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Does the Exchange Visitor Two-Year Home-Country Physical Presence Requirement Apply to You?

Closeup of a man holds a book, exchange visitor

When applying for a J-1 Exchange Visitor visa, one key issue is determining whether a two-year home-country physical residence requirement applies. However, this requirement will apply to exchange visitors under certain conditions.

What Exactly Is the Two-Year Physical Presence Requirement?

The two-year home residency requirement prevents individuals coming to the U.S. on J-1 visas from becoming permanent U.S. residents, changing their status in the U.S., or receiving family or work visas until they’ve returned to their home country for a minimum of two cumulative years. 

When Does the Requirement Apply?

The two-year home-country physical presence requirement may apply to individuals in J-1 status if:

  • Individuals and their families receive funding from their home government, the U.S. government, or an international organization for the purpose of enrolling in the J-1 program.
  • The individual studied or worked in any field appearing on the “skills list,” which lists fields of specialized skills and knowledge that the applicant’s home country requires for its development. Countries with a large number of skills on the list include India, China, and South Korea.
  • The applicant was involved in a U.S. graduate medical training program under the Educational Commission for Foreign Medical Graduates’ sponsorship.

If individuals are unsure of whether the physical presence requirement applies to them, they can consult with their adviser. It’s also possible to request “advisory opinions” from the U.S. Department of State, which entails an official determination of whether the requirement applies.

Some people may also need to meet this requirement multiple times. This usually occurs if individuals wish to change their J-1 status to a different category, such as a J-1 Student transitioning to a J-1 Scholar. On the other hand, applicants may have the chance to meet these requirements concurrently.

Avoiding the Requirement

Even if it’s determined that an individual must meet the physical presence requirement, it may be possible to avoid it by requesting a waiver. Specifically, applicants have the option of requesting a “letter of no objection” from their native country’s embassy located in Washington, D.C. One main exception would be people who receive funding from the U.S. government for the J-1 program, which makes it extremely difficult to have the requirement waived.

Keeping these aspects in mind, people entering the country on a J-1 visa will be able to determine if they need to meet this requirement before entering.

Understanding the Visa Waiver Program

Group of different skin-color with USA flags

People who wish to travel to the U.S. without the need to obtain a visa may qualify for the Visa Waiver Program (VWP). Through this program, individuals visiting the country for business or tourism purposes for periods of 90 days or less may be able to enter without a visa. The following is a guide to this program, including the various requirements for qualification.

What Are the Requirements for the VWP?

To qualify for the VWP, applicants must be visiting the U.S. for purposes that a visitor (B) visa permits. For example, applicants could be entering the country for business or tourism. Business purposes may include negotiating contracts, consulting with associates, or attending training or events related to the applicant’s occupation. Meanwhile, tourism could entail vacationing, visiting family or friends, or seeking medical treatment, among other intentions.

Applicants also need to be either a national or a citizen of a VWP-designated country. These countries include Andorra, Australia, Hungary, Iceland, Italy, and many others. The U.S. Department of State’s website has a full list of qualifying countries, along with other details about the VWP.

Obtaining an ESTA

For individuals to enter the country without a permit through the VWP, they need to receive authorization via the Electronic System for Travel Authorization (ESTA) before they can board a U.S.-destined air or sea carrier. U.S. Customs and Border Protection (CBP) operates this online system to determine who is eligible to travel to the country through the VWP.

ESTAs are valid for two years, after which time individuals will need to renew them. Visitors to the U.S. will also need to acquire a new ESTA if they have either:

  • Changed their name
  • Received a new passport of any kind
  • Changed their gender
  • Changed their country of citizenship
  • Changed any answers to “yes” or “no” questions appearing on the ESTA application

Valid Passports

In addition to an ESTA, applicants will need a passport that will be valid for a minimum of six months after they have left the U.S. Each member of a visitor’s family will require his or her own passport. E-passports are also required, which feature embedded electronic chips that can match the passport to the visitor. 

