The intention of the J-1 program is to facilitate cultural and academic idea exchange in an array of disciplines ranging from au pairs, students, interns and trainees, physicians, researchers, and scholars. The exchange of ideas fully occurs when the exchange visitor returns to his or her country of nationality or last residence to share knowledge and experience gained in the United States. Therefore, certain individuals presently or previously in J-1 exchange visitor visa status (or J-2 status as a dependent of a J-1 exchange visitor) may be required to return to their home country for two years before they may become eligible for nonimmigrant visa statuses, including the most common work visas, H-1B professional worker and L intracompany transferee, or U.S. permanent resident status. J-1 exchange visitors are subject to the two year home residence requirement, commonly referred to as the “two-year rule,” if:
- The exchange visitor program was funded in full or in part, directly or indirectly, by the U.S. government, or the government of the exchange visitor’s country of nationality/last residence;
- At the time of obtaining exchange visitor status, the field of training or expertise, as specified on the IAP-66 or DS-2019 Forms, is included on the Exchange Visitors Skills List maintained by U.S. Department of State (DOS), which includes skills in short supply in the exchange visitor’s country of nationality/last residence (if the skill is subsequently removed from the Skills List, the exchange visitor is no longer subject to the two year rule on this basis);
- The exchange visitor came to the U.S. for graduate medical education or training.
Often, exchange visitors will want to request an Advisory Opinion from DOS to confirm whether the home residence requirement applies, as IAP-66/DS-2019 Forms and J-1 visa stamps can contain conflicting information and U.S. Citizenship and Immigration Services may request an advisory opinion letter from DOS before approving an application for adjustment of status, or if pursuing consular processing, the National Visa Center may make a finding that the foreign residence requirement applies. Once applicable, the two year rule compels the exchange visitor to return to his or her country of nationality or last residence for two years or obtain a waiver of this ground of inadmissibility.
Five Bases for J-1 Waivers
The law, however, provides a waiver of the two-year home residency requirement under five prescribed conditions or bases:
- A statement from the exchange visitor’s home country, or last permanent residence at the time of the J program, indicating it does not object to the exchange visitor’s receipt of a waiver of the two-year foreign residence requirement (foreign medical graduates are not eligible for a waiver on this basis);
- Exceptional hardship to a U.S. citizen or permanent resident spouse or child would result from the exchange visitor’s compliance with the home residence requirement;
- A recommendation from an Interested Government Agency (IGA);
- Sponsorship by a state health department or its equivalent; or
- Anticipated persecution. A no objection statement is perhaps the most straightforward approach to obtaining a waiver of the two-year rule, but may be insufficient in instances where the home country is unwilling to issue it, or the exchange program was financed by the U.S. or home country government. Indeed, USCIS may make a finding of exceptional hardship, or an IGA may agree the exchange visitor’s continued and uninterrupted work serves significant public interests, only for the waiver application to be overturned by the DOS due to the exchange visitor’s receipt of government funding. Careful research should be conducted to determine whether an exchange visitor is subject to this two-year foreign residence requirement because the rule does not apply to all J-1 exchange programs.