TN Visa and J-1 Two Year Residence Rule

Question: I am a Pakistan national currently working in Canada. I had previously worked in the US for 4 months on a J-1 visa. Because of that, my J-1 now has a condition on it stating that I need to go back to my country (Pakistan) for 2 years before I can apply for work in the U.S. (H-1B I presume).

I know I can get the residency requirement waived if I am subject to religious persecution in Pakistan. I will be getting my Canadian citizenship within 2 years. Would the two year restriction on my Pakistani passport prevent me from applying for a TN visa on a Canadian passport? Or is the 2 year restriction only for H1B visas? I have heard the 2 year restriction will still apply for an H-1B visa application even if I have a Canadian passport (is that really true?). I am not too sure it holds true for the TN visa.

Reply: While the J-1 two-year home residency requirement does not disappear upon obtaining Canadian citizenship, it does not prohibit a Canadian (or Mexican) citizen from obtaining TN visa status.

An individual subject to the J-1 two year home residency requirement cannot:

1. Apply for an immigrant visa or for adjustment of status to that of a legal permanent resident;
2. Change status or receive a visa as an H-1B temporary worker;
3. Change status or receive a visa as K nonimmigrant fiancé; or
4. Change status or receive a visa as an L-1 intra-company transferee;

unless the individual has established that he or she has resided and been physically present in the country of nationality or last permanent residence for an aggregate of at least two years following departure from the United States. INA § 212 (e); 22 C.F.R. § 40.202.

The INA does not prohibit an individual subject to the J-1 two year home residency requirement from obtaining TN visa status. 9 FAM 41.59 N15. The only restriction applicable to TNs involves I-129 change of status petitions. An individual subject to the J-1 two year home residency requirement cannot file an I-129 petition requesting a change of status from J-1 to TN visa status. Such individuals must depart the U.S. and obtain a TN at the border or pre-flight inspection office. This is due to the rule that individuals subject to the two year residency requirement generally cannot request a change of status by filing a petition with USCIS. 8 C.F.R. § 248.2; Adjudicator's Field Manual 30.3 (b) (1).

Even if you obtain TN visa status, the J-1 two-year home residency requirement does not disappear. You still cannot, e.g., file for an immigrant visa or for adjustment of status unless you satisfy the home residency requirement or obtain a waiver. There are five grounds available for a waiver including one for individuals who would be subject to religious persecution if they returned to their home country.

Some commentators argue that you can satisfy the two-year home residency requirement based on your residence in a third country (in this case Canada). The Department of State disagrees. According to the DOS, where an individual completes a J-1 program in the U.S. and instead of returning to her home country, moves and acquires landed immigrant status in a third country (e.g. Canada), the individual must return to her country of legal permanent residence at the time she obtained her J-1 status in order to fulfill the two-year foreign residence requirement. DOS J-1 FAQ.