Interested in participating in another J-1 program, J-1 participants often tell us “The 2-year rule does not apply to me, because the consular officer did not check the box for section 212(e) on my DS-2019″. Yet, according to the J-1 Visa regulations, they still have to wait 2 years.
Why, you say? Is there another “2-year rule”?
Let me explain…
Two-year home-country physical presence requirement
When foreign nationals participate in an Exchange Program and the program meets certain conditions (ie program was government-funded, graduate medical training or specialized knowledge training), they will be subject to the two-year home-country physical presence (foreign residence) requirement. This means they will be required to return to their home country for two years at the end of the exchange program. This requirement under immigration law is based on Section 212(e) of the Immigration and Nationality Act. If exchange visitors are subject to the “two-year rule”, they cannot change status to that of H, L, K, or immigrant lawful permanent resident (LPR) until they have returned to their home country for at least two-years (or received a waiver of that requirement).
Additional training and internship program participation
When the State Department revised the J-1 Visa Regulations in June 2007, they formalized rules for repeat participation. The Regulations state that “Interns may apply for additional internship programs if they (1) Are currently enrolled full-time and pursuing studies at degree- or certificate-granting post-secondary academic institutions outside the United States; or (2) Have graduated from such institutions no more than 12 months prior to the start of their proposed exchange visitor program. … Trainees are eligible for additional training programs after a period of at least two years residency outside the United States following completion of their training program. … For both trainees and interns, additional training and internship programs must address the development of more advanced skills or a different field of expertise”.
You see how the 2 Two Year Rules address different issues? Section 212(e) addresses potential change of status to H, L, K or LPR. When interested in participating in another J-1 program, we have to look at the Additional Program Participation article of the J-1 Visa regulations. And according to those regulations – unless the foreign national qualifies as Intern – they must wait 2 years in order to qualify for repeat participation.