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), because of the section of law where it is found: I.N.A § 212 (e).
Why is there a home residency requirement?
The Exchange Visitor Program (J-1) aims 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. and/or return with skills to benefit their home country.
Who is subject to the home residency requirement?
A J-1 may be subject if any of the following apply:
- Funding: His/her stay as a J-1 was funded by the U.S. government, his/her home country's government, or an international organization (e.g. Fulbright, AMIDEAST, etc.)
- Skills list: The academic or research program he/she received as part of the J-1 program is on the Exchange Visitor's Skills List for his/her home country.
- Medical training: He/she came as a J-1 to receive graduate medical training sponsored by the Educational Commission for Foreign Medical Graduates (ECFMG).
If the J-1 is subject to 212(e), any J-2s will also be subject.
Note: The DS-2019 (formerly IAP-66) that the J-1 used to apply for a J-1 visa, or enter the country, will be marked indicating if the J-1 is subject to 212(e) or not. This is sometimes incorrect, so if you are unsure if you are subject to 212(e), make an appointment with an advisor at the Reves Center. Please bring all of your past and current DS-2019s/IAP-66s.
What are the implications of being subject to the home residency requirement?
Persons subject to the home residency requirement are not eligible for an H or L visa or 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, a person could leave the U.S., apply for an F-1 visa, and re-enter as an F-1 even if he/she had not yet fulfilled the home residency requirement. However, he/she 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?
A person can fulfill this requirement by returning to their home country for a total of two years. This two year period does not have to be completed all at once (e.g. one could return to the home country for 6 months, come back to the U.S. as an F-1, then later complete the remaining 18 months in the home country). However, this requirement can't begin to be fulfilled until the person is no longer on the J-1 that made them 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 $215 processing fee. Then, there are several categories for applying for a waiver:
- No Objection Statement: This begins with an official statement from the J-1's government (usually an embassy in the U.S.) to the U.S. Department of State Waiver Review Division that they do not object to the J-1 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 persons here for graduate medical training sponsored by ECFMG and is almost never successful if U.S. government funding is involved.
- Interested Government Agency: If the J-1 is 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 the behalf of the J-1 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 the J-1 can show that if he/she returns to his/her home country, he/she will face persecution due to race, religion, political opinion, nationality, or membership of a certain social group, he/she may apply for a waiver directly to the Department of Homeland Security. Economic hardships or lack of professional opportunities do not qualify for this. Persons with a credible fear of returning home may want to consider asylum. This category requires submission of Form I-612 (instructions) (pdf) directly to USCIS.
- Exceptional hardship to a U.S. or permanent resident spouse or child: If by returning to the home country, the U.S. citizen or permanent resident spouse or child of a J-1 would experience exceptional hardship, the J-1 may apply directly to the Department of Homeland Security for a waiver. The J-1 must establish this with substantial documentation and this is only granted in cases where exceptional hardship is evident (e.g. the spouse or child would be unable to receive medical attention, or would face persecution). This category requires submission of Form I-612 (instructions) (pdf) 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. The J-1 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 the J-1 directly, whether the waiver application, Form DS-3035 is denied or approved.
Important Note: Once the Department of State recommends a waiver, the J-1/J-2s are no longer eligible for extensions or transfers of program. Therefore, the applicants may want to time their application accordingly.