ABOUT THE 2 YEAR HOME-COUNTRY PHYSICAL PRESENCE REQUIREMENT
Who is subject to the two-year home-country physical presence requirement?
As a current or past exchange visitor (J-1) visa holder, you are subject to the two-year home-country physical presence requirement, also known as the foreign residence requirement under U.S. law, for one or more of the following reasons:
- Government funded Exchange Program – You participated in an exchange program that was funded in whole or in part by a U.S. Government agency, your home country’s government, or an international organization that received funding from the U.S. Government or your home country’s government.
- Specialized Knowledge or Skill – You participated in an exchange program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country.
- Graduate Medical Education/Training – You participated in an exchange program to receive graduate medical education or training.
For information about the specific U.S. laws that created the two-year home-country physical presence requirement, refer to References – U.S. Laws, numbers 1, 2, and 3.
What does being subject to this requirement mean?
You are required to fulfill this requirement by returning to your home country for a cumulative total period of at least two years. You are not prohibited from traveling to the U.S., but until you have fulfilled the two-year home-country physical presence requirement, you are not permitted to do any of the following:
- Change status while in the U.S. to the nonimmigrant categories of temporary worker (H) or intracompany transferee (L);
- Adjust status while in the U.S. to immigrant visa/lawful permanent resident status (LPR);
- Receive an immigrant visa at a U.S. embassy or consulate; or
- Receive a temporary worker (H), intracompany transferee (L), or fiancé (K)visa.
There is a provision in U.S. law for a waiver of this requirement by the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), when applied for by the former exchange visitor and recommended by the Department of State, Waiver Review Division. Learn more about requesting a waiver.
If a J-1 holder is subject to this requirement, are dependents (spouse and/or children) with J-2 status also subject to the requirement?
Yes. Please review further information about dependent spouses and children on the Frequently Asked Questions webpage.
HOW TO DETERMINE IF YOU ARE SUBJECT TO THE TWO-YEAR HOME COUNTRY PHYSICAL PRESENCE REQUIREMENT
Does the two-year home-country physical presence requirement apply to me?
Exchange visitors are generally made aware of this requirement when they agree to participate in exchange visitor programs or at their visa interviews. It is typically indicated by the Consular or Immigration Officer in the bottom, left-hand corner of your DS-2019 form, in the section labeled “Preliminary Endorsement of Consular or Immigration Officer Regarding Section 212(e) of the Immigration and Nationality Act and PL 94-484, As Amended”. See photo to right.
However, if you are unsure whether this requirement applies to you or your situation, you should request in writing that the Department of State, Waiver Review Division conduct an advisory opinion. An Advisory Opinion is a review of your exchange visitor program documents to determine if you are subject to this requirement. Learn more on the Advisory Opinions webpage.
You may take the survey available on the J Visa Waiver Online webpage. You will need to provide information about yourself and your exchange visitor program in order to complete the survey. IMPORTANT NOTICE: The online survey is not an official determination of whether the two-year requirement applies to you. You must request an Advisory Opinion for an official determination.
I want to request a waiver of the two-year home-country physical presence requirement from the U.S. Citizenship and Immigration Services (USCIS).
If you are subject to the two-year home-country physical presence requirement, but you are not able to fulfill the requirement, you may apply to the Department of State, Waiver Review Division for a recommendation that USCIS grant a waiver under any one of the five applicable bases set forth in U.S. immigration law. Choose the one basis that you qualify for or applies to your situation.
Five Bases for Recommendation of a Waiver
1. No Objection Statement:
Your home country government may issue a No Objection Statement through its embassy in Washington, DC directly to the Waiver Review Division that it has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the U.S. The No Objection Statement may also be issued by a designated ministry in your home country’s government and sent to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it directly to the Waiver Review Division.
Important Notice: U.S. law does not permit foreign medical physicians who acquired exchange visitor (J-1) visa status on or after January 10, 1977, for the purpose of receiving graduate medical education or training to use this option. For more information about the relevant U.S. law, see References – U.S. Laws, number 1.
2. Request by an Interested U.S. Federal Government Agency:
If you are working on a project for or of interest to a U.S. federal government agency, and that agency has determined that your departure for two years to fulfill the two-year home-country physical presence requirement would be detrimental to its interest, that agency may request an Interested Government Agency Waiver on your behalf. The Interested Government Agency request must be signed by the head of the agency or his or her designee and submitted directly to the Waiver Review Division.
Any U.S. federal government agency may request a waiver under this basis. Review Designated Officials for Signatures for a listing of interested government agencies and names of their designated officials. (NOTE: This list does not contain information for all U.S. federal agencies. It only contains information from agencies that have provided the Department of State, Waiver Review Division with the names of individuals authorized to sign letters requesting waivers under this basis.)
Important Notice: For Interested Government Agency requests on behalf of foreign physicians who agree to serve in health professional shortage areas or medically underserved areas, please refer to Step 3 of the How to Apply Instructions. For more information about the relevant law, see References – U.S. Laws, number 3.
Only the following U.S. federal government agencies may request Interested Government Agency Waivers on behalf of foreign physicians to practice in health professional shortage areas or medically underserved areas:
- Appalachian and Delta Regional Commissions, Department of Health and Human Services
- Department of Interior for Indian Reservations
- Department of Veterans Affairs (VA). VA hospitals do not have to be in underserved areas.
If you believe that you will be persecuted based on your race, religion, or political opinion if you return to your home country, you may apply for a persecution waiver. This waiver basis requires that you submit Form I-612, Application for Waiver of the Foreign Residence Requirement, directly to USCIS. USCIS will forward its decision directly to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of persecution.
4. Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor:
If you can demonstrate that your departure from the United States would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you 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 you submit Form I-612, Application for Waiver of the Foreign Residence Requirement, directly to USCIS. USCIS will forward its decision directly to the Department of State’s Waiver Review Division. The Waiver Review Division will proceed with the waiver recommendation under this basis only if USCIS makes a finding of exceptional hardship.
5. Request by a designated State Public Health Department or its equivalent (Conrad State 30 Program):
If you are a foreign medical graduate who obtained exchange visitor status to pursue graduate medical training or education, you may request a waiver of the two-year home-country physical presence requirement based on the request of a designated State Public Health Department or its equivalent, if you meet all of the following criteria. This waiver category is also known as the Conrad State 30 Program. You must:
- have 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;
- agree to begin employment at that facility within 90 days of receiving a waiver; and
- sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.
Each department is allowed to request 30 such waivers per federal fiscal year. 10 of the 30 requests may be for exchange visitor physicians who will serve at facilities which may not be located within a designated health care professional shortage area but which serve patients who live within such a designated area. The state public health department will forward the Conrad State 30 Program request directly to the Waiver Review Division, if it agrees to sponsor you for such a waiver.
Instructions for UAMS departments seeking to sponsor faculty candidate for a Health Department J-1 Waiver (Conrad Waiver) of the two-year home-country physical presence requirement: Please contact any anttorney listed on the UAMS Approved Immigration Attorney list.
For information about the specific U.S. laws that created this waiver category, refer to References – U.S. Laws, numbers 4 and 5.