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From J-1 to F-1. The two year residency requirement. All you need to know!

Giselle Ayala Mateus, Esq.

The Exchange Visitor (J) non-immigrant visa was created for individuals who have been approved to participate in work-and study-based exchange visitor programs. This type of visa is particular, not only because it has specific regulations for those who might want to get a green card, but also because the Participants are integral to the success of the J-1 visa program.

Now, the two-year residency requirement is important because the J-1 visa was though to promote cultural exchange. Accordingly, when the applicant agrees to participate in a J-1 Exchange Visitor Program, the applicant may be subject to a two-year home-country physical presence (foreign residence) requirement. This means that the applicant will be required to return to her home country for two years at the end of the exchange visitor program.

In this context, one of the most important issues related to the J-1 visa is determining whether or not the J-1 applicant is subject to the two-year home residency requirement, and if so, what options are available.

What is the Two-Year Home Residency Requirement?

Under the two-year home residency requirement who come the U.S. in J-1 status cannot become permanent residents, change status or get a work or family-based status in the U.S. until they return to their country of last permanent residence for at least two years cumulatively.

Who is subject to the J-1 requirement?

Those in J-1 status (and their J-2 dependents) can be subject to the two-year residency requirement if any of the following apply to the J-1 program:

1) If the J-1 applicant receives funding from the U.S. government, home government or an international organization to use for the J-1 program.

2) Considering the applicant home country, if the J-1 applicant worked or studied in a field that appears on the “skills list.” of the Department of State the 2-year rule applies. Canada, Australia and Germany are examples of countries that are not on the list. China, India and South Korea are examples of countries that have many skills on the list.

3) If the J-1 participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.

A J-1 visa holder will be subject to the requirement, even if their funding or field of study changes, or if they leave the U.S. and return in another status. If the principal J-1 exchange visitor is subject to the 2-year home country residence requirement, dependents in J-2 status are also subject

If you are not sure whether you should be subject to the 2-year home residency requirement, please contact your school adviser. You may also request an official “advisory opinion” from the U.S. Department of State. This advisory opinion is a formal determination whether or not you are subject to the 2-year home residency requirement.

Can the requirement be waived?

It is important to understand that not all J-1 visa holders are subject to the two-year residency requirement.  Moreover, those J-1 holder that are subject to the requirement are not prohibited from returning to the U.S. in immigration statuses other than H-1B, L-1, K, or PR.  Finally, even if covered by the requirement, J visa holder may have the option to have the application of the requirement.

However, before option to apply for a waiver it is fundamental that speak with your school adviser, because the decision will have a direct impact of your future options and timing is of the sense if an applicant wants to file for a waiver. Additionally, a J visa holder could be subjected to the two-year home residency requirement multiple times.

To request a waiver the applicant must file Form I-612. Additionally, the request must be supported evidence that the applicant is eligible under one of the five grounds:

1) A no-objection waiver from your country

2) A waiver based on a request from an interested government agency.

3) A waiver based on fear of persecution in your country

4) A waiver based on extreme hardship to your immediate relatives in the United States who hold citizenship or green cards, and

5) A request from a state department of health.

Waiver Based on No Objection From Your Home Government

The Home Country “No Objection” Statement is a document that supports a waiver from J requirement. The statement is usually submitted after filing the waiver and a Case Number is received from the Department of State. This is a document that has specific requirements. Additionally, a denial of a “No Objection” statement cannot be appealed.

It is important to note that different countries have different requirements as to when this process may start. Each country may have different processing times for the statement depending on the particular protocols. The No Objection Statement is not submitted by the applicant to the Department of State, the document must be sent directly to the Waiver Review Division from the issuing country proper authority.

A waiver based on a request from an interested government agency.

Another venue to obtain a J requirement waiver is to have an interested agency submit the request. This that the waiver may be obtained if a U.S. Federal Executive Agency, which has an interest in the case requests that the requirement is waived. For example, an applicant may get a waiver if an J visitor is working on a project for or of interest to a Government agency.

A waiver based on fear of persecution in your country

The “persecution waiver” as it is also known can be granted if the J visa holder can show a credible fear of coming back to her home country. The waiver may be granted even if the applicant is a derivative, a J-2 visa holder. However, the burden of proof is different from that required to prove fear of prosecution as a basis for asylum.

The J visa holder must demonstrate that she fears persecution from the government if required to return home. An applicant may qualify for a J waiver if the applicant is able to demonstrate that if required to return she will be in danger as result of the acts of rebel groups, street gangs, etc. The focus of the analysis is that the applicant will be subject to persecution on account of race, religion, or political opinion.

A waiver based on extreme hardship to immediate relatives in the United States who hold citizenship or green cards

The J applicant may file for a waiver if an immediate relative, citizen or green card holder, would suffer extreme hardship, of economic, physical and emotional nature. For instance, a J visa holder may argue that the citizen immediate relative cannot work, or would lose work or health opportunities.

A request from a state department of health

Finally, a J visa holder who took part in a graduate medical training program in the U.S., under the sponsorship of the Educational Commission for Foreign Medical Graduates, may apply for a waiver offered a full-time employment in a healthcare facility in an area where there is a shortage of professional health care, and the applicant agrees to work within 90 days of receiving the residency waiver. Additionally, the applicant is required to show that the position will entail a total of 40 hours per week for at least 3 years.

What Can We Do For You?

Our office can represent you in the process of filing for a waiver. Additionally, an attorney can help guide the applicant by reviewing the forms and documents as well as the information about the her work or research, including resume/C.V. G.A.M. Law Office P.C. can evaluate whether the 2-year requirement applies and whether a waiver is possible based on the requirements and the applicants background, as well working on helping to draft/edit recommendation letters to be as well-written and persuasively as possible, and to select the appropriate agency to request waiver.

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