Some exchange visitors to the United States are required to live outside of the country for at least two years before they can return under a dual-intent visa. However, the two-year residence requirement does not apply to all J-1 visa holders. As a result, many exchange visitors are confused by whether the foreign-residence requirement applies to them. An advisory opinion allows you to check if you are required to stay outside of the U.S. for two years, you can instead return with a dual-intent visa or change your status and remain in the U.S. without having to leave the country. This explanation of J-1 visas and advisory opinions provides some clarity about whether you might be eligible for an adjustment of status.
What is a J-1 visa?
The J-1 visa is a special type of non-immigrant visa designed to strengthen international relations between the U.S. and other countries through an exchange visitor program for educational experiences and job training. The U.S. created the J-1 Exchange Visitor Program in 1961. J-1 visa holders can visit the U.S. for short periods of time to receive hands-on professional training or to complete their education so they can use their new skills when they return to their countries. People who are authorized to obtain J-1 visas as exchange visitors who fall into specific categories within approved public and private sector programs. Eligible participants must intend to study, research, observe, consult, receive training, demonstrate their special skills, or to pursue graduate medical education. Some examples of exchange visitors who might be eligible for J-1 visas include:
Secondary and university students
Summer camp counselors
Applicants for J-1 visas must meet certain eligibility requirements. They must be proficient in English and be sponsored by a government program, private organization, or university. Some types of J-1 visas allow dependents of the J-1 visa holder, like unmarried children under the age of 21 and spouses, to accompany them to the U.S. These dependents are issued J-2 visas and must adhere to the same application processes.
The U.S. Department of State administers the J-1 visa program and designates and approves exchange programs permitted to serve as sponsors. Each sponsoring agency has a designated person called a responsible officer (RO) who certifies the eligibility of exchange visitors. The RO will explain which documents you will need to submit to receive Form DS-2019, the certificate of eligibility for exchange visitor status that will be issued by the RO at the sponsoring agency. You must submit this form after you receive it at a U.S. consulate or embassy to apply for a J-1 visa. Once you receive your visa, you can enter the U.S. within 30 days of your program's start date.
J-1 visa Advisory Opinions
Some J-1 visa holders must remain in their home countries for a minimum of two years before they try to return to the US with a dual-intent visa. This “home presence rule” is found in the Immigration and Nationality Act sect. 212(e).
You are subject to the home presence requirement if one of the following applies to your J-1 visitor exchange program:
The government-funded exchange program is either paid for by the U.S. government or by the government in your home country
The program focuses on a specialized skill that is necessary in your home country and appears on its exchange visitors skill list
The program includes graduate medical training or education
Visitors holding J-1 visas issued after June 28, 2009 can determine if they are subject to the skills clause of the home presence requirement by reviewing the 2009 skills list. If you entered the U.S. before June 28, 2009, you must refer to one of the older skills lists. The lists can be searched by country from the Exchange Visitors Skills List - 2009 page on the State Department's website. The complexity of these rules often leads to confusion about the home presence requirement. If you are an exchange visitor who can't figure out whether you are mandated to return to your country to comply with the home presence requirement, you can ask the State Department for an advisory opinion to determine whether the home presence requirement applies to your particular circumstances.
The advisory opinion determines whether you will have to return to your home country for two years based on a review of the documents you submit. Upon your request for this review, the State Department will issue a decision about whether you must return to your home country for two years.
If you learn that the two-year home presence mandate applies to you then you must return to your country. During that time, you are not allowed to change your status to an intracompany transferee or a nonimmigrant temporary worker. You also cannot adjust your status to become a lawful permanent resident, obtain an immigrant visa from a U.S. Consulate or Embassy or obtain a fiancé visa. J-1 visa holders can apply for a waiver of the home presence requirement.
How to request an Advisory Opinion
To request an advisory opinion, mail a letter to request a visa status review. Include photocopies of all of the DS-2019 or IAP-66 forms you have ever received as well as a self-addressed, stamped envelope (SASE). These documents must be submitted by mail to the State Department's Waiver Review Division. Mail your documents to the following address:
INA 212(e) Advisory Opinion Request
Waiver Review Division, CA/VO/L/W
U.S. State Department
SA-17, 11th Floor
600 19th Street, NW
Washington, D.C. 20522-1711
Once the State Department receives and reviews your documents, it will send an advisory opinion back in the SASE that you provided. You cannot fax or email your documents to receive an advisory opinion.
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Processing times for Advisory Opinions
According to the Waiver Review Division, the average processing time for an advisory opinion request is from four to six weeks. This does not include the time it takes for the opinion to be mailed and delivered. To account for this additional time, consider adding a week or two to the expected range.
Since the processing times can vary and be slow, it’s best to request a change in status from your J-1 visa. Requesting an advisory opinion early can provide more time to apply for a waiver from the home presence requirement.
If you receive an advisory opinion that you are subject to the two-year home presence requirement, you will either have to return to your home country for two years before seeking a change in status or a dual-intent visa. Alternatively, you can request a recommendation for a waiver of the home presence requirement.
Five categories support a recommendation for a waiver:
If your home country does not object to a waiver, you can request that your embassy send a no-objection statement to the Waiver Review Division. This statement must inform the Waiver Review Division that the home country does not object to the visa-holder receiving a waiver of the home presence requirement or of becoming a lawful U.S. permanent resident. You can also ask the designated ministry in the government of your home country to issue a no-objection statement and to send it to the consular section of the local U.S. embassy in that country.
The second grounds for the recommendation of a waiver from the Waiver Review Division occurs when you have worked on a project in which a U.S. government agency has an interest. To secure this type of waiver, the interested government agency must submit a request for a waiver on your behalf.
The third grounds for a recommendation of a waiver is persecution. If you believe that you will be persecuted for your political beliefs, religion or race upon return to your home country, you can apply for a waiver on that basis. However, the U.S. Customs and Immigration Service will only issue a waiver of the home presence requirement if they determine that a credible fear of persecution exists. This type of recommendation requires you to submit Form I-612 to the USCIS before you can request a recommendation of a waiver of your J-1 visa home presence requirement.
If your absence would cause extreme hardship to your U.S. citizen or lawful permanent resident spouse or child, you can request an exceptional hardship waiver. You must first submit a form I-612 to the USCIS. Once the USCIS makes its decision, it will send it to the Waiver Review Division at the State Department.
The final basis for a recommendation of a waiver is for foreign medical graduates. For this category, a state public health department must request the waiver of the home presence requirement on your behalf. Applicants must have received a job offer at a hospital in an area with a medical shortage, agree to begin working there within 90 days of receiving their waiver, and continue working in that location for at least three years.
How to check your J-1 advisory status
The Waiver Review Division issues case numbers for requests for J-1 advisory status opinions. If you have your case number, you can track the status of your advisory opinion on the internet at the J1 Visa Waiver Online page of the State Department's website. Click on the check status link on the page and enter your case number to request the status of your advisory opinion request.
You can also email the Waiver Review Division to check on the status of your advisory opinion request by contacting email@example.com
Can someone else request an advisory opinion on my behalf?
You are not required to file a request for an advisory opinion by yourself. Your attorney or the RO for your exchange visitor program can request an advisory opinion on your behalf. In limited circumstances, your spouse or child may request an advisory opinion for you.
Exchange visitors in the U.S. on a J-1 visa who want to adjust their status to a dual-intent visa or to obtain lawful permanent residence should ask for an advisory opinion to find out whether they are subject to the home presence requirement. If the advisory opinion from the State Department determines that you are subject to the home presence requirement, you will either have to return to your home country for two years or apply for a waiver if one of the five categories for waivers above applies to you.
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