Two Year Home Country Physical Presence Requirement
You and your J-2 dependents may be subject to a two-year home physical presence requirement, also known as 212(e), upon completion of the exchange program. This provision requires that you and your dependents must return to your home country for two years upon completion of your exchange program before you may return to the U.S. in certain non-immigrant statuses and before you are eligible to become a permanent resident of the U.S.
Intent of the Requirement
The intent of the requirement is to have you complete the ultimate purpose of the exchange visitor program by returning to your home country for at least two years so that it may benefit from all that you learned and experienced while in the U.S. as an exchange visitor. Remember, the exchange program was designed to facilitate cultural and educational exchange between the U.S. and other countries. It is not intended for the convenience of employment authorization in the U.S. As an exchange visitor you came with a specific objective in mind. Upon completion of that objective, you are expected to return to your home country and share what learned about your field of endeavor and what you learned and experienced about U.S. culture and customs. The requirement thus encourages you to return to your home country and not delay your departure from the U.S. by changing to another non-immigrant status or remaining permanently as a permanent resident.
Terms of the Requirement
If you are subject to the requirement, you must "resided and been physically present" for a total of two years in either your country of nationality or your country of last legal permanent residence as indicated on your DS-2019. Until you have fulfilled that requirement or been waived of that requirement, you are not eligible to:
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Change of your status inside the United States to any other non-immigrant status (except for A or G non-immigrant status, both of which are diplomatic statuses allowing you to remain to either represent your government to the U.S. [A non-immigrant status] or to international organizations within the U.S. such as the United Nations [G non-immigrant status]) or adjust your status to permanent resident status.
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Apply for an H or L visa stamp, or immigrant visa stamp at a U.S. Consulate/Embassy abroad for the purpose of returning to the U.S. for temporary work or permanent residence until you have satisfied the two year requirement or been waived of it.
You are subject to the Requirement if...
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your J-1 participation is or was funded in whole or in part, directly or indirectly, for the purpose of exchange, by your home government or the United States government;
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as a J-1 Exchange Visitor, you are acquiring a skill that is in short supply in your home country as listed in the "Exchange Visitor Skills List." The List, which originally appeared in 1972, was last published in full in the Federal Register on April 30, 2009. Your country, if it has a skills list, has petitioned the U.S. to include any skills that would further its development. Therefore, your home country is requiring that you return so that it may benefit from the new skills you acquired during the exchange program.
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you participated as a J-1 Alien Physician for the purpose of graduate medical education in a clinical residency or fellowship program through the Educational Commission for Foreign Medical Graduates’ (ECFMG) exchange program.
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you are the J-2 dependent of an Exchange Visitor who is subject to the requirement.
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you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending two years in your home country or country of last legal permanent residence. Each exchange program you participate in may or may not subject you to the 2-year home physical presence requirement. If you have participated in more than one exchange program in which you were subject, you must fulfill each 2 year requirement subsequent to the conclusion of that exchange program. You may serve out multiple requirement concurrently as long as it can be proven that you fulfilled each two-year requirement subsequent to the conclusion of each exchange program.
Preliminary endorsements
The U.S. Consulate will either annotate your J-1 visa stamp as being either subject or not subject to 212(e) and the U.S. Consulate or Customs and Border Protection (CBP) may endorse your DS-2019 as being either subject or not subject to the requirement. Although these annotations and endorsements made by either the U.S. Consulate or CBP are typically accurate, they are not legally binding indicators of whether you are subject or not subject. Therefore, in some instances, it would be wise to request an advisory opinion from the Department of State (DoS).
If you are unsure whether you are subject...
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Consult your J-1 Responsible Officer (RO) or Alternate Responsible Officer (ARO). Be sure to take your passport and all copies of DS-2019s issued to you. Your RO/ARO may be able to determine whether there is cause for you to be subject based on funding, the Skills List or past sponsorship by ECFMG.
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If you are still uncertain, you should seek an advisory opinion from the Department of State (DoS) by submitting an advisory opinion request. The request for an advisory opinion should be made by letter and you must provide legible copies of all your DS-2019/IAP-66 forms issued during the course of your exchange program. You must also provide a self-addressed, stamped envelope so that DoS can mail the advisory to your residential address. Send your advisory opinion request to: INA 212(e) Advisory Opinion Request, The Waiver Review Division - CA/VO/L/W, SA- 1 L-603, U.S. State Department, 2401 E Street NW, Washington, D.C. 20522-0106.U.S. Department of State CA/VO/L/W, Visa Services 2401 E Street, NW, (SA-1) Washington, DC 20522-0106. For more on advisory opinions visit http://travel.state.gov/visa/temp/info/info_1288.html where DoS provides a FAQ on waivers and advisory opinions.
Waivers of the requirement
There are four grounds for waiver of the requirement.
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Exceptional hardship to your spouse or unmarried minor child who is a citizen or permanent resident of the United States. If, for example, you had a child who was born in the United States and was therefore a citizen of this country, and if the child had a serious medical condition that could not be treated in your country, you might obtain a waiver because the child would suffer a hardship by going there with you to live. You would apply to USCIS on Form l-612, "Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, as Amended." (As you might imagine, this Form is commonly referred to as Form l-612).
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Fear of persecution. If you can demonstrate that, because of your race, religion, political opinions, or nationality, you would face persecution by your home government if you went back, you might qualify for a waiver. You would apply to USCIS on Form I-612.
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Interest of a United States government agency. An interested U.S. government agency and state governments through the Conrad 30 program can sponsor you for a waiver in the interest of that government agency.
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A "no objection" statement (not permitted for those who were sponsored by ECFMG as J-1 Alien Physicians for the purpose of Graduate Medical Education). Your country's embassy in Washington can indicate in a letter sent directly to the DOS that it has no objection to you receiving a waiver. This is often the route taken for those obtaining a waiver solely on the basis of the Skills List. A "no objection" statement will usually not lead to a waiver if the Exchange Visitor has received more than $2,000 in funding from the United States government. A word of caution: This information summarizes some very complex and sensitive issues. It is intended only to help you understand how one is subject or not subject to the requirement, the consequences of being subject or not subject and what basic initial steps you should take if you are not certain that you are or are not subject to the requirement. Finally, if you are subject, the material presented on this web page does not constitute legal advice on how to waive the requirement. Consult a competent immigration attorney.