J1 waiver - foreign government funding

[konrad89 4]

Is it correct that if a person is subject to 2-year home residence due to funding from a foreign (non-US) government, the no objection statement for a waiver has to be obtained from the country that has funded the exchange program regardless of the person‘s nationality or last legal permanent residence? For instance, I know someone who became subject to the rule because of funding from a country of which they were neither citizen nor permanent resident (just lived there temporarily). Then the right country to ask for a no objection letter is still the country that has funded the program, right? 

I guess this is the only reasonable interpretation of this rule, but I would be grateful if you could confirm.

[JeanneAdil 6,509]

 

Some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement. It requires you to return  home for at least two years after your exchange visitor program. This requirement is part of U.S. law, in the Immigration and Nationality Act, Section 212(e). If you cannot return home for two years, you must apply for a waiver. The Department of Homeland Security must approve your waiver before you can change status in the United States or receive a visa in certain categories.

 

What would be the reason for the waiver

 

check the USCIS site for such a waiver and select eligibility requirements

 

https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor.html

[konrad89 4]

To get an H1B... but my question was different. I know that if you receive non-US government funding, you can apply for a waiver based on no objection statement. I also know the procedure very well, etc. My question is if the letter has to be obtained from the country that has funded the program irrespective of the nationality or country of last permanent residence.

 

I hope there are here some real experts who can confirm that.

 

Apart from logic, also the law seems to clearly indicate that it is all about the country that has funded your program:

If the individual’s J status is based on 9 FAM 302.13-2(B)(1) paragraph a(2)(a) due to funding provided by the individual’s home government or 9 FAM 302.13-2(B)(1) paragraph a(2)(b), then the individual must complete the two-year residence in the country that funded the exchange program or that needs the specialized knowledge that the individual obtained.

 

[JeanneAdil 6,509]

https://www.lawfirm4immigrants.com/j-1-to-h1b-visa/

 

problems with H1b is there are numerical caps 

and 

Also, it is worth knowing if your J-1 visa status requires you to follow the two years home residency requirement. If so, you have to leave the country for that period before applying for the change of status.

 

local college student here from Saudi has a job offer and the employer wants to apply for the H1b but he still has to return for his 2 year residency before he can adjust 

 

but employer is getting the documents together now in hopes that he will be selected 

selected in the H1B lottery in order to begin the application process or have a prospective employer to be exempted from the cap.

.

[Coco8 1,042]

The No Objection letter would need to be from the country which passport you had the visa on. Though, I know of a case in which the country of origin of the person was in the Middle East; this person had lived in Germany for 9 years before getting the J1 visa, but did not had German nationality (I think they were refugees). The country of origin have no relations with the US and they would never produce a no objection letter, so this person was able to show that Germany was a proper country to provide a No Objection letter. I think this person had tons of documents and they had also done the undergrad in Germany, etc. etc.

[konrad89 4]

Quote

The No Objection letter would need to be from the country which passport you had the visa on

This is 100% WRONG! It depends on why you are subject and where was your permanent residence prior to entering the US! If you received funding from the country of last permanent residency it has to be FOR SURE that country! I am asking a different question. What if you are a national of country A, received funding from country B (but not the US), but you are not permanent resident of country B. I still think that you need a statement from country B because they funded your program. Your country of nationality has nothing to do with that because on what basis they could say they have no objection?? Country B can issue a no objection statement based on no objection letter received from your funding agency from country B.

 

I am just looking for confirmation that the country of funding is always the one that counts if the rule is imposed due to foreign funding.

 

[Marieke H 2,509]

It would help if you could be a bit more specific or, even better, if this person could create their own account here and provide the needed details.

 

Quote

(2)  (U) The following categories of exchange visitors (and their accompanying dependents in J-2 status) are subject to the foreign residence requirement:

(a)  (U) Individuals participating in an exchange program financed in whole or in part, directly or indirectly, by an agency of the U.S. Government, the individual’s home government (the government of the country of their nationality or last legal permanent residence), or an international organization which received funding from the U.S. Government or the their home government;

(b)  (U) Individuals whose exchange program involves an area of study or field of specialized knowledge that has been designated as necessary for further development of their home countries on the Exchange Visitor Skills List in effect at the time they were admitted to the United States in or acquired, J status; or

(c)  (U) Individuals who entered the United States to receive graduate medical education or training.

 

I assume this person is subject to the foreign residence requirement based on category (2)(a)? Where exactly did the funding come from? I find it hard to believe that a third country government would provide funding for someone who is not a citizen or permanent resident there and just happens to be there for a little while. Was it maybe coming from an international organization that receives funding from the US or their home country? Then the home country (country of nationality/last legal residence) would have to provide the no objection statement.

