Two-Year Home Country Residence Requirement 212(e) for H, L, and Permanent Residence applicants 

If the J-1 is subject, all J-2 dependent family members are also subject. Not all J-1 Exchange Visitors are subject to the requirement. Three criteria determine if you are subject to the requirement:

1. Funding Source
   You are subject if you received any direct government funding from either the U.S. government or from your home government (or government of your last legal permanent residence) during your J-1 program. You are also subject if you received indirect government funding through a bi-national commission or international agency (for example, Fulbright or the U.N.). You are not subject if your funding comes only from indirect government funding through the university, unless the grants were specifically targeted for international exchange (e.g. an NIH or NSF grant through UCSD).
2. Exchange Visitor Skills List*
   You are subject if your country of last permanent residence is on the “Skills List” and if your area of specialization during your J-1 program is listed for your country. IFSO can help you understand how the Skills List affects you.
3. Medical Education or Training
   You are subject if you are a foreign medical graduate and came to the U.S. or acquired J-1 status to obtain graduate medical education or training. You are also subject if you were an Alien Physician sponsored by ECFMG.

Important: Your documents may have been marked by government agency officials indicating whether or not you are subject. The J-1 visa page in your passport may contain a note: “Bearer is/ not subject to Section 212(e).” Your DS-2019 form may also be noted in the bottom, left-hand corner. These documents are often marked incorrectly. If any of the three criteria listed above apply to you, you are subject to the requirement, regardless of what appears on your documents. Likewise, you may not be subject even if your documents are marked to indicate that you are. In this case, you should request an Advisory Opinion in order to avoid future confusion. See below.

***To see if your country of permanent residence is on the skills list please visit: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/skill-list-by-country.html

To access the skills list and the general skills list please visit the Federal Register Website

If it is unclear as to whether you are subject to the requirement, you can ask for an Advisory Opinion from the U.S. Department of State. Mail legible copies of the following documents (including dependents if applicable):

• J-1 visa page of your passport
• Self-addressed, stamped envelope (pre-paid)
• Supplementary Applicant Information Page
• Cover letter requesting for Advisory Opinion
  • This should state why you believe you are not subject to the Two Year Home Residency Requirement.
• Include a relevant documentation that may help the waiver review division determine subjectivity
• Copies of every/all Forms DS-2019/IAP-66 ever issued to you
• Description of your J-1 program(s), program dates, sources of program funding, and any other relevant information pertaining to your J-1 program

Further detailed information about requesting an Advisory Opinion can be found here, along with the mailing address and current processing times: https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/advisory-opinions.html.

If you do not wish to fulfill the requirement, you may be able to obtain a “waiver”. The length of the waiver process depends on many factors and can take from 3 to 12 months, or longer, to complete. All requests for waivers are submitted to DOS. When DOS recommends that a waiver be granted, they send a letter to the U.S. Citizenship and Immigration Service (USCIS). USCIS then sends a receipt notice and finally a Form I-612 Approval notice to you.

Caution: Once you have received a DOS recommendation of the waiver, you will not receive any more approvals of an extension of your J-1 program. It is also not possible to apply for a new J-1 visa stamp at a U.S. Consulate or Embassy.  If you do, you will almost certainly be subject once again to the requirement.

Criteria- There are four bases for waiver recommendations:

• Statement of “No Objection” from your Home Country  
  This method is used by most J visitors. It is, however, not available to foreign medical graduates who acquired J-1 status to obtain graduate medical education or training. It also may not be successful for those who have received Fulbright grants or substantial U.S. government funding. You must contact your Embassy or Consulate to obtain this No Objection Statement. The statement should be forwarded to DOS directly; therefore, it is recommended that you provide them with the DOS case number for reference.
• Persecution 
  You may apply for a waiver if you can document that you would be persecuted upon return to your home country or last legal residence because of race, religion or political opinion. For the waiver, you apply directly to USCIS with Form I-612 and will need to submit substantial documentation. If USCIS agrees with your claim of persecution, they will request that DOS review it. You may wish to consult with an immigration attorney before beginning this process.
• Exceptional Hardship to a U.S. Citizen or Permanent Resident Spouse or Child 
  You may apply for a waiver if you can document that returning home would cause exceptional hardship to your U.S. Citizen or Permanent Resident spouse or child. This is an extremely difficult standard to meet as you must demonstrate that the hardship was truly unforeseeable at the time you began J-1 status. For the waiver, you apply directly to USCIS on Form I-612. If USCIS agrees with your claim of exceptional hardship, they will request that DOS review it. You may wish to consult with an immigration attorney before beginning this process.
• Interested U.S. Government Agency 
  A U.S. federal government agency may apply for your waiver if it can attest that your work is of national significance, that your participation in that work is essential, and that complying with the residence requirement would be detrimental to the U.S. national interest. This is usually a lengthy, complex procedure. A list of possible government agencies is included below.  You must contact them directly to inquire about their procedures for applying for a waiver.

