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J-1 Waiver Strategy Tip

J-1 Waiver of 2 year home residence requirement:  Government funding traps

I just got off the phone with a Canadian academic, John. He had spent a year at a major U.S. university doing part of his post-doc on a J-1 visa. On his last entry into the U.S. John gave the CBP officer his DS-2019, the invitation from the university, and a letter from his department chair in Canada detailing the fact that John would be receiving $20K in funding from a certain Canadian bank. The CBP officer indicated on the DS-2019 that John was indeed subject to the 2-year home residence requirement because of government funding, presumably because of the letter about the bank. John indicated to the officer that he did NOT think he was subject, but to no avail.

Now John is looking at an academic job offer in Iowa and has a problem switching to the H-1B because of the 2-year home residence requirement noted on his DS-2019. What to do?

I was all set to voice indignation on his behalf and recommend that we file for an Advisory Opinion claiming CPB’s erroneous understanding of the Canadian bank which was not Canadian government funded, meaning that John had not been directly or indirectly funded by the Canadian government and therefore was not subject to the 2-year requirement.

Not so fast.

A careful scrutiny of the DS-2019 made me hesitate. Although his program was designated a P program and not governmentally funded, John had received almost $25K from a program in Canada that had the word “Canadian” in the title. Upon closer inspection, John and I hunted down the funding of the program and lo and behold, it was indeed partially funded by Canadian government money. This meant that our original strategy of filing for an Advisory Opinion had to be scratched and we had no choice but to opt instead for the filing of a Waiver based on a No-Objection letter.

The moral of the story for all J-1 2-year home residency cases based on government funding (excluding Fulbrights which deserve their own blog) is to study and study again the source of the funding to verify whether U.S. or home country government funds are or are not truly lurking in the background. If they are, then the J-1 must either satisfy the requirement by residing in his home country for 2 years (or country of last residence) or file a Waiver request with the Department of State.

A disappointment for John but not much of a delay. Although current State Department postings indicate Advisory Opinions are taking less time than No-Objection Waivers, his No Objection Waiver should be issued within 8 weeks.

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