At ILOHB, we have represented hundreds of individuals with green card cases exceptional ability NIW, national interest waiver and EB1 extraordinary abilities and other employment-based self petitions. Many of these individuals enter the country as J-1 visa holders and are often subjected to the 212(e) obligation to return to the home country for two years.
In order to adjust status, change status, or receive an immigrant visa in the United States, an exchange visitor with the 212(e) obligation must meet this two-year requirement or have an approved J-1 waiver from the J Waiver Division https://j1visawaiverrecommendation.state.gov/ .
According to Section 212(e) of the Immigration and Nationality Act this requirement can be established once the exchange visitor has resided and been physically present in the country of his/her nationality or his/her last residence for an aggregate of at least two years following departure from the United States.
An exchange visitor becomes subject to this requirement if they are part of a government funded exchange program, if they are receiving graduate medical education or training, or if the exchange visitor has a specialized skill deemed necessary in the development of their country. In order to know if an exchange visitor is subject to the 212(e) obligation, the exchange visitor visa or the DS-2019 issued by the J program sponsor.
If an exchange visitor is subject to the requirement as stated on their visa or DS-2019 but are still unsure if the 212(e) obligation applies to them, the visitor can make written request for an Advisory Opinion from the US Department of State. If an exchange visitor is claimed to still be subject to this requirement, a waiver can be requested from USCIS by completing Form DS-3035 available on the J Visa Waiver Online webpage. This Form should be mailed to the Department of State along with any fees and documents necessary to process the waiver request. Nevertheless, submitting the waiver does not guarantee that USCIS will waive the two-year home-country requirement for an exchange visitor. Thus, hiring an attorney for such an extensive process is will ensure a smoother waiver process.
Please contact [email protected] for information about the 212(e) and the path to the waiver and a green card.