As a current or past exchange visitor (J-1) visa holder, you are subject to the two-year home-country physical presence requirement, also known as the foreign residence requirement under U.S. law, for one or more of the following reasons:
- Government funded Exchange Program - You participated in an exchange program that was 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 an exchange program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your 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.
- Graduate Medical Education/Training - You participated in an exchange program to receive graduate medical education or training.
[8 USC 1184(k) and (l), 214(k)_ Admission of nonimmigrants]
Exchange Visitor Skills List
About the Skills List
The Exchange Visitor Skills List contains fields of specialized knowledge and skills. They are necessary for the development of an exchange visitor's home country. You are subject to the two-year home-country physical presence requirement when you complete your exchange visitor program - if your skill is on your country’s Skills List. This requires you to return to your home country for two years at the end of your exchange visitor program. This requirement is in Section 212(e) of the Immigration and Nationality Act, as amended.
Skills List By Country
Note: What if your country is not on this list? You are not required to return to your home country for two years at the end of your program, based on the skills list.
How to use this list
- First, check if your country has a Skills List. Select the country of citizenship or nationality in your passport on the Skills List by Country page.Does your country of citizenship or nationality differ from the country you lived in when you received your Exchange Visitor (J-1) visa? If you had permanent residence in that country, you must use the Skills List for that country.
- Yes, my country has a Skills List: Go to Step 2, below.
- No, my country does not have a Skills List: You are not subject to the two-year home-country physical presence requirement on the basis of the Skills List. (You may still be subject to the two-year requirement if your program was government-funded or if you received graduate medical education or training.)
- Next, find your field of knowledge/skill on the Master Skills List. Search for your field of knowledge/skill, not for your Subject/Field Code number.If your field of knowledge/skill is not listed, find the broader, more general subject group that it falls under. Every field of knowledge/skill is listed on the Master Skills List or is part of a broader, more general subject group.
- Is your field of knowledge or skill on your country’s skills list?
- Yes my field of knowledge/skill is on my country’s list: You are subject to the two-year home-country physical presence requirement.
- No, my field of knowledge/skill is not on my country’s list: You are not subject to the two-year home-country physical presence requirement on the basis of the Skills List. (You may still be subject to the two-year requirement if your program was government-funded or if you received graduate medical education or training.)
What does being subject to this requirement mean?
You are required to fulfill this requirement by returning to your home country for a cumulative total period of at least two years. You are not prohibited from travelling to the United States, but until you have fulfilled the two-year home-country physical presence in the country of your nationality or your last residence, you are not permitted to do any of the following:
- Change status while in the United States to other nonimmigrant categories;
- Adjust status while 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), when applied for by the former exchange visitor and recommended by the Department of State, Waiver Review Division.
If you are subject to the two-year home-country physical presence requirement, but you are not able to fulfill the requirement, you may apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver under any one of the five applicable bases set forth 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 directly to the Waiver Review Division that it 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.
However, an exchange visitor who is a graduate of a foreign medical school and who ispursuing a program in graduate medical education or training in the United States is prohibited under Immigration and Nationality Act from applying for a waiver solely on the basis of no objection from his or her country of nationality or last legal permanent residence. An exchange visitor who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said visitor meets the requirements of persecution, hardship, interested federal govt. agency or request by a designated state public health department or its equivalent
2. Request by an Interested U.S. Federal Government Agency:
If you are working on a project for or of interest to a U.S. federal government agency, and that agency has determined that your departure for two years to fulfill the two-year home-country physical presence requirement would be detrimental to its interest, that agency may request an Interested Government Agency Waiver on your behalf.
3. Persecution:
If you believe that you will be persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver.
4. Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:
If you can demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for an exceptional hardship waiver.
5. Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program):
If you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education, you may request a waiver of the two-year home-country physical presence requirement based on the request of a designated State Public Health Department or its equivalent, if you meet all of the following criteria. A state can get up to 20 J-1 waivers per year. 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 located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) or serving patients who reside in a HPSA, MUA, or MUP.
- Enter into a bona fide, full-time employment contract to practice medicine in H-1B nonimmigrant status for at least 3 years at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP) or serving patients who reside in a HPSA, MUA, or MUP.
- Obtain a “no objection” statement in writing from their home country if they are contractually obligated to return to their home country upon completion of the exchange program.
- 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 (3) years.
NOTE: Once U.S. Department of State recommends a waiver of the 2-year home country residence requirement, the exchange visitor can continue till the expiration of DS-2019 but cannot extend the same program beyond the expiration date of the current DS-2019 form.
Getting a J-1 Waiver is a complex process and you may be better served by retaining a lawyer to seek a waiver on your behalf. Write us to schedule a consultation for J-1 waiver or email us at info@adhikarilaw.com, or give us a call at (+1) 202-600-7742.