Subject to J-1 Visa Home Residency Requirement? Maybe not.

Subject to J-1 Visa Home Residency Requirement? Maybe not.

The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. The visa is often granted with the condition that its holder must return to his home country for a period of two years upon completion of his or her program before they are allowed to return to the U.S. to reside or work, or, if in the U.S., to adjust or change status.

A person holding a J-1 visa is subject to the home residency requirement if any of the following are true:

  • If the J-1 receives funding from the U.S. government, home government or an international organization to use for the J-1 program.
  • If the J-1 worked or studied in a field that appears on the "skills list."
  • If the J-1 participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.

Although there are waivers available for the Foreign Residency requirement, this blog will address the issue of J-1 visas as related to the "skills list." The Exchange Visitor Skills List is a list of fields of specialized knowledge and skills that are deemed necessary for the development of an exchange visitor's home country. Form DS-2019 is the document prepared in connection with an application for a J-1 visa and it indicates whether and why a J-1 holder is subject to the Foreign Residency requirement.

The DS-2019 may indicate that the holder is subject to the Residency Requirement because the studies undergone involved specific skills. The fact of the matter is, however, that whether that is so indicated or not is not the final word on whether the person is subject to the requirement. The controlling determination is made in reference to the skill list specific to the person's home country. If a person received the J-1 after June 28, 2009, reference would be made to the 2009 Exchange Visitors Skills List pertaining to the person's home country or last country of residence. If your skill is not on the list, or if your country does not have a Skill List, which is often the case, then you are not subject to the two-year home residency requirement, whether the DS-2109 says so or not, and this happens quite often. Of course, you may still be subject to the requirement if you fall under one of the other two categories listed above.

So, before you reach the conclusion that you are subject to the residency requirement because your DS-2019 so indicates, consult an experienced immigration attorney to determine whether this is truly the case. There is a very good chance that you are not subject to the requirement.

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