The Two-Year Home-Country Physical-Presence Requirement
Intent of the Requirement
The intent of the requirement is to have the home country benefit from
the Exchange Visitor's experience in the United States. Exchange Visitors
come to this country for a specific objective such as a program of
study or a research project. The requirement is intended to prevent
a participant who is subject from staying longer than necessary for
the objective, and to ensure that he or she will spend at least two
years in the home country before coming back to the United States for
a long-term stay. If a participant is found subject to the requirement,
their J-2 dependents will be subject as well.
Terms of the Requirement
If you are subject to the requirement, then, until you have "resided
and been physically present" for a total of two years in either your
country of nationality or your country of legal permanent residence,
you are not eligible for:
- An H, L, or immigrant visa, or for H, L, or immigrant status in
the United States. H includes temporary workers, trainees, and their
dependents. L includes intracompany transferees and their dependents.
An immigrant is the same as a permanent resident, or holder of a "green
- A change of your status, inside the United States, from J to any
other nonimmigrant classification except A or G. The A classification
includes your home government's diplomats and representatives to
the United States government, and their dependents. The G classification
includes your government's representatives to international organizations,
such as the United Nations, and their dependents.
You are subject to the Requirement . . .
- If your J-1 participation is or was funded in whole or in part,
directly or indirectly, for the purpose of exchange, by your
home government or the United States government;
- If, as a J-1 Exchange Visitor, you are acquiring a skill that
is in short supply in your home country, according to the United
States government's Exchange Visitor Skills List. (see ISSS for
more information about the skills list).
- If you have participated as a J-1 in a graduate medical education
or training program, i.e. a residency, internship, or fellowship,
sponsored by the Educational Commission for Foreign Medical Graduates;
- If you are the J-2 dependent of an Exchange Visitor who is subject
to the requirement.
If you have ever been subject to the requirement in the past, and have
neither obtained a waiver nor fulfilled it by spending two years in
your country, it still holds even if a more current Form DS-2019 (formerly
known as the IAP-66) reflects no basis for such a requirement.
The visa stamp in your passport, or
your Form DS-2019, or both, may show an indication, by a consular officer
or a US Citizenship and Immigration Services (USCIS) inspector, that you
are or are not subject to the requirement. These indications, labeled
"preliminary endorsement" on Form DS-2019, are usually accurate but are
not legally binding. Even though these endorsements are not final, USCIS
usually accepts indications that the Exchange Visitor is subject.
If you are unsure whether you are subject . . .
- Consult your J-1 Responsible Officer or the International Office
at this school. Be sure to take your passport, all of the copies you
have of your form DS-2019, your I-94 Departure Record card, and copies
of prior I-94 cards if they are available. Your Responsible Officer
or international adviser can often tell from the source of funding,
or the Exchange Visitor Skills List, whether the requirement applies
or not. If you are still uncertain . . .
- You might consult an attorney. Make sure that you talk to an immigration
specialist, preferably a member of the American Immigration Lawyers
Association. In selecting an attorney a personal recommendation
is best, but if none is available, call the local chapter of the
American Bar Association for a referral. If you prefer not to see
a lawyer, or are still uncertain, . . .
- Write to the United States Department of State, which is responsible
for the administration of the Exchange Visitor
program and the two-year requirement. Enclose photocopies of all
of your forms DS-2019 and, in a cover letter, explain why you are uncertain
whether you are subject or not, and ask for USIA's advisory opinion.
Waivers of the requirement
There are four grounds for waiver of the requirement.
- Exceptional hardship to your spouse or an unmarried minor child who
is a citizen or permanent resident of the United States. If, for example,
you had a child who was born in the United States and was therefore
a citizen of this country, and if the child had a serious medical condition
that could not be treated in your country, you might obtain a waiver
because the child would suffer a hardship by going there with you to
live. You would apply to USCIS on Form I-612, "Application for Waiver
of the Foreign Residence Requirement of Section 212(e) of the Immigration
and Nationality Act, as Amended." (As you might imagine, this Form is
commonly referred to as Form I-612).
- Fear of persecution. If you can demonstrate that, because of your
race, religion, political opinions, or nationality, you would face
persecution by your home government if you went back to your country,
you might qualify for a waiver. You would apply to USCIS on Form I-612.
- Interest of a United States government agency. If your participation
in research or a project sponsored by a United States government
agency is of sufficient importance to that agency, it can apply
to USIA for a waiver for you in its interest, not yours.
- A "no-objection" statement (not permitted for medical trainees).
Your country's embassy in Washington can indicate in a direct letter
to USIA that it has no objection to your receiving a waiver, or
the foreign ministry in your capital at home can write to the United
States embassy there. A "no-objection" statement will usually not
lead to a waiver if the Exchange Visitor has received more than
$2,000 in funding from the United States government.
A word of caution
This handout summarizes some very complex and sensitive
issues. It is intended only to help you understand the nature of the requirement,
not to serve as a legal reference. Do not assume, from reading this page,
that you are subject to the requirement, or that you are not. Consult