Does time for the two-year foreign residency requirement need to be continuous or consecutive?

Some foreign exchange visitors with J-1 visas are subject to a two-year foreign residence requirement. This requires those that are subject to the home residence requirement to return home for at least two years after they complete their program. We discuss the foreign requirement and whether or not the physical presence must be continuous here.

What is the two-year foreign residence requirement for a J-1 Visa?

Certain identified J-1 exchange visitors are subject to a two-year foreign residence under INA 212(e). Identified J-1 exchange visitors must reside and be physically present in their country of nationality or last legal permanent residence for an aggregate of at least two years following completion of the exchange program and departure from the United States.  If the exchange visitor’s country of nationality differs from their country of last legal permanent residence, then they are required to return to the country of their legal permanent residence at the time they obtained J status.  These exchange visitors are ineligible to apply for or receive an H, K, or L NIV, nor are they eligible for an IV or LPR status until they have either complied with the foreign residence requirement or received a waiver. The following categories of exchange visitors (and their accompanying dependents in J-2 status) are subject to the foreign residence requirement:

  1. Individuals participating in an exchange program financed in whole or in part, directly or indirectly, by an agency of the U.S. Government, the individual’s home government (the government of the country of their nationality or last legal permanent residence), or an international organization which received funding from the U.S. Government or their home government;
  2. Individuals whose exchange program involves an area of study or field of specialized knowledge that has been designated as necessary for further development of their home countries on the Exchange Visitor Skills List in effect at the time they were admitted to the United States in or acquired, J status; or
  3. Individuals who entered the United States to receive graduate medical education or training.

Cited from 9 FAM 302.13-2(B)(1)  (U) Individuals Subject to INA 212(e)

Does the time for the two-year foreign residence requirement need to be continuous?

According to the FAM, physical presence need not be continuous and may be cumulative. This means you can accumulate time in your home country over time to meet the two-year requirement. We have had cases where clients have met this requirement over a 20-year time period. We have seen others meet the requirement while living in Canada and commuting daily to work in the United States over a two-year time period. In any event, physical presence need not be continuous to satisfy the two-year foreign residence requirement.

As a Canadian citizen, do I need a J1 waiver for an H1B visa?

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