[konrad89 4]

Thank for your reply. So it is a fellowship financed by the government of a country, and the condition to receive is to reside there and be involved in scientific activity for a few years, but you don't have to be permanent resident. Since I see that you know the topic well, I would like to ask you about two separate cases:

 

1. My case - I was a permanent resident of that country (but not citizen) when I received that fellowship. I came directly from that country (I deregistered as a resident on the day of my flight to the US). My waiver is pending based on no objection statement which I obtained from that (funding) country - the embassy in D.C. of that country issued the statement based on no objection letter from the national funding agency. And I hope that in my case everything is obvious, and I did it correctly, right? I was a legal permanent resident of that country prior to coming to the US, I got funding from that country, and because of that I am subject to the 2-year rule. So, it is no brainer that the no objection statement had to be issued by that country, am I right? 

2. Case of my colleague - they received the same funding but they were not permanent resident of that country. Even on their passport, a consul printed another country (their country of origin) as an indication where the home residency can be fulfilled (I think it is because of lack of permanent residency in the funding country; side note: their country of nationality is not on the skills list, the 2-year rule is only because of government funding from the country they temporarily lived). But still, I think they (my colleague) should get a no objection statement from the country that has funded their program, don't you think so? It would be ridiculous to provide a no objection statement from the country that has nothing to do with that program, didn't pay a penny. If it doesn't work like that, my suspicion is that the consul made a mistake and my colleague is not subject to 2-year rule at all, as they didn't get funding neither from the country of nationality nor from the country of last permanent residence, not from the US government and not from international organization. So point (2)(a) interpreted literally does not apply here. Most likely though, the country my colleague received funding from would still be considered last permanent residency for 212(e) purposes, and the consul simply was not thorough enough - USCIS doesn't care about the annotation on the visa.

 

Anyway, I am trying to understand how it works. And from all the sources I found it looks like that in those case the funding country is your home, but I wanted to confirm. I would be grateful if you at least confirm point 1, that I did everything correctly, so I can stay calm and wait for the recommendation

[S9471 60]

1 hour ago, konrad89 said:

Thank for your reply. So it is a fellowship financed by the government of a country, and the condition to receive is to reside there and be involved in scientific activity for a few years, but you don't have to be permanent resident. Since I see that you know the topic well, I would like to ask you about two separate cases:

 

1. My case - I was a permanent resident of that country (but not citizen) when I received that fellowship. I came directly from that country (I deregistered as a resident on the day of my flight to the US). My waiver is pending based on no objection statement which I obtained from that (funding) country - the embassy in D.C. of that country issued the statement based on no objection letter from the national funding agency. And I hope that in my case everything is obvious, and I did it correctly, right? I was a legal permanent resident of that country prior to coming to the US, I got funding from that country, and because of that I am subject to the 2-year rule. So, it is no brainer that the no objection statement had to be issued by that country, am I right? 

2. Case of my colleague - they received the same funding but they were not permanent resident of that country. Even on their passport, a consul printed another country (their country of origin) as an indication where the home residency can be fulfilled (I think it is because of lack of permanent residency in the funding country; side note: their country of nationality is not on the skills list, the 2-year rule is only because of government funding from the country they temporarily lived). But still, I think they (my colleague) should get a no objection statement from the country that has funded their program, don't you think so? It would be ridiculous to provide a no objection statement from the country that has nothing to do with that program, didn't pay a penny. If it doesn't work like that, my suspicion is that the consul made a mistake and my colleague is not subject to 2-year rule at all, as they didn't get funding neither from the country of nationality nor from the country of last permanent residence, not from the US government and not from international organization. So point (2)(a) interpreted literally does not apply here. Most likely though, the country my colleague received funding from would still be considered last permanent residency for 212(e) purposes, and the consul simply was not thorough enough - USCIS doesn't care about the annotation on the visa.

 

Anyway, I am trying to understand how it works. And from all the sources I found it looks like that in those case the funding country is your home, but I wanted to confirm. I would be grateful if you at least confirm point 1, that I did everything correctly, so I can stay calm and wait for the recommendation

1. Yes. See above: the individual’s home government (the government of the country of their nationality or last legal permanent residence). Check your visa documentation (DS-2019) for details too.

2. Your colleague needs to obtain the no-objection from the country that is listed on his official visa documentation, regardless of which country provided the funding. If they listed the country of nationality there, that's where he needs to get the NOS. USCIS very much cares about what is written on the visa and the related papers that come with it, not what you think is the right country.

 

To make sure that you are not wasting your time and not filing paperwork and wait without resolution for months, it would be worth consulting with a legal professional that specializes in waivers - you can do that with a one-time fee, and you can Google for reputable professionals

Edited March 11, 2022 by S9471

[konrad89 4]

14 hours ago, S9471 said:

1. Yes. See above: the individual’s home government (the government of the country of their nationality or last legal permanent residence). Check your visa documentation (DS-2019) for details too.

