J-1 Visa

Understanding the J-1 Visa Waiver and the Two-Year Home Residency Requirement

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The J-1 visa is a popular choice for exchange visitors coming to the United States for a variety of programs, including research, training, and teaching. However, many J-1 visa holders are subject to a two-year foreign residency requirement, often referred to as the “two-year rule.” This rule mandates that certain J-1 visa holders must return to their home country or country of last habitual residence for at least two years before they are eligible to apply for certain U.S. visas or permanent residency. Understanding whether you are subject to this requirement and how to navigate it is crucial for J-1 visa holders planning their future in the United States.

Determining Whether You Are Subject to the Two-Year Rule

To determine if you are subject to the two-year home residency requirement, start by checking your J visa and Form DS-2019 (formerly Form IAP-66). If the box indicating that you are “subject to the two-year rule” is checked, you are required to fulfill this condition. However, even if the box is not checked, you may still be subject to the rule based on other factors. It is advisable to consult with an experienced immigration attorney who can provide a definitive evaluation of your status.

Changing Status While Subject to the Two-Year Rule

For J-1 visa holders subject to the two-year rule, changing status to another non-immigrant visa or applying for an immigrant visa can be complicated. While you may apply for certain non-immigrant visas at a U.S. consulate abroad, you cannot obtain H or L visas, or adjust to permanent resident status, until you have either fulfilled the two-year residency requirement or obtained a waiver. This restriction can pose significant challenges for those wishing to remain in the U.S. or transition to a different immigration status.

Obtaining a J-1 Waiver

If fulfilling the two-year residency requirement is not feasible or desirable, obtaining a J-1 waiver is an alternative path. A waiver may be granted under certain circumstances, such as if the J-1 visa holder can demonstrate that returning to their home country would cause extreme hardship to a U.S. citizen or permanent resident spouse or child, or if the visa holder’s home country government provides a “no objection” statement to the waiver. Other grounds for a waiver include persecution concerns or the interest of a U.S. government agency. If granted, the waiver allows the J-1 visa holder to bypass the two-year rule and apply for other visas or adjust their status within the U.S.

Important Considerations for J-1 Visa Holders

It is important to note that the two-year rule also applies to J-2 dependents, such as spouses and children of J-1 visa holders. If the principal J-1 holder is subject to the requirement, their J-2 dependents are as well. However, if the J-1 holder obtains a waiver, the J-2 dependents are relieved of the requirement. Furthermore, the two-year residency requirement must be fulfilled in the country where the J-1 visa holder resided at the time they received their J-1 status, regardless of whether they later become a citizen or permanent resident of another country.

Navigating the complexities of the J-1 visa waiver and the two-year home residency requirement can be challenging, but with the right guidance and preparation, it is possible to find a path that aligns with your long-term goals. If you believe you are subject to the two-year rule or need assistance with obtaining a waiver, consulting with an experienced immigration attorney is the best course of action to ensure that your case is handled effectively.

We have successfully helped many people obtain J1 waivers. If you’d like our help, please contact us at 305-515-0613 or info@messersmithlaw.com. We are here to assist you.

Training Visa

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There are three visa options for foreign nationals seeking employment training in the United States.

J1 Visa – Intern

Foreign nationals who are currently in school in a foreign country or who have graduated from a foreign school in the past 12 months can get a J1 visa for an internship.  The internship cannot be in an unskilled or medical care field.  A US employer can offer the internship and is required to pay significant fees to an approved J1 sponsor (an agency which performs a site visit where the internship will occur and issue paperwork used to obtain the J1 visa).

The US employer must provide entry level training, provide program evaluations, and provide continuous onsite supervision of the trainee.  Interns must undergo multiple evaluations by the J1 sponsor to be eligible to continue with the program.  The maximum duration of the J1 intern visa is 12 months.

J1 Visa – Trainee

Foreign nationals who have a college degree and one year of employment experience or no degree and five years of experience are eligible for a J1 visa for training.  The training cannot be in an unskilled or medical field.  A US employer can offer the training and is required to pay significant fees to an approved J1 sponsor (an agency which performs a site visit where the internship will occur and issue paperwork used to obtain the J1 visa).

The training visa cannot be used to fill a position that would ordinarily be filled by a part time of full time employee.  Site visits must be conducted by the J1 sponsor prior to the issuance of the J1 visa and during the training program.  The J1 sponsor will also ensure that the trainers are properly selected, the trainees are properly supervised, and will make periodic evaluations to ensure compliance.  The training must be offered in a full time capacity defined as 32 hours/wk minimum and the maximum duration of the J1 trainee visa is 18 months.

