212(e), The Two-Year Home Residency Requirement
One of the most commonly misunderstood aspects of the J Exchange Visitor Program is the 2 Year Home Residency Requirement. This rule which is put in place by the U.S. Department of State (and in some circumstances in collaboration with foreign governments) requires that certain J Exchange Visitors return to their country of nationality or last legal permanent residence for two years or obtain a waiver of this requirement before they are eligible for H-1B (temporary employment), L-1 (intracompany transfer), or K (fiancée visa). They also may not adjust status to Permanent Resident (PR) or secure an immigrant visa.
It is important to understand that not all J Exchange Visitors are subject to this requirement. Additionally, those that are subject to this requirement are not prohibited from returning to the U.S. in some non-immigrant statuses. For example, if you are subject to this rule and would like to return to the U.S. as a tourist or a F-1 student you are eligible to do so, but would be prevented from changing status from within the U.S. For detailed information about 212(e) please see the U.S. Department of State website.
Who is subject to the requirement?
J-1 Exchange Visitors and their J-2 dependents (legal spouse and children under age 21) who meet at least one of the criteria below are subject to the 212(e):
- Home Government Funding. J Exchange Visitors who receive funding directly from their home country’s government are subject to the 212(e) requirement. Regional government funding does not apply.
- U.S. Government Funding. J Exchange Visitors who receive funding directly from the U.S. government are “subject” to 212(e). This does not include salary you receive from Johns Hopkins University that is received from federal grants. Only funds that are directly dispersed from the U.S. government to the Exchange Visitor would qualify as government funding. However, there are some exceptions which include grants that are specifically targeted for international exchange. Fulbright funding is considered U.S. government funding.
- Funding from an International Organization or Bi-National Commission. J Exchange Visitors who receive funding from International Organizations or Bi-National Commissions (organizations that receive their funding from government sources), such as, United Nations, NATO, or the European Community.
- The Exchange Visitor Skills List. J Exchange Visitors whose area of specialization has been identified as being in short supply by his/her government of legal permanent residence is considered “subject” to the Two-Year Home Residency Requirement.
- Medical Education and Training. All J Exchange Visitors who are foreign medical graduates who come to the U.S. to receive graduate medical education and/or training are subject to 212(e).
Are J-2 Dependents subject?
If you are the J-2 dependent of a J-1 Exchange Visitor who is subject to the 212(e) requirement you are also subject to this requirement. Please note that J-2 dependents must rely on the J-1 to apply for a waiver of the 212(e) requirement. J-2 dependents may not apply for the waiver separately from the J-1.
How do I determine whether I am subject to 212(e)?
To assist J-1 Exchange Visitors and their J2 dependents in determining if 212(e) applies to their J program, OIS has developed a brief tutorial on determining 212(e) subjectivity and a 212(e) Assessment Worksheet. Download the 212(e) worksheet and follow along as you view the presentation (with sound enabled). The presentation guides J-1 Exchange Visitors through the criteria assessing whether they are subject to 212(e) and where to find the information on the J-1 immigration documents.
Below are possible outcomes after viewing the presentation and completing the assessment worksheet.
Not Subject to 212(e)?
Individuals who are NOT subject to the 212(e) Two-Year Home Residency requirement are not obligated to fulfill the Two-Year Home Residency requirement or apply for a waiver.
Subject to 212(e)?
Individuals who are subject to the 212(e) Two-Year Home Residency requirement should consult an OIS advisor to determine which follow-up actions (if any) would be most appropriate based on their specific circumstances. Individuals seeking to move into another immigration status such as H-1B, L-1, K or adjust status to PR, would need to either obtain a waiver or spend two years in their home country before they would become eligible for those statuses.
- 212(e) Waiver
It is essential that you consult an OIS advisor BEFORE you begin a waiver application to understand which circumstances require a waiver, the timing/process of the waiver application, and how an approved waiver may impact your current immigration status.
If you are considering applying for a waiver, please review the additional information provided under Waivers page.
- Two Years in Home Country
Spending two years in your Country of Nationality or last Country of Legal Permanent Residence after completion of your J-1 program will fulfill the 212(e) Two-Year Home Residency requirement. If you are not eligible for a “No-Objection” waiver, you may be required to return home to fulfill this requirement.
Do not assume that your visa stamp(s) or DS-2019 form(s) have been marked correctly by U.S. government agencies. If it is unclear whether you have been marked correctly as “subject” or “not subject” to the 212(e) Two-Year Home Residency requirement, we encourage you to consult with an OIS advisor.
- Advisory Opinion
You may be advised to apply for an Advisory Opinion from the U.S. Department of State to determine whether you were correctly subject/not subject to the 212(e) Two-Year Home Residency requirement. You can find more information about requesting an Advisory Opinion on the U.S. Department of State website.
If you have questions about J-1 Exchange Visitor status, please contact the OIS at J1-Advising@jhu.edu.
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