J-1 Exchange Visitors (EVs) and their J-2 dependents, whether students or scholars, can be subject to a two-year home country physical presence requirement.
This rule is located in section 212(e) in the Immigration and Nationality Act (INA), the law that covers topics related to immigration and citizenship. This is why you will hear this rule referred to as 212(e). This rule is not the same as the 24-month bar that is only applicable for J-1 Research Scholars and Professors.
Contact OISS if you have questions about 212(e) or whether you are subject.
What is 212(e)?
Since the J-1 Program is an exchange program, the Department of State (DOS) requires that some exchange visitors return home at the end of their programs for a minimum of two (2) years. This is to encourage and foster exchange of ideas between countries, and to allow the EV time to share their newly obtained knowledge and experience.
If you are subject to 212(e), you must return to your country of citizenship or your country of last legal permanent residence after your J-1 program is complete. You must remain there for a total of two (2) years. During this time, you cannot change or adjust status to H, L or lawful permanent residence (LPR). This requirement remains until you have either fulfilled the rule or you have been approved for a waiver.
Who is subject to 212(e)?
There are several ways to become subject to the two-year home country physical presence requirement.
The U.S. Department of State (DOS) created a list of fields and specialized knowledge, and then entered into an agreement with other countries about what skills those countries need. This list is known as the Skills List. If you are a resident or citizen of a country that is on the Skills List and your field appears on the list, you are subject to 212(e). See if your country has a Skills List on a website provided by DOS.
The Skills List was updated on December 9, 2014. For more information, read our 2024 Exchange Visitor Skills List webpage.
If you receive funding from your home government, you will be subject to 212(e).
If you receive funding from the U.S. government, you are subject to 212(e). This includes funding such as Fulbright or Fogarty. It is very difficult to obtain a waiver if you have received U.S. government funding.
If you were in the ECFMG (Educational Commission for Foreign Medical Graduates) program to train, you are subject to 212(e). It is very difficult to obtain a waiver in this case.
How do I know if I’m subject?
Be extra cautious when trying to determine if you are subject to 212(e). When making a visa application, the consular officer often marks on your DS-2019 if you are subject to 212(e). It may also be marked on your visa. Sometimes these markings are incorrect and should not be the only criteria used in determining subjectivity. When in doubt, always request an Advisory Opinion.
If you think you and accompanying dependents were marked as subject to the requirement incorrectly or if you want to ensure that you know if you are subject, there is an option to request an Advisory Opinion after your arrival to the U.S.
An Advisory Opinion is a letter from the Department of State (DOS) that states if you are subject to 212(e). If your Advisory Opinion says you are not subject, you do not need to apply for a waiver. If your Advisory Opinion says you are subject, you may be eligible to apply for a waiver. Keep your Advisory Opinion. If it proves that you are not subject, you will need your Advisory Opinion for all future changes of status including if adjusting status to LPR.
OISS does not submit advisory opinion letters for J-1 students or scholars. Advisory Opinion information can be found the DOS website.
I am subject to 212(e), what now?
There are several ways to obtain a waiver. It is important to know that applying for and receiving a waiver may limit allowed activities in J immigration status. Speak to your OISS adviser before applying for a waiver for 212(e). Receiving a waiver can limit changes available to you during the rest of your J program.
- No Objection Statement from your home country.
- Hardship to U.S. citizen spouse or U.S. citizen child. Contact an immigration attorney for more information.
- Persecution in home country. Contact an immigration attorney for more information.
- Interested U.S. government agency. Contact an immigration attorney for more information.
- For most ECFMG participants, the state waiver program is the only waiver option. Contact an immigration attorney for more information.
OISS strongly recommends that you do not attempt to obtain waivers based on aforementioned criteria two (2) through five (5) without the assistance of an attorney. Contact OISS if you are going to seek a waiver based on criteria four (4) or five (5) through the sponsorship of WashU.
If you cannot obtain a waiver and you are subject to 212(e), you should return to your country of citizenship or country of legal permanent residence. If you have any questions about what country you must return to in order to fulfill 212(e), contact an immigration attorney.