Two-Year Home Country Residence Requirement (212e)

Overview

Certain J-1 Exchange Visitors are required to spend two years in their home country after their J program. If you are subject to this requirement, you cannot apply for H, L, or permanent residence status unless you either return to your home country for two years or obtain a waiver of the requirement. You also cannot change to another non-immigrant status while in the United States, except to A status (diplomatic or government official) or G status (international organization). You may apply for a different nonimmigrant visa (except H or L) at a U.S. Embassy or Consulate outside the U.S. If you re-enter the U.S. in another status, you still remain subject to the Two-Year Home Country Residence Requirement. To reiterate, you must fulfill the Two-Year Home Country Residence Requirement or get a waiver before beginning H, L, or U.S. permanent residence status.

Important: Contact the International Students and Programs Office (ISPO) to speak with an advisor before submitting your waiver application. Applying for the waiver prematurely will affect your current J-1 status. Once the waiver is recommended by the U.S. Department of State (DOS), you can no longer receive any additional benefits of the J-1 status, such as an extension of stay. Applying for a new J-1 visa stamp in your passport may resubject you to 212e. Our office is unable to provide further assistance with applications for waivers. In complex cases, you may wish to consult with a private immigration attorney. A list of immigration attorneys is available on our website.

Criteria

If the J-1 is subject, all J-2 dependent family members are also subject. Not all J-1 Exchange Visitors are subject to the requirement. Three criteria determine if you are subject to the requirement:

  1. Funding Source You are subject if you received any direct government funding from either the U.S. government or from your home government during your J-1 program. You are also subject if you received indirect government funding through a bi-national commission or international agency (for example, Fulbright or the U.N.). You are not subject if your funding comes only from indirect government funding through the university, unless the grants were specifically targeted for international exchange (e.g. an NIH or NSF grant through UCSD).
  2. Exchange Visitor Skills List You are subject if your country of last permanent residence is on the “Skills List” and if your area of specialization during your J-1 program is listed for your country. ISO can help you understand how the Skills List affects you.
  3. Medical Education or Training You are subject if you are a foreign medical graduate and came to the U.S. or acquired J-1 status to obtain graduate medical education or training. You are also subject if you were an Alien Physician sponsored by ECFMG.

Important: Your documents may have been marked by government agency officials indicating whether or not you are subject. The J-1 visa page in your passport may contain a note: “Bearer is/ not subject to Section 212(e).” Your DS-2019 form may also be noted in the bottom, left-hand corner. These documents are often marked incorrectly. If any of the three criteria listed above apply to you, you are subject to the requirement, regardless of what appears on your documents. Likewise, you may not be subject even if your documents are marked to indicate that you are. In this case, you should request an Advisory Opinion in order to avoid future confusion. See below.

Advisory Opinion

If it is unclear as to whether you are subject to the requirement, you can ask for an Advisory Opinion from the U.S. Department of State.  Mail legible copies of the following documents (including dependents if applicable):

  • All Forms DS-2019
  • Passport
  • Visa stamps
  • Confirmation Letters of funding and research field
  • Cover letter requesting for Advisory Opinion

Mail to indicated address.

You must provide a self-addressed, stamped envelope (pre-paid) for the Advisory Opinion response to be returned to you. Full instructions and current processing times are listed on the U.S. Department of State website.

The cover letter requesting for Advisory Opinion should state why you believe you are not subject to the Two Year Home Residency Requirement.

Waiver Process

If you do not wish to fulfill the requirement, you may be able to obtain a “waiver”. The length of the waiver process depends on many factors and can take from 3 to 12 months, or longer, to complete. All requests for waivers are submitted to DOS. When DOS recommends that a waiver be granted, they send a letter to the U.S. Citizenship and Immigration Service (USCIS). USCIS then sends a receipt notice and finally a Form I-612 Approval notice to you.

Caution: Once you have received a DOS recommendation of the waiver, you will not receive any more approvals of an extension or transfer of your J-1 program. It is also not possible to apply for a new J-1 visa stamp at a U.S. Consulate or Embassy.  If you do, you will almost certainly be subject once again to the requirement.

