J Visa and Eligibility for a Waiver of the Exchange Visitor Two-Year Home Country Physical Presence Requirement
Some exchange visitors (with J-1 visas) are subject to the two-year home-country physical presence requirement. This includes current and former exchange visitors. You are subject if one or more of the following applies to you:
- Government funded Exchange Program – You participated in a program funded in whole or in part by a U.S. government agency, your home country’s government, or an international organization that received funding from the U.S. government or your home country’s government.
- Specialized Knowledge or Skill – You participated in a program involving an area of study or field of specialized knowledge designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country.
- Graduate Medical Education/Training – You participated in a program to receive graduate medical education or training.
What does being subject to this requirement mean?
It means you must return to your home country for a cumulative total period of at least two years. You are not prohibited from travelling to the United States, however, you cannot do any of the following until you fulfill this requirement:
- Change status in the United States to a nonimmigrant temporary worker (H) or intracompany transferee (L);
- Adjust status in the United States to immigrant visa/lawful permanent resident status (LPR);
- Receive an immigrant visa at a U.S. Embassy or Consulate; or
- Receive a temporary worker (H), intracompany transferee (L), or fiancé (K) visa.
There is a provision in U.S. law for a waiver of this requirement by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). The former exchange visitor must apply for the waiver. The Department of State, Waiver Review Division must recommend the waiver to USCIS.
I am not sure whether the Two-Year Home Residency Apply to me?
Program sponsors generally inform exchange visitors about this requirement. Exchange visitors are generally also made aware of it at their visa interviews. If you are unsure whether this requirement applies to you or your situation you can request that the Department of State (DOS), Waiver Review Division conduct an advisory opinion. DOS will review your exchange visitor program documents to determine if you are subject to this requirement.
Although this process may seem simple, we highly recommend that you consult with an attorney before applying for an advisory opinion. An experienced attorney will help you draft a comprehensive request letter.
There are certain ways to waive your Home Residency Requirement
If you are subject to this requirement, but not able to fulfill it, you may apply for a waiver. Specifically, you may apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver. Your waiver request must be under any one of the five applicable bases in U.S. immigration law. Choose the one basis that you qualify for or applies to your situation.
- No Objection Statement:
Your home country government may issue a No Objection Statement, through its embassy in Washington, DC. The embassy must send the No Objection Statement to the Waiver Review Division. It must state your government has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the United States.
Important Notice: Medical Graduates are not permitted to use this category of waiver if they obtained their J visa on or after January 10, 1977.
- Request by an Interested U.S. Federal Government Agency:
If you are working on a project for or of interest to a U.S. federal government agency and that agency has determined your departure for two years would be detrimental to its interest, that agency may request an Interested Government Agency Waiver on your behalf. The head of the agency or his or her designee must sign the Interested Government Agency request and submit it to the Waiver Review Division.
If you believe you will be persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver. You must first apply to USCIS and USCIS will forward its decision to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.
- Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:
If your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for an exceptional hardship waiver. Note that mere separation from family is not sufficient to establish exceptional hardship. You must first apply to USCIS and USCIS will forward its decision to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of exceptional hardship.
- Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program):
If you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education, you may request a waiver based on the request of a designated State Public Health Department or its equivalent. You must meet the following criteria. (This waiver category is also known as the Conrad State 30 Program.) You must:
- have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area;
- agree to begin employment at that facility within 90 days of receiving a waiver; and
- sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.
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