Some J-1 exchange visitors must go back to their home country for at least 2 years before they can change to certain other visa types or become a US permanent resident.

This can be a barrier for some exchange students who would like to continue their studies after the exchange program or scholars who would like to extend their stay.

Therefore, this post will break down everything about 212 (e) based on the USCIS Policy Manual.

Contents

1. Who is subject to 212(e)?
2. Common myths about 212(e)
3. Best Practices to not be subject to 212(e)
4. How to apply for a 212(e) waiver?
5. How can you demonstrate that you meet the 212 (e)?

Who is subject to 212(e)?

According to the J exchange program, Form DS-2019 will mark 212(e) if:

• The exchange visitor’s category is Alien Physician (PL 94-484) or
• The exchange visitor’s program was financed by:
  o A U.S. Government Agency
  o The Exchange Visitor’s Government
  o Current Program Sponsor (for G-1, G-2, and G-3 programs only)

Note that the SEVIS system does not add 212(e) indication based on the Exchange Visitor Skills List but the Consular Officer might make a decision based on the skills list.

This means that if the J-1 visa holder is subject to 212(e) due to the Exchange Visitor Skills List, it’s not because of the ARO who issued Form DS-2019- it is the consular officer’s decision.

Exceptions to the requirement are going to be when there is…

• War or civil unrest in the home country
• Travel bans imposed by the home country
• Shifting borders or political changes

It is worth noting that USCIS considers exceptions on a case-by-case basis.

Common myths about 212(e)

1. J-1 visa holders get subjected to 212(e) due to the major.
   • NO! On March 11, 2024, the exchange program confirmed that the SEVIS system does not mark 212(e) based on the Exchange Visitor Skills list.
2. 212(e) mark can be removed from DS-2019 when correct funding documents are submitted
   • NO! Once Form DS-2019 is generated, the 212(e) indication cannot be removed. If the funding information is entered incorrectly, (A)ROs (school officials) will have to cancel the record and re-issue the new Form DS-2019
3. 212(e) indication on Form DS-2019 supersedes the one in the visa
   • NO! 212(e) note on Form DS-2019 tells the consular officer that the J-1 applicant may be subject to 212(e) regulation. Ultimately, it will be at the Consular Officer’s discretion to decide whether the J-1 visa applicant is going to be subject to 212(e) or not.

The visa annotation supersedes the indicator on the Form. For example, if the Form is marked subject to 212(e) but the visa annotation says that the bearer is not subject, the exchange visitor will not be subject to the 212(e) requirement.

SEVIS Quick Tip: Application and Request Timeouts and updated 212e Guidance

Best Practices to not be subject to 212(e)

1. Go for the category that is not subject to 212(e)! According to the J SEVIS program, “exchange visitors participating in the Au Pair and Summer Work Travel exchange visitor program categories are not subject to INA 212(e).”
2. Self-fund or receive funding/grants from non-government entities
3. If you are issued Form DS-2019 as an Alien Physician or for a graduate medical training program, you may consider providing your service in an underserved area for three years (Conrad State 30 Program). Continue to read the post to learn more about the 212(e) waiver eligibility and process.

How to apply for a 212(e) waiver?

If you’re on a J-1 visa, you usually have to go back to your home country for 2 years before you can apply for certain visas or change your immigration status in the US. However, there are a few ways to get around this using what’s called a “waiver“.

Eligibility to apply for a waiver

• Hardship: Leaving the US would cause extreme hardship for your spouse or child who are US citizens or permanent residents.
• Persecution: You might be harmed or mistreated because of your religion, race, or political beliefs if you go back to your home country.
• “No Objection” Letter: Your home country’s government says it’s okay that you don’t return.
  • It can take a long time to get a “no objection” waiver recommendation from the Department of State
  • Once the “no objection” recommendation is received, USCIS usually makes a decision on the I-612 waiver form within two weeks.
• Working for the US Government: A US government agency needs you to stay in the US for work that benefits the public.
• Medical Doctor in Underserved Area: You agree to work as a doctor in a place that doesn’t have enough doctors for at least 3 years.
  • If a J-1 doctor gets a waiver to work in a medically underserved area, their J-2 spouse cannot change their status to H-1B until the doctor completes their 3-year work commitment.
  • Once the commitment is fulfilled, the doctor and their J-2 family members can then apply to change their status or become permanent residents.
  • If the doctor doesn’t fulfill the commitment, everyone is subject to the 2-year foreign residence requirement again.

To learn more about the waiver, check out the official Travel.state.gov website!

Important things to note about the waiver

It is important to remember that J-1 visa holders who meet the waiver eligibility must go through the waiver process as the waiver is not applied automatically.

As you can see above, some waiver criteria involve the government’s action which can make the process complicated. If you can, it is advisable to get help from an immigration lawyer.

Lastly, even if you applied for a waiver, all J-1 visa holders must maintain their J-1 status until a decision is made.

How can you demonstrate that you meet the 212 (e)?

USCIS will assess if an exchange visitor has met the 2-year foreign residence requirement using the “preponderance of the evidence” standard in subsequent applications/petitions.

J-1 applicants can submit evidence like:

• A chart of days spent in the home country
  • If an exchange visitor spends even part of a day in their home country or country of the last residence during travel, that day will count towards the 2-year requirement.
• Passport stamps
• Employment records

USCIS will consider cases where it’s practically impossible for an exchange visitor to fulfill the 2-year requirement on a case-by-case basis. They’ll consult with the Department of State in these situations.

To sum up, the foreign residence requirement applies to certain J-1 exchange visitors who must reside in their home country for a total of 2 years before applying for specific visas or changing their status.

The best way to not be subject to 212 (e) is to avoid factors that contribute toward being subject to 212(e) like government funding.

To learn more about the important J-1 visa rules, check out the J-1 visa page.