By Licelle Cobrador, Esq.
New York – The Taliban gained control of Afghanistan’s capital mid-August while the world watched helplessly. Thousands of Afghans fled the country. The U.S. military evacuation efforts concluded on August 30, 2021.
Although the Taliban promise freedom for women in the realms of education and employment, older girls have not returned to school, no women are in senior government positions and the Women’s Ministry has been shuttered. Moreover, they have stated, women could only do odd jobs.
Amnesty International has listed numerous human rights violations committed by the Taliban, including targeted killings and blockading humanitarian supplies. In fact, Afghan journalists, academics, journalists, civil society activists and women human rights defenders are at serious risk of Taliban retaliations.
Incidentally, there were Afghan J-1 students who consulted us concerning their immigration options. How does this development affect Afghans in America with J-1 status? Most, if not all, of them can no longer go back to Afghanistan. Hence, this primer on the J-1 waiver.
J-1 visa holders are exchange visitors intending to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing conducting research, consulting, demonstrating special skills, receiving training or graduate medical education or training. An exchange program designated as such by the U.S. Department of State/ DoS sponsors J-1 nonimmigrants. These programs are designed to promote the interchange of persons, knowledge, and skills in the fields of education, arts and science. Exchange visitors include (and are not limited to) the following: professors or scholars, research assistants, students, trainees, teachers, specialists, au pairs and camp counselors.
Two-Year Home Country Physical Presence Requirement
Some J-1 exchange visitors are subject to the two-year home country physical presence requirement. A J-1 visa holder would be subject to such requirement if one or more of the following applies: 1) Government funded exchange program –whether in whole or in part (this includes an international organization that received funding from the U.S. government or your home country’s government); 2) Specialized knowledge or skill identified as necessary for further development of your home country and appears on the Exchange Visitor Skills list of your home country; and 3) Graduate medical education/ training.
Program sponsors normally inform exchange visitors about this requirement. They’re also made aware of the same during the visa interview. If there’s uncertainty as to whether the requirement applies, a request for advisory opinion could be made to the DoS, Waiver Review Division/ WRD.
Consequences of Being Subject to the Requirement
If the two-year home country physical presence requirement applies, it means the
J-1 exchange visitor must return to her or his home country for a cumulative total of two years. There is no prohibition from traveling tot the United States or other countries. However, the following cannot be undertaken until the requirement has been satisfied: 1) Change status in the United States to a nonimmigrant temporary worker (H visa) or intracompany transferee (L visa); 2) Adjust status to immigrant visa or lawful permanent resident status (LPR); 3) Receive an immigrant visa at the U.S. Embassy or Consulate abroad; or 4) Receive a temporary worker (H-1 visa), intracompany transferee (L-1 visa) or fiancée or fiancé visa (K-1 visa).
Bases for the Waiver
J-1 exchange visitors subject to the two-year home country physical presence requirement and are unable to fulfill it may apply for a waiver to the DoS, WRD for a recommendation that the USCIS grant the waiver.
The five bases for a waiver recommendation are:
1) No Objection Statement/ NOS – the home country of the J-1 visa holder issues the NOS through its embassy in Washington, DC directly to the WRD stating that it has no objection to the non-fulfillment of the two-year-home-country physical presence requirement. The NOS may also be issued by a designated ministry in the home country’s government and transmitted to the U.S. Chief of Mission, Consular Section of the U.S. Embassy within that country. Note that this is not available for those who received graduate medical training sponsored by the Educational Commission for Foreign Medical Graduates;
2) Interested Government Agency/IGA Waiver –a U.S. government agency may request the waiver stating that the J-1 visa holder’s (employed by the agency) departure for two years would be injurious to the agency’s interest;
3) State Health Department Waiver (also known as Conrad 30 Program Waiver) –a foreign medical graduate who received a J-1 visa to pursue graduate medical training or education could request a waiver based on the request of a designated State Public Health Department or its equivalent if the following are met: a. offer of full-time employment in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area; b. agreement to begin employment within ninety (90) days of receiving the waiver; and c. signed contract to continue working at the aforementioned for a total of forty (40) hours per week for not less than three (3) years.
4) Persecution Waiver – this could be filed if the J-1 visa holder would be persecuted on the basis of race, religion or political opinion if forced to return to the home country. This is akin to persecution in the asylum context; and
5) Hardship Waiver – the U.S. citizen or legal permanent resident/ LPR spouse or child of the J-1 visa holder will experience exceptional hardship due to her or his departure from America. Mere separation from family will not be enough to sustain hardship. Hardship here refers to a combination of medical, psychological, extreme financial or sociocultural.
As a general rule, the Afghan students who received a Fulbright scholarship or a Department of State scholarship to attend a university in America under a J-1 program will not be able to obtain a No Objection Waiver. The WRD will contact the U.S. agency program sponsor and they will inquire as to whether the agency objects to the waiver. The WRD usually recommends against issuing a No Objection Waiver if the J-1 program was financed in whole or in part by the U.S. government.
As a practical matter, they could qualify for the Persecution Waiver. They could also file for asylum under Section 208 (a)(2)(B) of the Immigration and Nationality Act. (Photo from USCIS)
This column serves primarily as a guide. It aims to provide general information on immigration law. The information provided is for general guidance and reference purposes only and it is not intended to serve as, nor can it be relied upon, as legal advice to address any specific situation. Those with specific questions are strongly encouraged to contact an immigration attorney.)
*About the author
Born in Manila, Licelle Cobrador has over 10 years of experience in immigration and nationality law. Prior to establishing her own firm, Cobrador & Associates, PLLC, Licelle was an associate at a boutique immigration firm in Manhattan and a leading firm in Manila.
Licelle received her B.A. from the University of the Philippines, Manila (Cum Laude, Top 20 out of 267). After earning her J.D. from Ateneo de Manila University, she was admitted to practice law in the Philippines. She completed her LL.M at Benjamin N. Cardozo School of Law on a Dean’s Merit Scholarship and was admitted to practice in New York.
Licelle currently serves as Vice President and Executive Director of the Filipino American Legal Defense and Education Fund/ FALDEF and as Volunteer Attorney at the Migrant Center of New York. She is a past co-chair of the Cardozo Law Masters Alumni Community. She is also a member of the Filipino American Lawyers Association of New York/ FALA New York and the National Filipino American Lawyers Association/ NFALA.
Licelle has been selected as TimeIsNow’s Global Filipino Trailblazer. She is recognized as one of Women Today’s Women on the Front Rank, Cardozo Life Magazine’s Movers & Shakers and Cardozo Law’s Outstanding Alumni and has been published in Delaware Law. Licelle is a frequent national and international speaker on U.S. Immigration Law. #