Waivers of 212(e)
By participating in a J-1 Visa Exchange Visitor Program, you, the Exchange Visitor, may be found subject to the two-year home country foreign residency requirement, also known as 212e. If you as the Exchange Visitor are subject to the two-year home residency requirement and have dependents in J-2 status, they too, would be subject.
If this requirement applies, you must return to your home country (country of citizenship or lawful permanent residence as indicated on the Form DS-2019 used to apply for J-1 visa status) for a cumulative total of two years at the end of the J-1 program before you are eligible for certain employment-based temporary visas (H-1 or L-1) or U.S. permanent residency. You will also be ineligible to apply for a change of status to another non-immigrant visa status while in the U.S. This requirement does not prevent you from extending your program end date for the maximum duration of the category or transferring to another eligible program while in J-1 status.
How the two-year home residency requirement is determined
Below are the conditions to which the Exchange Visitor can be subject to the two-year home country foreign residency requirement, if the exchange program:
- Is funded by either your home country’s government or the U.S. government; or
- Involves specialized knowledge or skills deemed necessary by your home country; or
- Involves receiving graduate medical education or training.
The U.S. Department of States’ Waiver Review Office has additional information about this requirement and waivers. Please note that if the Exchange Visitor is subject to Section 212(e) and you are recommended for a waiver by the Department of State, you will be ineligible to extend your J status.
Still unclear about whether you are subject to the 212(e) rule?
The OIS can assist our Exchange Visitors in determining whether or not the two-year home residency requirement applies to you. During your check-in session, your International Representative will alert you of this information. However, if you are still unsure, please contact your International Services Representative. We may refer you to a qualified immigration attorney for complex situations.
Requesting a waiver of the 212(e)
If the Exchange Visitor is found to be subject to the two-year home residency requirement, as a J-1 program sponsor, the OIS is unable to assist you with filing for a waiver. We encourage you to contact an immigration attorney knowledgeable in J waivers if you have any questions. Most applications to request a waiver of the two-year home residency requirement can be filed by the individual J-1 holder. A few must be filed by a U.S. employer. Detailed information about the waiver application process can be found at the U.S. Department of State’s website.
If you apply for a waiver, make sure to time this process correctly. Once an Exchange Visitor applies for and receives a waiver recommendation from the Department of State, they will no longer be eligible to extend their J-1 status, and travel may be unadvisable. Therefore, you will want to have another plan in place, such as sponsorship for H-1B visa status once you receive a favorable recommendation from the Department of State. Also, keep the OIS informed of this process. We may provide recommendations to you and your sponsoring department, such as, extending your program duration (if applicable) to ensure you have ample time.
An Exchange Visitor may request that the two-year home residence requirement be waived only on the following bases:
- No objection statement: Statement from the Exchange Visitor’s home country that it has no objection to the waiver
- Request for waiver made by an interested U.S. government agency
- Fear of persecution on account of race, religion, or political opinion
- Exceptional hardship to the US citizen or permanent resident spouse or child of the Exchange Visitor
- Interest of a state agency (only for alien physicians)
I-612 waiver approval received by Exchange Visitor
Once a waiver of the two-year home residency requirement has been approved by the U.S. Department of State, the Exchange Visitor will no longer be able to extend their J-1 status. The Exchange Visitor can transfer to another eligible program, but should contact that program prior to transferring to ensure that the program would accept their record with an approved waiver.
Again, timing is critical. If the Exchange Visitor is currently in the Research Scholar or Professor category and did not find sponsorship for H-1B status, they will not be able to return to the U.S. in J-1 status in the categories of Research Scholar or Professor for a period of two years after program completion. The reason for this is due to the two-year repeat participation bar, also referred to as the 24-month bar. This is a separate rule from the two-year home residency requirement. The two year repeat participation rule cannot be waived.