Dealing With J-1 Two-Year Home-Stay Rule: Exceptions and Waivers

Many J-1 exchange visitors to the United States, if they look at either their Certificate of Eligibility/Form DS-2019 from their program sponsor or their U.S. entry visa, will see words like, "Bearer is subject to Section 212(e). Two-year rule does apply." If you see that, and if your plan is to return home at the end of your U.S. stay and not seek another nonimmigrant entry visa or U.S. lawful permanent residence (a green card) anytime soon, there's no problem.

However, those two sentences are hugely significant for a foreign visitor's chances of remaining in the United States if they want to pursue a green card. Although sometimes entered in error, that language usually means that the J-1 visa holder is subject to what's called the two-year home-stay or home-residence requirement. And as we'll explain below, that can block or create hurdles to one's ability to return to the United States.

What Is the J-1 Two-Year Home Stay or Foreign Residence Requirement?

We're referring to a rule that the J-1 visa holder must in most cases return home (and not just to a third country) for two years before returning to the U.S. on either a nonimmigrant (temporary) visa or as a lawful permanent resident (green card holder). The two-year period need not be an unbroken stretch of time; an aggregation of two years in your home country can suffice.

This requirement causes frustration for many J-1 visitors who, while in the U.S., receive a job offer, marry a U.S. citizen, or otherwise become technically eligible for a visa or green card.

There is a legal rationale for the home-residence requirement. The J-1 visa is intended for exchange programs where people learn something particular or unique to the United States. Exchange students are expected to go back to their home countries and use or share their knowledge. This is the "exchange" element of the visa.

Who Is and Isn't Subject to Two-Year Home-Residence Requirement

Not all J-1 visa holders are subject to the two-year home residence requirement. It applies only to participants in three types of exchange visitor programs:

• programs for foreign medical graduates who receive graduate medical training (residencies) in the U.S.
• programs in which participants receives money from their foreign government, the U.S. government, or an international organization, and
• programs for teaching people certain skills that are in short supply in their home countries. The Department of State (DOS) maintains a list of such skills and the countries where they are especially needed. You can access this on the Skills List by Country page of the DOS website.

Consult with an immigration lawyer if you don't believe you fall into one of these categories but nevertheless received a "Subject to Section 212(e)" notation in your U.S. entry visa.

Also realize that neither the DS-2019 nor the J-1 visa designations are entirely authoritative. It's even possible for people whose J-1 visa and DS-2019 say, "212(e) does not apply" to discover that they're subject to the two-year home stay requirement after all.

Because you wouldn't want to waste time applying for an immigration benefit only to ultimately be rejected, it's wise to check with the DOS Visa Office, which has the final say. You may request an advisory opinion on this, and also initiate a J-1 visa waiver application by visiting the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement page of its website.

If it turns out you definitely are subject to the two-year home-residence requirement, you cannot apply for a green card, to change status to another nonimmigrant visa, or obtain an H or L visa without a waiver.

After Two Years, How Do You Show Having Met the Two-Year Foreign-Residence Requirement?

If, as expected, you leave the United States at the end of your J-1 stay, spend at least two years in your home country, and then wish to return to the United States, you will need to prove that you actually spent the time away. USCIS has issued guidance on this in Chapter 3 of its Policy Manual. In brief, the agency suggests that applicants for immigration benefits submit such evidence as:

• a chart of days spent in your home country
• passport stamps
• travel receipts
• employment records
• school transcripts
• leases, or
• affidavits (presumably from people who observed your presence in your home country).

Any partial days spent in the home country count as a whole day.

If conditions such as war, civil unrest, political changes, or travel bans in the home country make compliance with the two-year foreign residence requirement "effectively impossible," USCIS will take that into account in assessing your compliance. Such determinations are done on a case-by-case basis, in consultation with the Department of State.

Might You Qualify for Waiver of the Two-Year Home-Residence Requirement?

