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Information for J-1 Visa Holders: Exchange Visitors: The Two-Year Home-Country Physical-Presence Requirement

Requirement

Exchange Visitors come to this country for a specific objective such as a program of study or a research project. The requirement is intended to prevent a participant who is subject from staying longer than necessary for the objective, and to ensure that he or she will spend at least two years in the home country before coming back to the United States for a long-term stay.

Terms of the Requirement

If you are subject to the requirement, and, until you have "resided and been physically present" for a total of two years in either your country of nationality or your country of legal permanent residence, you are not eligible for;

  1. an H, L, or immigrant visa status in the United States. H includes temporary workers, trainees, and their dependents. L includes intra-company transferees and their dependents. An immigrant is the same as a permanent resident, or holder of a "green card."
  2. a change of your status, inside the United States, from J to any other nonimmigrant classification except A, G and O.

You are subject to the Requirement...

  1. If your J-1 participation is or was funded in whole or in part, directly or indirectly, for the purpose of exchange, by your home government or the United States government;
  2. If, as a J-1 Exchange Visitor, you are acquiring a skill that is in short supply in your home country, according to the United States government's "Exchange Visitor Skills List."
  3. If you have participated as a J-1 in a graduate medical education or training program, i.e., a residency, internship, or fellowship, sponsored by the Educational Commission for Foreign Medical Graduates; or
  4. If you are the J-2 dependent of an Exchange Visitor who is subject to the requirement.

If you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending two years in your country, it still holds--even if a more current Form DS-2019 does not reflect such a requirement.

Endorsements

The visa stamp in your passport, or your Form DS-2019, may have been noted by a consular officer or an immigration inspector, that you are or are not subject to the requirement.

If you are unsure whether you are subject...

  1. Consult your the Office of International Students and Scholars. Be sure to take your passport, all of the copies that you have of Forms DS-2019, your I-94 Departure record card, and copies of prior I-94 cards if they are available. The responsible officer can check your forms and make a preliminary determination.
  2. You might consult an attorney. Make sure that you talk to an immigration specialist, preferably a member of the American Immigration Lawyers Association. In selecting an attorney a personal recommendation is best, but if none is available, call the local chapter of the American Bar Association or a referral. If you prefer not to see a lawyer, or are still uncertain...
  3. Write to the Department of State in Washington, D.C., which is responsible for the administration of the Exchange Visitor program and the two-year requirement. Enclose photocopies of all of your form DS-2019 and, in a cover letter, explain why you are uncertain whether you are subject or not, and ask for a DOS advisory opnion. Check the DOS website for further informtion about if a fee is required.

Waivers of the requirement

There are four grounds for waiver of the requirement.

  1. Exceptional hardship to your spouse or unmarried minor child who is a citizen or permanent resident of the United States. If, for example, you had a child who was born in the United States and was therefore a citizen of this country, and if the child had a serious medical condition that could not be treated in your country, you might obtain a waiver, because the child would suffer a hardship by going there with you to live. You would apply to USCIS on Form I-612, "Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, as Amended." (Form is commonly referred to as Form I-612).
  2. Fear of persecution. If you can demonstrate that, because of your race, religion, political opinions, or nationality, you would face persecution by your home government if you went back to your country, you might qualify for a waiver. You would apply to USCIS on Form I-612.
  3. Interest of a United Sates government agency. If your participation in research or a project sponsored by a United States government agency is of sufficient importance to that agency, It can apply to DOS for a waiver FOR you--in the agency's interest, not yours.
  4. A "no-objection" statement (not permitted for medical trainees). Your country's embassy in Washington can indicate in a direct letter to DOS that it has no objection to your receiving a waiver. A "no-objection" statement will usually not lead to a waiver if the Exchange Visitor has received funding from the United States government.

Office of International Students and Scholars • Lehigh University • 32 Sayre Drive, Coxe Hall, Bethlehem, PA 18015 • 610-758-4859 • Fax: 610-758-5156 • intnl@lehigh.edu
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