Certain J-1 Exchange Visitors (and their J-2 dependents) are subject to a two-year home country presence requirement. J-1 visitors subject to this requirement must return to their country of last legal permanent residence before being eligible for certain future benefits. This page explains the impacts of the 2-year home residency requirement (known as 212(e)), who might receive this requirement, the 212(e) waiver process, and some important details to consider.
Impacts of 212(e)
J-1 visitors subject to this requirement must return to their country of last legal permanent residence for two years or obtain a waiver of this requirement before they are eligible to:
- Change status while in the United States to nearly any category.
- Aquire temporary worker (H), intracompany transferee (L), or fiancé (K) status by either change of status or visa application abroad.
- Adjust status while in the United States to immigrant visa/lawful permanent resident status (LPR);
- Receive an immigrant visa at a US Embassy or Consulate; or
This requirement does not prohibit a visitor from returning to the US in any other immigration status although other J-1 restrictions may apply. For example, if the visitor wishes to return as a tourist or student within the two-year period and meets the requirements for those entries, the two-year physical presence requirement does not prohibit this.
To Whom Does this Apply?
J-1 visitors and their J-2 dependents who meet one of the criteria listed below are subject to this rule:
- The Exchange Visitor Skills List: J-1 visitors whose area of specialization has been identified as being in short supply by her/his government of legal permanent residence is considered "subject." See the Exchange Visitor Skills List for a country-by-country list of specializations.
- Home Government Funding: J-1 visitors who receive funding directly from their home country's government are subject to the 212(e) requirement. Regional government funding does not apply.
- US Government Funding: J-1 visitors who receive funding directly from the US government are subject to 212(e). Funding received as salary from University of Vermont grants to the department are not considered government funding for this purpose. However, there are some exceptions which include grants that are specifically targeted for international exchange. Fulbright funding is US government funding.
- Funding from an International Organization or Bi-National Commission: J-1 visitors who receive funding from International Organizations or Bi-National Commissions (organizations that receive their funding from government sources), such as United Nations, NATO, or the European Community are subject to 212(e).
- Medical Education and Training: Any J-1 visitor is subject if he/she is a foreign medical graduate and came to the US to obtain graduate medical education or training.
Applying for a Waiver of 212(e)
A waiver of the 2-year home country presence requirement can be granted on the following bases:
- Statement from the exchange visitor's home country that it has no objection to the waiver
- Request for waiver made by an interested US government agency (IGA)
- 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 visitors interested in pursuing a waiver should read the following information from the US Department of State regarding the waiver application process:
- OIE may not assist with J-1 Program Waivers as the US Department of State believes this to be a conflict of interest for J program sponsors.
- Although the application may be submitted by the J-1 visitor themself, we do advise you to consult with an immigration attorney to best understand your options and likely timelines.
- If you are a current J-1 scholar at UVM you are strongly advised to contact the OIE PRIOR to taking any steps towards a waiver. Once your waiver is approved you are no longer eligible for any J-1 program extension(s).
- Waiver processing can take several months to a year or more depending on the route pursued.
Not Certain You Are Subject to 212(e)?
Often there may be questions about whether the 212(e) rule has been applied appropriately. In this situation:
- Review the criteria for the rule above and also inspect your past form DS-2019s that were stamped at a US consulate abroad and/or your US J-1 entry visa for notations. This often is described as "2.12e does/does not apply" or "two-year rule does/does not apply"
- If you are still uncertain, you may request an ‘Advisory Opinion’ from the Department of State. The OIE can assist you in this process.
- You may wish to consult an attorney. Please contact OIE if you would like a referral.