If a visitor is subject to the requirement, the J-1 and his/her J-2 dependents will not be eligible for certain visas or changes in immigration status until they have fulfilled the requirement. Until the EV has “resided and been physically present” for a total of two years in either the country of nationality or country of legal residence, the J-1 holder and J-2 dependents are not eligible for:
- An H, L or immigrant visa in the United States. H includes temporary workers, trainees, and their dependents. L includes intra-company transferees and their dependents. An immigrant is the same as a permanent resident, or holder of a “green card.”
- A change of status, inside the United States, from J to any other non-immigrant classification except A or G. The A classification includes a foreign government’s diplomats and representatives to the United States government and their dependents. The G classification includes a foreign government’s representatives to international organizations, such as the United Nations, and their dependents.
J-1 holders and J-2 dependents are subject to the requirement if:
- J-1 participation is or was funded in whole or in part, directly or indirectly, for the purpose of exchange, by the EV’s home government or the United States government;
- As a J-1 Exchange Visitor, the EV is acquiring a skill that is in short supply in his/her home country, according to the United States government’s “Exchange Visitor Skills List” as it appears in the Federal Register. The list can be found here.
- The J-1 holder has participated as a J-1 in a graduate medical education or training program, i.e. a residency, internship, or fellowship sponsored by the Educational Commission for Foreign Medical Graduates; or
- One is a J-2 dependent of a J-1 Exchange Visitor who is subject to the requirement.
If a visitor is not certain if s/he is subject to this requirement, take the following steps:
- Consult an IVP Specialist who serves as a J-1 Alternate Responsible Officer.
- Consult an attorney. Talk to an immigration specialist, preferably a member of the American Immigration Lawyers Association. Call the local chapter of the American Bar Association for a referral or recommendations of immigration attorneys.
- Visit the U.S. Department of State websites that address the requirement:
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Frequently Asked Questions
1) How do I really know if I'm subject to the requirement?
The visa stamp in your passport may show an indication by a consular officer or an immigration inspector that you are or are not subject to the requirement. These indications, labeled “preliminary endorsement” on your DS-2019 are usually accurate even if these are not the final, legally binding determination.
2) One of my DS-2019 forms says I am subject, another says I'm not. Which one is right?
If you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending 2 years in your county, it is still a requirement that you go home for two years even if a more current program and DS-2019 reflects no such requirement.
3) Is there any way this requirement can be waived? Must I go home? Am I eligible for other "J" programs?
You should begin by visiting the US Department of State websites for information on the broader goals of the J-1 Exchange Visitor Program, the two-year home country presence requirement and waivers:
Please note that the US Forest Service International Programs office does assist with applications for waivers.
If an exchange visitor does apply for a waiver and receives notification from the US Department of State that this waiver will be granted, the Exchange Visitor is no longer eligible for an extension or transfer of the J-1 program. The J-1 holder will either have to apply for and be granted another visa classification before completing the J-1 program or exit the country upon completion of the J-1 program. Keep in mind that if an exchange visitor goes home and, in effect, disposes of the waiver, s/he is still be subject to the 24-month bar before becoming eligible for new J-1 program participation if they were originally a research scholar.
If an exchange visitor applied for a waiver and is “out of status,” they are not eligible for reinstatement. However, they applied for a waiver and the Department of State has not yet issued a recommendation for a waiver, they are eligible for a correction and reinstatement.
There are five grounds for a waiver of the requirement:
- “No Objection” statement from the home government
- The exchange visitor’s government must state that it has no objection to the exchange visitor not returning to the home country to satisfy the two-year foreign residence requirement (Section 212(e) of the Immigration and Nationality Act, as amended) and remaining in the US is he or she chooses to do so.
- Request by an interested (US) Government agency or IGA - If an exchange visitor is working on a project for or of interest to the US Federal Government, 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 is in the public interest.
- 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 United States citizen (or permanent resident) spouse or child of an exchange visitor
Marriage to a US citizen, in and of itself, has no effect on the requirement. However, if the exchange visitor can demonstrate that his or her departure from the US would cause extreme hardship to his or her US citizen or lawful permanent resident spouse or child, s/he can apply for a waiver. Note that mere separation from family is not considered to be sufficient to establish exceptional hardship. They may ask what keeps your spouse from going with you to your home country.
4) If I can't change my J-1 visa status inside the US, can I go out, apply for a new visa and come back in as an F-1 student or B-2 visitor, for example? F-1s are not subject, right?
You can apply for an F-1 or B1/2 visa, and if you get it you might be able to come back as an F-1 student or B-2 tourist as long as you meet the requirements. But, until you spend two years at home, or get a waiver, you are still subject to the requirement which limits your ability to apply for specific types of immigration status. F-1 or B-2 status won’t make you subject, but under the condition that you were once a J-1 who was subject, you are still subject, even in another status.
5) Once I finish my program and leave, can I come back? Don't the two years have to be uninterrupted?
If you are subject and you finish your program and go home, there is no regulation that says you have to stay out of the US for 2 years. It simply means you are still subject to this requirement and its particular limitations on H, L, and immigrant visas. The two years in your home country don’t have to be continuous, they can be cumulative.
6) I'm subject. If I go home and get married, and a year later my spouse gets an H-1B to work in the US, can I come with my spouse as an H-4 dependent?
Not if you haven’t fulfilled the two-year requirement.
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