J-1: Two Year Home Residence Requirement


The Immigration and Nationality Act (INA) established in section 212(e) that participants in the J-1 program would in some cases be subject to a requirement to reside for two years in their home country after completing a J program. In short form, this rule is known as the "Two Year Home Rule."

The purpose of this requirement is to ensure that the home country benefits from the exchange visitor's experience in the US. The Two Year Home Rule states that the person who is subject to it may not change to another nonimmigrant status in the US nor acquire H, L, or immigrant status, until that person has resided for two years in his/her home country or country of legal permanent residence. The only exception is if that person has requested and been granted a waiver of this requirement.

Please note that not all exchange visitors are subject to the Two Year Home Rule. Furthermore, despite any annotation on the US visa or the consular officer's preliminary endorsement on the DS2019, the US Department of State (USDOS) reserves the right to make a final determination in the form of an Advisory Opinion regarding whether a participant in a J program is subject to this rule (explained below).

Subject or Not Subject, That is the Question!

Again, not all J's are subject to the Two Year Home Rule. A person in J status would be subject if that person is:

  1. Funded in whole or in part by the home government or the US government,

  2. Acquiring a skill that is in short supply in the home country according to the "Exchange Visitors Skills List"

  3. Participating in a J-1 graduate medical education or training program sponsored by ECFMG (Educational Commission for Foreign Medical Graduates); or

  4. a J-2 dependent of a J-1 Exchange Visitor who is subject to the two year home residency requirement.

For further advice on determining whether or not a person in J status is subject to the Two Year Home Rule, go to the USDOS FAQ on Two Year Home Rule and click on "Am I subject to the two-year home-country physical presence requirement?" link to expand the section.

Advisory Opinion for a Final Answer

As stated above, USDOS reserves the right to make a final determination regarding whether or not a J is subject to the Two Year Home Rule by way of an Advisory Opinion. Such final determination would be useful to dispel any uncertainty regarding the Two Year Home Rule or if needing a final answer for applications with the US government such as a change of status within the US.

Request an Advisory Opinion by following the instructions on the USDOS Advisory Opinions site. Note that there is no fee for an Advisory Opinion.

Applying for a Waiver

If a participant in a J program needs a waiver of the Two Year Home Rule, they would apply to USDOS. USDOS reviews the application and makes a recommendation to the US Citizenship and Immigration Services (USCIS). USCIS actually grants the waiver. Below are the four reasons for which a waiver may be requested (note that for reasons 1-3, consulting with an immigration lawyer is recommended before starting).

  1. Exceptional Hardship: Applicant would apply for a waiver based on exceptional hardship to their US citizen or lawful resident spouses or minor children.

  2. Persecution: Applicant would apply for a waiver based on their belief that they will be subject to persecution because of race, religion, or political opinions if they returned to their home country.

  3. Interested US Government Agency: A US government agency may apply to USDOS for a waiver in behalf of the applicant if they are interested in the applicant's programs or projects and if they believe that it is in the best interest of the US to allow the individual to remain (also know as an IGA or national interest waiver).

  4. No Objection by Home Country: The applicant applies for a waiver based on a statement from their home country that there is no objection to a waiver of the two year home residency.

Note that the last reason requires a letter from the home country government, so it is best to investigate if the government would approve and how long that process will take before starting a waiver application with USDOS. This fourth reason for a waiver application is applicable if the J-1 received home government funding or if the home government has requested the J-1's skill on the Exchange Visitor Skills list.

The Waiver Application Process

The application and procedures to apply for a waiver may be obtained from the USDOS website. Note that the USDOS charges a fee for this application.

It is important to speak with an ISS counselor before applying with USDOS for a waiver in order to determine the most appropriate timing of this application. Typically, it is best to apply with at least a year of time left on the J-1 document (DS2019) or after the J-1 program is completed.

The Effect of a Waiver Recommendation

According to USDOS, once an exchange visitor program receives notification of the USDOS recommendation for a waiver, the exchange visitor is no longer eligible for further extensions of stay, although continuing the J program for the remainder of time on the current DS2019 is permitted.

Thus, upon receiving a waiver recommendation, it is best to be prepared to either change to a different immigration status or leave the US. An ISS counselor can provide more guidance on this matter when discussing the timing of a waiver application. Such guidance might also avoid a waiver request unnecessarily jeopardizing eligibility for extension of stays or program transfers.