ISSO can help visiting scholars determine if they are subject to INA 212(e), or 2-Year home-country physical presence requirement, but do not assist in the preparation of 212(e) waiver applications.
J-1 Exchange Visitors and their accompanying dependents are subject to INA 212(e) if:
- the exchange program 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 either government; OR
- the program involved an area of study or skill listed on the Exchange Visitor Skills List for his or her home country.
Exchange visitors who are subject to the two-year home country residence requirement must "reside and be physically present" in their "home" country for an aggregate of two years before being eligible for certain immigration benefits. While they are subject to 212(e), aliens are ineligible for the following benefits:
- They are not eligible for an immigrant visa or for adjustment of status to lawful permanent resident (immigrant/green card) status;
- They are not eligible for an H visa (temporary workers and dependents), an L visa (intracompany transferees and dependents), or a K visa (fiance and dependents);
- They are not eligible to change their nonimmigrant status within the United States to any other nonimmigrant category except A (diplomatic), G (international organization), or U (victims of qualifying criminal activity) statuses.
Apart from these specific restrictions, persons subject to INA 212(e) are treated as are all other exchange visitors, i.e., they remain eligible for program transfers and extension of their J status up to the limits of time for their particular category, etc.
An alien subject to INA 212(e) may apply to change nonimmigrant status if the Department of State has recommended the waiver in writing, but USCIS has not yet approved it. USCIS must approve the waiver before adjudicating the change of status application. Make sure to include a copy of the recommendation letter with the H-1B petition package.
An applicant for an H-1B visa must wait until USCIS formally approves an INA 212(e) waiver before the applicant can receive an H-1B visa.