212(e) Two-Year Home Country Physical Presence Requirement
Some J-1 Exchange Visitors are subject to a requirement known as the “two-year home residency requirement”, or 212(e), following the end of their J-1 program. 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 an OIS advisor 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.
Not all Exchange Visitors are subject to the two-year home residency requirement. There are three grounds on which an Exchange Visitor can become subject:
- The Exchange Visitor’s program was financed directly by the U.S. government or the Exchange Visitor’s last country of legal presence.
- The skills that the Exchange Visitor came to the U.S. to exercise are in a field that the Exchange Visitor’s home government has requested to be included on the State Department’s “skills list“.
- The Exchange Visitor came to the United States to receive graduate medical education or training (not applicable for Exchange Visitors coming to NC State).
An Exchange Visitor who falls into one of these groups will continue to be subject, even if funding, field of study, or nonimmigrant status changes, until the requirement is fulfilled or a waiver is successfully obtained. J-2 dependents are subject to this requirement if their J-1 principal family member is subject to the 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 that it has no objection to the waiver.
- 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
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. OIS 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 OIS 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.