J1 Visa Lawyer – What is a two-year home residence requirement and when does it apply?

Our clients, participants of J-1 exchange visitor programs, are often confused as to the nature of this rule and its applicability. Below is a summary on what this rule means and when it applies.

Certain J-1 exchange visitors are subject to two-year foreign residence requirement, also known as a “two-year rule” (see Section 212(e) of the Immigration and Nationality Act). Exchange visitors who are subject to the two-year rule cannot change their status to that of H, L, K, or immigrant lawful permanent resident until they have returned to their home countries for at least two-years or received a waiver of that requirement. Please note that you do not have to reside in your home country for uninterrupted two years. If you reside in your home country for ten months and then depart, you are still subject to the rule. When you come back to your home country, you will need to reside there for fourteen more months to satisfy the requirement.

The exchange visitor is subject to the two-year home country physical presence requirement if the following conditions exist:
(1) the exchange visit was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor’s nationality or last residence;
(2) the exchange visitor is acquiring education, training, or skill in a field which is designated by the exchange visitor’s government as being in short supply in that country as appears on that country’s Skills List; or
(3) the exchange visitor came to the United States to receive graduate medical education or training.

Government Funding – Direct government sponsorship means that the government funds are contributed directly to the exchange visitor in connection with his or her participation in an exchange visitor program. That may be in the form of compensation, such as a stipend, scholarship, or grant. Indirect sponsorship means that the funding comes through an international organization with government funds for use in financing international educational and cultural exchanges, or is financed by an organization with government funds to further international educational and cultural exchange.

The Exchange Visitor Skills List – is a list of fields of specialized knowledge and skills that are deemed necessary for the development of an exchange visitor’s home country. Note: If your country does not appear on this list, there is no requirement to return to your home country for two years at the end of your program, based on the skills list. The Skills List has been recently revised, the current addition applies to those exchange visitors who receive their J-1 visa on or after June 28, 2009. The revised Skills List can be found on the Department of State website.

Usually, the Skills List of the country of your citizenship applies to you. However, if the country of your citizenship differs from the country of your last legal permanent residence at the time you obtain your Exchange Visitor (J-1) visa status, the Skills List from the country of your last permanent residence at the time you obtain your J visa applies to you.

Graduate medical education – generally consists of a training program involving patient care services under the supervision of an attending physician that leads either to an unrestricted state medical license or certification by a specialty board. Programs that consist of observation, consultation, teaching, or research in which there is no patient contact or only incidental patient care are not considered graduate medical education.

So, how do you determine whether you are subject to the two-year rule? The annotation on your J-1 visa or Certificate of Eligibility for Exchange Visitor Status (DS-2019) “subject (or not subject) to 212(e)” is not necessarily correct. This is a preliminary endorsement of the Consular Officer. You need to assess your situation based on the three conditions mentioned above.

If you are not sure whether the two-year foreign residence applies to you, you may submit a written request for an advisory opinion for the applicability of two-year rule to your situation to the Waiver Review Division at the Department of State. Please contact our office for more information.