J-1 STATUS: THE TWO-YEAR HOME RESIDENCY REQUIREMENT
Some J-1 visa holders are subject to the Two-Year Home Residency Requirement. This Legal Guide explains the following: 1. What does this requirement mean? 2. Who is subject to this requirement? and 3. How can this requirement be waived?
What is the Two-Year Home Residency Requirement?The Two-Year Home Residency Requirement means that those who come to the U.S. under a J-1 status cannot change status in the U.S., or get an immigrant visa such as a work visa (H, L visas) or family-based visa (K fiancé), nor can they get a visa as the spouse or minor child of a H-1/L-1 visa holder. Moreover, they cannot become permanent residents (even if they get married to a U.S. Citizen or a LPR), until they return to their home country / country of last permanent residence for at least 2 years cumulatively (it doesn’t have to be a continuous presence) upon completion of their U.S. training.
However, even if you are subjected to the Two-Year Home Residency Requirement, you can change get a F-1 student visa, a B-1 business visa, a B-2 tourism visa, or an O-1 talent visa.
Who is subject to the Two-Year Home Residency Requirement?1. A J-1 visa holder who received funding from the U.S. government or his/her home country’s government or from an international organization. For example: a Fulbright Scholar.
2. J-1 visa holders from certain countries (“skills list”), such as: Albania, Algeria, Argentina, Brazil, China, Chile, Columbia, Haiti, India, Indonesia, Malaysia, Philippines, Romania, Saudi Arabia etc).
3. J-1 visa holders who participated in a graduate medical training program in the U.S. under the sponsorship of the Educational Commission for Foreign Medical Graduates.
Tip: If you are not sure whether you are subject to the Two-Year Home Residency Requirement, you can request an “advisory opinion” from the U.S. Department of State.
Note: Canadians can enter the U.S. in H/L status even before completing the Two-Year Home Residency Requirement with just an H/L approval notice (they don’t need a visa). However, they remain subject to this Requirement and will need to complete 2 years in Canada or get a waiver if they wish to apply for a Green Card.
Can the Two-Year Home Residency Requirement be waived?There are several grounds to get a waiver for the Two-Year Home Residency Requirement:
1. Exceptional Hardship: you should prove that returning to your home country amounts to a hardship to your dependents (who are U.S. Citizen or LPR);
2. Government Intervention: you have to prove that it is in the best interest of an agency of the U.S. government that you stay in the U.S.;
3. Persecution: you should prove that if you return to your home country, you will be persecuted;
4. Conrad Program: for J-1 visa holders who are medical graduates and received a full-time job offer in an area of healthcare shortage;
5. No Objection Statement: you can get a letter of No Objection from your home country’s embassy in D.C. or from your home country’s designated ministry. This waiver is not available to medical graduates unless they came to the U.S. as J to observe, consult, teach or do research. The No Objection statement is usually insufficient for those who received direct or indirect funding from the U.S. government for participating in an educational or cultural program;
6. Refugee/Asylee AOS: a waiver is automatically granted to admissible refugees and asylees.