The Foreign Residency Requirement has several names such as the “Two-year Home Country Physical Presence Requirement” or the “Home Residence Requirement,” but essentially they are all describing the same thing. According to the Immigration and Nationality Act, J-1 visa holders, who have completed their program, are mandated to reside in their home country for a minimum of two years.
The individual may be able to travel to the United States under the B-1/B-2 visa, though time spent out of the home country will not count towards the Foreign Residency Requirement. The Foreign Residency Requirement must be fulfilled before any other action can occur. The individual is not authorized to conduct any of the following:
- Inside the U.S.:
- Submit a change of status in order to become a lawful permanent resident.
- Change to a non-immigrant status such as the H Visa (temporary work) or L Visa (intracompany transferee).
- Outside the U.S.:
- Obtain an immigrant visa at a U.S consulate or embassy.
- File for an H visa, L visa, or K visa (fiance visa).
Obligated Participants of the Foreign Residency Requirement:
- If the individual was involved in a government-funded exchange program the J-1 visa holder will be subject to the Foreign Residency Requirement. The J-1 programs are financially supported by either the home country government or the United States. Funding may also come from an international organization. However, there are some exceptions to the rule:
- If the J-1 visa holder received government grants that were not specified for the international exchange, the individual is not subject to the Foreign Residency Requirement.
- If the J-1 visa holder was a university professor and he/she received a government grant that was partly used for salaries or stipends. The stipends and salaries must have been used for graduate students or research colleagues. If the J-1 holder is unsure if the exchange program was financially supported by the government, it is suggested to speak with the indicated program officer for assistance.
- J-1 holders who were engaged in a specialized program that is considered a necessity for further development in the individual’s home country are subject to the Foreign Residency Requirement. The specialized skill must also appear on the government list.
- The J-1 holder was involved in a graduate medical or training program. The participants of the programs are sponsored by the Educational Commission for Foreign Medical Graduates. The programs are usually completed to fulfill a residency or internship requirement.
Foreign Residency Requirement Waivers:
J-1 visa holders have an option to waive the Foreign Residency Requirement. If the individual is subject to the requirement but qualifies under one of five statutory bases, the individual may submit a DS-3035 waiver application, supporting documents, fee payment, and related forms. By following through with this application process, the applicant may be granted or denied a waiver by the USCIS.
The Five Statutory Basis:
- No Objection Statement – the government of your home country can submit a No Objection Statement to the Waiver Review Division. This statement simply needs to make it clear that your home country’s government does not object to you remaining in the U.S. and not fulflling the Foreign Residency Requirement.
- Fear of Persecution – Prove that in returning to your home country, your life and freedom will be undoubtedly threatened at the hands of the prosecutor.
- Exceptional Hardship – Your departure from the United States would bring upon hardship to your U.S. citizen or lawful permanent resident spouse or child.
- Request by State Health Department – Only available to foreign medical doctors who received their exchange visitor J-1 status to pursue graduate medical education or training. This waiver has to be by a designated State Public Health Department.
- Request by an Interested U.S. Federal Government Agency (IGA) – On behalf of a foreign physician who agrees to serve in a medically under-served area
You’ll need to get approval from both USCIS and the Waiver Review Division of the U.S. Department of State’s Bureau of Consular Affairs if you believe you’re eligible for one of these waivers. If you intend on applying for a J-1 waiver, thoroughly follow the instructions on how to apply for each category.
Each statutory basis has their own individual requirements as well as additional or fewer steps. Failing to follow these instructions can result in an application that is forwarded back to the applicant without review and possible loss of the application fee.
How Our Immigration Lawyers Can Help:
At SGM Law Group, our immigration lawyers are capable of verifying if the applicant meets the foreign residency requirements. If the J-1 holder wishes to seek a J-1 waiver, our immigration attorneys are able to assist them with the government documentation and supplementary material.
We understand the extensions designated for each category and can advise you as to the appropriate course of action.