J-1 Visa: 2 Year Rule" Frequently Asked Questions


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J-1 "2 Year Rule" Frequently Asked Questions


Q: How do I know if I am subject to the two-year Foreign Residency Requirement?

A: To determine if you are subject to the two-year Foreign Residency Requirement, check your J visa. If you are required to fulfill the two-year Foreign Residency Requirement the box next to the phrase “subject to the two-year rule” will be checked off. However, if this box is not checked off it does not mean that you are not subject to the rule. Other factors and conditions may apply. We recommend that you seek the advice of an experience immigration attorney to determine if you are subject to the foreign residency requirement.Z&A can provide a preliminary evaluation and determine whether you are subject to the two-year rule ($500 service fee). If interested, please fax a copy of your visa and your most recent IAP-66 (Certificate of Eligibility) to Z&A. For more information on how to contact us, please click here.

We provides some examples below to identify whether an alien is subject to the two-year Foreign Residency Requirement

  • Example:

Justin's Form IAP-66 (Certificate of Eligibility) states that he is subject to the two-year rule. Even though his IAP-66 indicates that he is subject, his situation may have changed and he may no longer be subject. If his skills were in short supply in his home country when he left, butby the time his J-1 status expired his skills were no longer considered in demand, he will no longer be subject to the Foreign Residency Requirement on this basis.

However, his most recent IAP-66 remains a good starting point to determine whether he is subject to the two-year requirement.

  • Example:

Miguel's Visa states that he is subject to the two-year rule. However, Miguel does not believe that he is subject to the two-year rule. The information indicated on his Form IAP-66 may be incorrect if the visa officer mistakenly marked his visa.

  • Example:

Sarah's IAP-66 (Certificate of Eligibility) and J-1 visa do not state that she is subject to the two-year rule. Sarah is not subject to the two-year rule if both documents lack any two-year requirement notation.

  • Example:

Paula is a J-2 holder. Her husband, Jack is a J-1 holder. Since Jack, her J-1 principal is subject to two-year residence requirement Paula is also subject to the two year residence requirement. However, Paula should not independently fulfill the two-year foreign residence requirement.

Q: How can I find out if I am required to fulfill the two year foreign residency requirement?

A: If a J-1 holder is unsure whether he/she has to fulfill the two year foreign residency requirement, they can request an advisory opinion from the Waiver Review Division.

Q: What is an advisory opinion?

A: An advisory opinion is a statement issued by the Waiver Review Division declaring whether or not a J-1 holder needs to fulfill the two year foreign residency requirement.

Q: What do I need to submit to obtain an advisory opinion?

A: You should mail copies of your DS-2019/IAP-66 forms and a request for an advisory opinion to:
U.S. Department of State
CA/VO/L/W, Visa Services
2401 E Street, NW, (SA-1)
Washington, DC 20522-0106

Q: What is the Exchange Visitors Skills List?

A: This is a list compiled by the State Department which indicates which skills are required by individual countries.

Q: Where can I find a copy of the Exchange Visitors Skills List?

A: The Exchange Visitors Skills List can be obtained at the Department of State website.

Q: How do I know which country’s skills list applies to me?

A: The country’s skills list that applies to a J-1 holder is that of the country of legal residence that the J-1 holder resided in when he or she obtained their J-1 visa.

Q: May I change from J-1 status to another non-immigrant visa outside the U.S. if I am subject to the two-year residency requirement?

A: Yes. You may obtain a non-immigrant visa (O, E or F visa) from a U. S. Consulate located in a foreign country. But you may not obtain an H or L visa until you have received either a J-1 Waiver or until you have completed the two-year foreign residency requirement.

Example:
May wishes to change from J-1 status to another non-immigrant visa within the U.S. However, she is still subject to the two-year residency requirement. May cannot change from a J-1 to any other non-immigrant visa unless she obtains a J-1 waiver.


Example:
Jesus wants to obtain a different type of non-immigrant visa but he is still obligated to fulfill his J-1 Foreign Residency Requirement. Jesus will need to travel to a U.S. Consulate located in a foreign country to apply for the Visa. If Jesus wishes to retain Z&A, a Z&A attorney can accompany him to Mexico to apply for a Third Country Visa.


For more information about Third Country Visas, please click here.

Example:
Lee wants to obtain an immigrant visa from a U.S. Consulate before he completes the two-year foreign residency requirement. Lee is not able to do so until he fulfills the two-year rule.


Example:
Vince is subject to the two-year rule and his NIW is approved. He wishes to obtain a Green Card. Vince is eligible to apply for an NIW, despite being subject to the two-year rule. However, Vince still needs to obtain a Waiver or fulfill the two-year residency requirement before he is eligible to receive a Green Card.