If a visitor meets each of these requirements, he or she may be able to enter the country under the VWP and avoid the need to obtain a visa.

Adapting as an American Immigrant

Shadow of pedestrians crossing, American flag painted on the ground, immigrants

Many immigrants who are new to American culture may be unsure about how to adapt, but there are some ways to make integration easier as they settle in as residents or naturalized citizens. Certain customs and language barriers are potentially stressful challenges, but there are some steps that immigrants can take to overcome them.

To help immigrants adapt more easily and make the transition into American culture less difficult, the following are some specific tips to keep in mind.

Remaining Optimistic About the Transition

Moving to the U.S. as an immigrant comes with many changes, whether here on business or as a long-term resident. Immigrants will need to adapt to spending a long time away from friends and family, along with other aspects of their home country that might differ from their American destination. It can be challenging to adjust to this change, but it’s all part of the process of starting a new and exciting life.

It may feel like a big change that individuals may be afraid to make, but the fact is that they will still be able to see their loved ones while starting a fresh new life in America. Many immigrants even wind up bringing their families to the U.S. once they’ve had a chance to establish themselves.

It’s best to look at these changes as a positive thing, as immigrants can still be themselves as they navigate a new environment that can benefit them in many ways. Immigrants moving to the U.S. will have the chance to develop a career that makes them happy, a comfortable lifestyle, and healthy relationships that make the move worthwhile.

Taking the Time to Assimilate the Culture

It may require some patience and ample time, but it’s important to take steps to gradually integrate into the culture. This entails learning English and other languages that are commonly spoken in the U.S., along with getting used to local customs such as greetings and general interactions. There are many ways to approach learning the language and local culture, from taking free online courses to practicing with people regularly. 

Immigrants should avoid closing themselves off and isolating, as this can only make it harder to integrate and take full advantage of what the culture has to offer.

That There Are Many Others Facing the Same Situation

Immigrants in the U.S. are far from alone. There are millions of immigrants in the U.S., with 22.5 million legally registered refugees who were forcibly uprooted from their home countries, according to data from the United Nations High Commissioner for Refugees (UNHCR). Whether in the U.S. voluntarily or out of hope for a brighter future as a refugee, immigrants share many of the same struggles and adjustments as they seek to integrate into American culture.

It can help to remember that many fellow immigrants are experiencing a similar situation, which can add a sense of camaraderie as they settle into the U.S.

Avoiding Judging Others

Immigrants adapting to American culture may find the changes to be extreme, to the point where they may want to resist those changes. However, it’s best to keep an open mind and avoid placing judgment on others. Understanding how others live and their culture can make it easier to transition without causing any loss of identity.

Knowing That It’s Okay to Make Mistakes Along the Way

With so many differences between American culture and others, immigrants may make mistakes when it comes to communication and interactions, but this is expected with any new experience. For instance, some may have a way of greeting others in their home country that is considered unusual or incorrect in the U.S. People are often forgiving and take these errors in good humor. 

Over time, mistakes will become less common until they’re rarely made. Even if they’re still made from time to time, people will likely overlook them.

Taking all of these steps can help immigrants make the most of their move to the U.S. There are certain hardships that immigrants may fear, but by practicing diligence, open-mindedness, and patience, immigrants can have an easier time adjusting to what may seem to some like a very alien culture. With the right mindset and proper precautions, immigrants from all walks of life and locations across the globe can find a rewarding experience waiting for them in the U.S. Staying open to change is key to making the transition less challenging as they adapt to this new culture.

Improving Transparency in the US Immigration System

Writing a transparency with a blurred background of office

Advocates of immigrants in the U.S. are arguing that there needs to be more transparency in the country’s immigration system. The current system offers limited transparency that doesn’t enable everyone to access crucial information when they need it.

