Two-Year Home Residency Requirement
The two-year home country physical presence requirement established by INA § 212(e) is one of the most important elements of J-1 Exchange Visitor status. Some J-1 students are subject to this requirement and some are not. You may become subject to this requirement (if criteria below apply) when you are admitted into the U.S. in J-1 Exchange Visitor status, or when you acquire J-1 status after admissions (ex. through change of status).
Who is subject to INA 212(e)?
There are three criteria for which you can become subject:
- Receiving direct or indirect funding from the U.S. government or home country government for the purpose of exchange.
- If your major or program objective listed on the DS-2019 for your program was requested by your home government to be included on the Department of State Exchange Visitor skills list.
- You come to the United States to receive "graduate medical education or training".
Are you really subject to INA 212(e)?
The consular officer makes a preliminary determination at the time of your interview if you will be subject to this requirement upon entering the U.S. in J-1 status. It should be marked on both your J-1 visa and your DS-2019. Sometimes these initial determinations are incorrect. An online survey is available to help determine if the two-year requirement applies. If the result of the online survey is inconsistent with what is marked on your visa and DS-2019, you may want to request a formal advisory opinion from the Department of State Waiver Review Office.
Effect of being subject to 212(e)
If you are subject to 212(e), the following restrictions apply:
- Cannot apply for any type of change of status from within the U.S.
- Must return home and "reside and be physically present" in your "home" country for an aggregate of two years before you can apply for permanent residence, an H visa, or an L visa.
Fulfilling the home residency requirement
To complete the home residence requirement, you must be able to document that you have resided and were physically present in the required country for an aggregate of at least two years following completion of the J-1 exchange visitor program and departure from the U.S.
Waivers of this requirement are few, difficult and time-consuming. A waiver may be requested based on any of these five criteria:
- a claim of exceptional hardship to a U.S. citizen or legal permanent resident spouse or child of an exchange visitor if the exchange visitor is required to return to the country of residence.
- a claim that the participant will be persecuted due to race, religion, or political opinions if he/she returns to the country of residence.
- a request from an interested U.S. Government Agency on the participant's behalf.
- a No Objection Statement from your government.
- a request by a designated State Health Department or its equivalent.