J-1 Exchange Visitors : 2 Year Home Residency Requirement
What is the two year home residency requirement (212(e))?
It is a provision of U.S. Immigration law that requires certain J-1s and J-2s to return to their home country for two years after completion of the J-1’s program. The home country is defined as the J-1’s country of permanent residence at the time the J-1 became subject to the requirement.
The home residency requirement is also sometimes known as 212(e), referring to the section of law in which it is found: I.N.A. § 212 (e).
Why is there a home residency requirement?
The Exchange Visitor Program (J-1) Status exists to foster the exchange of international scholars and students to the US. It is the intent of this program that these visitors will return to their home country with a better understanding of the US and/or return with skills to benefit his/her home country.
Who is subject to the home residency requirement?
A J-1 may be subject if:
- His/her stay as a J-1 was funded by the US government, his/her home country government, or an international organization (e.g. Fulbright, AMIDEAST, etc.)
- The academic program or training he/she received as part of the J-1 program is on the Exchange Visitor’s Skills List for his/her home country.
- He/she came as a J-1 to receive graduate medical training sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).
If the J-1 is subject to 212(e), any J-2s will also be subject.
Note: The DS-2019/IAP-66 of the J-1 that was used to apply for a J-1 visa, or enter the country, will be marked indicating if the J-1 is subject to 212(e) or not (however, this annotation is sometimes incorrect). If you are unsure if you are subject to 212(e), you may make an appointment with an advisor at OIE. Please bring all of your past and current DS-2019s / IAP66s.
What are the implications of being subject to the home residency requirement?
Persons subject to the home residency requirement
- are ineligible for an H or L visa, or permanent residency until the home residency requirement is fulfilled or waived (however, one could change status in the US from F-1 to H, even if subject to 212(e)).
- may not change status in the US to any other non-immigrant status, except A or G. However, they may leave the US and apply for a visa for any status other than H, L, or permanent residency and reenter in that status. They must still eventually fulfill the requirement or obtain a waiver. (e.g. A person could leave the US, apply for an F-1 visa, and reenter as an F-1 even if he/she had not yet fulfilled the home residency requirement. However, he/she will eventually have to fulfill it or obtain a waiver before being able to obtain an H or L visa or permanent residency status.
How can one fulfill this requirement?
One can fulfill this requirement by returning to one’s home country for a total period of two years. This two year period does not have to be completed at once. (E.g. one could return to the home country for 6 months, come back to the US as an F-1, and then later complete the remaining 18 months in the home country). However, time spent in the home country while on the J-1 that makes one subject doesn’t count towards those two years.
How can one waive this requirement?
Obtaining a waiver is a lengthy process (6-12 months) and OIE will provide information about the process. The first step is to complete and file a Department of State Waiver Review Application Data Sheet. The processing fee for this is $230. Then, there are several ways in which one can obtain a waiver.
- No Objection Statement. This begins with an official statement from the J-1’s government (usually embassy in the US) to the US Department of State Waiver Review Division that they do not object to the J-1 remaining in the US. The Waiver Review Division will then make a recommendation and send it to the Department of Homeland Security, who will make the final decision. Generally, the No Objection Statement is used for people subject to 212(e) due to home government funding or the skills list; it does not apply to persons here for graduate medical training sponsored by ECFMG and is almost never successful if US government funding is involved.
- Interested Government Agency. If the J-1 is involved in a program of vital interest to a US government agency (e.g. Department of Energy), the head of that agency may request a waiver on the behalf of the J-1 to the Waiver Review Division. The Waiver Review Division will in turn make a recommendation to the Department of Homeland Security who will make the final decision. These waivers are difficult to obtain and the process is quite lengthy.
- Credible fear of persecution. If the J-1 can demonstrate that if he/she returns to his/her home country, he/she will face persecution due to race, religion, political opinion, nationality, or membership of a certain social group; he/she may apply for a waiver directly to the Department of Homeland Security. Economic hardships or lack of professional opportunities do not qualify for this. Persons with a credible fear of returning home may want to consider asylum.
- Exceptional hardship to a US or permanent resident spouse or child. If by returning to the home country, the US citizen or permanent resident spouse or child of a J-1 would experience exceptional hardship, the J-1 may apply directly to the Department of Homeland Security for a waiver. The J-1 must establish this with substantial documentation and this is only granted in cases where exceptional hardship is evident (e.g. the spouse or child would be unable to receive medical attention, or would face persecution).
Below are websites for more information on the two year home residency requirement. You may also make and appointment to discuss this with an advisor.