If subject to 212(e), the individual must return to the country in which they held permanent residence at the time they acquired J-1 status. 

If a person has not traveled from their country of birth, then their country of permanent residence will be the same as their country of citizenship. If a person has traveled outside their country of birth, then their country of permanent residence might be different from their country of citizenship. In that case, the individual must evaluate to which country they had a 'permanent' right to reside at the time their J visa was issued and/or they acquired J status.

It is very common for a scholar to visit the USA from their home country, complete their J program, and then travel to another country where they live for a number of years. For example, a scholar might travel to the USA fro their home country (Utopia) for a J program during their PhD, graduate, and then go work in a new country (Wakanda) for a nunmber of years. Living abroad in Wakanda does not satisfy the 212(e) obligation that they return to their home country of Utopia for two years. 

A person in J status may be subject if they are:

• Acquiring a skill that is in short supply in the home country as designated in the US government's "Exchange Visitors Skills List" 
• "Funded in whole or in part" by a government agency (in their home country or the USA)
• Participating in a J-1 graduate medical education or training program sponsored by ECFMG (Educational Commission for Foreign Medical Graduates)
• A J-2 dependent of a J-1 Exchange Visitor who is subject to 212(e), also is subject to 212(e)

For further advice on determining whether or not a person in J status is subject to the Two Year Home Rule, go to the USDOS FAQ on the Two Year Home Rule and click on "Am I subject to the two-year home-country physical presence requirement?" link to expand the section.

Skills List

The Exchange Visitor Skills List contains fields of specialized knowledge and skills. Each country decides for itself which skills it considers are necessary for the development of the country in question, and tells the US government so that those skills may be reflected in the Skills List in the way the country wants.

To check whether you are subject to 212(e) on this basis, first confirm whether your country is listed in the Skills List. If your country is not on the Skills LIst, then this basis cannot be applied to you.

If your home country is listed in the Skills List, you then need to compare the CIP Codes listed for your home country against the CIP code listed in your DS-2019. If your DS-2019 CIP code is included in your home country's list of CIP codes in the Skills List, then you are subject to the 212(e) Home Residence Requirement for two years at the end of your exchange visitor program.

Governing Funding

An exchange visitor is subject to 212(e) if "participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the United States Government or by the government of the country of his nationality or of his last legal permanent residence..." 22 CFR 41.63(a)(1)(i)

The terms are specifically defined in the regulations (22 CFR Section 62)-

• Financed directly means, "Financed in whole or part by the United States Government or the exchange visitor's government with funds contributed directly to the exchange visitor in connection with his or her participation in an exchange visitor program." 
• Financed indirectly means, "(1) Financed by an international organization, with funds contributed by either the United States or the exchange visitor's government for use in financing international educational and cultural exchange, or (2) Financed by an organization or institution with funds made available by either the United States or the exchange visitor's government for the purpose of furthering international educational and cultural exchange."
• Exchange visitor's government is defined as "The government of the exchange visitor’s country of nationality or last legal permanent residence."

These definitions incorporate the idea that the purpose of the funding in important in determining whether government funding is of a type that would subject the individual to 212(e). For example, a student on a research assistantship or grant, the funds for which were made available to the institution by the U.S. government for another purpose (such as a faculty NSF grant for a specific research project), may or may not be considered to be financed either directly or indirectly by the U.S. government, depending on whether the funds were provided "for the purpose of further international and cultural exchange." Since the funding section on Form DS-2019 is used to determine whether funding is a basis for being subject to 212(e), it is important to accurately identify the source of the funds.

There have been reports that the DOS Waiver Review Division tends to see any government funding during an exchange visitor's participation as subjecting an individual to 212(e), regardless of the purpose of the funding. For example, there are instances where the Waiver Review Division has found that an individual who continues to receive his or her salary from a government-funded school while participating in an exchange visitor program in the United States as being subject to 212(e) on the basis of having received government financing.

An individual can determine if they are subject to 212(e) by-

• Evaluating whether they are in one of the situations listed above as triggering 212(e)
  • Skills List
  • Government funding
  • Medical training
  • Dependent of a J-1 who was subject to 212(e)
• Looking the DS-2019 that was processed by the US Consulate to see whether the consular officer checked the box for being subject to 212(e)
• Looking at the J-1 visa to see whether "subject to 212(e) is annotated at the bottom

Whether or not the visa or DS_2019 is annotated, the US Department of State (DOS) reserves the right to make a final determination regarding whether a participant in a J program is subject to this rule (explained below).

Note - Individuals who participated in Fulbright programs are subject to 212(e) on the basis of government funding.

The question of 212(e) timing relates to two separate moments -

1. When does the home residence obligation attach to the person,
2. When does the home residence begin

When Do You Become Subject?

A person becomes subject to 212(e) home residence rule the moment they acquire J-1 (or J-2) status for purposes of a J program that is subject to one of the possible bases above - Skills List, Government Funding, or medical training. The law attaches home residence to the J Exchange Visitor instantly, upon arrival in the USA (or, if they are changing to J status from another visa classification, the moment the USCIS approves the J status). It is not relevant whether the person actually engages in the J activities - the only factor the law considers is whether the person held (even for a moment) the J status. 

When Does Home Residence Begin?

The obligation to reside in the home country does not begin until the primary J-1 scholar's J program is closed in SEVIS. This normally happens after the J-1 scholar has engaged in their activities in the USA and timely departed back to their home country. 

