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, also known by it's regulatory number 212e. 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 (temporary employment), L (intracompany transfer), K (fiancée) or Permanent Residence (Green Card) categories OR before they may change their visa status within the U.S.
This requirement does not prohibit a visitor from returning to the U.S. in any immigration status other than H, L, K, or Permanent Residence. 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.
- 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 their government of legal permanent residence are considered "subject."
- Medical Education and Training. Any J-1 visitor is subject if they are a foreign medical graduate and came to the U.S. to obtain graduate medical education or training.
Are J-2 dependents subject?
If a J-1 visitor is subject to the 212(e) requirement then all of their J-2 dependents are also subject. 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 to see an Advisor?
If there is a question about whether the student/scholar is subject to the 212(e) requirement, or how and when to apply for a waiver, they should attend a workshop or make an appointment to speak with an Advisor at Berkeley International Office.
- Do not assume that the 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 for an advisory opinion can be submitted to 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 Advisor. Once a "No Objection" recommendation is received from the U.S. Department of State, no further extension of the Form DS-2019 or transfer of the J-1 program is possible. The U.S. Department of State has detailed instructions for application of the waiver of 212(e) at https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor/eligibility.html. Fulbright students and scholars very rarely receive waivers.
- U.S. regulations, policies, and practices are subject to changes involving the waiver of the two year home country physical presence requirement. Please attend a workshop for further information.
Informational Meetings
The Berkeley International Office office holds workshops that cover all aspects of the two-year home country physical presence requirement. Please attend one of these meetings for more information, ask questions, and definitely BEFORE applying for a waiver.