J-1 Waivers
for Academics
Lisa T. Felix, Esq.
| Michelle T. Kobler, Esq.
Klasko Immigration Law Partners, LLP
Philadelphia  New York  Chicago
Lisa T. Felix, Esq.

Lisa Felix represents corporate and educational clients who seek to hire or transfer
foreign employees, as well as foreign individuals seeking employment in the
United States. She advises employers on immigration compliance, responding to
government investigations, and immigration strategy and planning.

Before practicing as an attorney, Lisa worked extensively in higher education,
providing immigration services to students, faculty, researchers, and administrators
at the University of Pennsylvania, the State University of New York at Buffalo, and
at Southern Illinois University–Carbondale’s branch campus in Niigata, Japan.

Lisa is an active member of the American Immigration Lawyers Association, where
she has served as co-chair of the AILA Philadelphia Chapter's Pro Bono
Committee, and on the organizing committee of the chapter’s annual conference.
Lisa is a returning member of NAFSA: Association of International Educators.

Lisa is a 2005 graduate of Temple University’s Beasley School of Law.
Klasko Immigration Law Partners, LLP
Michelle T. Kobler, Esq.

Michelle Kobler is an Associate in the Firm’s Philadelphia office, and focuses
her practice on both employment-based and family-based immigration.

A graduate of Wellesley College (B.A., 2006), Michelle received her law
degree from the George Washington University Law School (J.D., with
Honors, 2011). Michelle is currently admitted to practice in New York and
Massachusetts and is a member of the American Immigration Lawyers
Association. She has experience representing clients before Immigration
Court and the Citizenship and Immigration Services.
Klasko Immigration Law Partners, LLP
Who needs a waiver?

Who decides about the 2 year return
requirement?
 USCIS
 Visa,

– not DOS
DS 2019, advisory opinion not determinative
Only subject if:
 Skills
list
 Government
 Graduate
financing
medical education or training
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Who needs a waiver?
(cont’d)
 Skills

list advocacy
Country of citizenship or country of last residence

Country of last residence vs. country of last permanent
residence

Proving different skills list category

Effect of new country of citizenship

“Impossibility” of fulfillment argument
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Who needs a waiver?
(cont’d)
 Government
financing advocacy
Must be during J status
 Indirect government financing
 Funds earmarked for exchange program

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Who needs a waiver?
(cont’d)

Medical Doctors
 Not
subject if:
Not in the U.S. for medical education or training
 Observation, consultation, teaching or research
with incidental patient care under direct
supervision of U.S. doctor
 ECFMG research fellowship

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Visa Options
Without Needing Waiver

Anything other than H or L visa or change of
status
 O-1,
TN-1, F-1, E-3 = ok
 Canadian doctor H-1B visa-exempt entry = ok?
 Change of status from F-1 (or other) to H-1B = ok
 Labor certification and I-140 can be approved
 DS230 can be filed
 I-485 cannot be filed (except clinical NIW)
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Fulfilling the Two-Year
Return Requirement


Return to country of nationality or last residence?
Can be fulfilled in smaller segments
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J-1 Waiver Types




No objection statement
Exceptional hardship to qualifying relatives
Persecution
Interested government agency
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No Objection Statement

Quickest and easiest waiver

Usually not helpful if U.S. or international
organization funding

Researchers only

Attitudes of different countries
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No Objection Statement Process

File DS-3035 online and pay fee

Request home government statement (each
country’s process is different). Statement is sent
directly to DOS

When DOS recommends, they forward to
USCIS

USCIS issues approval
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Exceptional Hardship Waiver

Hardship to U.S. citizen or LPR spouse or child

Hardship must be “exceptional”

Very difficult standard
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Persecution Waiver

Individualized persecution

Similar to asylum
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Interested Government
Agency Waivers

Research track

Clinical track
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IGA Research Waivers

Usually limited to agency contracts, grants or
research programs

Examples include NSF, DOD, NASA, DOE

Peer review process – unlike USCIS filings

Practice Pointer: Ask about these implications
and/or waiver support before applying for or
accepting funding
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HHS Research Waivers

Key Issues
 Importance

Does not have to be NIH funded
 Essentiality

of research program
and uniqueness of foreign national
Recruitment (unavailability of U.S. researchers)
 Future
of program and future of foreign national
 Bench research (at least 30 hours per week)
vs. clinical research
 Excellence of foreign national’s research
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HHS Research Waivers
(cont’d)

Technically focused
 Involvement
of NIH scientists familiar with the
research
 Reconsideration of denials
 Impact of Fulbright funding
 Timing
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Clinical Waivers

Choosing state vs. federal agency

Choosing between states

Cannot file more than one

HPSA or MUA or FLEX 10 or V.A.

Must be 3 years in H-1B
 “Extraordinary
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circumstances” to change employers
Conrad 30 Waivers


Each state has different rules/applications
Must be HPSA or MUA
 Except

FLEX 10
Agree to begin employment within 90 days of
receiving waiver
 Can
delay if still in training program
 Can expedite by filing H-1B before CIS approves
waiver
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Other Federal Government
Agency Clinical Waivers

Issues in common
 40

hours in HPSA or MUA
Except VA
 Primary
care
General practice, family practice, internal
medicine, psychiatry, pediatrics, OBGYN
 Except VA and DRA

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HHS Clinical Waivers





HPSA of 7 or higher
Need state DOH support letter
Must file within 12 months of completion of
primary care residency
Limited to rural health clinics, certain native
American facilities and HRSA-grant health centers
Very long process – not user friendly
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Klasko Immigration Law Partners, LLP
For Further Information
Lisa T. Felix, Esq.
215.825.8612
lfelix@klaskolaw.com
Michelle T. Kobler, Esq.
215.825.8606
mkobler@klaskolaw.com
Klasko Immigration Law Partners, LLP
online
www.klaskolaw.com
www.eb1immigration.com
www.worksite-compliance.com
www.eb5immigration.com
http://blog.klaskolaw.com
Klasko Immigration Law Partners, LLP
DISCLAIMER / COPYRIGHT NOTICE

The materials contained in this PowerPoint does not
constitute direct legal advice and is for informational
purposes only. An attorney-client relationship is not
presumed or intended by receipt or review of this
presentation. The information provided should never
replace informed counsel when specific immigrationrelated guidance is needed.

Copyright © 2015 Klasko Immigration Law Partners, LLP.
All rights reserved.
Klasko Immigration Law Partners, LLP
Copyright © 2015. All rights reserved.