J-1 Waiver Information - Two-Year Home Residence Requirement
What is the Two-Year Rule?
J exchange visitors could possibly be subject to the two-year rule, also referred to as 212(e) or the "Home Residency Requirement." Those that are subject must either be physically present in their home country for an aggregate of two years or obtain a waiver of the Two-Year Rule before becoming eligible for:
- H or L visa category
- Change of status applications from within the US
- Adjustment to Lawful Permanent Resident status
This does not force the individual to return home but rather limits options for U.S. immigration benefits for those who do not. It does not prohibit applications for other non-immigrant visas, provided all other eligibility criteria are met. Dependents (J-2's) of those who are subject to the 212(e) are also subject to the rule.
Who is Subject to the "Home Residency Requirement?"
J-1 Exchange visitors and their dependents (J-2's) become subject if any one of the following criteria are met:
- If the exchange program was financed directly or indirectly by the US government or a foreign government for the purpose of exchange
- If the skills that the exchange visitor is coming to develop or exercise are in a field which the exchange visitor's home government requested be on the Department of State's Skills List
- The Skills List is composed by the Department of State. It lists occupational fields and skills possessed by exchange visitors that the home government wishes to have return to the country. If an individual is a national of one country, but was a permanent resident of another country prior to entering the US as an exchange visitor, then one looks to the country of last permanent residence for purposes of assessing subjectivity to the Two-Year Rule.
- If the exchange visitor comes to the US to receive "graduate medical education or training."
What are the Grounds to Waive the Home Residency Requirement?
Waivers of the home residency requirement can be sought on the following grounds:
- No Objection: The exchange visitor's home country issues a letter that is sent directly to the US State Department, indicating that it has "no objection" to the exchange visitor's request for a waiver. The "no objection" method is the most common, but is not generally possible in the event that US government funds were involved in the exchange visitor's program.
- Interested U.S. Government Agency: If an exchange visitor is working on a project for or of interest to a US Federal Government agency, 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 in the United States is in the public interest. It is important to note that the employer of the exchange visitor must request such a waiver on the appropriate form. The request may not come from the exchange visitor.
- 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.
- Exceptional Hardship to a U.S. Citizen or Permanent Resident Spouse or Child if the alien returns home: If the exchange visitor can demonstrate that his or her departure from the United States would cause extreme hardship to his or her United States citizen or lawful permanent resident spouse or child, he or she may apply for a waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.)
- Physicians working in Underserved Areas: Physicians who are subject to the Two-Year Rule may qualify for waivers based on employment in medically-underserved areas. The rules for this kind of waiver are complicated. For further information, consult an immigration attorney.
For more information, please visit the Department of state website on the J-1 waiver.