What is the two year home residency requirement, 212(e)?
It is a law that requires some J-1s and J-2s to return to their home country for two years after the J-1's program is completed. The home country is defined as the J-1's country of permanent residence at the time the J-1 became subject to the requirement.
The home residency requirement is also sometimes known as 212(e).
Why is there a home residency requirement?
The Exchange Visitor Program (J-1) exists to promote the exchange of international scholars and students in the U.S. This program is designed to have these visitors return to their home country with a better understanding of the U.S. or return with skills to benefit their home country.
Who is subject to the home residency requirement?
If you have been in J-1 status, you may be subject for any of these reasons:
- Funding: Your stay as a J-1 was funded by the U.S. government, your home country's government, or an international organization (e.g. Fulbright, AMIDEAST)
- Skills list: The academic or research program you received as part of the J-1 program is on the Exchange Visitor's Skills List for your home country.
- Medical training: You came as a J-1 to receive graduate medical training sponsored by the Educational Commission for Foreign Medical Graduates.
If the J-1 is subject to the home residency requirement, any J-2 dependents will also be subject.
Note: The DS-2019 that the J-1 used to apply for a J-1 visa, or enter the U.S, will be marked indicating if the J-1 is subject to 212(e) or not. This is sometimes incorrect, so if you have questions, make an appointment with an advisor at the Reves Center. Please bring all of your past and current DS-2019s and IAP-66s (the precursor to the DS-2019).
What if you are subject to the home residency requirement?
People subject to the home residency requirement are not eligible for an H or L visa in the U.S. or U.S. permanent residency until the home residency requirement is fulfilled or waived. They may not change status in the U.S. to any other non-immigrant status, except A, G, or NATO. However, they may leave the U.S. and apply for a visa for any status other than H, L, or permanent residency and re-enter in that status. They must still eventually fulfill the requirement or get a waiver.
For example, you could leave the U.S., apply for an F-1 visa, and re-enter as an F-1 even if you had not yet fulfilled the home residency requirement. However, you will eventually have to fulfill it or get a waiver before being able to obtain an H or L visa or permanent residency status.
How can this requirement be fulfilled?
You can fulfill this requirement by returning to your home country for two years. This two year period does not have to be completed all at once (e.g. you could return to your home country for 6 months, come back to the U.S. as an F-1, then later complete the remaining 18 months in your home country). But, you can't start fulfilling this requirement until you've finished the J-1 program that made you subject.
How can this requirement be waived?
Getting a waiver takes 6-12 months. The first step is to complete and file a DS-3035. The form must be completed online, printed, and mailed to the Department of State, with a $120 processing fee. Then, there are several categories for applying for a waiver:
- No Objection Statement: This begins with an official statement from the your government (usually an embassy located in the U.S.) to the U.S. Department of State Waiver Review Division that they do not object to you remaining in the U.S. The Waiver Review Division will then make a recommendation and sent it to the Department of Homeland Security, who will make the final decision. Generally, the No Objection Statement is used for people subject to 212(e) due to home government funding or the skills list. It does not apply to people here for graduate medical training sponsored by ECFMG and is almost never successful if U.S. government funding is involved.
- Interested Government Agency: If you are involved in a program of vital interest to a U.S. government agency (e.g. Department of Energy), the head of that agency may request a waiver on your behalf to the Waiver Review Division. The Waiver Review Division will make a recommendation to the Department of Homeland Security, who will make the final decision. These waivers are difficult to obtain and the process is quite lengthy.
- Credible fear of persecution: If you can show that if you return to your home country, you will face persecution due to race, religion, political opinion, nationality, or membership of a certain social group, you may apply for a waiver directly to the Department of Homeland Security. Economic hardships or lack of professional opportunities do not qualify for this. People with a credible fear of returning home may want to consider asylum. This category requires submitting Form I-612 to USCIS.
- Exceptional hardship to a U.S. or permanent resident spouse or child: If you have a U.S. citizen or permanent resident spouse or child, and by returning to your home country, they would experience exceptional hardship, you may apply directly to the Department of Homeland Security for a waiver. You must establish this with substantial documentation and this is only granted in cases where exceptional hardship is evident (e.g. your spouse or child would be unable to receive medical attention, or would face persecution). This category requires submitting Form I-612 to USCIS.
At the conclusion of the review process, the Waiver Review Division will forward its recommendation directly to the USCIS in the Department of Homeland Security. You will receive a copy of that recommendation at the address you listed on Form DS-3035. USCIS has the responsibility for making the final determination on the waiver request. USCIS will notify you directly whether or not your waiver application (Form DS-3035) is approved.
Important Note: Once the Department of State recommends a waiver, you and any J-2 dependents are no longer eligible for DS-2019 extensions or transfers of program. Therefore, you should time your application carefully.