Overview
The 2-year home country residence requirement (also known as 212(e)) is a restriction on the J-1 exchange program intended to avoid “brain drain” from other countries to the United States. Exchange visitors subject to the 2-year home country residence requirement must return to their “home” countries for a total of 2 years before being eligible to apply for the following:
- A change of visa status inside the U.S. (except to A (diplomatic) and G (international organization) statuses)
- An H-1B temporary worker visa stamp or an L intracompany transferee visa at a U.S. consulate abroad
- U.S. permanent residence
Note that former exchange visitors are eligible for all other nonimmigrant visa types, even if subject to the 2-year home country residence requirement. These exchange visitors are also eligible for program transfers and extension of their J status up to the limits of time for their particular exchange visitor category.
How and Why the Determination is Made
The Department of State (DOS) determines, based on U.S. law and reciprocal agreements with other countries, who is subject to the 212(e) 2-year home country residence requirement. This determination is usually made initially when the exchange visitor applies for a visa stamp at a U.S. consulate abroad; however, an exchange visitor may find out later that they are subject. This could happen in the context of a subsequent visa application or other immigration application even if they did not receive a visa stamp or were not initially subject to the requirement. An exchange visitor may be subject to this requirement for one or more of the following reasons:
- The exchange visitor’s participation in an exchange program was financed, directly or indirectly, by the U.S. government or a foreign government for the purpose of exchange.
- The skills that the exchange visitor is coming to develop or exercise are in a field which their home country’s government requested be included on the ‘skills list’ set by DOS.
- The exchange visitor came to the U.S. to receive graduate medical education or training in the Alien Physician category.
An exchange visitor in one of these groups will continue to be subject, even if their funding or field of study changes, or if they leave the U.S. and return in another status. If the principal J-1 exchange visitor is subject to the 2-year home country residence requirement, dependents in J-2 status are also subject.
Errors in the Determination
Occasionally DOS erroneously determines that the exchange visitor is subject to the 2-year home country residence requirement. If an exchange visitor believes such an error has occurred, they can seek an advisory opinion from the DOS at any time during or after their J-1 status.
How to Have the Determination Waived
An exchange visitor may request that the 2-year home country residence requirement be waived only on the following grounds:
- 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
- Interest of a state agency (only for alien physicians; also known as a “Conrad 30 waiver”)
- Exceptional hardship to the U.S. citizen or permanent resident spouse or child of the exchange visitor
- Fear of persecution on account of race, religion, or political opinion
Some of these waiver options may not be available, depending on why the exchange visitor was subject to the restriction in the first place. Exchange visitors may consult with a private immigration attorney in pursuing a waiver. Once DOS recommends a waiver of the 2-year home country residence requirement, the exchange visitor cannot extend his or her program beyond the expiration date of the current DS-2019 form. For additional information, visit the DOS’s Exchange Visitor Program website.