If you are not or have never been in J status, you probably have no interest in this post. Otherwise, you may want to read it, 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 status “two year return home” requirement will not disappear all by itself. No matter how long ago you might have been in J 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 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, and I have neither gotten the waiver nor met the requirement yet. 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. #306Paoli, PA 19301
610-296-3947
Pr. 17:15，箴言17:15
csun@calvinsun.com
(e) No person admitted under section 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 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 101(a)(15)(H) or section 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 214(l) 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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