t
A
non-immigrant
temporarily enters the United States for a specific purpose. Exchange visitors
with J-1 visa are non-immigrants who participate in the exchange visitor program.
This program, which is administered by the Department of State, seeks to promote peaceful relations and mutual
understanding with other countries through educational and cultural exchange
programs. Accordingly, many exchange visitors entering the United States are
subject to a requirement that they should return to their home country to share with
their colleagues the knowledge, experience and impressions gained during their
stay in the United States.
Many persons in the
United States
on J-1 visa are subject to the two-year home residency requirement found
in Section 212(e) of the Immigration and Nationality Act. Under the Section 212(e), before a
person on a J-1 visa with the two-year home residency requirement can change to nonimmigrant status (H-1B or L1, for
example), or adjust to U.S. permanent resident status, the J-1 person must either
return to the country of last residence for two years or obtain a waiver of the two-year home residency requirement.
Several factors determine whether or not one is subject to
the 212(e). If
there is government funding (from either the U.S. or foreign government), or if the
J-1 holder is in a medical residency program, or if the country of residence has
designated the person's type of expertise (on a document called the skills list)
as being in shortage in the home country and therefore needed in that country,
then generally the home country requirement applies. There are also some J-1
programs under which the requirement would apply even when the above factors are
not present. In general, the factors that could make one subject to
the two-year home residency
requirement are:
- Receiving
government funding, from either the U.S. or one's home country government;
- Being
in a field of expertise that is
vitally needed in one's home country; or
- Being
in a graduate medical training program, such as a medical residency program.
These
J-1 exchange visitors are required to return to their home country or country of last permanent residency for a period of two years, after their
exchange program completion. During
this two-year period, the alien would not be eligible for H or L visa and
cannot adjust to U.S. permanent residency status. The alien may enter the U.S. on
another basis such as a B-1 visitor visa, but any time spent out of the home
country will not be counted toward the two years of residency in the home
country.
Alternatively,
an alien may obtain a new status without returning to the home country, such as
obtaining an F-1 student visa. In such circumstances, the alien will not be able
to change status in the U.S., but must seek such a visa in a U.S. consulate in a
foreign country, such as Canada or Mexico.
2. The Waive of t
If you are subject to
the
two-year home residency requirement
and wish to obtain
a H-1B visa or a U.S.
Green Card, you could either comply with the requirement by living in your home country for two years, or you could seek a waiver of
the two-year home residency requirement.
Unless
the United States Citizenship and Immigration Services
(USCIS) approves a waiver for this requirement,
exchange visitors must depart from the United States and live in their country
of residence for two years before they are allowed to apply for an immigrant
visa, or U.S. permanent residence.
The
significance of an USCIS
approved Application to Waive Foreign Residence
Requirements is limited to the waiver of the two-year home residency
requirement. It does
not, however, place the J-1 holder into a legal non-immigrant status, nor does it imply
an authorization to work in the U.S. Upon obtaining this type of waiver, the
applicant will be eligible to obtain U.S. Permanent Resident status.
A
waiver from the two-year home residency requirement is challenging, but many of those who
are subject to the two-year home residency requirement file for the waiver
application on
their own. The waiver options available may depend on a variety of factors. The simplest
type of waiver is based on a letter of "No Objection" from one's
home country government. However, physicians involved in patient care are not
eligible for this type of waiver.
The types of J-1 waivers can be based
on:
- No-objection;
- A
recommendation by an "interested U.S. government agency;"
- The
special federal and state programs for physicians;
- Exceptional
hardship;
- The
fear of persecution.
3.
To
Determine if You are Subject to the Two-year Foreign Residency Requirement
Often,
it is unclear whether one is subject to the two-year home residency requirement. The notation on one's J-1 visa
stamp is not always accurate, as may also be the case with the information on
one’s
DS-2019 Form.
To
determine if you are subject to the two-year home residency requirement, you
should first examine your
DS-2019 Form along with your
J-1 visa. The two-year foreign residency requirement applies if your SEVIS DS-2019
Form (or IAP-66 Form)
indicates that the phrase, "subject to the two year residency
requirement" is checked, or if your J-1 visa contains the notation "212(E) TWO YEAR RULE APPLIES."
However,
no
notations of the
two-year foreign residency requirement on either your SEVIS DS-2019
Form (or IAP-66 Form)
or your visa does not mean that you are
exempt from the two-year home residency requirement.
It is possible that your exchange visitor program may
have changed its rules since your admission to the U. S., or your SEVIS DS-2019
Form (or IAP-66 Form)
and
visa may be inaccurate.
Sometimes it can be a complex matter to determine whether or
not one is subject to the two-year home residency requirement. DOS has a procedure for issuing an opinion in a
given case on this issue. Please note that the DOS does not charge a fee for
such advisory opinions, and does not plan to do so. In some instances, it could prove worthwhile to request an
Advisory Opinion on the issue from the U.S. Department of State.
To
get an Advisory Opinion, write to the United States Department of State
(DOS). The DOS is responsible for the administration of the Exchange Visitor program and the two-year foreign residence requirement. Address your letter to:
Waiver Review Branch
United States Department of State
301 Fourth Street, SW,
Washington, DC 20547
Enclose all of your
DS-2019 forms and old IAP-66 forms (if applicable), and in a cover letter explain why you are uncertain whether you are subject or not to the two-year foreign residence requirement, and ask for a U.S. Department of State’s advisory opinion.
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