This web page will explain, in a question and answer format, what the two-year home-country residence requirement means, and how it affects you. It will also clarify certain possible misconceptions.
Caution
This in an information sheet, not a legal document. It was prepared by non-attorneys for use by non-attorneys. Instead of assuming that you are or are not subject to the two-year home-country residence requirement, you should consult a specialist to consider that question in light of your individual circumstances.
Q: What is the purpose of the requirement?
A: The intent is to have your home country benefit from your experience in the United States. As an Exchange Visitor you come here for a specific objective such as a program of study or a research project. If you are subject, the requirement is intended to keep you from staying longer than necessary for your objective, and to make sure that you will spend at least two years in your home country before you come back for a long-term stay.
Q: Are all J-1s subject?
A: No, only those who have: (1) received government funding, directly or indirectly, for the purpose of exchange, (2) worked in a field that appears on the Exchange Visitor Skills List for that visitor's home country or country of last legal permanent residence, or (3) participated in a graduate medical training program in the United States sponsored by the Educational Commission for Foreign Medical Graduates.
Q: Government funding? I'm a researcher in the lab of a professor who pays my salary out of his grant from the U.S. Department of Agriculture. Is my salary indirect funding? Does it make me subject?
A: It does if the purpose of your faculty member's grant was exchange, for example, to bring foreign scientists to the U.S. for a research experience in his lab so that they can then apply what they learned in the home country. But if the purpose of the grant was research, and the faculty member hired you only to participate in that research, then your salary does not make you subject.
Q: What is the Exchange Visitor Skills List? Where can I get a copy?
A: It is a list of fields of research and work. About 20 years ago, the U.S. Department of State sent the list to foreign governments and asked each one to check off whatever skills were in short supply in that country. The resulting list appeared in the Federal Register, an official government bulletin published daily and available in most major libraries. Your J-1 Responsible Officer or international student adviser should have a copy, and can probably help you determine whether your field is on the list for your country. It is difficult to read, and about 50 pages long. If you want to copy it, the most recent full text appeared in the Federal Register on June 12, 1984, on pages 24194242. Brief revisions appeared on September 30, 1986 (page 34701, March 19, 1987, (page 87700), December 16, 1988 (page 50619), and July 28, 1993 (page 40466).
Q: I'm not sure whether I'm subject or not. How can I find out?
A: Your J-1 Responsible Office or your foreign student adviser should be able to make an educated guess.
Q: One of my DS-2019 forms is checked that I am subject, and another is checked that I'm not. What's going on? Am I subject or not?
A: Visa officers in consulates, and Immigration Inspectors at ports of entry, indicate whether they think you're subject or not by endorsing your visa stamp or checking the "preliminary endorsement" box in the lower left-hand corner of your DS-2019. Those endorsements are not final, although U.S. Citizenship and Immigration Services (USCIS) usually accepts indications that you are subject. If you have ever been subject in the past, and have neither obtained a waiver nor fulfilled the requirement by spending two years in your country, it still holds -- even if a more current Form DS-2019 reflects no basis for such a requirement.
Q: What is the requirement? What am required to do?
A: You're required to spend two years in the country of your citizenship or last legal permanent residence. Until you do that, there are things that you can't do. You can't hold status in the United States as an H (temporary worker, trainee, or dependent), L (intracompany transferee or dependent), or immigrant (which is the same as a permanent resident). And, inside the United States, you can't change your status to any category except A (your government's representative to the United States, such as a diplomat; or the dependent of an A) or G (your government's representative to an international organization, such as the United Nations; or the dependent of a representative).
Q: If I can't change inside the United States, can I go out, apply for a new visa, and come back in as, say, an F-1 student?
A: You can apply for an F-1 visa, and if you get it you can come back as an F-1 student. But until you spend two years at home, or get a waiver, you're still subject.
Q: As an F-1 I would be subject? I thought F-1's were never subject.
A: F-1 status won't make you subject, but, under the conditions you describe (question number 8, above), yes, you would be subject, even as an F-1.
Q: Wait! Wait, wait. My cousin told me that if I'm subject, once I finish my program and leave the United States, I can't come back for two years. What are you saying about an F-1 visa?
A: If you're subject, and you finish your program and go home, there is no regulation that says that you have to stay out of the United States for two years. But until you spend two years in your home country, you remain subject. F-1 is just an example. If you're coming back to the U.S., the visa that you should use depends on the purpose of your trip. The only visas that you can't obtain are H, L, and immigrant.
Q: If I come back for a two-week visit after one year at home, will I lose the year as far as the waiver is concerned? Don't the two years in my home country have to be without interruption?
A: No, they don't have to be uninterrupted. Once you accumulate a total aggregate of two years, you've satisfied the requirement.
Q: My friend told me that if I marry a U.S. citizen, then I can get a green card and stay with my spouse. In other words, I would no longer be subject.
A: Your friend is mistaken. Marriage to a U.S. citizen has no effect on the requirement.
Q: But then the U.S. government is forcing a family to separate.
A: What keeps your spouse from going with you to your country?
Q: I'm subject. If I go home, and get married, and a year later my wife is invited to the United States to work as an H1B, can I enter the country with her as her H-4 dependent?
A: Not if you haven't fulfilled the two-year requirement.
Q: Are J-2 dependents ever subject?
A: Yes. If the J-1 is subject, the J-2 dependents are also subject.
Q: I'm an H1B, and my girlfriend is a J-2 getting a divorce from a J-1 who is subject. If we get married, can she become an H-4?
A: I don't think so, but that question touches on many complex issues. You need a lawyer. Not your cousin or your friend, a lawyer.