Example:
Ben wants to change from J-2 to J-1 status. Once he obtains an IAP-66 (Certificate of Eligibility), he can change to J-1 status in the U.S. However, he may be subject to the two-year Foreign Residency Requirement restriction twice, once as a spouse of a J-1, and again as a J-1.


Z&A has successfully assisted clients obtain change of their J-2 status to J-1. For more information about Attorney fees related to a change of J-2 to J-1 status, please click here.

Q: I came to the U.S. with a J-1 visa subject to the two-year rule. Can I change my J-1 program?

A: It is not a good idea to change your J-1 program if you have not yet fulfilled your two-year requirement. If you change your J-1 program, you may be subject to the two-year restriction twice and will need to obtain two J-1 Waivers in order to be relieved of the rule.

Q: How may I adjust my status to permanent resident, if I am under the J-1 Foreign Residency Requirement?

A: Generally, you cannot petition for an Adjustment of Status if you have not yet met the Foreign Residency Requirement. Once you obtain a J-1 waiver, however, you may petition for an Adjustment of Status. For more information about J-1 waivers, please click here.

You may also petition for an Adjustment of Status after you complete the two-year Foreign Residency Requirement. You may petition for a permanent resident visa once you begin to live in your home country, but the visa cannot be granted until the Foreign Residency Requirement is completed.

Example:
Sandy has a J-1 Visa. She becomes a Canadian permanent resident. Sandy is still subject to the two-year rule. Her Canadian permanent residency has nothing to do with her J Visa Waiver issue. She is still required to serve her two years in her home country or country of last habitual residence, regardless of her status or stay in any other foreign country.


Example:
Harold is subject to the two-year rule. Harold marries a U.S. citizen. Harold is eligible to apply for a Green Card but is still required to fulfill the two-year residency requirement.


Q: May I file for an I-140 (Immigration Petition) petition or I-130 (Alien Relative) petition while under the J-1 Foreign Residency Requirement?

A: Yes. Filing either an I-140 or an I-130 does not affect your status. Both allow you to obtain Permanent Residency Status in the future. For example, a person can obtain I-140 approval and then return to his or her home country and after completing the Foreign Residency Requirement. Then he or she is eligible to apply for permanent residency. Similarly, if a J-1 Waiver is granted, they can obtain a permanent visa (or adjust one's status if in the U.S.) once the J-1 waiver is granted.

Q: Does the new Rule 245(i) exempt J-1 holders who are subject to the two-year rule?

A: Rule 245(i) does not exempt you from fulfilling the two-year residency requirement. You are still required to fulfill the rule.

Q: Does the two-year rule also apply to a J-1 holder’s J-2 dependents?

A: Yes. People who have entered or stayed in the U.S. as J-2 dependents are under the same restrictions as their respective J-1 holder. They are similarly relieved of the restriction if the J-1 holder obtains a J-1 waiver. NOTE: Prior to the State Department’s taking control over J-1 programs, the previously responsible agency (USIA), held that J-2 dependents were not required to meet the foreign residency requirement themselves. The State Department has reversed this policy and requires the J-2 dependents to fulfill this requirement if it applies to their J-1 principal.

Example:
Mary is currently in F-1 status and living in the U.S. Previously she was in J-2 status. Her spouse, James, who used to be a J-1, has returned to their home country for two (2) years. According to the stated policy of the U.S. State Department (the agency in overseeing all J-1 programs) Mary is still subject to the two-year restriction. She will need to fulfill the two-year requirement personally before the restrictions on her future immigration benefits are lifted.

Example:
Paula is a J-2 holder. Her husband, Jack is a J-1 holder. Since Jack, her J-1 principal, is subject to two-year residence requirement, Paula is also subject to the two-year residence requirement. However, if Jack obtains a J-1 waiver, Paula will no longer be subject to this the two-year foreign residence requirement either.

Q: I received J-1 status while I was a citizen of Country A and instead of returning to Country A to fulfill the two-year foreign residency requirement I go to Country B and become a citizen there. Can I return to the U.S. with H status if I remain in Country B for at least two-years?

A: No. The two-year foreign residency requirement must be fulfilled in the country you were residing in at the time you received your J-1 status.

Example:
Sean is a citizen of China and received his J-1 visa while he was residing in China. After his J-1 status was expired, he had to go back to China to complete his two-year foreign residency requirement. Instead of going back to China, Sean went to Canada and became a Canadian citizen. After residing in Canada for two years, Sean wants to return to the U.S. with H status. However, Sean cannot return to the U.S. until he completes his two-year foreign residency requirement in China, since that is his country of permanent residence and was the country he resided in when he received his J-1 status.

For more information about J-1 visa, please refer to the following links:

J-1 General Issues

Specific Information on J-1 Waivers