NOTICE: The information contained on this page site is intended to educate the general public and is not intended to provide legal advice. To ensure proper handling of your individual situation please contact I.S. Law Firm.
Two-year foreign residence requirement
Foreign nationals entering United States as J-1 exchange visitors may be subject to the two-year foreign residence requirement under the Immigration and Nationality Act, for one or more of the following reasons:
1. The participation in an exchange program was funded by the United States Government, own government, or an international organization.
2. The education, training, or skill that the individual is pursuing in an exchange program appears on the Exchange Visitor Skills List for alien’s country.
3. The individual acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, K, or permanent resident until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement.
The good news is that if you do not wish to comply with the two-year foreign residence requirement, you may apply for a waiver under one of the five applicable grounds below:
1. No objection statement
The two-year residency requirement may be waived by providing a “No Objection Statement” issued by the home government of the exchange visitor, either through its Embassy in the United States or its designated Ministry. The statement must be issued directly to the Waiver Review Division and declare that the foreign national’s government has no objection to him or her not returning to the home country to satisfy the two-year foreign residence requirement and that the government does not object to the possibility of the individual becoming a resident of the U.S. Note: The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.
2. Request by an interested government agency
If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor’s departure for two years will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the foreign national for sake of public interest. The agency’s request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The exchange visitor has the responsibility for obtaining the request from a U.S. Federal Government agency.
If an exchange visitor believes that he or she will be persecuted based on his/her race, religion, or political opinion if he/she were to return to his/her home country, the exchange visitor may apply for a persecution waiver. This waiver requires that the exchange visitor submit Application for Waiver of the Foreign Residence Requirement of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (USCIS). Only if USCIS makes a finding of persecution will the Waiver Review Division proceed with the waiver case under this basis.
4. Exceptional hardship to a United States citizen (or legal permanent resident) spouse or child of an exchange visitor
If an exchange visitor can demonstrate that his or her departure from the United States would cause exceptional hardship to his or her U.S. citizen or legal permanent resident spouse or child, he or she may apply for an exceptional hardship waiver. (Please note that mere separation from family is not considered to be sufficient to establish exceptional hardship.) This waiver basis requires that the exchange visitor submit Application for Waiver of the Foreign Residence Requirement of the Immigration and Nationality Act, directly to the United States Citizenship and Immigration Services (USCIS). Only if USCIS makes a finding of exceptional hardship will the Waiver Review Division proceed with the waiver case under this basis.
5. Request by a designated State Department of Public Health or its equivalent
Pursuant to the requirements of Public Law 103-416, a foreign medical graduate who has an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area, and agrees to begin employment at that facility within 90 days of receiving such a waiver, and who signs a contract to continue to work at that health care facility for a total of 40 hours per week and for not less than three years, may apply for a waiver.
The exchange visitor must first apply with a state public health department which is allowed to request 30 such waivers per federal fiscal year. Five of the thirty requests may be for exchange visitor physicians who will serve at a facility which may not be located within a designated area but serves patients who live within a designated health care professional shortage area. The state public health department will forward the requests directly to the Waiver Review Division if agrees to sponsor the exchange visitor for such a waiver.
Note: Only foreign medical doctors who received their J-1 status to pursue graduate medical education or training may apply for a waiver under this basis.