INFORMATION FOR J-1 EXCHANGE VISITORS

J-1 Waivers

Many J-1 Exchange Visitors are subject to a Two-Year Home-Country Physical Presence Requirement. This rule is located in section 212(e) in the Immigration and Nationality Act, the law that covers topics related to immigration and citizenship, which is why you will hear this rule referred to as the 212(e). The Office for International Students and Scholars can provide limited information about the Two-Year Home-Country Physical Presence Requirement. For further information please contact an immigration attorney.

What is the Two-Year Home-Country Physical Presence Requirement?

Since the J-1 Program is an exchange program, the Department of State requires that some Exchange Visitors return home at the end of their programs for a minimum of two years. This is to encourage and foster an exchange of ideas between the two countries.

If you are subject to the Two-Year Home-Country Physical Presence Requirement, then you must return to your country of citizenship, or your country of last legal permanent residence, after your J 1 program is completed. You must remain there for an aggregate of two years. If you do not fulfill your Two-Year Home-Country Physical Presence Requirement you cannot change status to H, L or Permanent Residence. This requirement remains until you have either fulfilled the rule or you have received a waiver of the requirement.

Who is subject to the Two-Year Home-Country Physical Presence Requirement?

There are four ways to become subject to the Two-Year Home-Country Physical Presence Requirement.

1. The US Department of State created a list of fields and specialized knowledge and then entered into an agreement with other countries about what skills those countries need. This list is known as the Skills List. If you are a resident or citizen of a country that is on the Skills List and your field appears on that list then you will be subject to the Two-Year Home-Country Physical Presence Requirement. You can see if your country has a Skills List here: http://travel.state.gov/visa/temp/types/types_4514.html



2. Home Government Funding- If you received funding from your home government you will be subject to the Two-Year Home-Country Physical Presence Requirement. Sometimes, you are eligible to apply for a waiver in this situation. This generally depends on the rules of your home government.



3. US Government funding- If you received funding from the US government, for instance if you came to the US with Fulbright or Fogarty funding, then you are also subject to the Two-Year Home-Country Physical Presence Requirement. It is very difficult to obtain a waiver if you have received US government funding.



4. Foreign Medical Graduates- If you were in the ECFMG program to train as a Foreign Medical Graduate then you are subject to the Two-Year Home-Country Physical Presence Requirement. It is also very difficult to obtain a waiver in this case.

How do I know I’m subject?

Be extra cautious when trying to determine if you are subject. When making a visa application the consular officer often marks on your DS-2019 if you are subject to the Two-Year Home-Country Physical Presence Requirement. It may also be marked on your visa. Oftentimes these markings are incorrect and should not be the only criteria used in determining subjectivity. When in doubt always request an Advisory Opinion. If you believe that you are NOT subject and you have been marked subject then you MUST apply for an advisory opinion that states you are not subject if you are going to file a petition to change status, or apply for an H-1B or an immigrant visa.

Conversely, If you believe that you ARE Subject and it was not marked on your DS-2019 you should apply for an advisory opinion early and then, if necessary, apply for a waiver of the requirement. If you believe that you are going to be pressed for time you may wish to apply for the waiver directly or make both applications at the same time.

How do I get an Advisory Opinion?

An Advisory Opinion is a letter from the Department of State that states if you are subject to the Two-Year Home-Country Physical Presence Requirement. If you receive an Advisory Opinion that says that you are not subject, then there is no need to apply for a waiver. If you obtain an Advisory Opinion that says you ARE subject, then you should take steps to apply for a waiver if possible. Keep your Advisory Opinion. If it proves that you are not subject, you will need to use this Advisory Opinion for all future changes of status including Permanent Residence.

Generally, The Office for International Students and Scholars does not submit advisory opinion letters for J-1 students or scholars. Advisory Opinion information can be found via the following link: http://travel.state.gov/visa/temp/info/info_1288.html, under list item number 3.

If you have any questions about how to submit an advisory opinion you should contact an immigration attorney.

If you are subject: routes to a waiver