The Two-Year Home-Country Physical Presence Requirement
For those individuals who entered the United States on a J-1 training visa, you may be subject to the “two-year (212(e) home country requirement”. This requirement bars you from changing status in the United States, other than an O, E or B visa holder, until such time that you have returned to your country of origin for a period of at least two years. Fortunately, this requirement on a J-1 visa is not absolute and can be waived.
Not all recipients of a J-1 visa are subject to the two-year home country requirement. Typically, a notation will be made on the individuals PS 2019, IAP-66 or passport visa form when they receive the J-1 visa as to whether or not they are subject to the two-year home country requirement. However, this notation is not binding and should only be used as a primary indication.
The two-year home country requirement applies in the following situations:
- If the individual’s participation in the J-1 program was financed, in whole or in part, by any government agency, whether it be the individual’s home country or the United States government.
- If at the time the individual obtained the J visa his/her home country had listed the individual’s field or skill as one that is in need in the home country. This is determined by the United States Department of State’s skills list.
- If the individual received clinical graduate medical training or education as part of their educational program while in the United States.
Waivers for the Two-Year Home-Country Requirement
The process of removing the two-year home country requirement is a complex task that requires applications with the United States Department of State, United States Citizenship and Immigration Services (“USCIS”), as well as multiple Interested Government Agency’s. Waiver of the two-year home country requirement can be accomplished through the following means:
- “No Objection Letter”: Should the individual’s home country agree to waive the two-year home country requirement, and if the United States Department of State agrees, this can be the basis of an application with USCIS. This avenue is generally not available for physicians who have received clinical graduate medical training or education in the United States as a J-1 visa holder; although in certain circumstances a modification to this strategy may be available to physicians.
- Hardship or Persecution Waiver: If the individual can show that by returning to his/her home country it would cause extreme hardship to his/her United States Citizen spouse or child, or if it can be shown that should the individual be forced to return to his/her home that he/she would be subject to persecution based on race, religion, or political opinion, then the two-year home country that requirement can be waived.
- Interested Government Agency: If an agency of the United States Government agrees to sponsor an application for a waiver of the two year home country requirement on behalf of the J-1 visa holder, the two year home country requirement can be waived. This is often the best option for physicians.
- Conrad State 30 Program: The Federal Government allows each state to grant J-1 waivers to thirty qualified physicians each year, provided that these physicians agree to work in a federally designated medically underserved area for a period of three years.
- Impossibility of Performance: If the individual can prove that he/she is unable to return to his/her home country because the government of the home country refuses to allow him/her entrance into the country, then the two-year home country requirement can be waived.
Throughout the past three decades, Teplen Law Group, PLLC has shown an exemplary level of success in applications to waive the two-year home country requirement and has assisted on the drafting and administration of waiver programs. Our experience with applications for waiving the two-year home country requirement for physicians has been extraordinarily well received. Teplen Law Group, PLLC, is associated with several hospitals, clinics, research scientists, and private practices in New York and across the nation.
Call our offices in New York City at 212-401-4040 or in the U.S. Toll-Free at 800-244-5266. You can also contact us online.
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