When consulting with an individual in J status, our initial line of inquiry is usually whether the exchange visitor (EV) is subject to section 212(e) of the Immigration and Nationality Act, also known as the two-year home residence requirement. Unfortunately, it is often the case that this is not correctly reflected on either the DS-2019 or the visa stamp. Our first step therefore is to analyze whether or not the EV is subject: did the EV receive government funding? Was it really from a government agency? Is the EV’s field designated on the home country’s Skills List? Was the field designated correctly? Which Skills List applies?
If, after this analysis, it is determined that the EV is subject to the two year home residence requirement, the discussion turns to options to remain in the United States, to fulfill the two years, or to obtain a waiver.
This same analysis does not apply to EVs who enter the United States to receive graduate medical education (GME) or training. If the EV is sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG) for GME, as a matter of law, the EV is subject to the home residence requirement. This is true even if the visa stamp or DS-2019 indicates “not-subject.” With these individuals, the discussion therefore starts not with an analysis of whether they are subject, but with what steps can be taken should they decide to remain in the United States.
We have successfully represented many physicians, scientists, scholars, and others in obtaining waivers of the two year home residency requirement based on a number of different strategies: Conrad 30 Waivers; Health & Human Services (HHS) Waivers; Exceptional Hardship Waivers; National Science Foundation Waivers; Department of Defense Waivers, No Objection Waivers; Veterans Administration Waivers; and a wide variety of other Interested Government Agency (IGA) waivers – even those based on impossibility.
For those who may not have an immediate waiver option, or who are not planning to permanently reside in the U.S., the O-1 may be the best option. The O-1 is a nonimmigrant visa that may be obtained notwithstanding the two year home residency requirement. It is employer sponsored and requires a showing of outstanding ability in the field of expertise. The O-1 is not a waiver and obtaining an O-1 visa does not rid you of the two year home residency requirement. Rather, a waiver or fulfillment of the two-year home residency requirement is still necessary to be eligible for the “green card.” However, the O-1 may be useful as a bridge to a waiver option, or in fulfilling the two years incrementally.