As any post-doc on a J-1 visa knows, not all J-1 visas are created equal. In some circumstances the J-1 scholar or student or trainee must return to the home country or last home of legal permanent residence for two years before she can change status to either H-1B or L-1 working temporary visas or adjust status to that of a green card holder. This two-year home residence requirement can be automatic in the case of medical residents, or dependent upon whether the scholar’s skills are listed on the skills list for her home country, or whether or not there was direct or indirect government financing from either the U.S. or the home country.
In all cases where the two-year home residence requirement applies, the first issue to explore is whether or not the requirement has been correctly applied. We always start from the assumption that an error might have been made, either by the consular officer granting the J-1 visa status or at the port of entry where an unknowing CBP officer has mistakenly affixed the two-year home residence requirement on the Form DS-2109. If we spot an error we can then file for an Advisory Opinion from the Department of State. It takes about three months.
If the requirement has been correctly applied then a waiver must be obtained to be excused from having to go home for two years. Waivers can be based upon a “no objection” statement from the scholar’s home government, or by a showing of extraordinary hardship to a close family relative who is a citizen or a green card holder, or by a showing of persecution in the home country, or by the intervention of an Interested Government Agency such as the NSF. It is also possible to ask the Department of State to intervene in the event of impossibility of performance, where a government has taken away a scholar’s passport or citizenship and she cannot go home. U.S. government financing is particularly difficult to overcome with a waiver, and Fulbright waivers are virtually impossible for all countries.
It is also important to bear in mind that J-2 dependents must independently satisfy the two-year home residence requirement, except in the case of an aged out child or divorced spouse. In those cases, the Department of State is willing to intervene.
Note: The two years of home residence can be satisfied in chunks of residence at home; it doesn’t have to be completed in one block of time.