The foreign residence (or home residence) requirement is a feature unique to J-1 exchange visitors and can be found under Section 212(e) of the Immigration and Nationality Act. Individuals who are subject to this requirement must either return to their home country for two years at the conclusion of their J-1 program or find some means to waive the requirement. Without satisfaction or waiver of this requirement, the J-1 exchange visitor will be unable to change status within the U.S. to most other statuses, obtain an H, L, or K visa in most cases, and obtain U.S. permanent residence.
The J-1 exchange visitor becomes subject to the home residence requirement through one of the following means:
- His or her participation in the J-1 program was financed in whole or in part, directly or indirectly, by the U.S. government or by the J-1’s country of nationality or last permanent residence.
- At the time of admission to or acquisition of J-1 status, he or she was a national or resident of a country, which the U.S. Department of State (DOS) has designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the J-1 was engaged. This designation appears on the Exchange Visitor Skills List.
- His or her participation in the J-1 program was for the purpose of graduate medical education (GME) or training.
Sometimes, DOS will erroneously find the J-1 exchange visitor subject to 212(e), and this can be challenged through an Advisory Opinion filed with the DOS Waiver Review Division. There are also certain strategies to fulfill the home residence requirement, such as through incremental satisfaction of 212(e) (i.e. spending two years in the home country in blocks of time).
Most J-1 exchange visitors wishing to remain in the U.S. pursue a J-1 waiver, which is adjudicated by DOS’s Waiver Review Division and ultimately decided by U.S. Citizenship and Immigration Services (USCIS). The following are the types of J-1 waivers available:
- No objection waivers: The J-1’s home country government provides a statement to DOS, indicating that it has no objection to the J-1’s pursuit of a waiver. This process can be more difficult if home country funding is involved, but every country has different criteria in terms of its support for such statements. This type of waiver is not available to J-1s engaged in GME.
- Interested Government Agency (IGA) waivers: Any U.S. federal agency can potentially sponsor a J-1 waiver, but only a few have formal processes, including the U.S. Department of Health and Human Services (research waiver), the U.S. Department of Agriculture, the U.S. Department of Energy, and the National Science Foundation. The agency will forward its waiver recommendation to DOS. There are additional IGAs that will specifically support J-1 waivers for clinical physicians. See below.
- Conrad/shortage area waivers: These waivers only apply to J-1 physicians subject due to their participation in GME. The Conrad waiver program makes it possible for every state (as well as the District of Columbia, Puerto Rico, and Guam) to sponsor up to 30 J-1 physicians per fiscal year. Advanced by former U.S. Senator Kent Conrad, and first passed by Congress as a pilot program in October 1994, the program has been essential in reducing severe physician shortages in the U.S. medical system. Every state may request a waiver for a clinician who agrees to practice full-time for three years in an underserved area as designated by the U.S. Department of Health and Human Services. There are also a few IGAs that similarly sponsor J-1 physicians who will work in shortage areas, namely the Delta Regional Authority, the Appalachian Regional Commission, the Department of Health and Human Services (clinical waiver), and the Department of Veterans Affairs. The state or the IGA will forward its waiver recommendation to DOS.
- Hardship waivers: The J-1 must establish that his or her U.S. citizen or lawful permanent resident spouse or child would face exceptional hardship if the J-1 had to reside in the home country for two years. This waiver is filed directly with USCIS and, following recommendation, moves to DOS and ultimately back to USCIS for the final decision.
- Persecution waivers: The J-1 must establish that he or she would be subject to persecution on account of race, religion, or political opinion. This waiver is also filed directly with USCIS and, following recommendation, moves to DOS and ultimately back to USCIS for the final decision.
A J-2 waiver is also available directly through DOS where the J-1 spouse dies, the J-1 and J-2 spouses divorce, or the J-2 child turns 21.
