How strict is the 2-year home requirement day count?

Veggie3

Registered Users (C)
#1
Hi all,

I'm a Fulbrightee (got my Ph.D. in the US and worked for a year afterward) and I just returned home to begin my 2-year home residency requirement.

I'd like to consult other people who have been in a similar situation: how strict is the calculation of the days? Is it really 730 days, or will they accept one year and 10/11 months?

I plan to apply for jobs in the US already during my second year of residency: is that allowed?

Thanks!
 

raevsky

Registered Users (C)
#2
One day partly spent in the US is counted as being spent fully in the US. Even if you were in the US for just 1 minute. Other than that a day partly spent in your home country is fully spent in your home country.
Do not forget a leap year contains 366 days, not 365.
The counting is done based on the number of days in that month, in order to satisfy leap year effect. So, 1 day in february of a regular year is 1/(12*28) of a year, and 1 day in february of a leap year is 1/(12*29) of a year. You need two full years.

Applying for a job is OK if it does not affect your presence in your home country
 

Veggie3

Registered Users (C)
#3
Thanks Raevsky

Thank you for your quick reply.

OK, I have to bug you with a follow-up question: do you know of any cases where people who had, say, 710 or 720 days of physical presence were denied an H visa (or green card) because they didn't reach the full mark?

I'm asking this since I began my 2-year period in mid-July 2008, and I'd like to return to the US by mid-August 2010. You're implying that if I'll spend more than 30 days abroad during this period I might lose that academic year.

Thanks.
 

raevsky

Registered Users (C)
#4
You are right. They have to deny H-visa or GC under those circumstances, but I do not know any specific cases where it happened or not happened.
710 or 720 days is not enought. Requirement is 2 years, which is 730 or 731 days (dependening on whether a leap year is included).
Yes, you might loose the academic year, you are right.
 

mmed

Volunteer Moderator
#5
One day partly spent in the US is counted as being spent fully in the US.
It is not US only, the 2 year country residence should be in home country not any where else and if so, those days should be added to the 2 years. Some people granted H before the end of the 2 years, MAy be no problems with H, the problem will show up with GC because it is more seriously investigated than visa. It is impossible for the US to make law of 2 year then make it two year minus day or month. If it is the case, it can say 2 year minus X days is the required peroid
 

raevsky

Registered Users (C)
#6
It is not US only, the 2 year country residence should be in home country not any where else and if so, those days should be added to the 2 years
That is true. What I meant is if you spend 1 day partially in your home country and partially in another country (not US), it could be counted towards the 2-year requirement (spent at home). But if it is spent partially in the US, it is excluded from time spent in your home country.
 
#7
I know it’s been years, but I’d like to know what the outcome of this case was. We’re you able to get the visa with less than 730? Also, were you able to count partial days towards the two years?

Thanks!
 

Veggie3

Registered Users (C)
#8
The outcome was that I spent about 710 days in my home country. Then I got another J-1 visa (that did NOT have a home residency requirement). During the period on that visa, I simply traveled back to my home country and stayed there for another 4 weeks or so. At that point, I already reached 740 of days of physical presence and was able to get H-1B visa and later GC without a problem.

Partial days in your home country are counted toward the two years, UNLESS you spent part of that day in the U.S. So in terms of partial days, you're fine if you went to any other country apart from the U.S.
 
#9
Thanks for this thread. It is quite helpful. I have a quick question. I have an approved petition, but I have about 30 more days to complete the 2 year home country requirements. Going by the current processing time, they say that the visa interview will take around 2 months to be scheduled after submitting all requested paper works. When they count the two year, do they count the days upto when I applied for the visa interview or upto the date when I actually will have the visa interview in the consulate?
 

Veggie3

Registered Users (C)
#10
The regulation says that no H, L or GC can be issued before you prove that you completed the 2YHRR, or obtained a waiver. Since no visa will be issued prior to your interview, so you should be fine. Just be sure to bring to the interview enough evidence that you indeed completed 730 days of physical presence at you home country.
 
#11
Thank you Veggie3 for your reply. I am also a Fulbrightee who was in a similar situation like you 10 years ago. Could you point me to the US gov reference for this, if possible?
 
#14
Hello Professor,

Do you have any source on the partial days calculation rule? Or how did you get to that conclusion if I may ask?

Thank you so much for this helpful thread.
 

Veggie3

Registered Users (C)
#15
An attorney told me that the partial days calculation is based on extrapolation: that's how USCIS & IRS calculate days in the U.S. for various purposes. She also told me it's somewhere in the State Dept. Foreign Affairs Manual, but I never looked for it.

Something to keep in mind: the 2YHRR and its implementation/waiver are within the State Dept. realm of work. USCIS will of course enforce it, but it seems that its officers aren't very experienced with it. I did both my H-1B and GC within the States, hence it was all handled by USCIS. My change of status to H-1B was approved before I even sent any evidence for completing my 2YHRR. For the GC process, I submitted enough documentation (stubs of boarding passes, entry/exit stamps, a formal entry/exit sheet from my country's Home Office), and USCIS didn't have any follow-up questions.

If you apply from abroad for an H/L visa, or an immigration visa, you can expect much more scrutiny about that aspect at the consulate level.
 
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