What is the Two-Year Home Country Physical Presence Requirement?
The two-year home country physical presence requirement (also known by its regulatory citation, “212(e)” applies to certain J-1 exchange visitors. Exchange visitors who are subject to the requirement must return to their home country of last legal residence for a two year period before they are eligible for certain US immigration benefits. While they are subject to 212e, exchange visitors are ineligible for the following:
- They are NOT eligible for an immigrant visa or adjustment of status to permanent resident (immigrant/green card) status.
- They are NOT eligible for an H visa (temporary worker), a K visa (fiancé), or an L visa (intra-company transferee).
- They are NOT eligible to change their non-immigrant status within the US from J to any other non-immigrant category except A (diplomatic), G (international organization), or U (crime victim).
The requirement does not prohibit exchange visitors from returning to the US in any other non-immigrant status, such as B-1/B-2 tourist, WB/WT visa waiver or F-1 student.
Once the exchange visitor has fulfilled the two year home country physical presence requirement, the above restrictions are lifted.
Who is subject to the requirement?
J-1 exchange visitors will be subject to the 212(e) requirement if they meet any one of the criteria below:
- Home Government Funding: J-1 visitors who receive funding directly from their home country’s government. Regional government funding does not apply.
- U.S. Government Funding: J-1 visitors who receive funding directly from the U.S. government for the purpose of the exchange program, for example Fulbright grants.
- Funding from an International Organization or Bi-National Commission: J-1 visitors who receive funding from International Organizations or Bi-National Commissions (organizations that receive their funding from government sources), such as, United Nations, NATO, or the European Community.
- The Exchange Visitor Skills List: J-1 visitors whose area of specialization has been identified as being in short supply by the visitor’s home government.
- Medical Education and Training: Any J-1 visitor is subject if s/he is a foreign medical graduate and came to the US to obtain graduate medical education or training.
J-2 dependents (spouse and children under age 21) are subject to the 212(e) requirement if the J-1 exchange visitor is subject.
Fulfilling the requirement
To fulfill the home residence requirement, exchange visitors subject to 212(e) must reside and be physically present in their country of nationality or last legal permanent residence for a period of at least two years following departure from the US after their exchange program. The two years of physical presence do not have to be continuous. Separate periods of residence spent over time after the exchange program has been completed may be aggregated to establish two years. It is recommended that exchange visitors keep records of their home country residence in order to document fulfillment of the 212(e) requirement.
Note that if an exchange visitor returns to the US for a new J-1 exchange program that is subject to 212(e), the visitor will be subject to the two year requirement again.
Waivers of the requirement
Under certain circumstances a J-1 exchange visitor who is subject to the two year home country physical presence requirement may apply for a waiver of the requirement. Receiving a waiver can have serious consequences, so careful planning is important.