Some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement:
1) If the J-1 receives funding from the U.S. government, home government or an international organization to use for the J-1 program.
2) If the J-1 worked or studied in a field that appears on the “skills list.” This is a list of fields of specialized knowledge and skills that are needed in the J-1’s country of last permanent residence for its development. Canada, Australia and Germany are examples of countries that are not on the list. China, India, and Malaysia are examples of countries that have many skills on the list.
3) If the J-1 participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.
In these instances, the J-1 is required to return home for at least a cumulative total period of two years after the completion of the J-1 program. This requirement is part of U.S. law, in the Immigration and Nationality Act, Section 212(e). If you cannot return home for two years, you must apply for a waiver. The Department of Homeland Security must approve your waiver before you can change status in the United States or receive a visa in certain categories. To check whether you are subject to the rule, it is often indicated on both the visa and/or DS-2019 form whether one will be subject to this requirement. However, this only serves as an initial determination.
If you received funding from your home government or an international organization, or are subject based on the skills list, it is often possible to get a waiver by requesting a “letter of no objection” from your home country’s embassy in Washington, DC. If you received U.S. government funding (such as a Fulbright) it is nearly impossible to get this requirement waived.
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). Usually, this will involve obtaining a “No Objection Statement”, through your home country’s embassy in Washington, DC. The embassy must send the No Objection Statement to the Waiver Review Division of the USCIS. 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.
The whole process of obtaining the waiver can several months. For those applying for the O-1, J-1 visa holders subject to this requirement are advised to apply well in advance, since without it, you may not be able to change your status (from J-1 to O-1). Also, if you start the waiver process too early, you won’t be able to travel in and out of the U.S. as a J-1, get an extension (including for Academic Training), and you may not be able to transfer your J-1 program. As such, timing for applying for the waiver can be critical.
NOTE: Individuals subject to 212(e) 2-year residence requirement are still eligible for O-1 classification although s/he is not eligible to change from J to O status within the U.S. and must apply for an O visa abroad and re-enter in O-1 status.
If you are currently a J-1 visa holder in the United States and have any questions or concerns about the waiver process, contact us at 718-539-1100 or info@jckimlaw.com.
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