J-1 Exchange Visitors come to the U.S. for a specific objective such as a program of teaching (J-1 Professor) or a research project (J-1 Scholar). The intent of the Exchange Visitor Program is for the home country to benefit from the J-1 Exchange Visitor’s experiences in the U.S. Accordingly, J-1 Exchange Visitors and their accompanying J-2 dependents may be subject to a two-year home residence requirement.
J-1 Exchange Visitors may be subject to the two-year home residence requirement if:
they received government funding, in whole or in part, directly or indirectly, and for the purpose of exchange, from their home government, the U.S. government or selected international organizations;
the education, training or skill the J-1 Exchange Visitor is pursuing on the exchange program is on the Exchange Visitors Skills List (a list of areas and disciplines identified by foreign governments as having a short supply of workers in that country) for the J-1 Exchange Visitor’s country;
they participated in graduate medical education or training; or
they are J-2 dependents of a J-1 Exchange Visitor who is subject to the two-year home residence requirement.
If a J-1 Exchange Visitor is subject to the two-year home residence requirement, s/he must “reside and be physically present” for a total of two years in either his/her country of nationality or legal permanent residence after the completion of his/her stay in the U.S. as a J-1 Exchange Visitor.
Until this requirement is met, the J-1 Exchange Visitor is NOT ELIGIBLE for the following:
H-1B (temporary worker) visa;
L (intra company transferee) visa;
K (fiancé/e) visa;
Adjustment of Status to permanent residence (green card) or immigrant visa processing; or
a change of status inside the U.S. to any other non-immigrant classification except A (diplomats and dependents) or G (representative to international organizations).
Evidence of whether or not a J-1 Exchange Visitor is subject to the two-year home residence requirement may be found:
NOTE: Although the information contained in the above documents is usually correct, sometimes there are errors. Therefore, we strongly recommend obtaining definitive evidence of being subject to 212(e). Please contact our office for ways in which this can be done.
J-1 Exchange Visitors who are subject to the two-year home residence requirement may be able to receive a waiver of this requirement. A waiver may be pursued on four grounds:
1. A “statement of no objection” from the J-1 Exchange Visitor’s home country. For advice on how to obtain such a statement, J-1 Exchange Visitors should contact their Consulate or Embassy in the U.S. The statement must be transmitted through official channels from the home country government to the U. S. Department of State. The Department of State then makes a recommendation to USCIS as to whether or not the waiver should be granted. USCIS makes the final decision whether the waiver should be given.
Note: J-1 foreign medical graduates are not eligible to apply for a waiver of the two-year home residence requirement on the basis of a “no objection statement” from their home country.
2. The interest of a U.S. government agency. If the J-1 Exchange Visitor’s participation in a project sponsored by, or of interest to, a U.S. federal government agency is of sufficient importance to that government agency, the agency can apply to the Department of State for a waiver. The Interested Government Agency (IGA) request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The J-1 Exchange Visitor has the responsibility for obtaining an IGA request from a U.S. federal government agency. The Department of State then makes a recommendation to USCIS as to whether or not the waiver should be granted. USCIS grants the final waiver.
3. Fear of persecution. If a J-1 Exchange Visitor can demonstrate that, because of his or her race, religion, political opinion, membership in a particular social group or nationality, s/he would face persecution upon return to the home country, s/he might qualify for a waiver. To apply for such a waiver, the J-1 Exchange Visitor should submit an Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, directly to USCIS. Once the USCIS makes a decision, it will forward its decision to the Waiver Review Division. Only if USCIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis.
4. Exceptional hardship to a U.S. Citizen or Lawful Permanent Resident spouse or child. If a J-1 Exchange Visitor can document that his/her return to the home country would result in extreme hardship to a U.S. Citizen or Lawful Permanent Resident spouse or child, then s/he may apply for a waiver. Ordinarily, circumstances of extreme hardship, such as medical reasons why your spouse or child cannot leave the U.S. and return to the country with the J-1 Exchange Visitor, are necessary for such a waiver to be granted.
To apply for such a waiver, the J-1 Exchange Visitor should submit an Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act directly to the USCIS. Once the USCIS makes a decision, it will forward it to the Waiver Review Division. Only if USCIS makes a finding of exceptional hardship will the Waiver Review Division proceed with the waiver case under this basis. Note: Mere separation from family is not considered to be sufficient to establish exceptional hardship.
Processing of a waiver of the two-year home residence requirement is a complicated and time-consuming matter. Individuals who are interested in pursuing a waiver are strongly recommended to seek the advice of an immigration attorney.
For detailed application procedures on applying for a waiver of the two-year home residence requirement, please visit: http://travel.state.gov/content/visas/english/study-exchange/student/residency-waiver.html.
The information contained on this web page is provided as a service to the international faculty, researchers, staff, employees and administrators of University at Buffalo, and does not constitute legal advice on any immigration, tax, or other matter. We try to provide useful information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site or any associated site. As legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel. Neither the University at Buffalo nor the Office of UB Immigration Services is responsible for any errors or omissions contained on this web page, or for the results obtained from the use of this information.
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