H3 Visa – Trainee

Foreign national who wish to receive training in the US (with no education or work experience requirements) may do so with an H3 visa.  The H3 visa requires a US employer to apply for the visa but there is no sponsoring agency as required by the J1 visa (and no sponsor fees or site visits).

The US employer may provide training in any area other than medical training and custodial care is allowed but must be incidental to the training program.   The US employer must offer a structured training program with one or more qualified staff members to provide the training.  This visa cannot be used to displace an American worker but employment incidental to the training is permissible (on the job training).

The training must be designed to benefit the foreign national in pursuing a career abroad and you must show that the training is not available in their home country.  The training can be offered in a part time or full time capacity, the trainee can be paid for the training and the maximum duration of a H3 visa is 24 months.

J1 Visa Travel Issues When the Two Year Rule Applies

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Hi sir,

I am from Saudi Arabia, i have J-1 Visa for me & J-2 for my family, (scanned copy attached) 

We are now in USA, my DS-2019 will expire on 08-31-2010 & our J Visa on 09-30-2010.

In our Visa written, INA SEC 212E – TOW YEAR RULE – APPLIES.

I understand that I cannot re-enter USA with another J Visa less than 2 years.

By next September 2010 I have admission to postgraduate program (3 years) in another dental school and I will get I-20.

I plane to go to my country (Saudi Arabia) on July 2010 for one month and I will be back before expiration date of J-1 visa

to finish my scholar program, then to start my new postgraduate program on Sep,

My question, should I apply to F-1 visa during my one month vacation on SA, and is one month enough for the Visa processing, because they are strict on program start date

Or is it ok to re-enter USA with my valid J-1 Visa which expire in 09-30-2010

Would you please guide me in this issue?

Thank you,

The two year rule only restricts you from obtaining an H visa, L visa, a green card or changing/extending your status in the US. It does not prevent you from obtaining a new J1 or F1 at the Embassy nor does It prevent you from entering the country in J1 status.

J1 Visa holder Wishes to Change Status to J2 Visa

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Me and my wife were hired to work in the US as teachers for 3 years, each one with its own J1 Visa, however she was diagnosed with breast cancer 6 months later (march 2011) we have seen that we will have to stay to finish the threatment but my our salaries as teachers won`t be enough to survive, I want to quit my J1 visa and become her dependant with J2 visa and ask a work permit, so I search a work with my MBA and get more money to overcome this situation. Is this possible? Is it too risky? Are we allowed to do it? Can you help us? Please let me know and I deeply apprecciate your time

Yes, we can help you obtain J2 visa status or even apply for a work visa such as an H1B visa provided that you are not subject to the two year home residency requirement. It is not risky to change to J2 visa status and as a J2 visa holder you would be able to obtain an EAD which would authorize you to work for any US employer in any capacity.

J1 Visa – Change of Status

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I had a F1 visa for 5 years, before it expired I obtained a J1 in another passport from my country because my mother institution required me so before starting the other program I am in now. I want to change my visa to F1 so I can change my status to a work visa or residency without leaving the States for 2 years. How can I get that?

If you are subject to the two year home residency requirement then you are barred from obtaining a change of status in the US. We will need to review your immigration documents in order to make that determination. If you are subject, then you will need to leave the US and apply for an F1 visa at an Embassy abroad.

From J1 visa to Green Card

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I’d like to know if I can change my status in USA. I’ve a J1 visa and I’d like to have the pemanent one. What Can I do?

Unless you are subject to INA Section 212(E) and require a J1 waiver, you are eligible to apply for a green card through the normal immigrant categories which include all forms of family and employment based sponsorship.

Setting Up a J1 Program

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How can an entity apply to become a J1 program sponsor?

Exchange Visitor Program sponsors are comprised of US government, academic, research, and private sector organizations designated as Exchange Visitor Program sponsors by the State Department’s Office of Private Sector Exchange in the Bureau of Educational and Cultural Affairs. Any person or organization that has previous experience in the field of international exchanges and meets certain financial requirements can become a J1 program sponsor

Change of Status Application Denied; How Long to Leave the Country

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I was an Au Pair, so I came to US with a J1 Visa. After two years I decided to change my status.

I wanted to get the F1 Visa, but it was denied. They sent me a letter saying that I have 30 days to leave the country, but I’ve asked to a lawyer and he said I actually have 180 days to leave without violating the law. I am very confused and I need an ansewr soon.

The notice from immigration properly states how long you may legally remain in the US after your change of status application is denied. Any time spent in the US after that point is illegal and will have a negative impact on any future visa applications made at an Embassy abroad. The 180 day figure provided by another lawyer likely refers to the 3/10 year bar. Any foreign national who accrues 180 days of unlawful presence in the US is barred from re-entering the country, after leaving, for 3 years unless they can obtain a waiver of inadmissibility.