J Visa Waiver

We receive many calls from potential clients who wish to change to H-1B status or apply for a marriage-based green card. They discover, either through a friend or online blogs that they are subject to INA §212(e), or the “Two Year Home Country Residence Requirement.”

The U.S. Department of State ultimately determines if a J-1 or J-2 is subject to the 212(e) requirement. Note that it is possible to obtain a J visa and not be subject to 212(e).

There are only three situations that will make a J-visa holder subject to 212(e):

• The J-1 program is funded in part or wholly by the United States government, the foreign government, or an international organization
• The J-1 program is engaged in one or more of the skills listed on the Exchange Visitor Skills (2009 Amendment) for his or her country. You can find the Skills List per country here.
• The J-1 visa holder is receiving graduate medical education or training

If subject to 212(e), then the J-visa holder will have to return to his or her home country and cannot return to the U.S with H-1B, L, K visa, or with a green card until he or she resides in his/her home country for two years. Until this requirement is met, the J-visa holder cannot obtain a green card (through either adjustment of status or consular processing) or change status (inside the U.S.) to any other nonimmigrant visa. However, if subject to 212(e), prior to the foreign residence requirement being met, the J visa holder can return to the U.S. with an F-1, O, B visa, or under ESTA.Many clients have contacted our firm because they have one of their documents contradict another. For example, the DS-2019 indicated “subject to foreign residence requirement” but their visa does not list this requirement. In another example, they received multiple DS-2019s; the first DS-2019, indicates that the J-1 visa holder is subject to 212(e), but the subsequent DS-2019s do not.There are two ways to get around the 212(e) requirement. First, at the time you want to file for a change of status or file for a green card (through either consular processing or adjustment of status), your country may have fallen off of the list.

A second option is to file a waiver of the requirement. There are five (5) types of J-1 visa waivers: No Objection Statement (NOS); Interested Government Agency (IGA); Exceptional Hardship; Persecution; and Conrad Program. To obtain a hardship waiver, the J-1 visa holder must prove that his or her family will suffer exceptional hardship if he or she has to return to the home country.

It is highly advisable that you retain counsel to file for any of these waivers. Timing these waiver applications is very important as well. Depending on the type of waiver, jurisdiction as to which agency adjudicates the petition also comes into play. If you are in need of a waiver, or would like to determine whether you are subject to 212(e), please contact our law firm.