J-1 212(e) Waiver
Two Year Home Residency Requirement
This information is designed for J-1 students, trainees and scholars (professors, researchers, specialists and short term scholars) visiting the University of Maryland, College Park. It explains the two-year home-country residence requirement affecting some Exchange Visitors and their J-2 dependents. This is general information. Please see an advisor in OIS (2111 Holzapfel Hall) to discuss your particular situation.
INTENT OF THE REQUIREMENT
The intent of the requirement is to have the home country benefit from the Exchange Visitor's experience in the United States. Exchange Visitors come to this country for a specific objective such as a program of study or a research project. The requirement is intended to prevent a participant who is subject from staying longer than necessary for the objective, and to ensure that he or she will spend at least two years in the home country before coming back to the United States for a long-term stay.
TERMS OF THE REQUIREMENT:
- If you are subject to the requirement, then, until you have "resided and been physically present" for a total of two years in either your country of nationality or your country of legal permanent residence, you are not eligible for.
- An H, L, or immigrant visa, or for H, L, or immigrant status in the U. S. The H classification includes temporary workers, trainees, and their dependents. The L classification includes intracompany transferees and their dependents. An immigrant is the same as a permanent resident, or holder of a "green card."
- A change of your status, inside the United States, from J to any other nonimmigrant classification except A or G. The A classification includes your home government's diplomats and representatives to the United States government, and their dependents. The G classification includes your government's representatives to international organizations, such as the United Nations, and their dependents.
- You are subject to the requirement if any of the following apply.
- Your J-1 participation is or was funded in whole or in part, directly or indirectly, for the purpose of exchange, by your home government or the United States government.
- As a J-1 Exchange Visitor, you are acquiring a skill that is in short supply in your home country, according to the United States government's "Exchange Visitor Skills List." You can download a copy of the "Skills List" from the web page of the State Department's Visa Services Office. However, it is approximately 150 pages long so you might prefer to view the copy available in the IES Office.
- You have participated as a J-1 in a graduate medical education or training program, i.e. a residency, internship, or fellowship, sponsored by the Educational Commission for Foreign Medical Graduates.
- You are the J-2 dependent of an Exchange Visitor who is subject to the requirement.
- If you have ever been subject to the requirement in the past, and have neither obtained a waiver nor fulfilled it by spending two years in your country, it still holds even if a more current Form IAP-66 OR DS-2019 reflects no basis for such a requirement.
The visa stamp in your passport, or your Form IAP-66 OR DS-2019, or both, may show an indication, by a consular officer or an U.S. Citizenship and Immigration Service (USCIS) inspector,that you are or are not subject to the requirement. These indications, labeled "preliminary endorsement" on Form IAP-66 OR DS-2019, are usually accurate but are not legally binding. Even though these endorsements are not final, USCIS usually accepts indications that the Exchange Visitor is subject.
CONFIRMING THE REQUIREMENT:
If you are unsure whether you are subject to this requirement you could do one or more of the following:
Consult your J-1 Responsible Officer in OIS. Be sure to take your passport, all of the pink copies that you have of Forms IAP-66 OR DS-2019, your I-94 Departure Record card, and copies of prior I-94 cards if they are available. Your Responsible Officer can often tell from the source of funding, or the Exchange Visitor Skills List, whether the requirement applies or not.
Consult an attorney. Make sure that you talk to an immigration specialist, preferably a member of the American Immigration Lawyers Association. In selecting an attorney a personal recommendation is best, but if none is available, call the local chapter of the American Bar Association for a referral or visit the Graduate Legal Aid Office in 1221 Stamp Student Union (301-405-5807) for a list of local immigration attorneys.
WAIVERS OF THE REQUIREMENT:
There are four grounds for waiver of the requirement. They are as follows:
Exceptional hardship to your spouse or a unmarried minor child who is a citizen or permanent resident of the United States:
If, for example, you had a child who was born in the United States and was therefore a citizen of this country, and if the child had a serious medical condition that could not be treated in your country, you might obtain a waiver because the child would suffer a hardship by going there with you to live. You would apply to USCIS on Form I-612, "Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act, as Amended."
Fear of persecution: If you can demonstrate that, because of your race, religion, political opinions, or nationality, you would face persecution by your home government if you went back to your country, you might qualify for a waiver. You would apply to USCIS on Form I-612.
Interest of a United States government agency:
If your participation in research or a project sponsored by a United States government agency is of sufficient importance to that agency, it can apply to the State Department's Visa Services Office for a waiver for you in its interest, not yours.
A "no-objection" statement (not permitted for medical trainees):
Your country's embassy in Washington, D.C. can indicate in a direct letter to USIA that it has no objection to your receiving a waiver, or the foreign ministry in your capital at home can write to the United States embassy there. A "no-objection" statement will usually not lead to a waiver if the Exchange Visitor has received funding from the United States government.
This web page summarizes some very complex and sensitive issues. It is intended only to help you understand the nature of the requirement, not to serve as a legal reference. Do not assume, from reading this web page, that you are subject to the requirement, or that you are not. Consult a specialist.