"J" Exchange Visitor Program
INA 212(e) Two-Year Home Country Physical Presence Requirement

NOTE: as of August, 2002, the Form IAP-66 was replaced by the Form DS-2019. Individuals may have documents with either form number, but both refer to the Exchange Visitor Program.

Q1.	What is the Two-Year Home Country Physical Presence Requirement or INA 212(e)?
A1.	Congress created the "J" Exchange Visitor Program to bring foreign nationals to the United States to gain new knowledge and ideas and to then return to their home countries to share that knowledge with their fellow countrymen. Ideally, the program develops better understandings and closer ties between participants from other countries and US citizens. To ensure that exchange occurs and to carry out this goal of the program, Congress included in the law a two-year home country physical presence requirement. The precise section of the law is the Immigration and Nationality Act, Section 212(e). Full text of the law is available on the DHS web site. For convenience people often refer to the requirement by its legal reference as "INA 212(e)" or as just "212(e)." Persons to whom the rule applies are referred to as being "subject to 212(e)." It is an important characteristic of the J status that all of those in this visa class should understand, even if they are not currently subject to 212(e). INA 212(e) makes certain J visa participants ineligible for an H, L, or Lawful Permanent Resident (LPR) status until they have returned to and been physically present in their last country of citizenship or permanent residence for a minimum of two years after completion of their J exchange programs. This means that a person in either J-1 or J-2 (dependent) status subject to 212(e) cannot reenter the U.S. in H, L, or immigrant ("green card") status until the two-year requirement has been fulfilled. Furthermore, these persons cannot change to another visa class while in the U.S., other than A or G, without first fulfilling this requirement. INA 212(e) does not affect eligibility for other visa classes such as a B tourist, an F student, or an O outstanding scholar. Nor does it prevent a person from entering again in J status. It only prohibits H, L, or LPR. For example, a person subject to 212(e) may leave the U.S. and return in F status to pursue a course of study. However, the F-1 remains subject to 212(e) and remains ineligible for an H, L, or LPR visa. Two organizations commonly make determinations regarding 212(e), the Department of State (DOS) and the Department of Homeland Security (DHS). Usually, the DOS consular officer makes a preliminary determination of whether someone is subject and notes that determination on the bottom left corner of the DS-2019 and/or on the J visa stamp in the passport during the visa application process. The DHS immigration officer makes a similar assessment if the individual applies for any immigration benefits while in the U.S. Sometimes the determination made by the consular or immigration officer is wrong because of the limited information available to the officer regarding the particular program. Final authority to determine whether one is subject to 212(e) belongs to the Exchange Visitor Program and the Bureau of Consular Affairs at DOS. Consular and immigration officers may ask for Advisory Opinions from DOS regarding 212(e).
Q2.	Who is subject to 212(e)?
A2.	Any person in one or more of the following categories is subject to this requirement regardless of what is stated on the DS-2019 or visa stamp in the passport. Do not assume that a "subject" or "not subject" determination is correct. Review your circumstances relative to the following information. Note that you may be subject in more than one category. For example, if you have government funding and you are on your country’s Skills List, you are subject for two reasons, not just one. Government Financing Those whose participation in the "J" Exchange Program is financed in whole or in part, directly or indirectly, by the home government, the government of the last country of legal permanent residence, the U.S. government, or an organization that has received governmental funding specifically for the purpose of international exchanges are subject. Examples: Fulbright program, etc. Skills List Those who already have or will obtain from the Exchange Program a skill on the Skills List of their country of citizenship or the country of last legal permanent residence are subject. Foreign governments, not the United States government, issue Skills Lists to identify persons whom they view as having skills they want returned to the home country. In doing so they are making a formal diplomatic request that their citizens and residents who participate in the Exchange Visitor Program be made subject to 212(e). Foreign Medical Graduates Those who attended medical school abroad and who are in the U.S. for graduate medical education or training under the sponsorship of the Educational Commission of Foreign Medical Graduates (ECFMG) always are subject. Although ECFMG has a faculty research component, most participants in the ECFMG program are physicians in the U.S. for graduate medical education or training. Without exception, those physicians are subject to 212(e) regardless of whether they have government funding or are on the Skills List.
Q3.	How would I know if I am subject? I didn’t know this when I first got J status. How can I be held to this requirement if I didn’t know about it.
A3.	Part of the J process is to provide you with information so that you enter the program with informed consent and knowledge of the compliance expectation. Look at page 2 of the DS-2019. All participants in a J Exchange Visitor Program must sign page 1 of the DS-2019 in order to obtain a visa or use the DS-2019 to enter the U.S. or change to J status in the U.S. In doing so, they are stating that they understand and are willing to comply with INA 212(e) if it applies to them. Page 2 of the DS-2019 (the back of the pink copy of the old IAP-66) explains the requirement and the expectation that those participating in the Exchange Visitor Program will return home as agreed. It is important for those signing this agreement and who may be subject to 212(e) to note the following. ·         Marriage to a U.S. citizen does not release someone from 212(e). It merely means that the U.S. citizen will have to spend the two years in the home country with the J participant or the couple will have to be separated while the J participant meets the requirement. ·         A J-2 dependent’s status is directly related to the status of the J-1 principal. Therefore, if the J-1 is subject to 212(e), then the J-2 also is subject. There has been some legal debate about whether the law makes the J-2 subject, or only the J-1, but DOS interprets the law that way and has done so for decades. ·         Persons who are subject to 212(e) and return home, later entering the U.S. without fulfilling the requirement, remain subject to the requirement. For example, returning in F or O status to study or work only postpones the requirement; it does not eliminate it. ·         Persons who at any time on any program are subject to 212(e) remain subject, even if they transfer to a program that does not carry the requirement. For example, if you enter under the Fulbright program and are subject due to government funding, you remain subject even if you change to the school’s J program and have no government funding. ·         Persons who are subject remain so until they have 1) gone home for the required time, or 2) obtained a waiver of the requirement. The passage of years or decades does not negate the requirement. Time spent in another country does not count to fulfill it. Giving up one’s citizenship and gaining citizenship elsewhere does not waive it. Example: Citizen of Country "X" is subject to 212(e). He leaves the U.S. and spends 10 years doing research in Country "Y." He obtains citizenship in Country "Y." He loses or gives up his citizenship in County "X." He remains subject to 212(e) with a return obligation to County "X." He must return there or obtain a waiver from there before he can obtain an H, L, or LPR visa.
Q4.	I know I agreed to go home, but I really don’t want to do that. Isn’t there some way to get out of this requirement and have it not apply to me?
A4.	Some persons who are subject to 212(e) choose not to meet the obligation to return home, and they apply for a waiver of the requirement. The kind of waiver available to you depends, in part, on why you are subject to 212(e).
Q5.	I still have questions about this. Who can answer my questions?
A5.	Contact the Office of Enrollment Services by sending a message to klynd@usouthal.edu or call the office at 460-6494.

LINKS

Department of State Exchange Visitor Program – Home Page http://exchanges.state.gov/education/jexchanges/

From this site you may link to the text of the Exchange Visitor Program regulations at 22 CFR, Part 62 and many other resources.

Department of State Exchange Visitor Program – Skills List http://exchanges.state.gov/education/jexchanges/participation/waivers.htm

Click on "Skills List" in the lower right corner.

Immigration and Nationality Act (INA)                                             http://uscis.gov/graphics/lawsregs/index.htm

Click on "Immigration and Nationality Act" and then select the section number. Example "212."