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Can the J-1 two years residency requirement be somewhere else other than my home country?

Brooklyn, NY |

Greetings

I initially came to the US as a J-1 visa as a Fulbright FLTA student for the period of 9 months, and after my program ended I went back home for summer (two months), then came back to the US this time as an F-1 student to study for my Master’s at a US university. I was wondering whether I will be able to: 1) do the OPT, 2)do an extension and eventually change my status to work here and maybe apply for Green Card later – if the organization I will work for is willing to sponsor me – and 3) whether the two years requirement have to be in my home country? Could the two years requirement be somewhere else like Mexico or Canada ?

I will really appreciate an answer to this/these questions that are starting to worry me as I near the end of my Master's studies. Many thanks!

Attorney Answers 4


  1. I dont believe so.

    Business Immigration Attorney. For H, L, J, EB5s, PERM and EB1/2/3 Petitions. Call 800-688-7892 or visit www.ImmigrationDesk.com. Law Office of Anu Gupta. The advice suggested here is for general information only and not to be construed as legal advice.


  2. This is a somewhat complicated question. You should consult with a qualified US Immigration law attorney to explore exceptions to the general rule.


  3. No, absolutely not. Those 2 years have got to be spent in your country of nationality. Period.

    Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.


  4. Question 1: Regarding the OPT, I recommend you consult with a lawyer with a subscription to the NAFSA Adviser’s Manual. This is the main source for answers concerning F and J student issues, like your OPT question here. Our firm maintains a subscription to this service. You can also discuss this with the DSO at your school.

    Question 2: You are subject to the two-year foreign residence requirement of INA § 212(e) because you participated in the Fulbright program, which is a U.S. government funded program. One subject to the two-year foreign residence requirement is subject to several legal disabilities that do not go away until one obtains a waiver or fulfills the requirement. These are (one subject cannot): (1) apply for H or L visa stamps; (2) apply for a green card; and (3) apply for an immigrant visa. One subject to the two-year foreign residence requirement cannot change status from J-1 to another nonimmigrant visa status in the United States. The USCIS position on this is that one subject to the requirement in another nonimmigrant status can also not change status in the United States. (We disagree with this position because it is counter to the statute (INA 248(a)).

    Question 3: Fulfillment requires residence and physical presence in your country of nationality or last permanent residence (immediately prior to receiving the J-1 visa stamp and admission in J-1 status) for an aggregate period of at least two years. Therefore, if you were not a national or permanent resident of Mexico or Canada prior to J-1 visa and admission, you can’t fulfill there.

    J-1 law is one of the most complex areas of immigration law. I recommend you consult with a lawyer that has specific experience in J-1 matters.

    Brian Schmitt
    Hake & Schmitt
    Attorneys at Law
    P.O. Box 540 (419 Main St.), New Windsor, Maryland 21776
    Phone: 410-635-3337
    http://www.hake.com/pc/

    Required Disclaimer: This information is generalized and should not be relied upon as legal advice; and this communication does not create an attorney-client relationship.

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