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My client, who is a dual citizen of Lebanon and Canada, completed his medical residency in the US under a J visa with the 2 yrs home requirement. Meanwhile he became a Canadian Citizen. He left the US and re-entered under an H1B visa. Now he is considering a labor certification/permanent residence. Would he be restricted by the 2 years home return requirement even though he has reentered as a Canadian Citizen, noting that where he is working is not considered an underserved area for a J-1 Waiver?

Please advise.

Answer by William Stock:

While the individual in this situation was able to avoid the two year rule by becoming Canadian and applying for admission as an H-1B without a visa (because INA 212(e) only prevents a person from changing status in the U.S., adjusting status in the U.S., and getting an H or L visa), the individual did not waive the home residence requirement and did not fulfill the home residence requirement. Thus, before doing something prohibited by 212(e) (i.e., adjusting status), the individual will need to either get a waiver or fulfill the requirement. The individual will need to fulfill the requirement in the country of which he/she was a citizen when he/she held J-1 status (two years in Canada would not suffice).

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