[Cssa-L] The J-1 "two year return home" requirement DOES NOT EXPIRE

[Calvin Sun]

I am sorry to bother or annoy anyone with this note.  In particular, if you
are not in J status now, or never have been in J status, you probably have
no interest in this note.  Otherwise, if you are in J status right now, or
more importantly, if you ever were in J status in the past, you may want to
read this note, because it could save you trouble and panic in the future,
as well as the possibility of losing out on an H-1B job offer.

The J-1 “two year return home” requirement does not expire. No matter how
long ago you might have been in J-1 status, if you were subject to the
requirement at that time, and did nothing about it, you are still subject to
it now.  The government neither forgets about the requirement nor excuses
you from it just because a long time has passed since the time you were J-1
status or just because you have moved into other statuses since that time.

Over the past few weeks, I have gotten calls and e-mail from people whose
OPTs are ending soon, and who want information about changing to H-1B.  The
first thing I ask them is whether or not they ever were in J status.  After
we talk, I believe that a number of them, who did have J status in the past,
do further investigation, realize that the requirement still applies to
them, then call me back and are upset and anxious.

This requirement, also known as the “212e requirement,” states that
certain people who have or had J status must return to their home country or
country of last residence for at least two years before they can change to,
among others, H status (including H-1B) or get a green card.  Alternatively,
such people might be able to apply for a waiver of this requirement, that
is, they might successfully ask to be excused from this requirement (but
note that not every J person who is subject to 212e will be able to get this
waiver). People who are subject to this requirement but who nonetheless want
H-1B status or other relevant immigration benefit must either meet the
requirement or get a waiver, if it is possible.

Note that just being in J status by itself does not automatically subject
you to the requirement.  Other conditions must exist as well.

At this point, you might be thinking, “What’s the big deal?  I am subject
to 212e, but still I was able to move from J status to F status, and the
government didn’t say anything about, or force me to meet or waive the 212e
requirement.”  If you think this way, you are right―the 212e requirement
does not apply to changes to F status.  However, don’t be fooled: even
though the 212e requirement didn’t catch you on the move to F status, it
still is there.  That is, the requirement did not go away, and you are still
subject to it.  Specifically, it will catch you when you later move from F
to H status.  In other words: moving from J to F is not a 212e issue.
However, moving from F to H-1B IS and WILL be a 212e issue, if you are
subject to it.

Here is the situation you want to avoid: You were in J status in the past,
and you were and still are subject to 212e.  Now you change to F-1 status,
and because no one bothered you about 212e, you forgot about it.  Later,
during your OPT, you find an employer who is willing to petition for H-1B
for you.  But now, as time is running out on your OPT, you all of a sudden
remember the 212e requirement, and realize that you have a HUGE problem.
Your employer probably will not want to wait two years for you to fulfill
212e.  Also, getting the waiver, assuming you can get it at all, may take
several months, perhaps longer than even the end of your grace period.  In
other words, if you are not careful in addressing 212e, you could hurt
yourself by losing out on an H-1B job opportunity.

If you find that you are subject to 212e, and are eligible for a waiver, I
strongly urge that you take care of it as promptly as you sensibly can, or
at least avoid waiting until the last minute, i.e. until the ending stages
of your OPT.

Below is section 212e of the Immigration and Nationality Act.  You are
welcome to read it to confirm what I have said, or if you have trouble
sleeping at night.  

Please understand that every person’s situation is different.  Therefore,
please do not rely on the above as legal advice.

Calvin Sun, attorney at law 孙自成，律师
1776 East Lancaster Ave. #306
Paoli, PA 19301
610-296-3947
Pr. 17:15，箴言17:15
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(e) No person admitted under section
<http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.
html#0-0-0-687> 101(a)(15)(J) or acquiring such status after admission (i)
whose 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 Government of the United States or by the government of the country of
his nationality or his last residence, (ii) who at the time of admission or
acquisition of status under section
<http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.
html#0-0-0-687> 101(a)(15)(J) was a national or resident of a country which
the Director of the United States Information Agency pursuant to regulations
prescribed by him, had designated as clearly requiring the services of
persons engaged in the field of specialized knowledge or skill in which the
alien was engaged, or (iii) who came to the United States or acquired such
status in order to receive graduate medical education or training, shall be
eligible to apply for an immigrant visa, or for permanent residence, or for
a nonimmigrant visa under section
<http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.
html#0-0-0-643> 101(a)(15)(H) or section
<http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-101.
html#0-0-0-703> 101(a)(15)(L) until it is established that such person has
resided and been physically present in the country of his nationality or his
last residence for an aggregate of a least two years following departure
from the United States: Provided, That upon the favorable recommendation of
the Director, pursuant to the request of an interested United States
Government agency (or, in the case of an alien described in clause (iii),
pursuant to the request of a State Department of Public Health, or its
equivalent), or of the Commissioner of Immigration and Naturalization after
he has determined that departure from the United States would impose
exceptional hardship upon the alien's spouse or child (if such spouse or
child is a citizen of the United States or a lawfully resident alien), or
that the alien cannot return to the country of his nationality or last
residence because he would be subject to persecution on account of race,
religion, or political opinion, the Attorney General may waive the
requirement of such two-year foreign residence abroad in the case of any
alien whose admission to the United States is found by the Attorney General
to be in the public interest except that in the case of a waiver requested
by a State Department of Public Health, or its equivalent, or in the case of
a waiver requested by an interested United States government agency on
behalf of an alien described in clause (iii), the waiver shall be subject to
the requirements of section
<http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-3422
/0-0-0-3751.html#0-0-0-623> 214(l)
<http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006
/0-0-0-2867.html#0-0-0-2807> 22aaa/ : And provided further, That, except in
the case of an alien described in clause (iii), the Attorney General may,
upon the favorable recommendation of the Director, waive such two-year
foreign residence requirement in any case in which the foreign country of
the alien's nationality or last residence has furnished the Director a
statement in writing that it has no objection to such waiver in the case of
such alien. 

 





 

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