Many foreign-born scientists, medical doctors, mathematicians and engineers who enter the United States for training or education will, at one time or another, hold J-1 immigration status. J-1 visas are temporary, nonimmigrant visas that the U.S. government issues to exchange visitors, including students, trainees, interns and research scholars. The J-1 program is administered by the U.S. Department of State in conjunction with U.S. Citizenship and Immigration Services.
In many cases, J-1 exchange visitors will be required to return to their home country for two years before they can apply for a green card or certain other categories of nonimmigrant status (such as H-1B or L-1 status). This requirement often comes as a surprise to J-1 visitors whose immigration status is about to expire, so it’s best to educate yourself about the applicable rules as early as possible in your J-1 program.
Am I subject to the two-year foreign residence requirement?
Generally speaking, you are probably subject to the foreign residence requirement if you are or have been in J-1 status and accepted funding from the U.S. government, a foreign government, or an international organization during your J-1 visit. You also may be subject to the foreign residence requirement if your home government has designated your professional skills or knowledge as being necessary for the country’s development. Medical doctors who entered the U.S. to receive graduate medical education or training are also generally subject to the two-year requirement irrespective of the source of program funding or applicability of the skills list.
To determine whether you are subject to the two-year requirement, you should carefully review your J-1 visa stamp, Form DS-2019, and home country’s skills list. It’s also generally a good idea to speak with your J-1 program sponsor to determine whether you are subject to the two-year requirement. When in doubt as to whether you’re subject to the foreign residency requirement, it is advisable to speak with an immigration attorney or request an advisory opinion from the U.S. Department of State.
Where am I subject to the two-year foreign residence requirement?
You are subject to the foreign residence requirement in your country of citizenship or country of last residence. This means that unless you are able to have the requirement waived, you will be required to serve the two-year residency requirement in that country. You can satisfy the two-year requirement by being present in the country where you are subject for a total period of two years; you are not required to be continuously present in the country for two years (e.g., if you return to your country of citizenship for one full year, relocate to a third country for two years, and then return for another full year to your country of citizenship, you have satisfied the requirement).
In cases where your country of citizenship is not the same as your country of last residence, the Department of State has taken the position that you are subject to the foreign residency requirement in your country of last residence. This is generally true even in cases where your permanent resident status in that country has lapsed due to the length of time you have spent outside that country during your J-1 program.
Can I have the two-year foreign residence requirement waived?
There are a handful of ways to obtain a waiver of the two-year requirement. The simplest way is to obtain a letter from your home country’s embassy stating that your country’s government does not object to a waiver of the foreign residence requirement in your case (“no objection letter”). However, this option is generally not available to individuals who obtained graduate medical training in the U.S. or received funding from the U.S. government.
Individuals who do not qualify for a waiver based on a no objection letter, or whose home country cannot or will not issue a no objection letter for some reason, have a couple of other options. First, you can generally obtain a waiver if you can demonstrate that your U.S. citizen spouse or child will suffer “exceptional hardship” if you were to depart for two years. Second, you can generally obtain a waiver if you can demonstrate that you will likely suffer persecution in your home country based on your race, religion or political opinion. Third, you may be able to obtain a waiver if you are working on a project for, or of interest to, a U.S. federal government agency and can establish that your remaining in the U.S. is in the public interest. Finally, medical doctors who agree to work as health professionals in a medically underserved area for three years can generally have the two-year requirement waived.
What if I cannot have the two-year foreign residence requirement waived?
There are options available to individuals who are unable to obtain a waiver but who wish to remain in the U.S. For example, J-1 visitors can switch to an O-1 visa for individuals of extraordinary ability without first obtaining a waiver of the foreign residence requirement. There are a few other visa categories available to people who are unable to obtain a waiver, so it’s best to discuss your options with an immigration attorney to determine the best course for you if a waiver is unavailable in your case.
How long does the waiver process take?
Requests for no-objection waivers often take 6-8 weeks to be fully processed by the Department of State. The other bases for obtaining a waiver can take anywhere from a few months to a few years. J-1 visitors should therefore plan to obtain a waiver well in advance of the expiration of their J-1 status if they wish to switch immediately to another immigration status such as H-1B, L-1 or permanent resident/green card status.