1.What is the Two-Year Home Country Residence Requirement” for J1/J2 visa holders?
Those who come to the U.S. in J1 or J2 status may be subject to the two-year home country residence requirement (or 212(e), as it is referenced in the Immigration and Nationality Act). This means you must reside and be physically present in your home country for an aggregate of at least two years before you can do any of the following:
apply for a change of status within the U.S. to any nonimmigrant, except A, G, T, or U visa;
return to the U.S. as a nonimmigrant visa holder under these categories: temporary worker (H), intracompany transferee (L), or fiancé (K) visa; or
become a permanent resident
2. If I had/have a J1 visa and have not fulfilled the two-year residence requirement, can I apply for a F1 or B1/B2 visa?
Yes. Being “subject” to two-year residence does not prevent you from returning to the U.S. with a nonimmigrant visa, such as F-1 (student), B1/B2 (business/tourist). You must depart and return to the U.S. with such visa, because you are not eligible to change your status from J1 to F1 or B1/B2 within the U.S. if you are a J-1 and subject to the two-year residence requirement. Change of status within U.S. are available only for J-1 visa holders who apply to change status to a nonimmigrant A, G, T, or U visa.
3. Who is subject to the “two-year residence requirement”?
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.
4. How can I find out if I am subject to the two-year residence requirement?
Check your DS-2019;
Check the “Annotation” on your J-1 visa; or
For an official determination, request an Advisory Opinion at travel.state.gov
5. How is the “two-year residence” calculated?
The time does not start to run until you finished the exchange program AND start residing in your home country. The days are counted cumulatively, not continuously.
For example: Jay is a citizen of China. He was admitted to the U.S. with a J1 visa for an exchange program. His DS-2019 states that the two-year program covers period from 08/01/2015-07/31/2017. In summer of 2016, Jay spent three months in China. In May 2017, he finished the program and departed U.S. for China. If Jay has lived in China since May 2017, he will be able to complete the “two-year residence” in May 2019. If Jay returned to the U.S. with a F1 visa in August 2017. He has only accumulated 3 out of 24 months of home-country residence. Jay will resume accumulating his days after he finishes his study as an F1 student AND returns to China.
6. Can I apply for a waiver for the two-year residence requirement?
Yes. You can apply for a waiver under one of the following five bases that you believe you qualify:
No Objection Statement;
This requires your home country’s government, through its embassy in Washington, DC, to send a No Objection Statement to the Department of State’s Waiver Review Division (“WRD”). The No Objection Statement states that your home country has no objection to you not returning there to satisfy the two-year home-country residence requirement. Even if your home country does not object to you staying in the United States, if the U.S. government funded your exchange program, it’s very likely your waiver request will be denied. In such case, your statement of reason need to be lengthy and complex, and you may consider hire an immigration lawyer to help you write your statement.
Request by an Interested U.S. Federal Government Agency;
Any interested U.S. federal government agency may submit a request to WRD. The letter must explain why granting the waiver is in the public interest of the United States and why it would be detrimental to the agency if you must return to your home country to fulfill the requirement.
You must submit Form I-612, Application for Waiver of the Foreign Residence Requirement to the U.S. Citizenship and Immigration Services (“USCIS”). Your application must explain why you will be persecuted based on your race, religion, or political opinion if return to your home country. If USCIS makes a favorable decision, it will forward its decision to WRD. If USCIS does not make a finding of persecution, you cannot move forward on this basis.
Exceptional Hardship to a U.S. Citizen (or lawful permanent resident) Spouse or Child of an Exchange Visitor; and
You must submit Form I-612, Application for Waiver of the Foreign Residence Requirement to USCIS. Your application must explain why your departure from U.S would impose exceptional hardship on your U.S. Citizen or lawful permanent resident spouse or children. If USCIS makes a favorable decision, it will forward its decision to WRD. If USCIS does not make a finding of exceptional hardship, you cannot move forward on this basis.
Request by a Designated State Public Health Department or its Equivalent (Conrad State 30 Program).
