212(e) Home Country Presence Requirement

212(e):  Two-Year Home Country Physical Presence Requirement

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

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.  While they are subject to 212(e), exchange visitors are ineligible for the following benefits:

  1. They are not eligible for an adjustment of status to lawful permanent resident (immigrant/green card) status
  2. They are not eligible for an H visa (temporary workers and dependents), no for an L visa (intracompany transferees and dependents)
  3. They are not eligible for a change of their non immigrant status within the U.S. from J to any other nonimmigrant category except A (diplomatic) and G (international organization) statuses.

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).

Who is subject?

Not all exchange visitors are subject to the two-year residence requirement. There are three grounds on which an exchange visitor can become subject:

  1. If the exchange visitor's participation in an exchange program was financed, directly or indirectly, by the United States government or a foreign government for the purpose of exchange;
  2. If the skills that the exchange visitor is coming to develop or exercise are in a field which the exchange visitor's home government requested be included on the State Department "skills list;"
  3. The exchange visitor comes to the United States to receive graduate medical education or training.

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.

On what grounds is a waiver granted?

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.

For additional information, visit the State Department's Exchange Visitors website at http://travel.state.gov/visa/temp/types/types_1267.html