The statute declares that exchange visitors subject to the two-year home country residence requirement may seek a waiver of that requirement in four situations:
(1) upon request of an interested government agency;
(2) upon a showing of undue and unanticipated hardship to the exchange visitor’s family in the United States
(3) when the exchange visitor faces persecution in his or her home country; or
(4) when the exchange visitor’s home country declares that it does not object to the waiver. This is the so-called “no objection” statement.
The waiver may be filed using more than one of the situations above.
I. Request by a Government Agency
i. A US government agency must submit documentary evidence showing that the exchange visitor’s departure would be clearly detrimental to a program or activity of official interest to an agency of the US government.
ii. Broad and remote connection to the agency could qualify.
For example, if a J-1 exchange visitor is working at a research institute that receives National Science Foundation (NSF) money, the NSF should be considered.
If the J-1 exchange visitor is acting a consultant on a contract to expand trade to his or her homeland, the Dpt. of Commerce should be considered.
II. Exceptional Hardship
i. The elements to be considered:
1. Physical or mental conditions of the spouse or child that would be adversely affected by residence abroad
2. Need for the spouse to remain in the United States to continue employment essential to family maintenance or to care for a dependent relative
3. Applicant’s inability to support his or her family abroad or to support them in a separate household in the United States
4. Interruption of spouse (US citizen)’s established career
5. Serious economic consequences
6. Severance of close family relationship
7. Erroneous advice of a US consul or immigration officials, before marriage, that foreign residence requirement did not apply
8. A regime in the home country that is unfriendly to the United States
ii. These are not exclusive considerations, and each case is decided on its own merits.
iii. The assessment of hardship must be based on “a totality of the circumstances”.
III. Persecution in Home Country
i. The applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort;
ii. The persecutor is already aware, or could easily become aware, that the applicant possesses this belief or characteristic;
iii. The persecutor has the capability of punishing the individual; and
iv. The persecutor has the inclination to punish the applicant.
IV. No Objection Statement
i. The statement must be transmitted to the Dpt. of State through official channels; Statements not addressed to the Dpt. of State and statements transmitted by the exchange visitor or by his attorney or other private individuals or organizations will not be acceptable.
ii. In many instances, the country’s consular officers are given authority by their governments to issue such statements; in such cases, they must transmit the statement to the Dpt. of State, either through the US diplomatic mission in their country or through the country’s mission in Washington.
iii. In no objection cases as in other waiver requests, the Dpt. of State reviews the “program, policy, and foreign relations” of the case in deciding whether to recommend a waiver to the CIS.