J-1 Two Year Home Residence Requirement
The two year home residence requirement is a law that prohibits certain J-1 exchange visitors from reentering the United States, changing status, or obtaining permanent residence until they have lived in their home country for a full 24 months after completing the J-1 program. The purpose of the rule is to further the stated purpose of the J-1 program, which is to faciliate foreign nationals visiting the United States to gain education, training, or experience for the purpose of using it in their home country.
The two-year home residence requirement, or foreign residence requirement is found at Section 212(e) of the Immigration and Nationality Act. The two year home residence requirement applies if the J-1 exchange visitor is described in one or more of the following categories:
- The visitor's participation in an exchange program was funded by the United States Government, EV's own government, or an international organization; or
- The education, training, or skill the visitor is pursuing in an exchange program appears on the Exchange Visitor Skills List (1997 Amendment) for visitor's country of citizenship; or
- The visitor acquired J-1 status on or after January 10, 1977 to receive graduate medical education or training.
Two Year Home Residence Requirement Penalties
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 permanent residence status until you have either lived in your home country for two years, or received a waiver of this requirement. The two year home residence requirement does not bar tourist or business visits in B status.
Does the Two Year Home Residence Requirement Apply to You
If you are not sure whether the INA 212(e) two-year foreign residence applies to you, we can evaluate whether we believe that the two year home residence requirement applies to you and we can also make a written request for an advisory opinion from the Department of State as to whether INA 212(e) applies to your situation. It it rare, but possible for J-1 organizations including umbrella sponsors to enter the wrong code on the DS-2019 form inadvertently subjecting the J-1 visitor to the home residence requirement. In some cases a careful review of your documents can uncover an error that resulted in your misclassification as subject to the two year home residence requirement.
Waivers of the Two Year Home Residence Requirement
A J-1 exchange visitor subject to the two-year home residence requirement may apply for a waiver under one of the five categories discussed at INA 212(e):
- No Objection Statement (NOS): The visitor's home country government may issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the visitor not returning to the home country to satisfy the two-year foreign residence requirement and does not object to the possibility of the visitor becoming a US resident. Foreign medical doctors who acquired J-1 status after January 9, 1977 are generally ineligible for this waiver.
- Request by an interested government agency (IGA): If an exchange visitor is working on a project for or of interest to a US government agency and that agency determined the visitor's departure for two years will be detrimental to its interest, the agency may request a waiver. The IGA request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division.
- Persecution: If an exchange visitor believes that he will be persecuted based on race, religion, or political opinion if returned home, the visitor may apply for a persecution waiver.
- Exceptional hardship to a US citizen or resident spouse or child: If an exchange visitor can demonstrate that her departure from the US would cause exceptional hardship to her US citizen or resident spouse or child, she may qualify for an exceptional hardship waiver. But mere separation from family is generally insufficient.
- State Public Health Department Request CONRAD: Under Public Law 103-416, a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care shortage area or at a facility serving patients from such an area, and agrees to begin employment at that facility within 90 days of receiving a waiver for a total of 40 hours per week and not less than three years, may apply for a waiver under this basis. There is a limit of 30 waivers per state or institution per year. Only foreign medical doctors who received J-1 status to pursue graduate medical education or training may apply under this basis.