The J-1 Exchange Visitor program is administered by the U.S. Department of State with the purpose of increasing “mutual understanding between the people of the United States and the people of other countries through educational and cultural exchanges.” Shepherd University sponsors individuals in J-1 visa status as both students and scholars, and the university community also includes numerous J-2 dependents – the spouse or child (under the age of 21) of a J-1 Exchange Visitor.
There J program is quite versatile as compared to many other visa statuses in the U.S., but it also comes with restrictions that could affect your future in the U.S. This document is meant to explain the restrictions and help you determine how they affect you. You can also contact the Office of International Initiatives (OII) for information specific to your situation.
There are three restrictions that will be discussed in this document – the Two-Year Home Residency Requirement – also called 212(e), the 24-Month Bar and the 12-Month Bar.
The Two-Year Home Residency Requirement –212(e)
This restriction is known by several names, including:
- The Two-Year Home Country Physical Presence Requirement
- 212(e) – shorthand for Immigration and Nationality Act, section 212(e), the main federal regulation that discusses this requirement.
Any international visitor in any J status (including J-2 Dependents) may be subject to the Two-Year Home Residency Requirement.
What Is The Two-Year Home Residency Requirement?
The Two-Year Home Residency Requirement specifies that an individual who is subject must spend an aggregate total of two years in his or her home country before being eligible for the following visa statuses:
- Any H status (including H-1B or H-4)
- Any L status (including L-1 or L-2)
- S. lawful permanent residence
In addition, individuals who are subject to 212(e) may not apply to the USCIS for a change of status to any status (including F, B, or any other status). Individuals who are subject to 212(e) may exit the U.S., apply for a new visa abroad (for any status other than H, L, or lawful permanent resident), and re-enter the U.S. in the new status.
Who Is Subject to the Two-Year Home Residency Requirement?
International visitors may be selected for the two-year home residency requirement based on three criteria:
- If the exchange visitor’s funding comes all or partially, directly or indirectly, from the U.S. government or a foreign government for the purpose of the J-1 program.
- If the field of the J-1 activities are on the skills list specific to his or her home country – the list of fields that the home country government requested to be included.
- The purpose of the J-1 program is for the exchange visitor to receive “graduate medical education or training.”
J-2 Dependents become subject to 212(e) if their primary status-holder, the J-1 Exchange Visitor, is subject.
Individuals who are subject to 212(e) remain subject until either the home-residency requirement is satisfied or the individual obtains a waiver. A J-2 Dependent is no longer subject to 212(e) if his or her primary status holder is granted a waiver.
Note that 212(e) counts aggregate days of presence in the home country after the end of the J-1 program. Physical presence in the home country does not need to be continuous for two years.
How Do I Know If I am Subject to 212(e)?
An individual who is currently in the U.S. in J-1 or J-2 status, or who has been in the past, can look on all Forms DS-2019 (current and historical) to determine whether he or she is subject to 212(e). If the J-1 is subject to 212(e) then the J-2 is automatically subject as well. There is a box on the lower left-hand side of the first page of the DS-2019 which contains information about 212(e). This information should also appear on the J-1 visa.
If you are not sure, contact OII for more information.
What If I Believe that I Should Not Be Subject?
If you believe that you have been selected to be subject to 212(e) by mistake (for instance, if you have been selected because of government financing, but you haven’t received government financing), consult with OII. If OII believes that a mistake has been made, you can apply to the Department of State for an Advisory Opinion on whether you should be subject.
What Is My Home Country for the Purpose of 212(e)?
Your “home country” for the purpose of 212(e) is your country of legal permanent residence at the time that you obtained J-1 or J-2 status.
Is My Field of Specialty on the Exchange Visitor Skills List for My Home Country? The most current version of the Exchange Visitor Skills List is available at: http://travel.state.gov/content/visas/en/study-exchange/exchange/exchange-visitor-skills-list.html
Applying for a Waiver of 212(e)
If you are subject to the Two Year Home-Residency Requirement – 212(e) – and you do not wish to satisfy the requirement by spending an aggregate total of two years in your home country, you may apply to the Department of State for a waiver.
Important Note: If you are thinking of applying for a waiver of the Two-Year Home Residency Requirement, speak to OII. There are implications of applying for a waiver of 212(e) that you should understand first. In particular, you will be unable to extend your J-1 or J-2 status after acquiring the waiver.
For more information about applying for a waiver of 212(e), visit this web site: http://travel.state.gov/content/visas/en/study-exchange/student/residency-waiver.html
The 24-Month and 12-Month Bars
The two other restrictions that apply to J-1 Exchange Visitors and their dependents are the 24-Month Bar and the 12-Month Bar. Both of these restrictions share some elements in common:
- They prevent an individual from becoming a J-1 Research Scholar or J-1 Professor. These restrictions have no affect on any other J category, or any visa status other than J-1.
- They are activated by previous stays in the U.S. in J-1 or J-2 status. If you have never been in the U.S. in J-1 or J-2 status, neither of these restrictions apply to you (though they may in the future if you are currently in J-1 or J-2 status).
- There is no waiver procedure for these restrictions.
- Unlike 212(e), there is no physical presence requirement for these restrictions. You can spend the 24 months or 12 months of the restriction either in the U.S. or outside the U.S.
The 24-Month Bar
Federal regulations stipulate that there must be a 24-month gap between an individual’s stays in J-1 Research Scholar or J-1 Professor status. If you have been in the U.S. in J-1 Research Scholar or J-1 Professor status in the past 24 months, and your program ended (either because you changed to a different visa status or because you ceased your J-1 activities and departed the U.S.), then you may not begin another J-1 Research Scholar or J-1 Professor program.
The 12-Month Bar
Federal regulations stipulate that after completion of any J program or time in J status that exceeded 6 months, one may not start a J-1 Research Scholar or Professor program for 12 months.