What is the Two Year Home Residency Requirement?
Some immigrants who come to the US on a J-1 visa are required to return to their country of nationality for two cumulative years before they can petition for permanent residence from abroad or adjust status from within the US. This requirement is variably referred to as the two year home country physical presence requirement and the home residence requirement. The home country physical presence requirement, however, does not apply to all J-1 visa holders. The J-1 visa covers most types of temporary foreign exchange programs. One common type of J-1 visa program are foreign nationals who participate in the au pair cultural exchange program.
Which J-1 Visas are Subject to the Two Year Home Residency Requirement?
A J-1 visa holder can be subject to the two year home country physical presence requirement for meeting at least one of the following conditions:
Government Funded Exchange Program
If you participated in a foreign exchange program that was funded, even partly, by any government agency you may be subject to the home residency requirement. This includes both the US government as well as a foreign government. It even applies to an international organization that receives government funding.
Specialized Skill or Knowledge
If you took part in an exchange program that was designed to train foreign nationals in a specialized knowledge or skill base that is designated as necessary for further development in your home country you may be subject to the home country physical presence requirement. As an au pair, you most likely will not fit into this category.
Medical Education or Training
If you participated in an exchange program the purpose of which was to receive graduate medical education or training you may be subject to the home country physical presence requirement. Obviously, as an au pair you will not be subject to this category that triggers the J1 home country physical presence requirement.
Does the Au Pair Exchange Program Trigger the Two Year Home Residency Requirement?
There is no easy answer to this question. It would depend on the exact nature of the au pair exchange program you participated in. In most cases, immigrants participating in the au pair exchange program are not subject to the two year home residency requirement. However, if the au pair program you participated in was funded, even in part, by the government, you may be subject to the home country physical presence requirement.
How to Find out if Your Au Pair Program Triggered the Home Country Physical Presence Requirement
Typically au pair exchange visitors are made aware of the two year home residency requirement when they agree to participate in their exchange program. When you were going through the process of signing up for the program, one of the program administrators will typically raise the issue. The requirement might also have been brought up at your visa interview with US immigration officials. In some cases, your physical visa will indicate whether or not you are subject to the two year home residency requirement. However, it is important to note that the statement on your visa can be inaccurate and does not necessary rule out the possibility that you are subject to the home residency requirement. You should always investigate beyond the notation on your visa if that is your only reason to believe you are or are not subject to the home residency requirement.
If you are unsure whether your participation in the au pair program has triggered a two year home residency requirement, there are two ways that you can investigate further. You can take an online survey offered by the United States Citizenship and Immigration Services available on the J Visa Waiver Online webpage. You provide information about yourself and about the au pair program in which you participated and the online survey will give you an indication of whether the home residency requirement applies to you. However, the online survey is not an official determination as to whether the two year physical presence requirement applies. In order to get an official determination, you must request in writing that the Department of State Waiver Review Division issue an advisory opinion in your case. While the advisory opinion is the surest way to proceed, it is also time consuming.
What to do if the Au Pair Program Triggered the Two Year Home Residency Requirement
If you are subject to the two year home residency requirement as a result of your au pair exchange program, you have two options for being able to adjust your status from within the United States or obtain a green card through consular processing. First, you can fulfill the home residency requirement by spending two cumulative years residing in your home country. Second, you can obtain a waiver of the two year home residency requirement.
Waiver of the Two Year Home Residency Requirement
If your au pair program has triggered the two year home residency requirement, but you cannot fulfill it, you may be able to obtain a waiver of the home residency requirement. There are a number of ways to obtain a waiver, but here we will focus on the most common types of physical presence waivers.
The most straightforward way to obtain a waiver is for your home country to issue a no objection statement. Your government must send a letter to the Waiver Review Division stating that it has no objection to waiving the home residency requirement triggered by your au pair program.
If you are working for a federal agency in the United States and the agency has determined that fulfilling the two year home residency requirement would be detrimental to its interest, the agency can request a waiver of the physical presence requirement.
Similar to asylum, if you believe you will be persecuted based on your race, religion or political opinion if you were to return to your home country, you can request a waiver of the two year physical presence requirement on that basis.
If fulfilling the two year home residency requirement would create an exceptional hardship to your US citizen or permanent resident spouse or child, you can petition the government for a waiver of the physical presence requirement created by your au pair program.
Why You Should Seek the Advice of an Immigration Lawyer
If you are planning to petition to become a United States permanent resident, either from within the country or abroad, you should consult with an experienced immigration attorney. If you participated in an au pair program, an attorney can tell you for certain whether or not you are subject to the two year home residency requirement and if so, how to best obtain a waiver of the physical presence requirement.
