Two-Year Home Country Physical Presence Requirement FAQs

 

How do I really know if I’m subject to the requirement?

The visa stamp in your passport, or your DS-2019, or both, may show an indication, by a consular officer or an immigration inspector that you are or are not subject to the requirement. These indications, labeled “preliminary endorsement” on your DS-2019 are usually accurate even if these are not the final, legally binding determination.

One of my DS-2019 forms says I am subject, another says I’m not. Which one is right?

If you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending 2 years in your county, it is still a requirement that you go home for two years even if a more current program and DS-2019 reflects no such requirement.

Is there any way this requirement can be waived? Can I avoid going home? Am I eligible for other “J” programs?

You should begin by visiting the US Department of State websites for information:

Please note that if you apply for a waiver and receive notification from the US Department of State that this waiver will be granted, you are no longer eligible for an extension or transfer of your J-1 program. You will either have to apply for and be granted another visa classification before completing your J-1 program or exit the country upon completion of your J-1 program. Keep in mind that if you go home and, in effect, dispose of your waiver, you will be subject to the 12-month bar before you are eligible for new J-1 program participation if you were originally a research scholar or professor.

If you applied for a waiver and are “out of status,” you are not eligible for reinstatement. However, if you applied for a waiver and the Department of State has not yet issued a recommendation for a waiver, you are eligible for a correction and reinstatement.

There are five grounds for a waiver of the requirement:

  1. “No Objection” statement from the home government
  2. The exchange visitor’s government must state that it has no objection to the exchange visitor not returning to the home country to satisfy the two-year foreign residence requirement (Section 212(e) of the Immigration and Nationality Act, as amended) and remaining in the US is he or she chooses to do so.
  3. Request by an interested (US) Government agency or IGA - If an exchange visitor is working on a project for or of interest to the US Federal Government, and that agency has determined that the visitor’s continued stay in the United States is vital to one of its programs, a waiver may be granted if the exchange visitor’s continued stay is in the public interest.
  4. Persecution - If the exchange visitor believes that he or she will be persecuted upon return to the home country due to race, religion, or political opinion, he or she can apply for a waiver.
  5. Exceptional hardship to a United States citizen (or permanent resident) spouse or child of an exchange visitor

Marriage to a US citizen, in and of itself, has no effect on the requirement. However, if the exchange visitor can demonstrate that his or her departure from the US would cause extreme hardship to his or her US citizen or lawful permanent resident spouse or child, s/he can apply for a waiver. Note that mere separation from family is not considered to be sufficient to establish exceptional hardship. They may ask what keeps your spouse from going with you to your home country.

If I can’t change my J-1 visa status inside the US, can I go out, apply for a new visa and come back in as an F-1 student, for example? F-1s are not subject, right?

You can apply for an F-1 visa, and if you get it you can come back as an F-1 student. But, until you spend two years at home, or get a waiver, you are still subject to the requirement. F-1 status won’t make you subject, but under the condition that you were a J-1 who was subject, you are still subject, even in F-1 status.

Once I finish my program and leave, can I come back? What about the F-1 visa? Don’t the two years have to be uninterrupted?

If you are subject and you finish your program and go home, there is no regulation that says you have to stay out of the USA for 2 years. It simply means you are still subject to this requirement and its particular limitations on H, L, and immigrant visas. The two years in your home country don’t have to be continuous, they can be cumulative.

I’m subject. If I go home and get married, and a year later my wife gets an H-1B to work in the U.S., can I come with her as an H-4 dependent?

Not if you haven’t fulfilled the two-year requirement.