As a current or past exchange visitor (J-1) visa holder, you are subject to the two-year home-country physical presence requirement, also known as the foreign residence requirement under U.S. law, for one or more of the following reasons:
- Government funded Exchange Program – You participated in an exchange program that was funded in whole or in part by a U.S. government agency, your home country’s government, or an international organization that received funding from the U.S. government or your home country’s government.
- Specialized Knowledge or Skill – You participated in an exchange program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country. Note: If your country does not appear on this list, there is no requirement to return to your home country for two years at the end of your program, based on the skills list.
- Graduate Medical Education/Training – You participated in an exchange program to receive graduate medical education or training.
You are required to fulfill this requirement by returning to your home country for a cumulative total period of at least two years. You are not prohibited from travelling to the United States, but until you have fulfilled the two-year home-country physical presence requirement, you are not permitted to do any of the following:
- Change status while in the United States to the nonimmigrant categories of temporary worker (H) or intracompany transferee (L);
- Adjust status while in the United States to immigrant visa/lawful permanent resident status (LPR);
- Receive an immigrant visa at a U.S. Embassy or Consulate; or
- Receive a temporary worker (H), intracompany transferee (L), or fiancé (K) visa.
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), when applied for by the former exchange visitor and recommended by the Department of State, Waiver Review Division.
If you are subject to the two-year home-country physical presence requirement, but you are not able to fulfill the requirement, you may apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver under any one of the five applicable bases set forth in U.S. immigration law. Choose the one basis that you qualify for or applies to your situation.
Five Bases for Recommendation of a Waiver
1. No Objection Statement:
Your home country government may issue a No Objection Statement through its embassy in Washington, DC directly to the Waiver Review Division that it 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. T
2. Request by an Interested U.S. Federal Government Agency:
If you are working on a project for or of interest to a U.S. federal government agency, and that agency has determined that your departure for two years to fulfill the two-year home-country physical presence requirement would be detrimental to its interest, that agency may request an Interested Government Agency Waiver on your behalf.
If you believe that you will be persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver.
4. Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:
If you can demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for an exceptional hardship waiver.
5. Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program):
If you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education, you may request a waiver of the two-year home-country physical presence requirement based on the request of a designated State Public Health Department or its equivalent, if you meet all of the following criteria. This waiver category is also known as the Conrad State 30 Program. You must:
- have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area;
- agree to begin employment at that facility within 90 days of receiving a waiver; and
- sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.
Getting a J-1 Waiver is a complex process and you may be better served by retaining a lawyer to seek a waiver on your behalf. Write us to schedule a consultation for J-1 waiver and give us a call at (+1) 202-496-1295