2. Your colleague needs to obtain the no-objection from the country that is listed on his official visa documentation, regardless of which country provided the funding. If they listed the country of nationality there, that's where he needs to get the NOS. USCIS very much cares about what is written on the visa and the related papers that come with it, not what you think is the right country.

 

To make sure that you are not wasting your time and not filing paperwork and wait without resolution for months, it would be worth consulting with a legal professional that specializes in waivers - you can do that with a one-time fee, and you can Google for reputable professionals

Thanks for confirming point 1. 

Point 2 still feels very surprising to me. I am a bit skeptical that a consular officer can overwrite the law: If the individual’s J status is based on 9 FAM 302.13-2(B)(1) paragraph a(2)(a) due to funding provided by the individual’s home government or 9 FAM 302.13-2(B)(1) paragraph a(2)(b), then the individual must complete the two-year residence in the country that funded the exchange program or that needs the specialized knowledge that the individual obtained.
According to the law, the home country in this case is the country that funded the program, so NOS should be obtained from this country.

[Marieke H 2,509]

1 hour ago, konrad89 said:

Thanks for confirming point 1. 

Point 2 still feels very surprising to me. I am a bit skeptical that a consular officer can overwrite the law: If the individual’s J status is based on 9 FAM 302.13-2(B)(1) paragraph a(2)(a) due to funding provided by the individual’s home government or 9 FAM 302.13-2(B)(1) paragraph a(2)(b), then the individual must complete the two-year residence in the country that funded the exchange program or that needs the specialized knowledge that the individual obtained.
According to the law, the home country in this case is the country that funded the program, so NOS should be obtained from this country.

You are only focusing on part of this quote. The first part clearly states: if the J status is based on paragraphs a(2)(a) or a(2)(b), then the 2 year residence needs to be completed in the country that funded the the program or needs the specialized knowledge. Your colleague's J status is not based on either a(2)(a) or a(2)(b), so that rule about completing the residence in the country that funded the program does not apply here. I agree with @S9471 that they need to refer to their official visa documentation to determine where to request the NOS.

 

1 hour ago, konrad89 said:

According to the law, the home country in this case is the country that funded the program, so NOS should be obtained from this country.

This is incorrect. Nowhere does it state that the home country is the country that funded the program.

[S9471 60]

1 hour ago, konrad89 said:

Point 2 still feels very surprising to me. I am a bit skeptical that a consular officer can overwrite the law: 

In any proceedings with the govt, the consular officer's assessment is likely more accurate than yours, and will be treated as such. I will repeat what I said earlier - consult with a legal professional if you see yourself needing to interpret many different intertwining legal statements, short of you either digging a deeper hole for the immigration situation or just wasting time.

[konrad89 4]

1 hour ago, Marieke H said:

You are only focusing on part of this quote. The first part clearly states: if the J status is based on paragraphs a(2)(a) or a(2)(b), then the 2 year residence needs to be completed in the country that funded the the program or needs the specialized knowledge. Your colleague's J status is not based on either a(2)(a) or a(2)(b), so that rule about completing the residence in the country that funded the program does not apply here. I agree with @S9471 that they need to refer to their official visa documentation to determine where to request the NOS.

 

This is incorrect. Nowhere does it state that the home country is the country that funded the program.

Thank you. But if my colleague falls neither under (a)(2)(a) nor under (a)(2)(b), they shouldn’t be subject to the 2-year rule  the consul crossed government funding as a reason (and it’s neither US funding nor international organization). Anyway, I guess consular officers can do whatever they think and USCIS will take it seriously. Thanks for pointing this out.

 

@Marieke H Last request to you, could you please confirm that in my case (case 1) everything is fine? I was a legal permanent resident of that country prior to coming to the US, I got funding from that country, and because of that I am subject to the 2-year rule. On my visa the annotation is only: “Subject to 212(E)”, and on my DS-2019 I have the country that funded me as my legal permanent residence (I listed that country in the form I had to fill out for my international office, as that time I was a legal permanent resident of that country until moving out to the US - I had to deregister from the country on the day of my flight). So the NOS for my waiver had to be obtained from that country, correct? I did it and the case is pending.

[Marieke H 2,509]

1 hour ago, konrad89 said:

@Marieke H Last request to you, could you please confirm that in my case (case 1) everything is fine?

I cannot guarantee that "everything is fine" with your waiver application, but I believe your NOS was obtained from the correct country in your case.

[konrad89 4]

51 minutes ago, Marieke H said:

I cannot guarantee that "everything is fine" with your waiver application, but I believe your NOS was obtained from the correct country in your case.

Thank you so much!