Two Year Home Country Physical Presence Requirement
You and your J-2 dependents may be subject to a two-year home country physical presence requirement, also known as “212(e)” based on its section reference within the Immigration and Nationality Act. When subject to this requirement, you and your J-2 dependents must return to your home country and physically reside for two years following the completion of your Exchange Visitor (EV) program. The intent is for your home country to benefit from your experience in the United States.
Two restrictions apply when you are subject to 212(e):
While in the U.S. in J status and subject to 212 (e), you and your J-2 dependents cannot change to immigrant (permanent resident) status or another nonimmigrant status, except A or G nonimmigrant status.
After completing your EV program, you and your J-2 dependents must voluntarily depart the U.S. and reside in your home country for at least two years before you are eligible to apply for H or L nonimmigrant visas, or immigrant (permanent resident) visas.
This requirement applies to all J-1 EVs who:
are financially supported by a government agency (whether U.S., home country, or international) for the purpose of promoting exchange;
have skills which are needed in their home country, as specified on the Exchange Visitor Skills List; and/or
are medical doctors with a medical degree from a foreign medical school and are coming to the United States through the Educational Commission for Foreign Medical Graduates (ECFMG) sponsorship for the purpose of graduate medical education.
Waivers of the two-year home country physical presence requirement
You may apply to have your two-year home country physical presence requirement waived. ISSS does not recommend your department be involved in the waiver process, unless information is requested by the Waiver Review Division of the J-1 Exchange Visitor Program. The Waiver Review Branch of the J-1 Exchange Visitor Program has online instructions for the waiver application.
There are five grounds for a waiver of the 212(e) requirement:
- A "no objection" statement (not permitted for J-1 ECFMG sponsored EVs). This is the most common type of waiver. Your home country government can indicate in formal correspondence that it has no objection if you do not return to satisfy 212(e) and has no objection to the possibility that you become a permanent resident of the U.S. This correspondence will come either directly from your home country’s embassy in Washington, DC, or will be issued by a designated ministry within your home country and sent to the U.S. Chief of Mission, Consular Section at the U.S. embassy within your home country. The U.S. embassy will then forward it directly to the Waiver Review Division.
- Exceptional hardship to a U.S. citizen (or lawful permanent resident) spouse or child of a J-1 EV. If you can demonstrate that your departure from the U.S. would cause exceptional hardship to your U.S. citizen or lawful permanent resident (LPR) spouse or child, you may apply for an exceptional hardship waiver. Please note that mere separation from your family is not considered to be sufficient to establish exceptional hardship. An application 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" is needed.
- Fear of persecution. If you can demonstrate because of your race, religion, political opinions, or nationality that you would face persecution by your home government upon your return, you might qualify for a waiver. You would apply to USCIS on form I-612.
- Interested U.S. federal government agency request. If your departure for two years in fulfillment of 212(e) would prove detrimental to the interests of a U.S. federal government agency, that agency may request an Interested Government Agency (IGA) Waiver on your behalf. The IGA request must be signed by the head of the agency or his/her designee and submitted directly to the Waiver Review Division.
- Request by a designated state public health department or its equivalent (Conrad State 30 Program). If you are a foreign medical graduate who obtained J-1 EV status through ECFMG sponsorship to pursue graduate medical education, your may request a waiver of 212(e) requirement based on the request of a designated State Public Health Department or its equivalent, if you meet all of the following criteria: 1) have an offer of full-time employment at a health care facility in a designated health care professional shortage area or at a health care facility which serves patients from such a designated area; 2) agree to begin employment at that facility within 90 days of receiving a waiver; and 3) sign a contract to continue working at that health care facility for a total of 40 hours per week and for not less than three years.
Please note: The information above is to assist you in understanding the nature of the two-year home country physical presence requirement and how to seek a waiver if you are subject to this requirement. It is provided for informational purposes only. It is not uncommon for some J-1 EVs to question whether or not they are subject to 212(e). In such matters you should seek an Advisory Opinion from the Waiver Review Division.