Two Year Home Country Physical Presence Requirement
Be aware of the consequences of utilizing the J visa. Exchange Visitors, and any dependents accompanying them, may be subject to a 2-year rule following the completion of the J program. For this reason, it is wise to choose the J visa carefully, making sure the circumstances surrounding the proposed program are truly “exchange-related” and that the prospective visitors do intend to return to their home country.
The intent of the two-year home residence requirement is to have the home country benefit from the Exchange Visitor’s experience in the United States. Exchange Visitors come to this country for a specific objective such as a program of study or a research project. The requirement is intended to prevent a participant who is subject form staying longer than necessary for the objective, and to ensure that he or she will spend at least two years in the home country before coming back to the United States for a long-term stay.
J-1 Exchange Visitors who are subject to this rule are required to live in their home country for a period of 2 years before they are eligible for:
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An H-1B, L-1 or immigrant status (Permanent Resident) in the United States. H includes temporary workers, trainees, and their dependents. L includes intra-company transferees and their dependents.
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A change of status, inside the United States, from J to any other nonimmigrant classification except A or G. The A classification includes the home government’s diplomats and representatives to the United States government and their dependents. The G classification includes the home country government’s representatives to international organizations, such as the United Nations, and their dependents.
The 2-year home country residence requirement applies to those Exchange Visitors who:
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are financially supported by any government;
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have skills which are needed in their home country, as specified on the Exchange Visitor Skills List;
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are medical doctors who have graduated from a foreign medical school and have come to the United States to study or work in the field of medicine sponsored by ECFMG (Educational Commission for Foreign Medical Graduates).
Waivers of the 2-year home residence requirement can be granted under certain circumstances, but such waivers can be difficult to obtain. For more information, read the U.S. Department of State’s website. ISSS does not recommend that hosting departments be involved in the waiver process, unless information is requested directly by the U.S. Department of State. Typically, the Department of State will contact ISSS if there are any questions they may have about the Exchange Visitor.
Waivers of the 2-Year Home Residence Requirement
Although departmental personnel is not usually involved in the waiver process, knowing and understanding the waiver process can be useful information in determining when a waiver is possible. You might receive questions from your J scholars regarding the waiver process, or you may be asked to assist in the process. ISSS does not recommend that hosting departments be involved in the waiver process, since the decision is with the U.S. Department of State and the Exchange Visitor’s home government.
There are four grounds for a waiver of the requirement:
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Exceptional hardship to one’s spouse or unmarried minor child who is a citizen or permanent resident of the United States. If, for example, one had a child who was born in the United States and was therefore a citizen of this country, and if the child had a serious medical condition that could not be treated in the Exchange Visitor’s country, one might obtain a waiver because the child would suffer a hardship by going there with that person to live. An application to USCIS on Form l-612, "Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, as Amended" is needed.
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Fear of persecution. If the Exchange Visitor can demonstrate that, because of his/her race, religion, political opinions, or nationality, they would face persecution by his/her home government if they went back to your country, they might qualify for a waiver. The Exchange Visitor would apply to USCIS on Form I-612.
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Interest of a United States government agency. If Exchange Visitor’s participation in research or a project sponsored by a United States government agency is of sufficient importance to that agency, it can apply to the DOS for a waiver for the Exchange Visitor in its interest, not that of the Exchange Visitor.
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A "no objection" statement (not permitted for medical trainees). The Exchange Visitor’s country's embassy in Washington can indicate in a direct letter to the DOS that it has no objection to receiving a waiver, or the foreign ministry in their capital at home can write to the United States embassy there. A "no objection" statement will usually not lead to a waiver if the Exchange Visitor has received more than $2,000 in funding from the United States government. A word of caution: This summarizes some very complex and sensitive issues. It is intended only to help one understand the nature of the requirement, not to serve as a legal reference. Do not assume, from reading this web page that one is or is not subject to the requirement. The Exchange Visitor should consult a specialist.