What is the Two-Year Home Country Physical Presence Requirement?
Many J-1 Exchange Visitors are subject to Section 212(e) of the Immigration and Nationality Act, commonly referred to as the “Two-Year Home Residence Requirement” or simply “212(e),” which requires them to return to their country of last legal permanent residence for two years at the end of their J-1 program. It is intended to ensure that J-1 Exchange Visitors fulfill the exchange nature of the J-1 program and share knowledge gained in the U.S. with colleagues in their home country.
This rule requires some J-1 Exchange Visitors (and their J-2 dependents) to spend an aggregate of two years physically present in their country of lawful permanent residency following the end of their J-1 program before they are eligible for the following benefits:
- H visa (temporary workers and dependents), an L visa (intracompany transferees and dependents), or a K visa (fiancé and dependents) statuses
- Lawful permanent residency (aka “green card”)
- A change of status from within the U.S. to any other nonimmigrant category except A (diplomatic), G (international organization), or U (victims of qualifying criminal activity) statuses.
Note: Exchange Visitors subject to the two-year home residency requirement are eligible to leave the U.S. and apply for visas to return in other nonimmigrant statuses such as tourists or F-1 students as long as they are otherwise eligible for those visas. The two-year home residency requirement is uniquely different from the 12 and 24 month bars on repeat participation. A J-1 Exchange Visitor may be subject to a repeat participation bar and the two-year home residency requirement, just one of these requirements, or none of these requirements. Consult you international student or scholar advisor in the Office of Global Education if you are unsure which, if any, of these regulations apply.
Unlike the 12- and 24-month bars, all J-1 Exchange Visitor categories have the potential of being subject to the 212(e) two-year home residency requirement. Subjectivity depends on the specific details of a J-1 Exchange Visitor’s program and not the category of the J-1 program.
As a J-1 Exchange Visitor, you are subject to 212(e) if you:
- Receive direct or indirect funding from either your home country government, your last country of legal presence, or the U.S. government.
- Direct financing includes funding received directly from the US government or your home/LPR government to support your J-1 exchange visitor activities.
- Indirect financing includes funding received from an international organization or another organization or institution for the purposing of advancing international educational exchange.
- Possess a skill that is in short supply in the home country, per the Exchange Visitor Skills List.
- Participate in a graduate medical education or training sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).
As an Exchange Visitor who falls into one of these groups, you will continue to be subject, even if your funding, field of study, or nonimmigrant status changes, until the requirement is fulfilled or a waiver is successfully obtained.
If you are unsure whether you are subject to Section 212(e), check your J-1 visa stamp and/or copies of your Form DS-2019. You should review all of your J-1 visas and DS-2019 forms since may they reflect different information at different stages of your J-1 program. If you were subject at any time, the requirement applies to you even if later visas and DS-2019 forms indicate that you are not subject.
If you are subject to 212(e), your J-2 dependents are also subject.
Marriage to a U.S. citizen or legal permanent resident, or birth of a child in the United States does not remove the 212(e) requirement.
Until the 212(e) requirement is fulfilled or waived, the J-1 Exchange Visitor is subject to specific restrictions.
You are not eligible to:
- Change to another immigration status while inside the U.S., except when changing to an A (diplomatic) or G (international organization) status.
- Obtain an H, K, L, or immigrant visa.
You may still be eligible to:
- Extend or transfer your current J-1 status.
- Return to the U.S. under a new J-1 program. Certain restrictions apply, such as the24-month bar on repeat participation
- Return to the U.S. for tourism (B-2/WT) or business purposes (B-1/WB).
- Return to the U.S. to pursue a course of study (e.g. F-1 Student), work in certain employment statuses (e.g. O-1 Alien of Extraordinary Ability), or in another visa classification not prohibited.
- Change status within the U.S. to A (diplomatic) or G (international organization) status.
How to Fulfill the 212(e) Requirement
You will fulfill the requirement once you:
- Return to your country of last legal permanent residence (as indicated in box 1 on the Form DS-2019) for an aggregate period of two years, or
- Obtain a J-1 Waiver.
A waiver is an immigration benefit granted by the U.S. Citizenship and Immigration Services (USCIS), Department of Homeland Security (DHS). It removes the 212(e) requirement. An Exchange Visitor may request that the two-year home residency requirement be waived on one of the following grounds:
- Statement from the Exchange Visitor’s home country or last country of legal permanent residence that it has no objection to the waiver. This is the common basis to apply for the waiver, referred to as “No-Objection Statement waiver” or simply “NOS.” Contact the embassy for additional information on how to obtain the statement, since the process varies by country in timeline and required documentation.
- Request for waiver made by an interested U.S. government agency.
- Interest of a state agency (only for alien physicians).
- Exceptional hardship to the U.S. citizen or permanent resident spouse or child of the Exchange Visitor.
- Fear of persecution on account of race, religion, or political opinion
Determine your basis and submit your waiver application directly with the DOS Waiver Review Division.
J-1 Exchange Visitor programs cannot be extended beyond the existing program end date once the U.S. Department of State recommends a waiver of the two-year foreign residence requirement.
More information regarding the 212(e) waiver process can be found on the U.S. Department of State’s website.
While a waiver opens the door to some benefits, it also closes the door on the possibility of extending your J-1 program (including a program transfer that necessitates an extension) and can complicate international travel. HPU cannot directly advise or assist in the waiver process, however, we can provide assistance in determining the timing of a waiver request. Please contact your Global Education advisor prior to initiating a waiver request.
Note: While hiring an immigration attorney is always an option when filing a 212(e) waiver application, hiring a personal immigration attorney is highly recommended if applying on one of the following grounds: interested U.S. government agency; interest of a state agency; exceptional hardship; or fear of persecution.
Regarding J-2 Dependents: In most circumstances, J-2 dependents are a part of the J-1 Exchange Visitor’s waiver application and will benefit from a J-1’s approved waiver. However, J-2 dependents may independently apply for a waiver in the event of the death or divorce by the primary J-1, if the J-2 child turns 21, or if the J-2 dependent previously held J-1 status and was subject to 212(e) but never satisfied the requirement.
General processing times are available from the DOS Waiver Review Division. Processing times begin once DOS receives all required application documents.
For NOS waivers, the timeframes do not include the time it takes your embassy to process a No-Objection Statement, issuance of sponsor views, or USCIS’ final approval of the waiver.
If you have questions on the process or wish to confirm receipt of documentation by DOS, check the DOS online case status system or email [email protected]. Due to application routing procedures, case status updates on the DOS website may be lengthy.
You may apply for a waiver when you meet the eligibility requirements described in the DOS Waiver Review Division.
A pending or approved waiver application may affect your J-1 program. Specifically, once DIS sends sponsor views to DOS, you are ineligible for a J-1 extension or transfer. You may also have difficulty in applying for any further J visas abroad and/or being re-admitted to the United States in J status.
After a review of your completed waiver application, DOS will send a favorable or unfavorable recommendation letter to USCIS. Upon final approval, USCIS will send the waiver applicant a Form I-797 Notice of Action.
If you are a confirmed finalist in the Diversity Visa Lottery, you do not need to meet NIH’s NOS Waiver Policy requirements to receive favorable sponsor views from NIH for your NOS waiver application.