One of the major issues with J-1 status is determining whether or not you are subject to the two-year home residency requirement, and if so, what options are available. Please read the following information carefully, and contact your adviser at OIA if you have any questions.
What is the Two-Year Home Residency Requirement?
The two-year home residency requirement (or 212(e), as it is referenced in the immigration regulations) means that those who come the U.S. in J-1 status cannot become permanent residents in the U.S., change status in the U.S., or get work or family-based visa status such as H, L or K until they return to their country of last permanent residence for at least two years cumulatively.
Who is subject?
Those in J-1 status (and their J-2 dependents) can become subject if any of the following apply to the J-1 program:
1) If the J-1 receives funding from the U.S. government, home government or an international organization to use for the J-1 program.
2) If the J-1 worked or studied in a field that appears on the "skills list." This is a list of fields of specialized knowledge and skills that are needed in the J-1's country of last permanent residence for its development. Canada, Australia and Germany are examples of countries that are not on the list. China, India and South Korea are examples of countries that have many skills on the list.
3) If the J-1 participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.
A schematic overview of who is subject to the 2-year home residency requirement is given in this chart. If you are not sure whether you should be subject to the 2-year home residency requirement, please contact your adviser. You may always request an official "advisory opinion" from the U.S. Department of State. This advisory opinion is a formal determination whether or not you are subject to the 2-year home residency requirement.
Can the requirement be waived?
If you received funding from your home government or an international organization, or are subject based on the skills list, it is often possible to get a waiver by requesting a "letter of no objection" from your home country’s embassy in Washington, DC.
If you received U.S. government funding (such as a Fulbright) it is nearly impossible to get this requirement waived.
For detailed information on the waiver process, visit the State Department website’s section on waivers.
Please note that if you are interested in a waiver, you should first talk to your OIA adviser because the timing can be critical. If you start the waiver process too early, you won't be able to travel in and out of the U.S. as a J-1, get an extension (including for Academic Training), and you may not be able to transfer your J-1 program.
It is important to know that people can be subjected to the two-year home residency requirement multiple times. For example, a student from China who comes to the US as a J-1 Student and then returns as a J-1 Scholar will be subjected to this requirement twice. Even though one can be subjected on multiple occasions, one can serve out the multiple requirements concurrently. The Chinese Student/Scholar only needs to spend two years in China after the J-1 last program to meet the requirements. If he or she elected to apply for a waiver, however, a waiver for each individual program will be needed.
Note also that it is often indicated on both the visa and/or DS-2019 form whether one will be subject to this requirement. However, this only serves as an initial determination. Contact your OIA adviser if you think you were wrongly subjected to the requirement.
What is the Two-Year Repeat Participation Bar?
All Exchange Visitors who come to the United States in the "Research Scholar" or "Professor" categories are also subject to the two-year repeat participation bar. The effect of this regulation is that Exchange Visitors who have completed their stays in the United States in either the "Research Scholar" or "Professor" category are not eligible to apply for a stay in the United States in either the "Research Scholar" or "Professor" category for two whole years. This regulation applies ONLY to these two J-1 categories and has no effect on eligibility for any other visa category or status. For example, it does not apply to Exchange Visitors in the "Short-Term Scholar" and "Student" categories. This regulation is not indicated on the visa stamp or DS-2019 form and is not the same as the two-year home residency requirement. Finally, this requirement cannot be waived.