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The Two-Year Rule

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What is the 212(e) Two-Year Home-Country Physical Presence Requirement?

Often referred to as the "Two-Year Rule" or the Two-Year Home Residency Requirement, the 212(e) requires a J-1 Visa holder to return to his/her home country for at least two years at the end of his/her exchange visitor program. This is also known as the foreign residence requirement under U.S. law, Immigration and Nationality Act, Section 212(e). If he/she is unable to return to his/her home country to fulfill the two-year requirement, he/she must obtain a waiver approved by the Department of Homeland Security prior to changing status in the United States or being issued a visa in certain categories for travel to the United States.

212(e) Frequently Asked Questions (FAQs)

1. Am I subject to the 212(e)?

As a current or past exchange visitor (J-1) visa holder, you and your dependents (J-2) are subject to the two-year home-country physical presence requirement for one or more of the following reasons:

* Government funded Exchange Program - You participated in an exchange program that was funded in whole or in part by a U.S. government agency, your home country's government, or an international organization that received funding from the U.S. government or your home country's government.

* Specialized Knowledge or Skill – You participated in an exchange program involving an area of study or field of specialized knowledge that has been designated as necessary for further development of your home country and appears on the Exchange Visitor Skills List for your home country.

* Graduate Medical Education/Training - You participated in an exchange program to receive graduate medical education or training.

2. How do I determine if my exchange visitor program was funded by the U.S. government, my home country's government, or an international organization that received funding from the U.S. government or my home country's government?

You should consult with your program's Responsible Officer (R.O.) for assistance in making this determination. If your participation in an exchange visitor program was funded either in whole or in part by the U.S. government, your home country's government, or an international organization that received funding from the U.S. government or your home country's government, then you are subject to the two-year home-country physical presence requirement.

3. What are the bases upon which I can apply for a waiver of the two-year home-country physical presence requirement?

Review the Waiver Eligibility webpage, which explains in detail the five bases set forth in U.S. immigration law under which you may apply for a waiver of this requirement. You may only apply under one waiver basis, so select the one basis under which you believe you qualify for a waiver or that applies to your situation. The five bases for recommendation of a waiver are:

* No Objection Statement;

* Request by an Interested U.S. Federal Government Agency;

* Persecution;

* Exceptional Hardship to a U.S. Citizen (or lawful permanent resident) Spouse or Child of an Exchange Visitor; and

* Request by a Designated State Public Health Department or its Equivalent (Conrad State 30 Program).

4. I am the J-2 spouse or child of a J-1 exchange visitor who is subject to the two-year home-country physical presence requirement. Am I also subject to this requirement?

Yes. A J-2 spouse or child is subject to the same requirements as a J-1 exchange visitor.

5. My J-1 spouse or parent is subject to the two-year home-country physical presence requirement and is applying for a waiver. Since I am also subject to this requirement, do I need to apply for my own separate waiver recommendation, Form DS-3035, and pay the fee?

No. You are automatically included in your spouse's or parent's waiver recommendation application. Your spouse or parent will need to list you when completing the application for waiver recommendation, Form DS-3035.

6. If my J-1 spouse or parent obtains a recommendation for waiver of the two-year home-country physical presence requirement, will it also apply to me, as a J-2 spouse or child of an exchange visitor?

Yes. If your J-1 spouse or parent receives a favorable recommendation from the Department of State's Waiver Review Division, it will be forwarded to the U.S. Citizenship and Immigration Services (USCIS). If USCIS grants the waiver to your J-1 spouse or parent, then you will also benefit from that waiver.

7. My J-1 spouse or parent is subject to the two-year home-country physical presence requirement, but is not applying for a waiver recommendation. May I, as his or her J-2 spouse or child, apply?

With a few exceptions, J-2 spouses and children cannot independently apply for waiver recommendations when their J-1 spouses or parents are not applying.

8. Exceptions where the Waiver Review Division will consider requests for waiver recommendations from J-2 spouses and children are:

* when the J-1 spouse dies;

* when the J-1 and J-2 spouses divorce; and

* when a J-2 child reaches age 21.

All such cases are evaluated by the Waiver Review Division on a case-by-case basis.

9. If you, as a J-2 spouse or child, believe that your situation merits special consideration based on one of the exceptions above:

You should complete online form DS-3035, pay the processing fee (Steps 1 and 2 of the Instructions), and submit a statement explaining why you are applying for a waiver and your J-1 spouse or parent is not. Your statement should also explain why your situation merits special consideration. As applicable, you must also submit:

* a copy of your J-1 spouse's death certificate;

* a copy of the divorce decree from your J-1 spouse; or

* a copy of your birth certificate, if you are a J-2 child age 21 or over.

Taken, in part, from the U.S. Department of State. For more information regarding the Two-Year Rule, please click here.