The Pitfalls of J-1/J-2 Visa

When first-callers inquire about immigration matters, my first question is what status they are presently in. Not only their immigration status tells me a lot of the person's situation, it also determines the future course of immigration. I find that in all U.S. immigration statuses and visas, J-1 is the most potentially troublesome one and therefore deserves some unveiling for the readers.

The J exchange visitor program is used by U.S. government agencies and international and reputable private organizations to sponsor such diverse individuals as students, scholars, trainees, teachers, professors, research assistants, foreign physicians engaged in graduate medical training, specialists, international visitors, and their family members. Because of the broad-range of the program and the relative ease of visa issuance, J visa is widely used by people who enter the US for a short-term stay.
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Two-Year Home Country Requirement

Most people who are applying for J-1 and J-2 dependent visa are not aware that many times, a J-1 visa is issued with a requirement that J-1 program participant return to their home country for two years. This is often called a 'return residency requirement'.

The requirement is imposed where: the alien's exchange program was financed, in whole or in part, by the home country government or by the U.S. government; the alien's skills were determined to be in short supply in the home country (skills list); or the alien has engaged in graduate medical education or training. Almost all J-1 visiting scholars and post-graduate students are subject to the two-year home residency requirement by virtue of the 'skills list', above.

Unless the two-year home residency requirement has been fulfilled or a waiver of this requirement has been obtained, the J-1 aliens and their J-2 dependent family members are not eligible to apply for a change of status within the US to another type of non-immigrant visa, a change to permanent residence (green card status), or even the obtaining of an H or L non-immigrant visa abroad. If a waiver is not obtained, this two-year period must be spent in the alien's home country, or the country in which they last permanently resided before coming to the US. A J-1 alien who departs for a third country and who subsequently becomes resident there will not satisfy the requirement.

What is worse, J-2 dependents are independently subject to this requirement. That is, even if, for example, the J-1 father returns home and serves the country for two years and more, the J-2 family members may not apply for a change of status or any change to permanent residence unless they themselves fulfill the two-year requirement. However, if the J-1 principal alien obtains a waiver, J-2 aliens will become free of that requirement.
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J Visa Waivers

The J-1 alien may request for a waiver of the two-year home country presence requirement based on one of the following four grounds: exceptional hardship to a US citizen or permanent resident spouse or child; fear of persecution based on race, religion or political opinion in their home country; no objection from the alien's home country; or a request from an interested government agency. Unfortunately, these waivers not only are difficult to obtain but also take a long time to process.

J-1 aliens usually come to the US to simply participate in a short-term study, research, and program with the clear intention to return to their home country. However, during their stay in the US, they may meet someone they wish to marry, or receive a once in a lifetime job offer (or for that matter become entrepreneurial!). Sometimes, one's children and/or spouse will wish to remain in the US to continue their education and/or work (allowed for J-2 spouses). If they are subject to the two-year home residency requirement, none of the above is possible without obtaining a waiver. Therefore, if the reader is considering a J-1 program, he or she would be wise to explore other venues to attain the same goal and seek the advice of a qualified professional. And if the reader is already subject to the residency requirement and wishes to obtain another status, he or she should again seek professional advice to find a solution.
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