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.