Overview
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). 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). 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 United States 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 United States, 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 United States 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 United States. 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).
Visa Classes Subject to 212(e)
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.
Compliance Expectation
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 (the back of the pink copy of the old version of the form).
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 United States or change to J status in the United States. 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 United States citizen does not release someone from 212(e). It merely means that the United States 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 United States 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 United States 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.
Circumventing this Requirement
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).
Questions and Concerns
If you have questions or concerns on this issue, please contact Duke Visa Services. You can reach us by sending a message to VisaHelp@duke.edu or by calling our office at 681-8472.