According to the Department of State website: Certain exchange visitors (J-1) are subject to a two-year home-country physical presence requirement which requires you to return to your home country for at least two years at the end of your exchange visitor program. This is also known as the foreign residence requirement under U.S. law, Immigration and Nationality Act, Section 212(e).
If your Form DS-2019 or visa stamp indicates that you are subject to this requirement, you will be required to return to your home country for at least two years before you can pursue H-1B, L, K, or permanent resident status. In the alternative, you may request a Waiver of this requirement from the Department of State.
212(e) Home Residency Requirement is NOT the same as the Repeat Participation Rule.
Who is Subject to 212(e)?
J-1 status holders (and their dependent J-2 family members) at Fermilab may be found subject to this requirement if:
- If they receive funding from the U.S. government, home government or an international organization; OR
- If the J-1 worked or studied in a field that appears on the Exchange Visitor Skills List.
For a schematic overview of who is subject to the 2-year home residency requirement please review the chart prepared by the University of Chicago.
What does 212(e) requirement mean?
Being subject to regulation 212(e) only dictates that the J-1 and J-2 cannot do any of the following until they have fulfilled the two year home residency requirement, OR received an approved waiver to the requirement.
- apply for a change of immigration status while in the U.S.,
- apply for an H-1B or an L-1 visa
- apply for and receive Legal Permanent Residence in the U.S.
If you are unable (or unwilling) to return to your home country to fulfill the two-year requirement, you must obtain a waiver approved by the Department of Homeland Security prior to changing status in the United States or being issued a visa in certain categories for travel to the United States.
If you were found subject to 212(e) due to the U.S. Government funding, it is almost impossible to get a waiver.
If you were found subject for another reason, you may qualify for the waiver. For detailed information on the waiver process, visit the State Department website’s section on waivers.
If you believe you were found subject to the 212(e) in error, you may be able to get this corrected by requesting an Advisory Opinion from the Department of State.
Questions? Comments? Contact the Visa Office!