Some exchange visitors with J-1 visas are subject to a two-year home-country physical presence requirement. It requires you to return home for at least two years after your exchange visitor program. This requirement is part of U.S. law, in the Immigration and Nationality Act, Section 212(e). If you cannot return home for two years, you must apply for a waiver. The Department of Homeland Security must approve your waiver before you can change status in the United States or receive a visa in certain categories.

This 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.

If you received funding from your home government or an international organization, or are subject based on the skills list, it is often possible to get a waiver by requesting a “letter of no objection” from your home country’s embassy in Washington, DC. If you received U.S. government funding (such as a Fulbright) it is nearly impossible to get this requirement waived. The easiest way to verify whether your J-1 visa is subject to the two-year requirement is to check for the red languagedesignating the visa as such on the actual visa itself.

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). Usually, this will involve obtaining a “No Objection Statement”, through your home country’s embassy in Washington, DC. The embassy must send the No Objection Statement to the Waiver Review Division of the USCIS. 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.

Timing for applying for the waiver is critical. The whole process of obtaining the waiver will take anything between 3-4 months. For those applying for the O-1, J-1 visa holders subject to this requirement are advised to apply well in advance, since without it, you may not be able to change your status (from J-1 to O-1).

If you are currently a J-1 visa holder in the United States and have any questions or concerns about the waiver process, contact us at 718-539-1100 or info@jckimlaw.com.

 

Resources:

https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor.html