J1 visa for fellowship after gap year

[clon0rchis]

Hey everyone,
I am on a J1 visa and will be finishing residency next year. I plan on applying to fellowships but just want to know, if I don't match, will I still be eligible to apply for a J1 visa for fellowship the year after (gap year)? I am confused with the two-year home country requirement. I am told by some I cannot reapply for a J1 visa until that is completed, but others say that only applies if you're trying to obtain an H1/green card. Any help would be much appreciated!

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[NotAProgDirector]

This has been asked a few times on SDN, and the answer is not clear. You should absolutely check with your visa sponsor although it would not surprise me if they do not know either. Here is my best assessment of the answer:

The text of the law is here: 22 CFR § 41.63 - Two-year home-country physical presence requirement.

From what I can see, 212(e) prevents you from applying for an H or L visa or permanent resident status. But there is no mention of another J visa, so that should be OK. Several law firms mention that you can get around the HRR by applying for an O visa -- which fits the law since it's not mentioned there.

But it also appears that you can't change visa status in the US on a J visa. So I think what will happen is should you wish to stay in the US during your gap year, you would need to leave, end your J visa, and then reapply outside of the US for a new visa to return. Getting a B visa should be possible but is only a visitor visa so you can't work. Depending on your circumstances, you might be able to get a work visa if your spouse is on a visa (i.e. J-2 or H-4). Point is that you can return to the US if you can find another valid visa on which to do so.

Obviously you could also leave the US for a year, and then return.

Regarding the 2 year HRR, reading the law it appears that it doesn't attach "per visa" but rather once you're in the US on a J that's subject to 212(e), you then must return to your home country for 2 years before being able to get an H/L/GC. So, if you were to finish your residency and not match to fellowship, decide to return to your home country for one year, and then return to the US for fellowship, your HRR "clock" would be reset back to 2 years -- the one gap year would not count any more.

What you absolutely can't do is try to apply for a waiver for the gap year, and then think you're going to match and get a fellowship out of the waiver. At least I don't think you can do that.

Not a lawyer. Ask a lawyer. Post the response here.

 

[clon0rchis]

This has been asked a few times on SDN, and the answer is not clear. You should absolutely check with your visa sponsor although it would not surprise me if they do not know either. Here is my best assessment of the answer:

The text of the law is here: 22 CFR § 41.63 - Two-year home-country physical presence requirement.

From what I can see, 212(e) prevents you from applying for an H or L visa or permanent resident status. But there is no mention of another J visa, so that should be OK. Several law firms mention that you can get around the HRR by applying for an O visa -- which fits the law since it's not mentioned there.

But it also appears that you can't change visa status in the US on a J visa. So I think what will happen is should you wish to stay in the US during your gap year, you would need to leave, end your J visa, and then reapply outside of the US for a new visa to return. Getting a B visa should be possible but is only a visitor visa so you can't work. Depending on your circumstances, you might be able to get a work visa if your spouse is on a visa (i.e. J-2 or H-4). Point is that you can return to the US if you can find another valid visa on which to do so.

Obviously you could also leave the US for a year, and then return.

Regarding the 2 year HRR, reading the law it appears that it doesn't attach "per visa" but rather once you're in the US on a J that's subject to 212(e), you then must return to your home country for 2 years before being able to get an H/L/GC. So, if you were to finish your residency and not match to fellowship, decide to return to your home country for one year, and then return to the US for fellowship, your HRR "clock" would be reset back to 2 years -- the one gap year would not count any more.

What you absolutely can't do is try to apply for a waiver for the gap year, and then think you're going to match and get a fellowship out of the waiver. At least I don't think you can do that.

Not a lawyer. Ask a lawyer. Post the response here.

Just wanted to follow-up on this - it is absolutely possible for someone to get another J1 after leaving the US for less than 2 years. This is because it is still considered "in-training" until you have completed a maximum of 7 years on a J1 visa. Thanks @NotAProgDirector for your post, it was helpful when I was considering applying for fellowship last year.