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Call Us Today

630-392-8101 | 630-392-8101
info@kasturilaw.com

The J-1 exchange visitor program allows foreign nationals to come to the United States for education, training, research, teaching, and other approved programs. However, some participants must meet an additional immigration requirement to complete the program.

Certain J-1 exchange visitors must return to their home country for at least two years before they can obtain some U.S. immigration benefits. This is known as the two-year home-country physical presence requirement.

For J-1 visa holders in Naperville, Schaumburg, Chicago, and surrounding Illinois communities, understanding whether this requirement applies matters when planning the next step in the United States.

Who Is Subject to the Two-Year Requirement?

Not every J-1 exchange visitor must spend two years abroad.

Under Section 212(e) of the Immigration and Nationality Act, the requirement may apply when participation in the exchange program involved certain government funding, when the participant received graduate medical education or training, or when other applicable statutory requirements are met.

Determining whether someone is subject to Section 212(e) is not always straightforward. Visa information or Form DS-2019 may provide guidance, but questions can arise about whether the requirement applies.

When there is uncertainty, an exchange visitor may request an advisory opinion from the U.S. Department of State.

J1 Visa Waiver

What Does the Requirement Prevent You From Doing?

Being subject to the two-year requirement does not necessarily mean a J-1 visitor must leave the United States immediately after completing the exchange program.

Instead, Section 212(e) restricts eligibility for certain immigration benefits until the individual has satisfied the requirement or obtained a waiver.

For example, someone subject to the requirement generally cannot change status in the United States to H or L status, obtain an H, L, or immigrant visa, or become a lawful permanent resident until the requirement has been satisfied or waived.

This can create significant planning concerns for someone who receives a U.S. job opportunity, marries a U.S. citizen, or otherwise becomes eligible to pursue a different immigration path.

Can the Two-Year Requirement Be Waived?

Some J-1 exchange visitors may qualify to request a waiver.

The Department of State identifies several bases for seeking one, including:

  • A No Objection Statement from the visitor’s home government.
  • A request by an interested U.S. federal government agency.
  • Fear of persecution based on race, religion, or political opinion.
  • Exceptional hardship to a U.S. citizen or lawful permanent resident spouse or child.
  • A request by a designated state public health department for certain foreign medical graduates.

The appropriate basis depends on the individual’s circumstances and J-1 program. Not every waiver option is available to every exchange visitor.

How Does the J-1 Waiver Process Work?

The process varies by waiver basis. Generally, the exchange visitor submits a waiver application to the Department of State’s Waiver Review Division and provides the documentation required for the particular waiver category.

Additional steps may involve a foreign government, federal agency, USCIS, or another government entity.

The Department of State reviews the request and, when appropriate, sends a waiver recommendation to U.S. Citizenship and Immigration Services (USCIS). USCIS makes the final decision on the waiver application.

Because future immigration plans may depend on the outcome, it can be important to address the two-year requirement before making decisions about employment, permanent residence, or another immigration status.

Speak With an Illinois Immigration Attorney About a J-1 Waiver

The two-year home residency requirement can affect important decisions long after a J-1 program begins. Determining whether Section 212(e) applies and whether a waiver may be available can help exchange visitors plan.

At Kasturi Law, immigration attorney Shobhana Kasturi assists individuals in Naperville, Schaumburg, Chicago, and throughout Illinois with J-1 visa matters and other complex immigration issues.

Consultations are available in person, by phone, or via Zoom for 30- or 60-minute appointments. Contact Kasturi Law today to discuss your J-1 status and immigration options.