Twelve-month bar after Previous J Participation
An individual is not eligible to apply to begin an EV program in the Research Scholar or Professor categories if he/she previously spent time in the U.S. in J status (including J-2 status) during the 12-month period preceding the prospective research scholar or professor’s program start date. Only time spent in J status is relevant, not in another visa classification. The bar does not apply to those transferring to another institution in the U.S. to continue their current J-1 program. Any EV whose prior J status was less than 6 months duration is exempt from the bar. Any time spent in the Short-Term Scholar category is exempt from the 12-month bar.
24-Month Bar on Repeat Participation
Any individual who participated in an EV program as a Research Scholar or Professor becomes subject to a 24-month bar on “repeat participation” in these categories after completing his or her program. The 24-month bar is triggered by program completion, regardless of whether the individual completes his/her program in one year or five years.
The 24-month bar is different and separate from the two-year home country residence requirement 212(e). The 24-month bar can be fulfilled within any country. The two-year home country residence requirement can only be fulfilled when the scholar has physically resided in his/her country of legal permanent residence for an aggregate of two years.
The State Department has taken the position that the 24-month bar also applies to J-2 dependents of J-1 Research Scholars or Professor.
212(e) Two Year Home Country Physical Presence Residence Requirement
Certain J-1 exchange visitors and their J-2 dependents are subject to the two-year home residence requirement. If subject to 212(e), the EV must return to his/her country of last legal residence for an aggregate of two years before he/she is eligible for an immigrant visa to lawful permanent resident status, for an H, L, or K visa, and not eligible to change his or her nonimmigrant status within the U.S. from J to any other nonimmigrant category except for A (diplomatic), G (international organization), or U statuses.
The requirement does not prohibit the individual from returning to the U.S. in another nonimmigrant status, for example, as a tourist or student, if he or she is eligible for the applicable visa.
Who is Subject to the Requirement?
Not all EVs are subject to 212(e). There are three grounds on which an EV and J-2 dependent can be subject:
- If the exchange program was financed directly or indirectly by the United State government or a foreign government for the purpose of the exchange. Funding received as salary from the University of California grants to departments is not considered government funding for this purpose. However, there are some exceptions which include grants that are specifically targeted for international exchange. Fulbright funding is considered U.S. government funding. As well as funding from International Organization, Bi-National Commissions, such as the United Nations, NATO, or the European Union.
- If the skills that the EV is coming to develop or exercise are in a field that the EV’s home government has requested to be included in the State Department’s Exchange Visitor skills list.
- The EV comes to the United States to receive graduate medical education or training.
Do not assume the visa stamp or DS-2019 has been marked correctly by a consular officer, especially if there is conflicting data, multiple documents, and visits. If you are not sure if you are subject to the 212(e), you may request an Advisory Opinion from the State Department.
IFSS does not recommend that you apply for a waiver of the two-year home-country physical presence requirement without first discussing the timing of application with an International Scholar Advisor. Once a “No Objection” recommendation is received from the DOS no further program extension or transfer of J program is possible.
Detailed instructions for applying for a waiver of 212(e) are available from the Department of State website. IFSS advisors cannot assist you with the waiver application process.