Criteria- There are four bases for waiver recommendations:

  • Statement of “No Objection” from your Home Country   This method is used by most J visitors. It is, however, not available to foreign medical graduates who acquired J-1 status to obtain graduate medical education or training. It also may not be successful for those who have received Fulbright grants or substantial U.S. government funding. You must contact your Embassy or Consulate to obtain this No Objection Statement. The statement should be forwarded to DOS directly; therefore, it is recommended that you provide them with the DOS case number for reference.
  • Interested U.S. Government Agency  A U.S. federal government agency may apply for your waiver if it can attest that your work is of national significance, that your participation in that work is essential, and that complying with the residence requirement would be detrimental to the U.S. national interest. This is usually a lengthy, complex procedure. A list of possible government agencies is included below.  You must contact them directly to inquire about their procedures for applying for a waiver.
  • Persecution  You may apply for a waiver if you can document that you would be persecuted upon return to your home country or last legal residence because of race, religion or political opinion. For the waiver, you apply directly to USCIS with Form I-612 and will need to submit substantial documentation. If USCIS agrees with your claim of persecution, they will request that DOS review it. You may wish to consult with an immigration attorney before beginning this process.
  • Exceptional Hardship to a U.S. Citizen or Permanent Resident Spouse or Child  You may apply for a waiver if you can document that returning home would cause exceptional hardship to your U.S. Citizen or Permanent Resident spouse or child. This is an extremely difficult standard to meet as you must demonstrate that the hardship was truly unforeseeable at the time you began J-1 status. For the waiver, you apply directly to USCIS on Form I-612. If USCIS agrees with your claim of exceptional hardship, they will request that DOS review it. You may wish to consult with an immigration attorney before beginning this process.

How to Apply for a Waiver

Step 1 – Initiate Process with DOS:

  • Complete form (DS-3035)
  • Follow the application instructions on the DOS website
  • The system will generate a case number and document packet(s) and bar coded cover sheet(s)
  • If your funding was paid through UCSD but you are indicated as subject based on government funding, you should also request a letter from your UC San Diego faculty sponsor or supervisor confirming your research field and funding. Please note that UC San Diego salary is not considered government financed even if its original source is from a federal or state grant, unless that source indicates that funding was specifically for international exchange. Therefore the confirmation letter should not indicate that you are receiving government funding.
  • PLEASE NOTE: If you are applying for a waiver based on the Medical Education or Training criteria, our office has been instructed by the U.S. Health and Human Services Office to sign on the very last line at the bottom of the second page of the form entitled “APPLICATION FOR WAIVER OF THE TWO-YEAR FOREIGN RESIDENCE REQUIREMENT OF THE EXCHANGE VISITOR PROGRAM.”  That last signature line has the caption, “Signature of Responsible Administrative Officer.” Gather the complete application and submit to ISO for signature.
  • IMPORTANT: It is your responsibility to submit all requested documents and required letters sent on your behalf.  All future correspondence with the Waiver Division should be reference to your assigned case number on all documents and outside of the envelope. Once you have been sent the checklist of items necessary to complete the review of your application, the Waiver Review Division will NOT follow up on documents that have not been received. Rather, it will be your responsibility to ensure that your file is complete.  If documentation is missing for the application to be processed, the Waiver Review Division will not contact you.

Step 2 – Home Country Works with DOS: If you are applying for the No Objection Statement waiver, you will need to wait for your consulate to forward the letter to the DOS. Be sure to reference your case number on the statement. You may want to ask the consulate to mail you a “courtesy copy” of the no objection letter when it is sent to DOS.

Step 3 – Notified of Decision by USCIS:

  • At the conclusion of the review process, the Waiver Review Division will forward its recommendation to USCIS
  • USCIS will mails I-797 / I-612 to the address listed on your application. This is the “waiver.” If your application is denied, you will be notified directly.

Address Change

If you change your address, notify the Waiver Review Division immediately. If your most current address is not on file, the Review Division may not be able to contact you in case additional information is needed to proceed with your case or you may not receive the results of the waiver request.

U.S. Government Agencies who have requested waivers of the 212(E) requirement:

  • Agency for International Development
  • Department of Agriculture
  • Department of Commerce
  • Department of Defense
  • Department of Education
  • Department of Energy
  • Department of Health & Human Services
  • Department of Housing & Urban Development
  • Department of Interior
  • Department of Transportation
  • Environmental Protection Agency
  • National Aeronautics & Space Administration
  • National Bureau of Standards
  • National Endowment for the Arts
  • National Endowment for the Humanities
  • National Science Foundation
  • Smithsonian Institution
  • Veterans Administration

 All of these agencies can be contacted at their headquarters in the Washington, D.C. area.

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