OREGON STATE UNIVERSITY

212(e) Home Country Presence Requirement

The two-year home country physical presence requirement is one of the most important requirements of Exchange Visitor status (J visa types).  The two-year home residency requirement is different and separate from the 24-month bar on repeat participationOnly some J exchange visitors and their dependents are subject to the 212(e).

When you agree to participate in an Exchange Visitor Program and your program falls under the conditions explained below, you will be subject to the two-year home-country physical presence (foreign residence) requirement. This means you will be required to return to your home country for two years at the end of your exchange visitor program. This requirement under immigration law is based on Section 212(e) of the Immigration and Nationality Act.

Two-year Home-country Physical Presence Requirement Conditions

An exchange visitor is subject to the two-year home-country physical presence requirement if the following conditions exist:

  • Government funded exchange program - The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;
  • Graduate medical education or training - The exchange visitor entered the United States to receive graduate medical education or training;
  • Specialized knowledge or skill: Skills List - The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List. Review the Exchange Visitor Skills List 2009.

An exchange visitor who falls into one of these groups will continue to be subject, even if funding or field of study changes. If the principal J-1 exchange visitor is subject to the two-year residence requirement, dependents in J-2 status are subject as well.

Restrictions

When you, as an exchange visitor are subject to the two-year home-country physical presence requirement, you must return to your home country for a cumulative total period of at least two years before you can do any of the following:

  • Change status while in the United States to the nonimmigrant categories of temporary worker (H) or intracompany transferee (L);
  • Adjust status while in the United States to immigrant visa/lawful permanent resident status (LPR);
  • Receive an immigrant visa at a U.S. Embassy or Consulate; or
  • Receive a temporary worker (H), intracompany transferee (L), or fiancé (K) visa at a U.S. Embassy or Consulate.

What does it mean to be subject to the 212(e)?

Exchange Visitors who are subject to the two-year residence requirement must “reside and be physically present” in their "home" country for an aggregate of two years before being eligible for certain immigration benefits. 

Note that former exchange visitors are eligible for all other nonimmigrant visa types, even if subject to the two-year residence requirement; Only lawful permanent residence (PR), H and L visas, are prohibited.

Exchange visitors subject to the two-year residence requirement are eligible to leave the U.S. and apply for visas to return as tourists, or as F-1 students. The usual visa requirements must be met.

Persons with a two-year residence requirement are eligible for program transfers and extension of their J status up to the limits of time for their particular exchange visitor category unless they have previously applied for a waiver of the 212(e).

Waiver of Two Year Home-Country Physical Presence Requirement

If you are not able to fulfill the home country presence requirement, you may be able to apply for a waiver. Select Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement to learn more about this requirement and how to request a waiver.

An exchange visitor may request that the two-year home residence requirement be waived only on the following basis:

  1. Statement from the exchange visitor's home country that it has no objection to the waiver;
  2. Request for waiver made by an interested U.S. government agency;
  3. Interest of a state agency (only for alien physicians);
  4. Exceptional hardship to the U.S. citizen or permanent resident spouse or child of the exchange visitor;
  5. Fear of persecution on account of race, religion, or political opinion.

If the State Department recommends a waiver of the two-year foreign residence requirement, the exchange visitor cannot extend his or her program beyond the expiration date of the current DS-2019 form or transfer to another Exchange Visitor program.

Additional Resources