Please tell me about the home residence requirements for J-1 visas.
May 7, 2013 5:19 PM   Subscribe

I will move to the US for a post-doc in the fall, and my host university told me they will issue a J-1 visa for me. By default, this kind of visa comes with a "home residence" requirement, which says I have to spend two years in my home country after the visa has expired, before I can apply for another stay in the US. I'm excited to go, but as a scientist in a niche field I'm a bit concerned about locking myself out of the US in the future. Many of the best places for me to seek further employment are in the US and very few are in my home country. Are exceptions ever made and, if so, what does it take?

A friend in the US (Swedish like myself) told me that he is on a J-1 visa, but one for which the home residence clause has been waived in advance. The administrator at my host university told me she'd never heard of such a thing. Is this familiar to any of you?

Provided the visa type will be the same regardless of sponsor, I will get the one that comes bundled with a Fulbright scholarship, and that is definitely a J-1 with the home residence clause intact. The Fulbright representatives warned me that exceptions to the two-year rule are rare, and I have read some bad stories online. Do you know under what circumstances such exceptions have been made after the J-1 visa has been issued?
posted by springload to Travel & Transportation around United States (8 answers total)
I am a New Zealander who first came to the USA as a scientist on a J-1 and my home residence clause was also waived in advance. I didn't know until it was actually stated on my visa. AFAIK there was nothing I could have done to lobby for it - it was just given to me. Weird, I know.
posted by gaspode at 5:32 PM on May 7, 2013

I know some fellow scientists who are on J1 and while I cannot speak for the pros and cons of a J1, I can tell you that getting that waiver seems to be definitely a pain in the behind. I can tell you a little about the H1B but that hardly helps your situation. It also seems to me that getting the PI's blessings for the waiver is going to be crucial.

I'd find out how good the Int'l office is at your institution, and the Postdoc Association for that matter. Some universities are unbelievably awesome in catering to the needs of internationals whereas some big name universities shockingly don't even have an Int't office, which is what I learned very, very recently. At my university, I know postdocs who switched to Research Associate position and then the H1B and then started the GC process- I don't know how common or feasible that is. But mine is a univ with excellent and dedicated staff for this very purpose.

Did you ask the PI for the H1B? If you haven't then you should insist on it. And, its not something you should be ashamed of asking! I don't know if the Fulbright affects which visa you can have, and if you have a spouse who wants to work as well etc etc. Below are some resources on the subject. Please note that some of these are from last decade, and we are living in a completely different world right now. With the current dismal funding climate in the US, I'd also suggest you figure out which visa is better in case the PI's grant does not get renewed etc. Also, find thee an immigration lawyer soon after arrival and start working on that immigration on the side irrespective of whether you want to stay here permanently.

Finally, if all things are well and good, I wouldn't lose sleep over the J1. The waiver is a pain to get but I have seen people get it too - I cannot vouch for the numbers or the ease etc. If the science is working out, other things are working out then don't think of this as your last chance at staying in the US. But definitely ask the PI for the H1B! You could also post the same question on the sciencecareers forum and you'll get better answers than here...
posted by xm at 5:58 PM on May 7, 2013 [1 favorite]

I'm an Australian scientist in the US on a J-1 visa and I am not subject to the two year home residence requirement.

If you look at this website, it seems that the home residence requirement applies under either of these conditions:

1. Program is funded in whole or in part by the US or foreign government.
2. You have a "specialized skill" that your country has deemed necessary for its development.

I'm certainly no expert, but looking at this list, Swedish citizens are not subject to the two year requirement based on skills (which is probably why your friend doesn't have the two year clause), so yours must be due to the way your scholarship is funded.

I agree with xm, you should ask for the H1B visa. Failing that, you should be able to get advice on the waiver process from the international office at your university. You will have plenty of time before you would need to apply for it, so try not to let it worry you too much now.
posted by Shal at 8:58 PM on May 7, 2013 [1 favorite]

Firstly, congratulations on the Fulbright! I hear those things aren't easy to get.

Like gaspode, I got a J-1 without residence requirement without even asking for it. As far as I know, this is because I was coming from the UK (not on the skills list) and not funded by either the US or the UK government. As far as I can tell, Fulbright awards are government-funded, so I don't think the standard bureaucratic channels allow you to escape the 2-year rule. Look at the sample DS-2019 form here. Near the bottom left is the section dealing with the 2-year rule. I had Box 1 ticked (not subject to requirement). As you can see, there is a box for "not applicable", and there are three boxes for "applicable" for different reasons. There's no box for "applicable, but waived due to special circumstances" which suggests to me that, at least, it's not an easy thing to do. The J-1 regulation sheet (which I guess you've probably read already) similarly doesn't mention any possibility of a waiver.

Based on the above, I'd agree that you should try to obtain another class of visa.

I don't know exactly exactly what the administrator at your host university told you. If you said "my friend wasn't subject to the two-year rule" and she said "I've never heard of such a case!" I would begin to doubt her competence, because it seems pretty clear that the two-year rule only applies in specific circumstances. But if you said "they waived the rule for my friend", it's a little different: for me, and probably for your friend, the rule wasn't waived as such -- it just never applied in the first place. So perhaps she took your question as "is the rule ever waived in instances where the regulations say it should apply?" -- and in that case, the answer may well be "no, never".
posted by pont at 12:24 AM on May 8, 2013

I'm a British scientist currently applying for a J-1. Like you I was concerned by how disruptive the home residency requirement could be to my career, so I looked into this. I'm not an immigration lawyer, so take all this with a pinch of salt.

Shai has it exactly right: to have the requirement waived, you need to be from a country without a skills shortage AND you must not be funded by the US government which, at least according to the international office at Columbia University, explicitly includes the Fulbright Commission.

Note the initial ruling made by the consular official on the DS-2109 is not definitive, and once you're in the US you can request a definitive "advisory letter" from the State Department. But since you are effectively being paid by the State Department itself (via the Fulbright Commission), this seems to me like an open-and-shut case, and you will be subject to the requirement.

Assuming you're not married, your best bet is probably to ask about H1-Bs.
posted by caek at 3:18 AM on May 8, 2013

My husband had two different J-1 visas - one with the home rule, and one without. We didn't even realize that his first J-1 (which was only valid for a few months) had the two-year residence requirement, which was in place because his fellowship was paid in part by his home country's government. Even though his next J-1 did not have the two-year requirement, once you've received the first type of J-1, you are indeed required to return home for 2 years before applying for a different type of visa.

However, if you decide to stay past your J-1 term (in our case, we got married and he applied for a green card), you can request a letter from your home country basically stating that they don't need you back and you're welcome to stay in the U.S. It took about 6 weeks for us to apply for the letter and for it to be sent to the State Department. With that in place, he had no problems getting a green card. There is a list of jobs and countries (mainly developing countries where they truly need their talented young people) where the two-year rule is mandatory no matter what.
posted by jrichards at 7:27 AM on May 8, 2013

jrichards: my understanding is that it's only possible to be excused from the two year requirement by your home country if the home country was the funding source, and therefore the reason the requirement was applied in the first place. That would not be the place for the OP.
posted by caek at 2:03 PM on May 8, 2013

I sent some of your links to the university administrator and got a reply from someone with more knowledge of international matters. It turns out I can indeed get a J-1 without home residence provided that I decline the Fulbright stipend, so that's what I'm going to do. Thank you all for helping me clear this out!
posted by springload at 9:52 AM on May 9, 2013 [1 favorite]

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