Waiving of the 2 Year Foreign Residence Requirement for J-1 Nonimmigrants

Waiving of the 2 Year Foreign Residence Requirement for J-1 Nonimmigrants

J-1 visas are nonimmigrant visas for individuals approved to participate in an exchange visitor program in the U.S. Due to their temporary nature, some J-1s must return to their home county for a cumulative period of at least two (2) years once their program is completed. This is commonly known as the “two-year home country physical presence requirement” (2-Year Requirement) and may be waived under special circumstances. Where the 2-Year Requirement is mandatory and after the two (2) years abroad are completed, the individual may return to the U.S. under a different visa category or may apply for permanent residency, if applicable. Who is subject to the 2-Year Requirement? According to INA § 212(e), the following J-1 visitors are subject to the 2-Year Requirement:

1. Those who entered the U.S. in order to receive graduate medical education or training;
2. Those whose exchange program was financed (percentage of finance is irrelevant) directly or indirectly by either the U.S. government or the government of the J Visitor’s home country; and
3. Those who possess a specialized skill or knowledge and whose home country or country where he/she is a permanent resident of has deemed this specialized skill or knowledge valuable to its development. (For a list of each country and what each deems to value as a specialized skill or knowledge, please visit http://travel.state.gov/visa/temp/types/types_4514.html. Please note, if your specialized skill or knowledge is listed under your home country, you ARE subject to the 2- Year Requirement)

All other J-1 visitors may not be subject to the 2-Year Requirement and should seek the counsel of an immigration attorney to verify this. Additionally, it should be noted spouses in J-2 status are subject to the 2-Year Requirement if their J-1 spouse is subject to it. What does the 2-Year Requirement mean? Prior to fulfilling the 2-Year Requirement, these individuals may not adjust status to either an immigrant status or lawful permanent residence, and/or receive an immigrant visa, a fiancé visa, a temporary worker visa, or an intracompany transferee visa. Who may get the 2-Year Requirement waived? Although the above listed J-1 visitors are required to abide by the 2-Year Requirement, there are some exceptions and a wavier may be obtained to change status in the U.S. and without having to reside in the home county. An individual is eligible for a wavier where:

1. Departure would result in exceptional hardship upon the individual’s spouse or child (the spouse and/or child must be a U.S. citizen or lawful permanent resident);
2. The individual would be subject to persecution on account of race, religion, or political opinion in his home county;
3. The home country issues a No Objection Statement through it’s Washington D.C. embassy waving the 2-Year Residence (this option may not be used by J-1 visitors who obtained graduate medical education or training);
4. A U.S. Federal Government Agency petitions for the individual on the basis that the 2-Year Requirement would be detrimental to its interest; or
5. A designated State Public Health Department or its equivalent requests a foreign medical graduate be part of its Conrad State 30 Program.

It is important to note that failure to fulfill programs with U.S. agencies or departments may place an individual back on the mandatory 2-Year Requirement. For example, an individual who does not fulfill the requirements of the Conrad State 30 Program will be required to complete the 2-Year Requirement even after receiving the waiver. Because an individual may be subject to the 2-Year Requirement after obtaining a waiver, it is imperative to seek the help of an immigration attorney.

As always, it is best to seek the help of an immigration attorney if you have any questions or doubts.  Do not risk losing potential benefits.

By: Elizabeth Oaxaca

Elizabeth Oaxaca is an Associate at Alimohammad & Zafar, PLLC. She specializes in immigration, family, probate, and guardianship law. She volunteers her immigration skills with several organizations in the Houston and surrounding areas, and has written on numerous immigration topics. She received her undergraduate degree from the University of St. Thomas in 2008 and her law degree from the University of Houston in 2011.