by Sylvia Sobcyzk
J-1 visa holders subject to the two year home residency requirement can look toward the EB-5 program for permanent residency under certain conditions. J-1 visas are issued to foreign nationals who are accepted to participate in exchange visitor programs authorized by United States Citizenship and Immigration Services (USCIS). J-1 visa holders include scholars, trainees, teachers, professors, research assistants, specialists, or leaders of a field of specialized knowledge or skill.
Certain J-1 visa holders must reside in the country of their nationality or country of last residence for two years after completion of their program before becoming eligible to apply for permanent resident status, which includes investment through the EB-5 program. The two year requirement is cumulative and not continuous. This means that J-1 visa holders do not have to be in their home country for two years without interruption, but can leave and come back to their home country with that time added toward the two year total.
The two year home residency requirement applies to J-1 visa holders who meet one of the following categories:
- Participants in a program that received funding from the U.S. government or from the government of the J-1 visa holder’s nationality or country of last residence;
- Visa holders who came to the United States or obtained a J-1 visa in order to receive graduate medical education or training; or
- Visa holders who are foreign nationals or residents of countries designated by the United States Department of State (DOS) as clearly requiring the services of people engaged in the a field of specialized knowledge or skill as published in the DOS Exchange Visitor Skills List.
The Exchange Visitor Skills List and the designated countries can be viewed on the DOS website.
If a country does not appear on the list or was removed from the list, J-1 visa holders from that country are not subject to the two year home residency requirement based upon the skills list. J-1 visa holders who received their J-1 visa on or after June 28, 2009 are governed by the 2009 skills list. Entry on a program between 2007 and 2009 is governed by the 2007 skills list, and entry prior to 2007 is governed by the 1984 list.
EB-5 is an option for J-1 visa holders who are not subject to the two year home residency requirement. EB-5 may also be possible if the J-1 visa holder who meets the requirements for a waiver under the Immigration and Nationality Act §212(e). The two year home residency waiver applies to J-1 visa holders who meet one or more of the following categories:
- the J-1 visa holder’s home country does not object to grant of the waiver;
- exceptional hardship is demonstrated to a United States citizen or permanent resident spouse, parent, or child of the J-1 visa holder;
- fear of persecution is demonstrated on account of nationality, race, religion, political opinion, or membership in a particular social group;
- a request is made by a U.S. federal executive agency by demonstrating compliance with the two year return would be detrimental to a program or activity of interest to the agency and that granting the waiver would be in public interest; or
- international medical graduates who are able to obtain recommendation of a federal or state agency interested in facilitating the medical graduate’s employment in a area requiring the services of medical professionals.