Sometimes, a scholar will depart the USA early. This might be because they completed their program activities early, or it might be because they had to abandon the program in the USA, such as due to a family emergency.  Departure from the USA does not by itself trigger the closure of the program in SEVIS. The scholar must advise the International Scholar Services office of their departure and intention to end their program early. Only then will an International Scholar Services counselor go into SEVIS to close the program. Please note - the fact that you do not tell International Scholar Services that you have left the USA does not mean that your J program is in good standing. If you fail to engage in program activities, then the program might need to be closed on that basis anyway. 

Time spent outside the USA during the J program does not count toward satisfaction of the home residence requirement. Your 'home' time accumulates only once your program is closed in SEVIS.

It therefore is very much in the scholar's best interests to notify International Scholar Services of the need to depart the USA and close the J program early, as this has the advantage of ensuring that all time spent outside the USA thereafter can count toward satisfaction of the 212(e) home residence obligation. 

The DOS offers advisory opinions to individuals who are unsure whether they are subject. The  individual submits extension information to the DOS, and the DOS will assess the information and issue a final determination. If the determination is that the individual is not subject, then this documentation can be submitted to USCIS as evidence of the DOS' determination.

Waiver Application Applications for 212(e) waivers are processed by the US government in two parts, with one component being assessed by the DOS and the other being assessed by the USCIS. 

The most common basis for a 212(e) waiver request is

• No Objection by Home Country: The applicant applies for a waiver based on a statement from their home country that there is no objection to a waiver of the two year home residency. Please note - Fullbright is notoriously strict in requiring Fulbright scholars to return home following completion of their program; they almost never issue "no objection" statements for past J-1 scholars. 

The remaining bases are extremely complex. We strongly recommend consulting with a qualified and experienced immigration attorney before attempting a waiver request on this basis. 

• Exceptional Hardship: Applicant would apply for a waiver based on exceptional hardship to their US citizen or lawful resident spouses or minor children. 
• Persecution: Applicant would apply for a waiver based on their belief that they will be subject to persecution because of race, religion, or political opinions if they returned to their home country.  
• Interested US Government Agency: A US government agency may apply to USDOS for a waiver in behalf of the applicant if they are interested in the applicant's programs or projects and if they believe that it is in the best interest of the US to allow the individual to remain (also know as an IGA or national interest waiver).

In general, the process for applying for waiver of the 212(e) home residence requirement is

1. Submit an electronic application to the DOS Waiver Review Board. Submission assigns a case number to the request. Make careful note of this case number. 
2. Mail to the DOS the hard copy applicaiton and payment
3. Mail to the DOS any supporting documentation required, such as documentation from your funding agency or home country government that they have 'no objection' to the waiver request
4. DOS issues a recommendation that the waiver be granted or denied. This is sent both to the applicant as well as to the sponsoring institution (the institution that processed the DS-2019 - for example, Purdue)
5. The DOS submits to USCIS an application for its (USCIS') decision on the waiver request
6. USCIS may issue a receipt notice to you for the application from the DOS
7. USCIS eventually issues a decision on the application in the form of an I-612. Usually the USCIS agrees with the DOS recommendation. 
8. USCIS is the final waiver authority. You do not have a waiver of the two-year home-country physical presence requirement until USCIS informs you of an approved waiver.

To check the status of your pending waiver request while it is with DOS, individuals may go to the J Visa Waiver Online webpage and select Check the status. Next, enter your case number. A window will open that provides the current case status for your pending request. You may send questions about your case or questions that are not answered on this website to 212ewaiver@state.gov.

It is prudent to check your case status regularly. The DOS might request additional information from you and if so, this will be posted online as your case status.

If your contact information (address, phone number, or email address) changes while the application is pending with DOS, you must update your information on the J Visa Waiver Online webpage. Select Inform the Department of State of a change to personal data. The DOS can contact you only if they have your accurate contact information.

As noted above, when the DOS issues its recommendation on the waiver request, a copy is sent to the institution sponsoring the J-1 program. At Purdue University, International Scholar Services receives these recommendation notifications from DOS.

As mentioned, a fundamental purpose of the J-1 classification in general is to facilitate and foster global exchange. A waiver recommendation therefore can be seen as an indication that the J-1 visitor no longer intends to return home and share the knowledge and skills they have learned in the USA. There are consequences to this decision, therefore. 

Once a J-1 exchange visitor is recommended by DOS for a waiver, our office is no longer permitted by law to extend the J-1 program. In other words, extensions are barred once the recommendation letter is issued, before the USCIS decision is issued. However, the exchange visitor is permitted to continue in the current J program (without change) for the remainder of time allotted to the program (as listed in the current DS-2019).

By law, 212(e) home residence might be re-triggered if any of the following happen-

• An application for a J-1 (or J-2) visa at a US Consulate abroad
• Re-admission to the USA in J-1 (or J-2) status
• Extension of the J-1 (or J-2) program, as documented by the issuance of a new DS-2019 with extended program dates

If you believe that any of these events might have occurred after the USCIS approval of a waiver application, we strongly urge you to consult with a qualified and experienced immigration attorney. Waiver applications are personal requests by the individual and not by Purdue or the host department, and thus International Scholar Services counselors are likely unable to assist.

We strongly recommend that you schedule an appointment with an International Scholar Services counselor to discuss the timing of a waiver application before you pursue it.

Possible topics for this conversation include-

• Whether the J program can be extended before the waiver request is submitted
• Whether the individual might seek a transfer to another US institution at any point during the waiver request processing
• Whether the J exchange visitor (or family members) have travel they must undertake before the 212(e) waiver application is submitted
• If the available J program time is running short, whether there is another immigration classification to which the individual might move that would support their activities at Purdue
• Estimated DOS and USCIS processing of the waiver request, to compare that timeline with the individual's other needs

As soon as the waiver request is submitted, please notify us of this fact, including the DOS Waiver Case Number.