As established by section 212(e) of the Immigration and Nationality Act, certain J-1 visa holders are required to return to their home country for two years upon completion of their J-1 program. It is also known as two-year home-country physical presence requirement, foreign resident requirement, or home residence requirement (HRR).
Who is Subject to HRR?
The following classes of participants are subject to HRR:
- Government Funded Exchange Program – J-1 program was funded in whole or part by the U.S. or the home country’s government, directly or through an international organization. E.g., Fulbright, the Exchange Visitor Program, Organization of American States, Amideast, etc. Government grants that do not specify that the funding is for international exchange do not subject the participant to HRR. If the university professor’s government grant is partially used as stipends or salaries for graduate students or research fellows, it is not considered government funding for this purpose. If the participants are not sure whether the funding they received for their program was government funded, they should consult with their responsible program officer for assistance in making this determination.
- Specialized Knowledge or Skill – J-1 program was in the field of study or specialized knowledge that been designated as necessary for further development of their home country and appears on the Exchange Visitor Skills List for their home country. Here, the home country means the country of last permanent residence before getting the J-1 visa. Some countries do not have a skills list.
- Graduate Medical Education/Training – J-1 program was for graduate medical education or training, typically a residency or fellowship. All such participants are sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).
What is the Restriction?
Those whom are subject to HRR must stay for a cumulative period of at least two years in their home country. Until you satisfy HRR, you are still allowed to travel to the U.S., such as on B-1/B-2 visa. However, any time spent out of the home country will not be counted towards HRR. Until satisfying HRR, the following are not allowed:
- In U.S.:
- Change non-immigrant status to temporary work (H) or intracompany transferee (L)
- File I-485 for adjustment of status to lawful permanent resident status (LPR)
- Outside the U.S.:
- Apply for a temporary work (H), intracompany transferee (L), or fiance (K) visa.
- Receive an immigrant visa.
For physicians, change to T or U status is allowed. For others, changing the non-immigrant status to A, G, T or U status is allowed.
Approval in other categories, such as O-1, E-1, F-1 are allowed, but you will have to apply for the visa at a consulate (from home country or Canada/Mexico) rather than changing status from within the U.S. Issuance of such visa does not waive the HRR, and you will stay subject to it.
Am I Subject to HRR?
- For some people, it may be clear from the above rules whether he/she is subject to HRR or not. For others, it may not be clear.
- Check with your program sponsor whether you are subject to HRR.
- Check on page 2 of Form DS-2019 (or previously IAP-66) whether there is any indication about it or not, such as “subject to to the two year residence requirement” is checked off. Generally, such restrictions are listed on this form, and the participant is required to sign both of these pages to signify that he/she understand the conditions before applying for the J-1 visa.
- J-1 visa stamp may have a notation that the “Bearer is subject to 212(e) or “Bearer is not subject to 212(e)”. However, visa notations may not always be accurate.
However, the presence of notation or lack of notation does not always for sure indicate whether the person is subject to HRR or not. Whoever prepared the form or provided the visa may not have accurately noted it, the regulations may have changed, or the demand for a particular skill in a particular country might have changed.
You may also take the survey available on the J Visa Waiver Online web page. To complete the survey, you will need to provide information about yourself and the exchange visitor program you are in. However, it is not an official determination of whether you are subject to HRR or not. You must request an Advisory Opinion for an official determination.
Where Must I Return?
In order to satisfy the HRR, you will have to spend two years in your country of last residence. It is not enough just to be outside the U.S. for two years. Therefore, for example, if you are from India, you can not spend two years in Canada to satisfy this requirement.
Waiver Application
Once you have determined that you are subject to two-year home residence requirement, you can apply for the waiver application, provided one of the five statutory bases apply to you.
Alternatives
If you are subject to HRR and have not fulfilled it, it is not a good idea to change your J-1 program, as you may be subject to HRR twice and may need to obtain two waivers.
Even though you may not file for adjustment of status if you are subject to HRR, filing either I-140 or I-130 is not a problem.
