Any person entering the US from abroad, including US citizens, permanent residents, and foreign nationals, have to present an appropriate visa or other documentation supporting his/her legal reason for entering the US.
There are many exchange programs that will help foreign nationals to come to the US through temporary work or study programs. Foreign nationals who get approval to participate in a work or study exchange program qualify for J-1 Exchange Visitor status.
The J-1 visa classification is for individuals approved to participate in work and study based exchange visitor programs. These are temporary programs designed for specific activities and specific time periods. Exchange visitors should fulfill something called a two-year foreign residency requirement depending on the circumstances of the visitor’s program. It means that, before the exchange visitor can change his status to other non-immigrant visa categories OR get a US Green Card, he/she should first leave the US and return home for a period of two years.
As mentioned earlier, some J-1 exchange visitors can change their status to another visa classification to pursue further work, study, or permanent residency. In most cases, the visitor is required to return to his/her home country for a period before being able to obtain status in another visa classification. This is commonly called the 212(e) foreign residency rule or the two-year home residency rule. This requirement should be met in the exchange visitor’s home country, not any other country outside the US.
The two-year home residency requirement applies to the exchange visitor and any J-2 dependent family members. Each family member is required to fulfill the requirement individually. Exchange visitors who should meet the two-year home residency requirement are not eligible to change status to the H, L, or K visa categories and cannot seek US permanent residency until they fulfill the requirement.
There are three instances when an exchange visitor will be subject to this home residency rule
- When the exchange program has been funded by either the US or the foreign government
- When the exchange visitor has entered the US to receive graduate medical education or training
- When the exchange visitor is subject to the “skills list.”
J1 Waiver of the Two-Year Home Residency Requirement
Some exchange visitors may be eligible to apply for a J1 waiver of the two-year home residency requirement. There are five categories that a waiver request can be based on:
- No Object Statement
- Fear of Persecution
- Exceptional Hardship
- Interested Government Agency
- State Health Department or CONRAD request
The request for the J1 waiver has to be made with the U.S. Department of State (DOS). Once the DOS reviews the application, it will make a recommendation to the USCIS. If the J1 waiver is approved, the two-year home residency requirement is removed and the exchange visitor can freely pursue H, L, or K visa status and/or pursue a Green Card. Only the exchange visitor is required to request the J1 waiver. An approval or denial of the exchange visitor’s waiver request also applies to the dependent family members.