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Two-Year Rule and Waivers

Many, but not all, J-1 exchange visitors are subject to the two-year home country physical presence requirement. Learn more about the two-year rule

Those who are subject to the rule must either be physically present in their home country for an aggregate of two years or obtain a waiver before becoming eligible for:

  • H (temporary worker or dependent) and L (intracompany transferee or dependent) visas
  • changes of status applications (except to visa classifications A and G)
  • adjustments to U.S. permanent resident ("green card") status

The two-year rule does not force individuals to return home. Instead, it limits options for U.S. immigration benefits for those who do not. It does not prohibit applications for other non-immigrant visas, provided all other eligibility criteria are met.

Who is subject to the two-year rule?

J-1 exchange visitors and their J-2 dependents become subject to the two-year rule if any one of the following three criteria are met:

  • If the exchange program was financed directly or indirectly by the U.S. government or a foreign government for the purpose of exchange. Example: A faculty member receives an NSF grant. The professor hires a J-1 postdoctoral associate to assist with the research. Is that J-1 visitor subject to the two-year rule? Not unless the grant specified that the funds for research personnel were to be used for the purpose of international exchange.
  • If the skills that the exchange visitor is coming to develop or exercise are in a field that the exchange visitor's home government requested be on the U.S. Department of State’s skills list. The skills list is a list of occupational fields and skills that an exchange visitor’s home country considers to be of vital importance. If your visitor is employed in a field on the list, he or she is subject to the two-year rule.
  • If the exchange visitor comes to the United States to receive "graduate medical education or training."

Is my visitor subject to the two-year rule?

It is not always clear whether an individual is subject to the two-year rule. Before applying for a waiver, the host department should attempt to make a determination.

Preliminary determinations regarding subjectivity are made by consular officers when they are issuing visas. These preliminary determinations are not always correct. The Department of State Bureau of Consular Affairs in Washington, D.C., is the final authority for determining whether your visitor is subject. If there is a question about whether a preliminary determination is correct, the Department of State will provide an advisory opinion upon request.

Grounds for Seeking a Waiver

No Objection

The exchange visitor's home country issues a letter that is sent directly to the U.S. Department of State indicating that it has "no objection" to the exchange visitor's request for a waiver. The "no objection" method is the most common, but is not generally possible when U.S. government funds are involved in the exchange visitor's program.

If you have a J-1 exchange visitor planning to file for a waiver via the "no objection" route, we strongly recommend having a post-waiver immigration plan in place. For example, will your hiring unit support an H-1B petition?

Once the U.S. Department of State has approved the waiver request, no further extensions of J-1 status may be made. Therefore, it is important to consider the timing of your visitor’s application before initiating a waiver request.

Interested U.S. Government Agency

If an exchange visitor is working on a project for or of interest to a U.S. federal government agency and that agency has determined that the visitor's continued stay in the United States is vital to one of its programs, a waiver may be granted on the grounds that the exchange visitor's continued stay in the United States is in the public interest.

It is important to note that the employer of the exchange visitor must request such a waiver on the appropriate form. The request may not come from the exchange visitor.

Persecution

Exchange visitors who believe that they will be persecuted upon return to their home country due to race, religion, or political opinion can apply for a waiver.

Exceptional Hardship to a Spouse or Child

If the exchange visitor can demonstrate that his or her departure from the United States would cause extreme hardship to a spouse or child who is a U.S. citizen or lawful permanent resident, he or she may apply for a waiver. Please note that separation from family is not considered sufficient to establish exceptional hardship.

Physicians in Underserved Areas

Physicians who are subject to the two-year rule may qualify for waivers based on employment in medically underserved areas. The rules for this kind of waiver are complicated. For further information, consult an immigration attorney.