Section 212(e) of the Immigration and Nationality Act
Intent of the Requirement
The two-year home-country physical presence requirement (often referred to as “212(e)”) is intended to enable the home countries of certain Exchange Visitors who come here for a specific objective, such as a program of study or a research project, to benefit from the Exchange Visitors’ experiences in the United States. The requirement is intended to prevent certain J-1 Exchange Visitors (and their J-2 family members) from staying in the U.S. longer than is necessary to complete their objective, and to ensure that they will reside in their home country for at least two years before returning to the United States for a long-term stay.
You are Subject to the Requirement if:
- Your J-1 program is or was funded, in whole or in part, directly or indirectly, by your home government or by the United States government.
- The education, training, work, or skill you are/were engaged in as a J-1 appears on the “Exchange Visitor Skills List.” (Note: If you started your J-1 exchange program prior to 2009, please consult with an ISSS advisor).
- You are/were here for graduate medical education or training under the auspices of the Educational Commission for Foreign Medical Graduates (ECFMG).
- You are the J-2 dependent of an Exchange Visitor who is subject to the requirement.
- You have ever been subject to the requirement, and have neither obtained a waiver nor met the requirement by spending two years in your country--even if a more recent Form DS-2019 reflects no basis for the requirement or you are now in a different status (such as F-1 or B-1/B-2).
Terms of the Requirement
Until either fulfilling the requirement by returning home for two years or obtaining a waiver of the requirement (a “212(e) waiver”), an individual who is subject to the requirement is ineligible for:
- An H, L, or K nonimmigrant visa
- An immigrant visa or for adjustment of status (become an LPR, Lawful Permanent Resident, or “get a green card” from inside the United States)
- A change of status within the U.S. from J to any other nonimmigrant classification, except A (diplomatic), G (international organization), or U (victims of qualifying criminal activity) - These changes of status have been granted in very rare circumstances, such as approving a change of status to an H-1B where the applicant had not satisfied the 212(e) requirements, but in the event such an approval was made it does not make 212(e) "go away" and it would still restrict the person from gaining the other status types listed above.
Your J visa or your current Form DS-2019 may show a “preliminary endorsement” by a consular official or a U.S. Citizenship and Immigration Services (USCIS) inspector, as to whether you are “subject to 212(e).” These indications are often accurate, but not always--and they are never legally binding. The Waiver Review Division of the U.S. Department of State always makes the final determination.
If You Are Unsure Whether You Are Subject
Meet with an ISSS advisor during regular advising hours. Please bring your passport, current DS-2019, I-94, and copies of any prior DS-2019 forms you have received.
Before You Apply
Be aware that approval of a waiver may impact you if you are currently in J-1 status or may obtain J status again in future. You will not be able to:
- Apply for an extension of the DS-2019
- Transfer your DS-2019 to another institution even if you have time remaining in your category
- Apply for Academic Training if you are a J-1 student
- Returning in another J category may cause you to be subject to 212(e) all over again depending on the situation
If you are considering any of these things, you may wish to consult with an ISSS advisor before you submit the waiver.
Waivers of the Requirement
If you are subject to, but do not wish to comply with, the two-year home country residence requirement, you may be able to obtain a waiver of the requirement (a “212(e) waiver”). ISSS is unable to help with the actual waiver application process, but you may wish to first speak with an ISSS advisor before proceeding with a waiver request to see how it may impact your current J status. Additional information may also be found here.
12-month Bar after Previous J Participation
Individuals who have spent time in the U.S. in any J status, including J-2 , during the previous year may not be eligible to participate in an exchange visitor program as a J-1 professor or J-1 research scholar until after the 12-month period following the end of the previous J-1 program. This bar does not apply to the following cases: J-1 scholar transfers, stays in J status of less than 6 months, and time spent as a J-1 short-term scholar.
24-month Bar on Repeat Participation
Individuals who have been in the U.S. in the J-1 professor or J-1 research scholar categories, regardless of length of time, are not eligible to repeat participation as a J-1 professor or J-1 research scholar until after the 24-month period following the completion of the previous professor or research scholar program. This bar also applies to J-2 dependents. This bar should not be confused with the two-year home country physical presence requirement, INA § 212(e).