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J-1 Visa 2 Year Residency Rule: Determination, Advisory Opinion and Waiver


BY Alex Wang [ June 07, 2010 at 18:51:12 ]

Background on J-1 2-Year Rule

Implemented in 1961, the J-1 non-immigrant visa was created to promote educational and cultural exchanges between the United States and other countries.

Under section 212(e) of the Immigration and Nationality Act, certain J-1 visa holders are subject to the 2 year residency rule. The 2 year rule requires a J holder to return to his or her home country for 2 years after conclusion of the J program. A J-1 holder who is subject to the 2 year rule will not be able to change to any status in the U.S. and cannot file for adjustment of status in the U.S. until a waiver is received or the two year residency has been satisfied. In addition, a J-1 holder subject to the 2 year rule cannot receive H, L, K, or immigrant visas at a U.S. consulate overseas until a waiver is received or the two year residency has been satisfied. However, a J holder who is subject to the 2 year rule can still receive other non-immigrant visas excluding H, L, and K.

In addition, a J-1 holder may still apply for an I-140 like a NIW or EB-1(a) in order to obtain permanent residency in the future. The J-1 two years HRR does not affect one’s immigration petition. However, the J-1 holder needs to get a waiver for the two years HRR or satisfy it before he/she may apply for adjustment of status or Consular Processing.

J-1 holders who fall into one of three groups are subject to the two year residency rule: 1) aliens sponsored by the U.S. government, home country government, or international organization that either country contributes to; 2) those completing a medical physician internship; or, 3) those who work in a field on the J-1 skills list. The J-1 skills list is a compilation of fields deemed necessary for the growth of the alien’s home country and varies significantly from one country to another. To check the J-1 skills list, please click here.

When issuing a DS-2019 form by the U.S. J program sponsor, a program officer will make an initial check on the form regarding whether the program is subject to the 2 year rule. A consular officer will also make a determination about whether or not the 2 year residency rule is applicable to an alien by placing an annotation on the visa stamp in the passport. While this decision is usually correct, officers have been known to make occasional mistakes.

Common mistakes made in initial determination

As the J-1 skills list is quite broad for developing countries such as China, some officers tend to assume that the skills list applies to all Chinese nationals. However, according to the Department of State, a J-1 high school student in the United States on private funds has not yet developed any particular skill set, and thus is not subject to the 2 year residency requirement.

Likewise, the Department of State has also determined that au pairs have no particular skill set either and cannot be subject to the 2 year residency requirement.

If a J-1 holder has an annotation about the 2 year rule on either the DS-2019 form or his/her visa stamp, the J holder is subject to the 2 year rule unless an advisory opinion from the Department of Status is issued to overrule the initial determination. J-1 holders who believe that the 2 year rule annotation on their DS-2019 form or visa stamp is incorrect should contact an experienced attorney to conduct an evaluation; if there is enough substantive support, an advisory opinion may be filed with an attorney’s assistance. The advisory option process usually takes around 2 to 3 months. Once an advisory opinion is issued to overrule the previous incorrect determination, the J holder is not subject to any restrictions imposed by the 212(e) rule and can change to another status or file for adjustment of status in the U.S., if qualified, or apply for any visa at a U.S. consulate overseas.

J-1 Waivers

If a J-1 holder is subject to the two year rule, a visa holder may, with the help of an attorney, obtain one of five available waivers to bypass the two year residency requirement.

a. "No Objection" Letter—This is a letter from the alien’s home country stating that it is acceptable to waive the two year residency requirement. As a general rule, the “no objection” waiver does not apply to medical interns/residents who received medical training in the United States.

b. Interested Government Agency Request (IGA)—The 2 year residency requirement can be waived if it is proven that a U.S. government agency has a vested interest in keeping an alien in the United States for a critical function or project. An interest government agency can request the U.S. Department of State to waive the residency requirement; in addition to the U.S. DOS, USCIS must also agree to grant the alien a waiver.

c. Threat of Persecution—Under this type of waiver, an alien must prove that he/she will face persecution upon return to his/her home country on the grounds of race, religion, or political views.

d. Designated State Health Agency Request For Physicians—A state health agency or any equivalent institution can request to keep physicians in the United States who have been hired to work in a medically underserved area. Those who qualify must state in writing that they will work a minimum of 40 hours a week for three years and begin working within 90 days after the waiver is approved.

e. Hardship—With this type of waiver, an alien must prove that compliance with the 2 year residency rule will impose hardship on the alien’s spouse or child(ren), who are either U.S. citizens or permanent residents.

Conclusion

Before coming to the United States on a J-1 visa or changing to J-1 in the U.S. from another visa status, think carefully about two things: 1) your overall immigration goals and 2) your sponsoring program and whether or not you are willing to assume the restrictions that may come with it. Ultimately, if you plan on becoming a permanent resident, perhaps it is not in your best interest to apply to a program subject to the 2 year residency rule unless you know that you will be able to get a J waiver.

If you enter a program believing that you are not subject to the two year residency rule and a consular officer deems that you are, it is imperative that you consult with an experienced attorney. Through a consultation, an attorney will give you expert advice regarding the different waivers and the procedure involved in filing an advisory opinion.

Zhang & Associates, P.C. is very experienced at handling J related issues. We offer fee based consulting services to determine whether or not a J holder is subject to the 2 year rule, along with possible solutions. If you wish to set up a fee based consultation, please send an inquiry to attorney Jian Joe Zhou at jzhou@hooyou.com. Joe is a co-managing attorney at the firm and has a wealth of experience in J advisory options and J waiver issues.


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