Frequently Asked Questions
Residence vs. physically presence in home country
The USCIS and Department of State are interpreting two distinct requirements for those who are subject to the two-year home residency requirement and seek to comply. J-1 visa holders who are subject to the two-year home residence requirement are required to have “resided and been physically present” in their country of nationality or last residence for two years before they can apply for certain nonimmigrant visas or permanent residence. Statutorily, this two-year home residence requirement can be fulfilled in the aggregate. However, the issue of whether the individual must establish both “physical presence” in the home country as well as “residence” itself is not so clear cut. Under the law, residence means a person’s principal, actual dwelling place which is different from being physically present in the home country. “Residing” is not necessarily “residence.” Those who have been physically present for two years in their home country historically have been deemed by most to have complied with the two-year home country rule. That approach is now being challenged by at least some USCIS adjudicators. Consular officers have taken differing positions on this question, too.