212(e) Home Residency Requirement
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(Please note: The information in the following sections is intended for both J-1 students and all other J-1 exchange visitors.)
In some cases, J-1 exchange visitors and their J-2 dependents may be subject to regulation 212(e) of the Immigration and Nationality Act (INA), also known as the home residency requirement, home physical presence requirement, or two-year rule. If subject, the exchange visitor and all accompanying dependents will have restrictions on eligibility to change status or obtain a new visa after completion of the program. These restrictions are applied when the exchange visitor enters the United States on a J visa or changes to J status, regardless of the amount of time spent in the United States, whether the field of study or funding changes, or whether the program is completed.
OIP will help determine if the exchange visitor is subject to the requirement and review guidelines at orientation.
What is Restricted?
Unless and until the requirement has been fulfilled or a waiver has been approved, exchange visitors who are subject to 212(e):
- Are not eligible to apply for permanent residency (a green card). However, they are not restricted from filing an immigrant petition (I-130, I-140, I-360, I-526);
- Are restricted from applying for any H, K, or L visa, although they are permitted to leave the United States and enter on any other nonimmigrant visa they are eligible for; and
- May only change status within the United States from J to A, G, or U.
The restriction remains with the exchange visitor until it is fulfilled or waived. For example, if an exchange visitor who is subject to the 212(e) requirement completes the program and re-enters on another nonimmigrant visa, he/she remains ineligible to apply for permanent residency or an H, K, or L visa even though he/she is no longer in J status.
Who is Subject?
J-1 exchange visitors and their J-2 dependents will be subject to 212(e) if:
- Participation in the program is financed in whole or in part, directly or indirectly, by the U.S. government or the individual’s home government;
- The skills that the exchange visitor is developing or exercising in the program are listed under the Skills List for the individual’s home country; or
- The purpose of the program is to receive graduate medical education or training (not applicable to UTEP).
If a J-1 exchange visitor is subject to 212(e), all accompanying J-2 dependents are also subject.
There will often be a notation on the J-1 visa that indicates if the exchange visitor (“bearer”) is subject. DOS or DHS may also annotate the DS-2019 to indicate whether the exchange visitor is subject. It is important to retain copies of all prior visas and DS-2019s and provide them when applying for any future exchange program or immigration benefit.
Advisory Opinions
If OIP and the exchange visitor cannot determine whether an exchange visitor is subject to the 212(e) requirement, an Advisory Opinion from DOS may be requested to determine if the requirement applies. The application is made by mail and typically takes four to six weeks to receive a response.
To learn more, visit Advisory Opinions.
Fulfilling the Requirement
To fulfill the requirement, all subject exchange visitors must reside and be physically present in the country of nationality or last legal permanent residence for an aggregate of two years. The “clock” will not begin until the exchange visitor has completed the program and departed the United States.
Obtaining a Waiver
Some individuals may be eligible for a waiver of the 212(e) requirement. There are four waivers that UTEP exchange visitors may apply for:
- No objection (statement from the exchange visitor’s home country that it has no objection to the exchange visitor not completing the two-year residency requirement);
- Interested U.S. Federal Government Agency or IGA (a U.S. government agency requests that the two-year residency requirement be waived so that the exchange visitor can work on a project for or of interest to them);
- Persecution (the exchange visitor believes that he/she will be persecuted based on your race, religion, or political opinion if required to return home); and
- Exceptional hardship to a U.S. citizen or permanent resident (green card holder) spouse or child (the exchange visitor’s departure from the United States would cause exception hardship to his/her U.S. citizen or permanent resident spouse or child).
If a J-1 exchange visitor receives a waiver, the requirement is also waived for all J-2 dependents. In some cases, a J-2 may apply for a waiver separately from the J-1, but it will not cover the J-1.
If a J-1 exchange visitor receives approval for a waiver before completing the J-1 program, he/she is no longer eligible for program extensions.
OIP can provide basic information about these waivers but we suggest consultation with an experienced immigration attorney if the exchange visitor has detailed questions or needs help with the application.
To learn more about the 212(e) requirement and different types of waivers, visit DOS.
To apply for a waiver, visit J-1 Waiver Recommendation.