Additional Regulations: J-1 Bars and 212(e) Two-Year Home-Country Physical Presence Requirement
Individuals who participate in an Exchange Visitor program in any J-1 category for more than 6-months in the United States (excluding Short-Term Scholar) in the previous year (12-months) are barred (not eligible) from returning to the United States in the categories of Research Scholar or Professor for a 12-month period from the end of their program (official Form DS-2019 program end date). The 12-month bar applies to both the principal J-1 and any J-2 dependents.
Individuals who participate in an Exchange Visitor program in the J-1 categories of Research Scholar or Professor are subject to a 24-month repeat participation bar. Individuals subject to the 24-month repeat participation bar may not return to the United States as another J-1 Research Scholar or Professor for a 24-month period from the end of their program (official Form DS-2019 program end date), regardless of the amount of time spent in these categories. The 24-month bar applies to both the principal J-1 and any J-2 dependents.
The bars do not prevent individuals from returning to the United States in any other visa status such as the B-1 (business), B-2 (tourist), F, H, etc. or in the J-1 categories of Student/Non-Degree Student, Student Intern, or Short-Term Scholar (Short-Term Scholar category excluded as the maximum duration is 6-months). The 12 and 24-months bars cannot be waived.
212(e) Two-Year Home- Country Physical Presence Requirement
The 212(e) is separate and different from the 12 and 24-month bars. The 212(e) may apply to Exchange Visitors in any J-1 category. If the principal J-1 is subject, any J-2 dependents are also subject. Certain Exchange Visitors (J-1) are subject to a two-year home-country physical presence requirement which requires a return to their home country for at least two-years at the end of the Exchange Visitor program. This is also known as the foreign residence requirement under U.S. law, Immigration and Nationally Act, Section 212(e). If an Exchange Visitor is unable to return to their home country to fulfill the two-year requirement or wishes to have this requirement lifted, a waiver approved by the Department of Homeland Security must be obtained.
Exchange Visitors may be subjected to the 212(e) requirement if:
- The Exchange Visitor’s area of study/field of research appears on the applicable home country’s Skills List. Subjected areas of study/field of research are determined by the home country which have been deemed critical and crucial, and in needed demand for the benefit of the Exchange Visitor’s home country (subject/field code can be found on section #4 of Form DS-2019).
- The Exchange Visitor’s program was supported in full or part, directly or indirectly by a government agency or certain international organizations.
- Participating in a graduate medical education or training program sponsored by the Education Commission for Foreign Medical Graduates (ECFMG).
A complete listing of Exchange Visitor skills subject to the 212(e), for applicable countries, can be found on the U.S. Department of State’s Exchange Visitor Skills List. Not all countries have a 212(e) Skills List. If your home country does not appear on the list, there is no requirement to return to your home country for two-years at the end of your Exchange Visitor program.
Note: The above applies to your country of citizenship or nationality as shown on your passport, except if the country of your nationality differs from the country of your last legal permanent residence at the time you obtained you J-1 visa status. The Skills List country would then be selected for the country of your last legal permanent residence.
Eligibility, processes and additional information on applying for a 212(e) waiver can be found on the U.S. Department of State’s website.
Once a 212(e) waiver is approved the UFIC/Exchange Visitor Services unit would be prohibited from conducting:
- Further extensions of Form DS-2019.
- A SEVIS to SEVIS transfer of your J Exchange Visitor status/SEVIS record to another U.S. institution.
If a 212(e) waiver is filed and in-progress the above actions are permitted. These actions are only restricted once the waiver is approved. The UFIC/Exchange Visitor Services unit would have a very limited role in the 212(e) waiver process; the process would be predominately the responsibility of the Exchange Visitor.
Do not assume the 212(e) notation on your Form DS-2019/J visa is correct; errors are common. The presence of notation or lack of notation does not always indicate whether the Exchange Visitor is subject to the 212(e). A United States institution’s immigration advisor or the adjudicating consular who prepared or reviews your Form DS-2019 may not have accurately noted the requirements to “be” or “not be” subjected to the 212(e), or regulations may have changed, or the demand for a particular skills in a particular country might have changed. You may request an official determination through the Advisory Opinion process.
United States embassy or U.S. consulate general visa officers determine if an Exchange Visitor is subject to the 212(e). Normally the adjudicating officer will note if and Exchange Visitor “IS” or “IS NOT” subject on the Form DS-2019 during the visa interview, within the box on the Form DS-2019 labeled “Preliminary Endorsement of Consular or Immigration Officer Regarding Section 212(e) of the Immigration and National Act and PL 94-484”. Bearer is “subject” or “not subject” will often be printed on the issued J visa. Inquiries about applicability of the 212(e) should be addressed to a visa section representative at the appropriate United States Embassy or Consulate.
If an Exchange Visitor is subject to the 212(e) the following are prohibited:
- Change to another immigration status by conducting an in-country change of status (process to change a visa status inside the United States.); excluding A, G, T and U visa statuses.
- Obtaining the H (work), L (intracompany transferee), or K (fiancé) visa, or filing for a lawful permanent resident status (LPR)
- Receiving an immigrant visa
An active 212(e) will not prevent a foreign national from returning to the United States on many other United States visa types (exclusions noted above), nor would prevent a change/application to most other visa statuses by applying for the visa at a United States embassy or consulate outside of the United States.