What is the J-1 Two-Year Physical Presence Requirement?
Certain J-1 visa holders are required to return to their country of origin for two years, following the end of their exchange program. This rule, known as the “two-year home-country physical presence requirement,” was implemented to ensure that a true cultural or intellectual exchange takes place once the J-1 student visa expires.
Those who are subject to the. requirement must either abide by it or, if eligible, apply for a J-1 visa waiver. Find out if you qualify for a waiver and how to apply.
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Only certain J-1 visa beneficiaries are subject to the two-year physical presence requirement. There are three scenarios that trigger the two-year physical presence requirement. They are as follows:
- The applicant received their J-1 visa to attend school for graduate medical training.
- The beneficiary participated in a program that was funded, at least in part, directly or indirectly, by either their home country or the U.S. government.
- The applicant pursued training in a special skill that the U.S. Secretary of State has deemed essential for the furtherance of the home country’s national interest. You can find a list of skills (organized by country) on the U.S. Department of State’s website.
If the visa holder falls into one of these three categories, they will be subject to the two-year physical presence requirement. This means they will have to return to their home country for two years following the end of their exchange program. While they’ll still be permitted to enter the United States, they won’t be able to take advantage of certain benefits, including:
- Adjusting status to lawful permanent resident
- Changing status to an H work visa or an L transferee visa
- Obtaining a temporary work visa, K-1 fiancée visa, or L transferee visa
- Obtaining an immigrant visa at a U.S. Embassy or consulate
If the J-1 visa holder is subject to the two-year physical presence requirement, but they want to remain in the U.S., they may be able to obtain a waiver.
Not sure if you qualify for to apply for a J-1 exchange student visa? Start by checking your eligibility.
If the beneficiary wishes to bypass the requirement, they must satisfy 1 of 5 possible “bases for recommendation of a waiver.” We’ll discuss each of these in this section.
Federal Agency Request
If the beneficiary is working on a project for a U.S. federal agency, the head of the agency, or a designated official, may submit a waiver request to the State Department’s Waiver Review Division. The agency must be able to show that the project would suffer were the beneficiary to return to their home country.
For a list of federal agencies and designated officials, visit the State Department’s website.
State Public Health Department Request
If the beneficiary received their visa on the basis of graduate medical training, then a designated State Public Health Department may submit a waiver request on their behalf. Certain conditions must first be met:
- They must have an offer for a full-time position as an H-1B nonimmigrant visa holder at a hospital located in a Health Professional Shortage Area (HPSA), Medically Underserved Population (MUP), or Medically Underserved Area (MUA)
- They must affirm that they will begin work within 90 days of being granted the waiver
- They must agree, in writing, to work 40 hours a week for at least 3 years
Eligibility criteria may vary from state to state, so be sure to check your local public health department’s website. This option is sometimes called the Conrad 30 Waiver Program.
No Objection Statement
If the home country has no issues with foregoing the two-year physical presence requirement, they may send a “No Objection Statement” which indicates the following:
- That they’re okay with the J-1 visa holder not returning home after the completion of their exchange program
- That they have no issues with the beneficiary adjusting status to permanent resident
The home-country government should send the statement to the Waiver Review Division, via their embassy in Washington D.C. A designated ministry in the country of origin may also send the statement to a local U.S. Embassy or consulate.
If the J-1 visa holder believes they will be persecuted upon returning to their country of origin, they may apply for a waiver on this basis. The applicant must be able to show that they would be persecuted on the basis of their:
- Political opinion
Those pursuing this option will need to fill out Form I-612 (officially called the “Application for Waiver of the Foreign Residence Requirement”), which costs $930 to file.
If the two-year physical presence requirement would result in exceptional hardship for a permanent resident (or U.S. citizen) spouse or child, the beneficiary may submit a waiver request. To be clear, it is not enough to argue on the basis of separation alone. There must be real hardship.
As with persecution, those pursuing this option will need to file Form I-612, which we’ll discuss in the next section.
All applicants will need to file Form DS-3035 (also called the “Online J Visa Waiver”), but only certain applicants will need to submit Form I-612. Below, we’ll summarize the steps for both these forms.