The Importance of Transparency in Immigration

Today, the Freedom of Information Act (FOIA) allows any individual to access any type of non-exempt record from the federal government. This act is vital for maintaining government accountability, but it’s currently imperfect and doesn’t offer the highest level of transparency needed in immigration processes.

Immigration agencies, including immigration enforcement agencies such as U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), have impacted immigrants and their families in many ways. However, the extent of their operations is still unclear because of the limited access to these agencies’ records. 

The insufficient transparency has also allowed for the extent of certain changes under the Trump administration to remain opaque. Under the previous administration, attacks on the asylum system and the deconstruction of immigration courts took place, both of which were veiled in secrecy. 

Violating the FOIA When Attempting to Access Information

The secrecy of immigration agencies doesn’t fall under the responsibility of any presidential administration. Instead, it is the result of agencies’ repeated violations of the FOIA.

Specifically, agencies have arguably violated the FOIA by failing to respond in a timely manner to requests for records. This has, in turn, resulted in violations of individuals’ rights under the act, oftentimes leading these individuals to turn to the federal court system to avoid deportation.

A growing number of agencies, including the Department of Homeland Security (DHS), are seeing legal repercussions because of their FOIA violations. They’re also failing to provide information that should be readily available to the public under the FOIA, in some cases even destroying certain records.

How Transparency Could Be Improved

There are several ways in which officials could improve the transparency of immigration agencies and compliance with the FOIA. 

One step could entail developing a system that allows for first-person requests, which would enable immigrants to access personal records pertaining to them without the need to go through the FOIA process. Additionally, resources should be available to help agencies meet certain obligations under the FOIA, such as government funds that could support various FOIA programs.

Taking these and other steps would help make sure that agencies remain more transparent and provide additional protections for immigrants.

Was Your H-1B Petition Denied Based on Unlawful Policies?

H1B visa page on passport

If an H-1B petition was denied because of unlawful policies, it may be possible to resubmit it for consideration as policies are updated.

In 2020 and 2021, the U.S. Citizenship and Immigration Service (USCIS) rescinded three written policies following the federal courts finding that they were unlawful. The following are some details about the courts’ findings and USCIS’s decision to rescind the unlawful memoranda.

Challenging the USCIS’s Decisions

The USCIS may have denied certain H-1B visas based on unlawful policies that have since been rescinded. In the H-1B visa category, noncitizens are required to have highly specialized knowledge, which they could have obtained either through a bachelor’s degree or a higher degree within a “specific specialty” or equivalent.

Within the last year, USCIS has rescinded three unlawful memoranda, rescinding the first two in June 2020 and another in February 2021. Then, on March 12, 2021, USCIS put a procedure into place that would enable some people whose H-1B visas were previously denied to resubmit them for review and approval.

In addition to the federal courts’ determination, an appellate court also rejected USCIS’s refusal to consider the position of “computer programmer” a specialty occupation in December 2020. The case involved a computer programmer whose H-1B petition was denied, which the Ninth Circuit U.S. Court of Appeals overturned.

The appellate court discovered that while USCIS claimed that computer programmers are capable of entering the occupation with an associate or a bachelor’s degree, the Department of Labor’s Occupational Outlook Handbook (OOH) stated that “most computer programmers have a bachelor’s degree in computer science or a related field.” Ultimately, the OOH argued that a majority of computer programmers require a bachelor’s degree to gain employment.

The case pertaining to the computer programmer occupation resulted in the February rescinding of the USCIS’s 2017 computer programmers policy memo.

Requirements for Getting an H-1B Visa Denial Reversed

Although USCIS announced in March that it would enable companies to reverse H-1B petition denials based on unlawful policies, there are certain steps that these companies will need to take. They will first need to file a motion that costs $675 in filing fees. The denied petition is also required to have sufficient time to allow the noncitizen employee to work for the company if approved. If companies meet these requirements, they may be able to have their previously denied business visas reviewed and approved.