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The Two-year Home Country Residency Requirement for J-1 Visa Holders

1. The Two-Year Home Country Residency Requirement

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.

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. Factors Determining whether or not One Is Subject to the INA 212(e)

If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, or K, or to immigrant or legal permanent status until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement. 

An exchange visitor may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act (INA), for one or more of the following reasons:

1) The exchange visitor's participation in an exchange program was funded by the United States Government, exchange visitor's own government, or an international organization.

2) The education, training, or skill the exchange visitor is pursuing in an exchange program appears on the Exchange Visitor Skills List for exchange visitor's country.

3) The exchange visitor acquired J-1 status for the purpose of receiving graduate medical education or training.

Several factors determine whether or not one is subject to the INA 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.

3. The Waive of Two-year Home Country Residency Requirement  

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.

If you are subject to the INA 212(e) and want a waiver of the two-year foreign residence requirement, there are 5 grounds for waivers. 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.

If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). An J-1 visa holder object to the 2-year foreign residence requirement can file an J-1 waiver application on the following bases.

1) Request by an interested government agency (IGA): A J-1 waiver may be requested by a U.S. governmental agency on behalf of the J-1 visitor. It should be beneficial to the U.S. security interests, or to that of the public good.

2) Exceptional Hardship: A J-1 waiver may be obtained when the 2-year foreign residence requirement would result in exceptional hardship to the U.S. citizen or permanent resident spouse or child.

3) Fear of Persecution: If the J-1 visitor can show that he or she would be subject to persecution in the home country on the basis of race, religion, political opinion, nationality, or membership.

4) No Objection Statement (NOS): The J-1 visitor's home government issues a letter of “no objection “ to the exchange visitor's remaining in the United States. But a foreign medical graduates are not eligible for the “no objection“ J-1 waiver. 

5) Request by a designated State Department of Public Health or its equivalent, or called CONRAD.

If a U.S. government agency believe that the J- visa exchange visitor's departure would be detrimental to a program or activity of interest to the U.S. government agency, it may request a J-1 waiver on behalf of the alien visitor. The J-1 exchange visitor can be employed by either a private employer or a U.S. government agency. 

4. 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. If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may make a written request for an advisory opinion for the applicability of INA 212(e) to your situation. 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. The advisory opinion request should include legible copies of every/all DS-2019/IAP-66 ever issued to you, along with a self-addressed envelope, and should be sent to: 

INA 212(e) Advisory Opinion Request
The Waiver Review Division, CA/VO/L/W
SA-1, L-603
U.S. State Department
2401 E Street, NW
Washington, D.C. 20522-0106 

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.

5. Satisfy the Two-Year Home Residence Requirement in the Country of Last Permanent Residence Indicated on SEVIS DS-2019 Form

The two year foreign residence requirement for J1 visa holders may only be satisfied in the country of nationality or last permanent residence as indicated on SEVIS DS-2019 Form. If you are a citizen of one country and a permanent resident of a second country, you must satisfy the home residence requirement in the country of last permanent residence indicated on SEVIS DS-2019 Form. 

The country should be listed on the SEVIS DS-2019 Form. If there is an error on the form, the State Department takes the position that the USCIS, not the State Department, must correct the error, if the program sponsor will not correct the error. In many instances, the two-year foreign residency requirement for J1 visa holders may be waived by submitting the J1 waiver application to U.S. Department of State.

6. J-1 waiver and U.S. Green Card Application

As a J-1 visa holder, you can I file the EB1 Extraordinary Ability (EB-1A) petition or EB2 National Interest Waiver (NIW) if you can meet their requirements, and then get the J1 waiver later. Since you are subject to the 2 year home country service requirement, you need to receive the J1 waiver before you file Form I-485 to get your Green Card to become U.S. permanent resident.

Before filing the Form I-140 based on the EB1 Extraordinary Ability or EB2 National Interest Waiver, you do not have to get the J-1 waiver approval. Your J1 visa 2 year home country service requirement will prevent you from adjustment status with the USCIS Form I-485 in the United States, but it will not prevent you from filing the EB-1A or NIW petition.

After you receive an I-140 approval from USCIS before you get the a J-1 waiver, you should wait for the J-1 waiver approval to submit the I-485 application for adjustment of status.
As a J-1 visa holder, you can I file the EB1 Extraordinary Ability (EB-1A) petition or EB2 National Interest Waiver (NIW) if you can meet their requirements, and then get the J1 waiver later. Since you are subject to the 2 year home country service requirement, you need to receive the J1 waiver before you file Form I-485 to get your Green Card to become U.S. permanent resident.

Before filing the Form I-140 based on the EB1 Extraordinary Ability or EB2 National Interest Waiver, you do not have to get the J-1 waiver approval. Your J1 visa 2 year home country service requirement will prevent you from adjustment status with the USCIS Form I-485 in the United States, but it will not prevent you from filing the EB-1A or NIW petition.

After you receive an I-140 approval from USCIS before you get the a J-1 waiver, you should wait for the J-1 waiver approval to submit the I-485 application for adjustment of status.




 


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