To apply for a waiver, you will need to show that you deserve it under one of these five grounds:

• No objection from your home government. Unless you are a foreign medical graduate, the easiest way to obtain a waiver might be to have your home government consent to it through a "no objection letter." In this letter, your government would assert that it does not have a problem with your staying in the U.S. to apply for permanent residence (a green card); even if it helped finance your exchange program participation. Contact your home country's embassy in Washington, D.C., to request such a letter. Be forewarned, however: A no-objection letter might not be enough by itself to secure you a waiver of the two-year home residence requirement. This is particularly true if you accepted scholarship funding to come to the U.S. in J-1 status.
• Request by an interested U.S government agency. If you are working on a project of interest to an agency of the U.S. government, and that agency decides that your continued stay is vital to one of its programs, it might support your request for a waiver. Foreign medical graduates may qualify for an interested government agency waiver through the U.S. Department of Agriculture or the Department of Health and Human Services.
• Fear of persecution in your home country. If you can show that you would be persecuted upon return to your home country due to your race, religion, or political opinion, you can apply for a waiver. Note that, unlike applicants for asylum in the U.S., you cannot qualify if you fear persecution based solely on your nationality or membership in a particular social group. Also, the standard is higher than in ordinary asylum cases, in which applicants need only prove a "reasonable fear" of persecution. J-1 waiver applicants, by contrast, must satisfy the U.S. government that they "would be" persecuted upon return.
• Exceptional hardship to your U.S. citizen or permanent resident spouse or child. If your spouse or any of your children are U.S. citizens or permanent residents, and you can show that your departure from the U.S. would cause them exceptional hardship, you may be granted a waiver. However, USCIS will demand a greater showing of hardship than the "mere" emotional pain of separation or economic or language difficulties your family would suffer. The classic exceptional hardship case is one in which your family member has a medical problem that would be worsened by your departure or by traveling with you to your home country; or where family members would be persecuted if they returned home with you.
• Request for your services as physician by a state department of health. If you are a foreign medical graduate who has an offer of full-time employment at a health care facility in an area that has been designated as having a shortage of doctors, and you agree to begin working there within 90 days of receiving the waiver and to continue working there full-time for at least three years, you may be granted a waiver.

As you might suspect, the waiver application process is complex. To succeed, you will likely have to persuade a reluctant U.S. government officials that you fit into a category whose boundaries are not clearly defined. It's best to get help from an experienced immigration attorney.

Risks to J-1 Status When Applying for Waiver

During the first few steps of the waiver application review process, you're safe—your J-1 status will not be affected. However, once the DOS Waiver Review Division makes a favorable waiver recommendation in your case, you are no longer a true J-1 program participant. That will impact your ability to extend your status (as well as to transfer between program sponsors).

You will not be allowed to extend your current J-1 status beyond the end date on your DS-2019. (This comes from the State Department's Foreign Affairs Manual, at 9 FAM 41.62 N10.2) If DOS instead denies your request for a waiver recommendation, you may apply for an extension of J-1 status. (See 9 FAM 41.62 N10.2.)

Thus, it's important to carefully time your waiver application. Before applying, have your J-1 program dates extended as far into the future as possible, in case your waiver application is approved, resulting in your being unable to qualify for future extensions.

Also, it's good to get a J-1 visa in your passport from a U.S. consulate in your home country to match those extended dates. Without it, you will be unable to continue traveling and returning to the U.S. as a J-1. You would have to wait until you receive both the waiver and your new status approval before traveling again. As long as you are in possession of a DS-2019 and a J-1 visa, you will be allowed to return to the U.S. as many times as you want, even after receiving a favorable waiver recommendation from DOS.

Getting Legal Help

It can be helpful to consult with an attorney who specializes in immigration law in order to discuss and strategize. The attorney can, for example, help you prepare a convincing case for a J-1 waiver or a request to take difficult country conditions into account.