J-1 Exchange Visitors – Two-Year Residence Requirement

The underlying purpose of the J-1 Exchange Visitor category is to facilitate mutual cultural exchange between the U.S. and other countries. Many professors and researchers come to the U.S. under this category. When these exchange visitors wish to change to other nonimmigrant status in the U.S. or obtain immigrant status, the law may require that they return to their home countries and be physically present there for at least two years. This is commonly referred to as the “two-year rule”.

Who Are Subject To The “Two-Year Rule”?

Not all J-1 visitors are subject to the rule. It applies when J-1 visitors enter the U.S. in three situations:

1. The visit was financed, directly or indirectly, by the United States or a foreign government

2. The visitor has come to the United States to receive graduate medical training or education, or

3. The visitor is engaged in a specialized field that is designated as being in short supply in the visitor’s country

Government Financing

A visit is considered being financed directly if the visitor receives funds from either the government of the United States or a foreign country in the form of scholarship, stipends, grant or compensation for work performed by the visitor. If the visitor receives funds from an international organization to which the United States or the visitor’s country contributes for the promotion of international educational and cultural exchanges, he/she is considered to have received funds indirectly.

Graduate Medical Education Or Training

Generally, the “two-year rule” only applies to visitors whose graduate medical education or training involves patient care services. Programs that consist of teaching, research, or consultation with no contact with patients are not subject to the rule. All exchange visitors coming to engage in graduate medical education or training must be sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG), although not all visitors sponsored by ECFMG engage in work involving patient contact.

Skills In Short Supply

In consultation with foreign governments, the U.S. Department of State maintains a list indicating designated knowledge or skills that are clearly required by the exchange visitor’s country of nationality. This designation is published in the Federal Register and is known as the “exchange visitor skills list”.

The skills list shows, by country, the skills designated as needed in that particular country. The list might change depending on the needs of the countries. If a country is listed but a visitor’s skill is not listed under that particular country, the visitor is not subject to the “two-year rule”.

How To Satisfy The Two-Year Requirement?

The laws require that the exchange visitor return to his home country. Residence in a third country does not satisfy the requirement, unless the visitor is assigned to engage in service abroad by his/her country. Also, the period of residence must total two years, although the two-year period does not have to be uninterrupted.

Waivers Available

Under certain circumstances, waivers on the two-year requirement may be obtained. Obtaining a waiver does not grant work authorization so it must be coordinated with an application to change the visitor’s status to H-1B or O-1, or to apply for employment authorization so that the visitor can remain employed during the application period. There are four methods to obtain a waiver:

1. Statement of “no objection” – if the visitor’s home country issues a statement to the effect that it does not object if the visitor fails to return to that country for the two-year period, the two-year requirement can be waived. However, a “no objection” statement will be insufficient to obtain a waiver if the exchange visit was funded directly or indirectly by the U.S.

2. Hardship waiver – an exchange visitor can be granted a waiver if satisfying the two-year requirement will cause “exceptional hardship” to the visitor’s spouse or child who is a U.S. citizen or lawful permanent resident. The normal difficulties related to separation, language barrier, lack of economic opportunities are not considered “exceptional hardship”. On the other hand, factors such as unavailability of medical treatment, war, discrimination, limitation of educational or career opportunities to a spouse or a child of a particular race, gender, or religion, or severance of close family relationships may be considered and should be documented.

3. Persecution waiver – the visitor may be granted a waiver if, upon returning to the home country, he/she would be subject to persecution on account of race, religion, or political opinion.

4. Interested government agency (IGA) waiver – the requirement can be waived if a U.S. government entity asserts with supporting documents that a visitor’s departure is detrimental to a program or activity that the agency has official interest in. The exchange visitor must apply directly to the government agency whose program he/she is involved in. Generally, the visitor should establish his/her involvement with the IGA and its intended employment of the visitor. He/She should also clearly explain how the waiver would serve the public interest and why a favorable decision should be granted.

Lastly, it is important to note that the spouse or child of an exchange visitor, admitted as J-2 non-immigrant, will be subject to the two-year requirement only if the J-1 exchange visitor is subject to the rule.

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(Note: All discussions posted on this website are meant to be general information only and do not constitute legal advice. Immigration laws and regulations change on a daily basis. Any and all information posted on this website could become outdated. Because each person's immigration history and legal needs are unique, the reader should consult a qualified immigration attorney for legal advice. Please also see our DISCLAIMERS .)