-1
       holder's behalf.
   (5) The USIA receives a completed data sheet from the J-1 holder.

Q: What are the consequences of seeking an extension of the J-1
   status if the J-1 holder has shown proof of abandoning the exchange
   program?
A: [From Muralidhar Rangaswamy, rangaswamy@zircon.plh.af.mil]
   The program sponsor will either object to the waiver or refuse the
   extension of the J-1 status (The program sponsor will not issue a
   new IAP-66 needed for the extension in most cases. I have known of
   one case where the sponsor objected to the waiver.). This is because
   the sponsor will be threatened with exclusion from the exchange
   program list of the USIA, if they act otherwise.

Q: Is the J-2 visa holder (spouse and children of a J-1 visa holder) 
   subject to the 2-year home residency requirement, too?
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
   Yes

Q: I am a graduate student on J-1 visa. Do I need to have a secured job 
   in USA in order to apply for a waiver?
A: [from Rajiv S. Khanna, rskhanna@immigration.com]
   No

-----------------------------------------------------------------
Rajiv S. Khanna                         Voice: (202) 466-2113
LAW OFFICES OF RAJIV S. KHANNA  Email: rskhanna@immigration.com  
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Washington, DC 20036-3403       Home Page: http://www.immigration.com 
-- 
Rajiv S. Khanna                         Voice: (202) 466-2113
LAW OFFICES OF RAJIV S. KHANNA  Email: rskhanna@immigration.com  
1129 20th Street, NW, Suite 400        rskhanna@businesslaw.com
Washington, DC 20036-3403       Home Page: http://www.immigration.com 
