A Word of Caution
The following should be used for information; it is not a legal document. It was prepared by non-attorneys for use by nonattorneys. Instead of assuming that you are or are not subject to the two-year home country physical presence requirement, you should consult a specialist to consider this issue in light of your own circumstances.
- Question: What is the purpose of the two-year home country physical presence requirement?
Answer: The intent of the two-year home country physical presence requirement is to have your home-country benefit from your experience in the United States. As an exchange visitor you come to the U.S. for a specific objective such as a program of study or a research project. If you are subject, the requirement is intended to keep you from staying longer than necessary to complete your objective, and to make sure that you will spend at least two years in your home country before you return to the U.S. for a long-term stay.
- Question: Who is subject to the two-year home country physical presence requirement?
Answer: The requirement applies only to the following students in J-1 status (and their J-2 dependents):
- Exchange visitors who have received U.S. or foreign government funding, directly or indirectly, for the purpose of international exchange;
- Exchange visitors whose skills are in a field which their home governments requested be included on the U.S. Department of State's Exchange Visitor Skills List; and
- Exchange visitors who come to the U.S. to receive graduate medical education or training.
- Question: Government funding? I am a researcher in the lab of a professor who pays my salary out of his grant from the U.S. Department of Agriculture. Is my salary indirect funding? Does it make me subject to the two-year home country physical presence requirement?
Answer: This funding does make you subject to the requirement if the purpose of the faculty member's grant is international exchange, for example to bring foreign scientists to the U.S. for a research experience in his lab so that they can apply what they learned in the home country. But if the purpose of the grant was research, and the faculty member hired you only to participate in that research, then your salary does not make you subject to the two-year home country physical presence requirement.
- Question: What is the Exchange Visitor Skills List?
Answer: The Exchange Visitor Skills List is a long list of fields of specialized knowledge and skills. About 30 years ago, the U.S. government sent the list to foreign governments and asked each one to indicate skills that were in short supply in their respective countries. The resulting list appeared in the Federal Register, and official government bulletin published daily and available in most libraries. The most recent full text appeared in the Federal Register on April 30, 2009.
Your J-1 program's Responsible Officer (RO) or Alternate Responsible Officer (ARO) can help you determine whether your field of study or skills is on the list for your country.
- Question: One of my Forms DS-2019 indicates that I am subject to the two-year home country physical presence requirement. However, I have another Form DS-2019 that indicates that I am not subject to the two-year requirement. Which form is correct?
Answer: Visa officers in U.S. consular posts and immigration inspectors at U.S. ports of entry make preliminary assessments as to whether or not you are subject to the two-year home country physical presence requirement. They usually indicate their preliminary assessment by putting an annotation on your visa stamp and/or by checking the 'preliminary endorsement' box on your Form DS-2019. Please note that these are preliminary, not final assessments. Only the U.S. Department of State can make a final determination as to whether or not you are subject to the two-year requirement. You can request the U.S. State Department's advisory opinion on this matter through your J-1 RO/ARO or an immigration attorney.
- Question: If I am subject to the two-year home country physical presence requirement, what am I required to do?
Answer: If you are subject to the two-year home country physical presence requirement, then you are required to spend two years in the country of your permanent residency or the country of your citizenship after you have completed your exchange visitor program. Until you have fulfilled this requirement, there are certain things you cannot do. You cannot hold status in the U.S. as an H (temporary worker, trainee, or dependent), L (intracompany transferee or dependent), or immigrant (U.S. permanent resident). And inside the U.S., you cannot change your immigration status to any category except A (your government's representative to the U.S., such as a diplomat, or the dependent of an A status holder) or G (your government's representative to an international organization, such as the United Nations, or the dependent of a G status holder).
- Question: If I cannot change status inside the U.S., can I exit the U.S., apply for an F-1 visa, and return to the U.S. as an F-1 student?
Answer: You can apply for an F-1 visa, and if you are approved, you can return to the U.S. as an F-1 student. However, you would still be subject to the two-year home country physical presence requirement unless you spend two years in your home country or apply for and obtain a waiver of the two-year requirement.
- Question: What is the waiver of the two-year home country physical presence requirement?
Answer: J-1 exchange visitors who are subject to the two-year home country physical presence requirement must apply for a waiver of that requirement if they seek to remain in the U.S. beyond the end date of their program or if they seek to submit an application for a change in visa status. A waiver may be requested based on five statutory grounds:
- A claim of exceptional hardship to a U.S. citizen or legal permanent resident spouse or child of an exchange visitor if the exchange visitor is required to return to the country of residence;
- A claim that the participant will be persecuted due to race, religion, or political opinions if he/she returns to the country of residence;
- A request from an interested U.S. government agency on the participant's behalf;
- A no objection statement from the exchange visitor's government; and
- A request by a designated State Health Department or its equivalent.
- Question: Is it true that if I am subject to the two-year home country physical presence requirement, I cannot come back to the U.S. for two years once I finish my program and leave the U.S.?
Answer: There is no regulation that states that you cannot return to the U.S. for two years if you are subject to the two-year requirement and have exited the U.S. upon program completion. However, if you are subject to the requirement, you remain subject until you have either spent two years in your home country or have obtained a waiver of the requirement. If you are returning to the U.S., the visa that you use to enter the U.S. depends on the purpose of your trip to the U.S. The only visas that you cannot use for two years if you are subject to the two-year requirement are H, L and immigrant visas.
- Question: If I am subject to the two-year home country physical presence requirement and I come back to the U.S. for a two-week visit after one year at home, will I lose the year I already spent at home as far as the two-year requirement is concerned? Do the two years at home have to be without interruption?
Answer: No, the two years you need to spend in your home country to fulfill the two-year requirement do not have to be uninterrupted. Once you accumulate a total of two years, you will have satisfied the two-year requirement.
- Question: If I am subject to the two-year home country physical presence requirement, what happens if I marry a U.S. citizen? Would I still be subject to the two-year requirement?
Answer: Marriage to a U.S. citizen or permanent resident has no effect on the two-year requirement. You would still be subject to the two-year requirement.
- Question: I am subject to the two-year home country physical presence requirement. If I return home, get married, and my spouse is sponsored to work in the U.S. in H-1B status, can I enter the U.S. with her as her H-4 dependent?
Answer: You will first need to fulfill your two-year requirement or obtain a waiver of the requirement before you can come to the U.S. in H-4 status.
- Question: Are J-2 dependents ever subject to the two-year home country physical presence requirement?
Answer: Yes, if the J-1 exchange visitor is subject to the two-year requirement, then his/her J-2 dependents are also subject to the requirement.
