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Eligibility for a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement


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Am I subject to the two-year home-country physical presence requirement?

Some exchange visitors (with J-1 visas) are subject to the two-year home-country physical presence requirement. This includes current and former exchange visitors. You are subject if one or more of the following applies to you:

  • Government funded Exchange Program - You participated in a program funded in whole or in part by a U.S. government agency, your home country’s government, or an international organization that received funding from the U.S. government or your home country’s government.
  • Specialized Knowledge or Skill – You participated in a program involving an area of study or field of specialized knowledge designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country.
  • Graduate Medical Education/Training - You participated in a program to receive graduate medical education or training.

See References – U.S. Laws, numbers 1, 2, and 3, on the U.S. laws that created the two-year home-country physical presence requirement.

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What does being subject to this requirement mean?

It means you must return to your home country for a cumulative total period of at least two years. You are not prohibited from travelling to the United States. , However, you cannot do any of the following until you fulfull this requirement:

  • Change status in the United States to a nonimmigrant temporary worker (H) or intracompany transferee (L);
  • Adjust status in the United States to immigrant visa/lawful permanent resident status (LPR);
  • Receive an immigrant visa at a U.S. Embassy or Consulate; or
  • Receive a temporary worker (H), intracompany transferee (L), or fiancé (K) visa.

There is a provision in U.S. law for a waiver of this requirement by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS). The former exchange visitor must apply for the waiver. The Department of State, Waiver Review Division must recommend the waiver to USCIS. Learn more about requesting a waiver.

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Does the two-year home-country physical presence requirement apply to me?

Program sponsors generally inform exchange visitors about this requirement. Exchange visitors are generally also made aware of it at their visa interviews.

Are you unsure whether this requirement applies to you or your situation? You can request that the Department of State, Waiver Review Division conduct an advisory opinion. We will review your exchange visitor program documents to determine if you are subject to this requirement. See Advisory Opinions for more.

You may also take the survey available on the J Visa Waiver Online webpage. The survey will prompt you for information about yourself and your exchange visitor program. IMPORTANT NOTICE: This survey is not an official determination of whether the requirement applies to you. You must request an Advisory Opinion for an official determination.

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I have a spouse and/or children who had J-2 status based on my participation in an exchange visitor program. I am subject to the two-year home-country physical presence requirement. Are they also subject to this requirement?

Yes. See Frequently Asked Questions for more information on dependent spouses and children.

 

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I want to request a waiver of the two-year home-country physical presence requirement from the U.S. Citizenship and Immigration Services (USCIS).

If you are subject to this requirement, but not able to fulfill it, you may apply for a waiver.  Specifically, you may apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver. Your waiver request must be under any one of the five applicable bases in U.S. immigration law. Choose the one basis that you qualify for or applies to your situation.

Five Bases for Recommendation of a Waiver

1. No Objection Statement:

Your home country government may issue a No Objection Statement, through its embassy in Washington, DC. The embassy must send the No Objection Statement to the Waiver Review Division. It must state your government has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the United States.

Alternatively, a designated ministry in your home government may issue the No Objection Statement. The ministry would then send it to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it to the Waiver Review Division.

Important Notice: U.S. law does not permit foreign medical physicians who acquired exchange visitor (J-1) visa status on or after January 10, 1977, to receive graduate medical education or training to use this option. For more information about the relevant U.S. law, see References – U.S. Laws, number 1.

2. Request by an Interested U.S. Federal Government Agency:

Are you working on a project for or of interest to a U.S. federal government agency?  And has that agency determined your departure for two years would be detrimental to its interest? If so, that agency may request an Interested Government Agency Waiver on your behalf. The head of the agency or his or her designee must sign the Interested Government Agency request and submit it to the Waiver Review Division.

Any U.S. federal government agency may request a waiver under this basis. See Designated Officials for Signatures. It is a list of interested government agencies and names of their designated officials. (NOTE: This list does not contain information for all U.S. federal agencies. It contains information only from agencies that provided the Waiver Review Division with individuals authorized to sign letters for waivers under this basis.)

For Interested Government Agency requests for foreign physicians who agree to serve in health professional shortage areas or medically underserved areas,:See How to Apply, Step 3. For more information about the relevant law, see References – U.S. Laws, number 3.

3. Persecution:

Do you believe you will be persecuted based on your race, religion, or political opinion if you return to your home country? If so, you may apply for a persecution waiver. You must submit Form I-612, Application for Waiver of the Foreign Residence Requirement, to USCIS. USCIS will forward its decision to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.

4. Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:

Can you show that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child? If so, you may apply for an exceptional hardship waiver. Mere separation from family is not sufficient to establish exceptional hardship. You must submit Form I-612, Application for Waiver of the Foreign Residence Requirement, to USCIS. USCIS will forward its decision to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of exceptional hardship.

 

5. Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program):

Are you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education? If so, you may request a waiver based on the request of a designated State Public Health Department or its equivalent.,You must meet the following criteria. (This waiver category is also known as the Conrad State 30 Program.) You must:

  • have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area;
  • agree to begin employment at that facility within 90 days of receiving a waiver; and
  • sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.

Review the listing of State Public Health Departments. Each department can request 30 such waivers per federal fiscal year. 10 of the 30 requests may be for exchange visitor physicians who will serve at facilities not located in a designated health care professional shortage area but which serve patients who live in a designated area. The state public health department will send its request to the Waiver Review Division, if it agrees to sponsor you for a waiver.

For information about the U.S. laws that created this waiver category, see References – U.S. Laws, numbers 4 and 5.

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References – U.S. Laws

U.S. laws relevant to waivers of the two-year home-country physical presence requirement:

 

Law:

Information about the Law:

1

Section 212(e) of the Immigration and Nationality Act

Under these laws, J visa holders who meet certain criteria are not able to change status to or receive visas in the following categories until they have returned to their home countries for at least 2 years or until they receive waivers from USCIS: H, L, K, or immigrant lawful permanent resident (LPR).

2

Title 22, Part 40, Section 40.202 of the Code of Federal Regulations

3

Title 22, Part 41, Section 41.63 of the Code of Federal Regulations

4

Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (INTCA) (Public Law 103-416)

This law established the Conrad State 20 Program (later changed to the Conrad State 30 Program). It allows federal programs to waive the two-year home-country physical presence requirement for foreign physicians, who received J-1 status to pursue graduate medical education/training, in return for at least 3 years of medical service to patients in or from underserved areas.

5

Public Law 112-176

This law extended the Conrad State 30 Program until September 30, 2015.