This form is only meant for those seeking a J-1 visa waiver using one of the following justifications:
- Exceptional hardship
To file Form I-612, the J-1 visa waiver applicant should follow the filing instructions. They will send this application to U.S. Citizenship and Immigration Services (USCIS), who will then forward their decision to the Waiver Review Division. The applicant can either send this form before or after filing Form DS-3035.
Evidence Required for Form I-612
In addition to properly completing the form and paying the $930 filing fee, the applicant will need to include evidence substantiating their claim. They should include the following with their application:
- Copy of Form I-94 (officially called “The Arrival/Departure Record”)
- Copies of Forms DS-2019/IAP-66 (officially called the “Certificate of Eligibility for Exchange Visitor Status”) for any previous J-1 visa programs initiated by the beneficiary or spouse
- A written statement explaining in detail how the beneficiary will be persecuted or how their family will experience exceptional hardship during the two-year period
- Any additional evidence that might further substantiate claims regarding persecution or exceptional hardship
Exceptional hardship applicants will need to include evidence showing that the spouse and children are citizens or permanent residents. This may include any of the following:
- Birth certificates for U.S. citizen spouse and children or, where that’s not possible, a letter from a state agency explaining why a birth certificate is unavailable, in addition to one of the following:
- A baptismal certificate
- Two affidavits from people who know that the birth occurred within U.S. borders
- Evidence that the child or spouse received citizenship through marriage
- A copy of the naturalization certificate, if the spouse or child was naturalized within 90 days of filing Form I-612
- A copy of the permanent resident card (Form I-551) for the child or spouse
In addition to the above, the exceptional hardship applicant will need to provide evidence that they are indeed married to their spouse and that all previous marriages have been terminated. They will also need to include a birth certificate, if they haven’t already, to prove their parental relationship to any children who would experience hardship.
Note: the applicant might need to attend a biometrics appointment, which means they will need to pay a biometrics service fee in addition to the $930 filing fee.
Anyone applying for a J-1 visa waiver will need to file Form DS-3035 with the State Department. They can do this on the J Visa Waiver webpage, where they’ll also be able to check their J-1 visa waiver status. Below we’ll break down the steps for filing the J-1 visa waiver application.
Step 1: Fill out Form DS-3035. To do this, the applicant will need their Student and Exchange Visitor Information System (SEVIS) number. If they used Form IAP-66 to obtain their J-1 visa, they can just enter N0000000000 (10 zeros). In this case, the subject code will be, for example, 00.2367, where 2367 is a 4 digit field code number found on IAP-66. They’ll also need their Form I-94 number.
Step 2: Send the J-1 visa waiver application and any fees to the State Department. The applicant will need to send the following:
- The $120 application fee (see the State Department’s website for more information on acceptable forms of payment)
- Printed application, complete with barcode
- Copies of any DS-2019/IAP-66 forms
- Two envelopes, which are stamped and self-addressed
Step 3: Provide any supporting documentation. The types of documents will vary depending on the waiver basis.
Step 4: Check status of waiver application. The applicant will need their case number to do this. When checking their status, the beneficiary should also be sure to update their contact information.
Processing the Application
If the Waiver Review Division needs any other information, they will reach out to the applicant, who will then need to send the requested documents to the following address:
Waiver Review Division
U.S. Department of State
SA-17, Floor 11
Washington, DC 20522-1711
Once all the information has been provided, the Waiver Review Division will process the application. Processing times will vary depending on the type of justification:
|Conrad State 30 Program||12 to 16 weeks|
|Exceptional Hardship||36 to 52 weeks|
|Persecution||12 to 16 weeks|
|No Objection Statement||12 to 16 weeks|
|U.S. Federal Agency Request||8 to 12 weeks|
|Advisory Opinion||4 to 8 weeks|
Note: advisory opinions are not a waiver basis. They are used to determine whether a J-1 visa beneficiary is subject to the two-year home residency requirement.
Once the Waiver Review Division writes its recommendation, they will forward it to USCIS, who will make the final decision. Regardless of the outcome, the Waiver Review Division will send its recommendation to the applicant, using the most current mailing address in the system. Once the case is transferred, the applicant will need to contact USCIS for updates regarding the J-1 visa waiver status. If USCIS approves the application, the two-year home-country physical presence requirement will be waived, and the beneficiary may begin the process of adjusting their status to permanent resident, if they so wish.