Only foreign medical doctors who received their exchange visitor J-1 status to pursue graduate medical education or training may apply for a waiver under this basis. The designated state public health department must send a request to WRD, explaining why it is in the public interest that you remain in the U.S.
7. How long does it take the Waiver Review Division to review my waiver application?
The Waiver Review Division will not start reviewing your case until all required documents are submitted. Current processing times for WRD review vary from 3 to 6 months, depending on the basis under which you request a waiver.
8. Which government agency has a final say on my J-1 waiver application?
USCIS is the final waiver authority. After the WRD reviews your case, it will forward its recommendation (either favorable or unfavorable) to USCIS. The WRD will send a copy of that recommendation to your address as well. USCIS makes the final determination on whether to approve or deny your waiver application and will notify you at your address. You do not have a waiver of the two-year home-country physical presence requirement until USCIS informs you of an approved waiver.
9. If WRD makes an unfavorable recommendation, what should I do?
An unfavorable waiver recommendation by WRD cannot be reconsidered or appealed, and you should not apply again under the same basis as used in your original waiver request. However, you may apply for the waiver on a different basis for which you qualify. If you do not otherwise qualify, you must fulfill the two-year residence requirement in your home country.
10. Can I file for an I-140 (Immigrant Petition for Alien Worker) petition or I-130 (Immigrant Petition for Alien Relative) while subject to the J-1 residence requirement?
Yes. Filing either an I-140 or an I-130 petition does not affect your status. Both allow you to obtain permanent residence in the future. You only need an approved J-1 waiver or otherwise fulfill the two-year requirement before obtaining an immigration visa or adjusting your status to a permanent resident if in the U.S.
11. What should I do if my J-1 waiver is in progress, but my status is about to expire?
It depends. Each person has a unique case. Please contact W&O’ for a free in-person consultation.
U.S. immigration law is complex, which is why you need experienced immigration attorneys to guide and advise you through the process. We are those lawyers, and our firm practices immigration law exclusively. We have offices in Orange, Fresno, Riverside, Sacramento, San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
We offer a free in-person consultation at any of our offices in Orange, Fresno, Riverside, Sacramento, San Bruno, California, as well as Orem and Salt Lake City, Utah, and Boise, Idaho.
ABOUT THE AUTHOR(S)
XIAOYAN (LINDA) SUN -ATTORNEY
Linda Sun is an Associate Attorney with the Salt Lake City office of Wilner & O’Reilly, APLC. She earned a Juris Doctor Degree from the University of Idaho College of law, graduating at the top of her class. Before becoming an attorney, Ms. Sun was a licensed Chinese and ESL teacher. She taught Chinese as a second language to non-native Chinese speakers in Utah and China.
Her personal experience with immigration and passion for immigration law driven her to law school. As an immigrant from China, she has experienced struggles with the U.S. immigration system herself and gained valuable personal experience. Committed to the public interest, she volunteers her time for the community of minorities. She is a board member of OCA (Organization of Chinese Americans) Asian Pacific American Advocates-Utah Chapter, a non-profit organization aiming to advocate for social justice, equal opportunity and fair treatment of Asian Pacific Americans in the United States.
RICHARD M. WILNER – FOUNDING PARTNER
Richard M. Wilner is a founding member of Wilner & O’Reilly, APLC and is Board Certified by the State Bar of California as a Specialist in Immigration and Nationality Law. He is admitted to practice law in the State of California and before the U.S. District Courts for the Central, Northern and Southern Districts of California, the Northern District of Texas, the U.S. Court of Appeals for the Ninth Circuit and the U.S. Supreme Court.Mr. Wilner has received the coveted Martindale-Hubbell AV Rating, the highest legal and ethical rating that one can receive from one’s peers in the legal community. Similarly, he has been awarded the title of Super Lawyer from 2007 to the present. He is best known for his work in advising Fortune 500 companies, middle and small market businesses, entrepreneurs and foreign nationals of extraordinary ability in athletics, arts, and sciences in the complex area of U.S. Immigration and Nationality Law.