Two-year Home Country Physical Presence Requirement

The Immigration and Nationality Act was created in 1952 organizing a variety of immigration statutes into one location. Section 212(e) of this act relates to visitors participating in exchange programs.  That section defines the “Two-Year Home Country Physical Presence Requirement.”  This requirement is one of the most important characteristics of the J-1 exchange visitor status.

The two-year home country physical presence requirement is intended to prevent a visitor who is subject to the requirement from staying longer than necessary to achieve the program objective(s) and to ensure that the visitor’s home country receives the benefits from the objective(s) met during the exchange visitor’s program.

To understand how this requirement relates to you as an Intern program participant, it is necessary to know:

Are you subject to the requirement?

If so,

how is the requirement fulfilled?

what does the requirement restrict?

Are you subject to the requirement?

As an exchange visitor, you are subject to the Two-Year Home Country Physical Presence Requirement if:

Your participation is/was funded in any way by your home government or by the U.S. government

The skill being acquired/advanced is in limited supply in your home country, as listed on the “Exchange Visitor Skills List” (http://exchanges.state.gov/jexchanges/docs/skills_list.pdf) 

Your program involves medical training

If you have ever been subject to the requirement, you remain subject until the requirement has been satisfied.

The Department of State and the Department of Homeland Security commonly make the initial determination regarding whether or not an exchange visitor is subject to this requirement.  Final authority on this status is held by the Exchange Visitor Program and the Bureau of Consular Affairs at the Department of State.

How is the requirement fulfilled?

If you are subject to the requirement, you must:

Accumulate two years living in your home country after completion of your exchange program before being eligible to pursue certain types of visas/resident status/status changes 

OR

Receive a waiver of the requirement from the Department of State

What does the requirement restrict?

Being subject to the requirement has three major restrictions on future U.S. immigration options.  Until the requirement is fulfilled, the subjected visitor:

Is not eligible to obtain an H or L visa

Is not eligible for permanent resident status in the U.S.

Is not eligible to change status from J to any other nonimmigrant status from within the U.S. (with few exceptions)

If you are subject to the requirement, you may return to the U.S. after completing your program before you have resided in your home country for two years.  If you are returning to the U.S., the visa that you use to enter the U.S. depends of the purpose of your visit.  The only visas that you cannot use until you have fulfilled the two-year home country physical presence requirement are H, L, and immigrant (“green card”) visas.

A waiver to the requirement may be granted if at least one of the following reasons is properly documented:

The home country states it has no objection to the waiver

The waiver is requested by an interested U.S. government agency

There exists exceptional hardship to the U.S. citizen/permanent resident spouse or child of the visitor

There exists fear of persecution due to race, religion, or political views

(More detailed information regarding waivers is available on the Department of State website:  http://exchanges.state.gov/jexchanges/visitors/waivers.html)

This information is intended only to help you understand the nature of the requirement, not to serve as a legal reference.  For additional information contact an officer of Dynamic Global Exchange or visit:  http://exchanges.state.gov/jexchanges/index.html