For many J-1 exchange visitors, a pivotal question arises upon completing their program in the U.S.: Is the two-year foreign residence requirement under INA 212(e) necessarily continuous? This requirement, crucial for certain J-1 exchange visitors, entails residing and being physically present in their home country or last legal permanent residence for two years after their program ends.
Understanding the Foreign Residence Requirement
This mandate is a significant condition affecting J-1 exchange visitors who are subject to it. Compliance with this requirement is a prerequisite for eligibility for various visa types such as H, K, or L non-immigrant visas (NIV), immigrant visas (IV), or Lawful Permanent Resident (LPR) status unless a waiver is obtained. The requirement specifically targets:
- Participants of exchange programs funded wholly or partly by the U.S. Government, the participant’s home government, or international organizations with government funding.
- Individuals whose fields of study or specialized knowledge are deemed necessary for their home country’s development, as per the Exchange Visitor Skills List when acquiring their J status.
- Exchange visitors who enter the U.S. for graduate medical education or training.
Is Continuous Presence Required?
Contrary to common belief, the Foreign Affairs Manual (FAM) clarifies that the physical presence needed to satisfy this requirement does not have to be uninterrupted. It can be cumulated over several years. For example, some clients have met this requirement for over 20 years. Some achieve this while living in Canada and commuting to the U.S. for work over two years. This demonstrates the inherent flexibility required for continuous physical presence.
Conclusion
The two-year foreign residence requirement for J-1 exchange visitors under INA 212(e) is significant but flexible. Its non-continuous nature offers various ways for individuals to fulfill this obligation, which is crucial for future U.S. immigration endeavors.
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Additional Outside Resources
- 9 FAM 302.13 (U) MISCELLANEOUS INELIGIBILITIES – INA 208(D), INA 212(E), 22 U.S.C. 6091 AND 22 U.S.C. 6713
- Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement
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