Two-Year Physical Presence Requirement
What is the Two-Year Home Country Physical Presence Requirement?
Certain J-1 Exchange Visitors are subject to a two-year home country physical presence requirement. J-1 visitors "subject" to this rule must return to their country of last legal residence for two years or obtain a waiver of this requirement before they are eligible for the H-1B (temporary employment), L-1 (intracompany transfer) or Permanent Residence (Green Card) categories.
This requirement does not prohibit a visitor from returning to the U.S. in any other immigration status. For example, if the visitor wishes to return as a tourist or student within the two-year period and meets the requirements for those entries, the two-year physical presence requirement does not prohibit this.
Who is subject to the requirement?
J-1 visitors and their J-2 dependents (legal spouse and children under age 21) who meet at least one of the criteria listed below are subject to this rule:
- Home Government Funding. J-1 visitors who receive funding directly from their home country's government are subject to the 212(e) requirement. Regional government funding does not apply.
- U.S. Government Funding. J-1 visitors who receive funding directly from the U.S. government are "subject" to 212(e). Funding received as salary from University of California grants to the department are not considered government funding for this purpose. However, there are some exceptions which include grants that are specifically targeted for international exchange. Fulbright funding is U.S. government funding.
- 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 her/his government of legal permanent residence is considered "subject."
- Medical Education and Training. Any J-1 visitor is subject if he/she is a foreign medical graduate and came to the U.S. to obtain graduate medical education or training.
Are J-2 dependents subject?
If you are a dependent of a J-1 visitor who is subject to the 212(e) requirement you are also subject to this requirement. Please note that J-2 dependents must rely on the J-1 to apply for a waiver of the 212(e) requirement. J-2s may not apply for the waiver separately from the J-1.
When should I see an Adviser?
If you have a question about whether you are subject to the 212(e) requirement, or how and when to apply for a waiver, you should make an appointment to speak with an advisor at Berkeley International Office.
- Do not assume that your visa stamp or DS-2019 have been marked correctly by U.S. government agencies, especially if any of the above "subject" criteria apply. When an advisor feels the assessment has been made in error, a request will be made for an advisory opinion from the U.S. Department of State.
- Berkeley International Office advises that students/scholars do not apply for a waiver of the two-year home country physical presence requirement without first discussing the timing of the request with an International Student or Scholar Adviser. Once a "No Objection" recommendation is received from the Department of State, no further extension or transfer of the J-1 program is possible. The Department of State has detailed instructions for application of the waiver of 212(e) at http://travel.state.gov/visa/temp/info/info_1296.html. Fulbright students and scholars very rarely receive waivers.
The Berkeley International Office office holds monthly workshops that cover all aspects of the two-year home country physical presence requirement. Please attend one of these meetings for more information, or if you have questions, and definitely BEFORE you apply for a waiver.