  U.S. Government Agencies who have requested waivers of the 212(E) requirement:

  Agency for International Development Department of Agriculture Department of Commerce Department of Defense Department of Education Department of Energy Department of Health & Human Services Department of Housing & Urban Development Department of Interior

  Department of Transportation Environmental Protection Agency National Aeronautics & Space Administration National Bureau of Standards National Endowment for the Arts National Endowment for the Humanities National Science Foundation Smithsonian Institution Veterans Administration

   

*We recommend J-1 scholars schedule an appointment with an IFSO advisor before applying for the 212e waiver. DS-2019s cannot be extended and international travel is not recommended once a waiver recommendation is granted by the U.S. Department of State. 

Step 1 – Initiate Process with the Department of State:

• Follow the application instructions on the Department of State website to complete form DS-3035
  • You will need your SEVIS Number, do not forget to include copies of all DS-2019s ever issued to you
  • The system will generate a case number and document packet(s) and bar coded cover sheet(s)
• If your funding was paid through UCSD but you are indicated as subject based on government funding, you should also request a letter from your UC San Diego faculty sponsor or supervisor confirming your research field and funding. Please note that UC San Diego salary is not considered government financed even if its original source is from a federal or state grant, unless that source indicates that funding was specifically for international exchange. Therefore the confirmation letter should not indicate that you are receiving government funding.
• PLEASE NOTE: If you are applying for a waiver based on the Medical Education or Training criteria, our office has been instructed by the U.S. Health and Human Services Office to sign on the very last line at the bottom of the second page of the form entitled “APPLICATION FOR WAIVER OF THE TWO-YEAR FOREIGN RESIDENCE REQUIREMENT OF THE EXCHANGE VISITOR PROGRAM.”  That last signature line has the caption, “Signature of Responsible Administrative Officer.” Gather the complete application and submit to IFSO for signature.
• IMPORTANT: It is your responsibility to submit all requested documents and required letters sent on your behalf. All future correspondence with the Waiver Division should be reference to your assigned case number on all documents and outside of the envelope. Once you have been sent the checklist of items necessary to complete the review of your application, the Waiver Review Division will NOT follow up on documents that have not been received. Rather, it will be your responsibility to ensure that your file is complete.  If documentation is missing for the application to be processed, the Waiver Review Division will not contact you.

Step 2 – Home Country Government 

• If you are applying for the No Objection Statement waiver, you will need to wait for your consulate to forward the letter to the Department of State Waiver Review Division. Be sure to reference your case number on the statement. You may want to ask the consulate to mail you a “courtesy copy” of the no objection letter when it is sent to the Waiver Review Division. 

Step 3 –  Department of State Waiver Review Division sends recommendation to USCIS

• At the conclusion of the review process, the Waiver Review Division will forward its recommendation to USCIS. They will send you a notification of the recommendation to the email address provided in on the initial Department of State waiver form DS-3035, or current address if you reported a change.

Step 4 – Notified of Decision by USCIS

• USCIS will mails I-612 Waiver Approval Notice to the address listed on your application. This is the “waiver.” If your application is denied, you will be notified directly.

If you change your address, notify the Waiver Review Division immediately. If your most current address is not on file, the Review Division may not be able to contact you in case additional information is needed to proceed with your case or you may not receive the results of the waiver request.