If you’ve ever been an Exchange Visitor on the J-1 visa, you may have heard of the “Two-Year Home Residency Requirement” or 212(e). If you have entered the US on a J-1 visa in the past and now wish to apply for a green card, it’s important to understand that if you were ever subject to this requirement, it could impact your eligibility to apply. The 212(e) requirement can be a bit complex, but in this article, we will help you understand if you are subject to this requirement and what to do.
What is the 212(e) requirement?
The Two-Year Home Residency Requirement, also known as 212(e), promotes cultural exchange by encouraging J-1 Exchange Visitors to return to their home country for two years after they complete their J-1 program. However, this rule only applies to certain categories of people currently in the US on a J-1 visa or who have previously been on a J-1 visa. If someone is subject to 212(e), they are required to return to their home country of citizenship or legal permanent residence and reside there for a cumulative period of two years before they are eligible to:
- Return to the US as a Legal Permanent Resident (green card holder) or
- Return to the US on an H-1B, K, or L visa.
Being subject to 212(e) also prohibits changing status in the US to any of those visas or applying for Adjustment of Status to Legal Permanent Residency until the conditions of the requirement have been met or a waiver has been issued.
Who is subject to 212(e)?
The J-1 visa has many different categories – examples of these categories include au pair, exchange student, visiting scholar, visiting physician, work-travel programs, and many more. Some of these categories, like visiting physicians, can automatically cause someone to be subject to 212(e). In contrast, those in other categories may be subject based on meeting at least one of the conditions below during their J-1 program:
- Receiving government funding: Funding directly or indirectly from either your home country’s government or the U.S. Government. In some situations, funding through a University could count as government funding.
- Receiving funding from an International Organization or Binational Commission: Funding from organizations that receive money from government sources such as the United Nations, NATO, etc.
- Specialized Knowledge or Skill: Having skills or expertise that your country has deemed essential and necessary to the country’s development as identified on the Exchange Visitor Skills List.
- Graduate Medical Education (GME) or Training: Visiting the US to obtain graduate medical education or training.
NOTE: It is possible to be subject to the 212(e) in more than one of the above categories.
How do you know if you’re subject to 212(e)?
The visa stamp in your passport and/or a US Consular note on the bottom-left of your original DS-2019 may indicate whether or not you are subject to the 212(e) requirement.
Please note: It is possible to be subject to 212(e) even if it is not indicated on your visa and/or DS-2019. It is also possible that the information on your DS-2019 or visa stamp may be inaccurate. If you have questions about whether you are subject, you can submit a request for an Advisory Opinion to the US Department of State.
What is a waiver of the 212(e) requirement, and can I apply for one?
In some situations, someone subject to 212(e) may be eligible to apply for a waiver of this requirement. When approved by the US Department of State, this waiver removes the 212(e) requirements – this means that someone who was previously subject to 212(e) who is approved for the waiver would no longer be barred from applying for Legal Permanent Residency or any of the other visa types that 212(e) prohibits.
However, please keep in mind that the waiver process can be lengthy, and it may take up to a year or more before a decision is made on your request. Please see the Department of State website for more information about applying for a 212(e) waiver, and click here to see the 212(e) waiver eligibility requirements.
Applying for the 212(e) waiver process can vary depending on your country of citizenship or legal permanent residence and is quite complex. Because SimpleCitizen is a self-service tool and not a law firm, we suggest you contact a licensed immigration attorney about applying for the waiver. The American Immigration Lawyers Association (AILA) is an organization of immigration attorneys. A good way to find an immigration attorney is to use the AILA website. To find an immigration attorney in your area, you can use AILA’s lawyer search here.
For some, 212(e) can be seen as a significant barrier to becoming a Legal Permanent Resident in the US. However, with the guidance of an experienced immigration attorney, many can apply for a waiver of this requirement and pursue their goal of immigrating to the US. For those approved for the waiver already, SimpleCitizen is happy to help you with the next steps of your immigration journey!
Please note: If you are subject to 212(e) and would like to use SimpleCitizen’s services when applying for a green card, your waiver must be approved when you submit your application for review by the network partner attorney. We will unfortunately not be able to review your application if you have only submitted your 212(e) waiver, but it has not been approved yet.
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Frequently Asked Questions
I would like to fulfill the 212(e) requirement before I apply for a green card. Am I allowed to leave my home country during my two-year home residency?
Yes! Being subject to 212(e) does not prevent you from traveling from or spending time away from your country of citizenship or legal permanent residence. Remember, 212(e) only prevents you from returning to the US as a Legal Permanent Resident (green card holder) or on an H-1B, L, or K visa until you fulfill the requirement or are approved for a waiver.
If I’m subject to 212(e), can I leave the US and return on another nonimmigrant visa type?
Yes, you can depart the US and return on another non-immigrant visa type (such as F-1 or B-2). However, this does not remove the 212(e) requirement. Remember, 212(e) only prevents you from returning to the US as a Legal Permanent Resident (green card holder) or on an H-1B, L, or K visa until you fulfill the requirement or are approved for a waiver.
If I’m subject to 212(e), is my J-2 dependent also subject to 212(e)?
Yes. J-2 dependent status is directly related to the status of the principal J-1 visa holder. If you are on the J-1 visa and subject to 212(e), then your spouse and/or children on the J-2 visa would also be subject to that requirement.
I came to the US on a J-1 visa more than 5 years ago and was subject to 212(e) for that J-1 program. However, I did not depart the US. Am I still subject to 212(e)?
Yes. If you did not reside in your country of citizenship or legal permanent residence for two (cumulative) years, and you do not have an approved 212(e) waiver, you are still subject to 212(e). No matter how long ago you were on a J-1 program subject to 212(e), this requirement will stay in place until you fulfill the requirement or are approved for a waiver.
My visa stamp says I am subject to 212(e), but my DS-2019 doesn’t. Am I subject to 212(e)?
It can be subject to 212(e) even if it is not indicated on your visa and/or DS-2019. It is also possible that the information on your DS-2019 or visa stamp may be inaccurate. If you have questions about whether you are subject, you can submit a request for an Advisory Opinion to the US Department of State.