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Two-Year Home Country Physical Presence Requirement – 212(e)

The intent of the J-1 Visitor Exchange program and the two year home country physical presence requirement is to have other countries and the United States, through exchange, benefit from the experience of Exchange Visitors in the United States and their broadened skills and knowledge.  Exchange Visitors come to the United States for a specific objective, such as a program of study or a research project.  This requirement is intended to ensure that J-1 participants stay only as long as necessary for their intended objectives of their program in the USA and that they spend at least 2 years in their home countries before coming back to the USA for a long-term stay or employment purposes.

Exchange visitors who are subject to this requirement are:

  • Financed in whole or part by US federal government or home country government funds. 
  • From countries where their specific skills are needed, as determined by the Exchange Visitors Skills list published by the Department of State, or
  • Medical doctors who come to the US for training 

If a visitor is subject to the requirement, the J-1 and his/her J-2 dependents will not be eligible for certain visas or changes in immigration status until they have fulfilled the requirement.  Until the EV has “resided and been physically present” for a total of two years in either the country of nationality or country of legal residence, the J-1 holder and J-2 dependents are not eligible for:

  • An H, L, K or immigrant visa in the United States.
    • H includes temporary workers, trainees, and their dependents.
    • L includes intra-company transferees and their dependents.
    • A K visa is issued to the fiancé of a U.S. citizen.
    • An immigrant is the same as a permanent resident, or holder of a “green card.”
  • A change of status, inside the United States, from J to any other non-immigrant classification except A or G.
    • The A classification includes a foreign government’s diplomats and representatives to the United States government and their dependents.
    • The G classification includes a foreign government’s representatives to international organizations, such as the United Nations, and their dependents.


J-1 holders and J-2 dependents are subject to the requirement if any of the below apply:

  • J-1 participation is or was funded in whole or in part, directly or indirectly, for the purpose of exchange, by the EV’s home government or the United States government;
  • As a J-1 Exchange Visitor, the EV is acquiring a skill that is in short supply in his/her home country, according to the United States government’s “Exchange Visitor Skills List” as it appears in the Federal Register. 
  • The J-1 holder has participated as a J-1 in a graduate medical education or training program, i.e. a residency, internship, or fellowship sponsored by the Educational Commission for Foreign Medical Graduates; or
  • One is a J-2 dependent of a J-1 Exchange Visitor who is subject to the requirement. 

 

If a visitor is not certain if s/he is subject to this requirement, take the following steps:

  • Consult your IVP Specialist
  • Consult an attorney.  Talk to an immigration specialist, preferably a member of the American Immigration Lawyers Association.  Call the local chapter of the American Bar Association for a referral or recommendations of immigration attorneys.
  • Visit the U.S. Department of State website that addresses the requirement:  https://travel.state.gov/content/travel/en/us-visas/study/exchange.html

 

FAQs about the 2-Year Home Country Presence Requirement

1.    How do I really know if I’m subject to the requirement?

The visa stamp in your passport may show an indication by a consular officer or an immigration inspector that you are or are not subject to the requirement.  These indications, labeled “preliminary endorsement” on your DS-2019 are usually accurate even if these are not the final, legally binding determination.

2.      One of my DS-2019 forms says I am subject, another says I’m not. Which one is right?

If you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending 2 years in your county, it is still a requirement that you go home for two years even if a more current program and DS-2019 reflects no such requirement.

3.      Is there any way this requirement can be waived? Must I go home? Am I eligible for other “J” programs?

You should begin by visiting the US Department of State websites for information on the broader goals of the J-1 Exchange Visitor Program, the two-year home country presence requirement and waivers:

https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor.html

After thoroughly reading the US Department of State website, please contact your IVP Specialist.

4.    If I can’t change my J-1 visa status inside the US, can I go out, apply for a new visa and come back in as an F-1 student or B-2 visitor, for example?  F-1s are not subject, right?

You can apply for an F-1 or B1/2 visa, and if you get it you might be able to come back as an F-1 student or B-2 tourist as long as you meet the requirements. But, until you spend two years at home, or get a waiver, you are still subject to the requirement which limits your ability to apply for specific types of immigration status.  F-1 or B-2 status won’t make you subject, but under the condition that you were once a J-1 who was subject, you are still subject, even in another status.

5.      Once I finish my program and leave, can I come back?  Don’t the two years have to be uninterrupted?

If you are subject and you finish your program and go home, there is no regulation that says you have to stay out of the US for 2 years.  It simply means you are still subject to this requirement and its particular limitations on H, L, and immigrant visas.  The two years in your home country don’t have to be continuous, they can be cumulative.

6.      I’m subject.  If I go home and get married, and a year later my spouse gets an H-1B to work in the US, can I come with my spouse as an H-4 dependent?

Not if you haven’t fulfilled the two-year requirement.

 
 

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