What is the Two-Year Home-Country Physical Presence Requirement?
Many J-1 Exchange Visitors are subject to a Two-Year Home-Country Physical Presence Requirement or 212(e). The J-1 Exchange Visitor program was developed to implement the Mutual Educational and Cultural Exchange Act (Fullbright-Hayes Act) of 1961; the purpose is to increase mutual understanding between the people of the U.S. and the people of other countries by means of educational and cultural exchanges. Therefore, the Department of State requires that some Exchange Visitors return home at the end of their programs for a minimum of two years. If an individual is subject to 212(e), then he/she must return to his/her country of citizenship, or his/her country of last legal permanent residence, after the J-1 program is completed. The individual must remain there for an aggregate of two years. This requirement remains until he/she has either fulfilled the rule or he/she has received a waiver of the requirement.
What restrictions apply if an Exchange Visitor is subject to 212(e)?
- The individual is not eligible for an immigrant visa or adjustment of status to permanent residence.
- The individual is not eligible for an H or L visa.
- The individual is not eligible to change status within the U.S. to any other nonimmigrant status except A (foreign government officials) and G (“NATO”).
Who is subject to the Two-Year Home-Country Physical Presence Requirement?
There are four ways an Exchange Visitor can become subject to the Two-Year Home-Country Physical Presence Requirement.
- Skills List: The US Department of State created a list of fields and specialized knowledge and then entered into an agreement with other countries about what skills those countries need. This list is known as the Skills List. If the individual is a resident or citizen of a country that is on the Skills List and the field appears on that list then he/she will be subject to the Two-Year Home-Country Physical Presence Requirement. View the Skills List for a specific country.
- Home Government Funding: If an individual received funding from his/her home government, he/she will be subject to the Two-Year Home-Country Physical Presence Requirement.
- US Government Funding: If an individual received funding from the US government, for instance Fulbright or Fogarty funding, then he/she is subject to the Two-Year Home-Country Physical Presence Requirement. It is very difficult to obtain a waiver if an individual has received US government funding.
- Foreign Medical Graduates: If an individual was in the ECFMG program to train as a Foreign Medical Graduate, then he/she is subject to the Two-Year Home-Country Physical Presence Requirement. It is very difficult to obtain a waiver in this case.
How do I know if an Exchange Visitor is subject to 212(e)?
During the visa application process, the consular officer often marks on the DS-2019 if someone is subject to the Two-Year Home-Country Physical Presence Requirement. It may also be marked on the visa. However, oftentimes these markings are incorrect and should not be the only criteria used in determining subjectivity. When in doubt, the individual should always request an Advisory Opinion.
An Advisory Opinion is a letter from the Department of State that states if an individual is subject to the Two-Year Home-Country Physical Presence Requirement. If he/she receives an Advisory Opinion that says that he/she is not subject, then there is no need to apply for a waiver. If he/she receives an Advisory Opinion that says he/she is subject, then he/she should take steps to apply for a waiver if possible.
The OISS does not submit advisory opinion letters for J-1 Exchange Visitors. Advisory Opinion information can be found via the following link: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/advisory-opinions.html
What are the Routes to a Waiver?
There are several ways to obtain a waiver:
- No objection from the home country. For more information go to: https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor/how-to-apply-waiver.html
- Hardship to US citizen spouse or US citizen child. For more information, the individual should contact an immigration attorney.
- Persecution in home country. For more information, the individual should contact an immigration attorney.
- Interested US government agency. For more information, the individual should contact an immigration attorney. For WU sponsorship, see below.
- For most ECFMG participants the state waiver program is the only waiver option. For more information, the individual should contact an immigration attorney. For WU sponsorship, see below.
The OISS strongly recommends that an Exchange Visitor does not attempt to obtain waivers based on criteria 2-5 without the assistance of an attorney. Please contact Ariel Carpenter, the Director of the OISS, if you are going to seek a waiver based on criteria 4-5 through the sponsorship of Washington University.
What are the effects of being recommended for a waiver?
Once the Department of State has issued a waiver recommendation, the individual is no longer eligible for further extensions of stay under J-1 status. He/she might not be able to transfer to another J-1 program.
Assuming other requirements are met, the individual is now eligible to apply to change nonimmigrant status and to apply for H or L visa. He/she is now eligible to apply for adjustment of status to permanent resident.
What if an Exchange Visitor is subject and can’t get a waiver?
If an individual cannot obtain a waiver and is subject to the Two-Year Home-Country Physical Presence Requirement, he/she should return to the country of citizenship or country of legal permanent residence.