We work with many clients who are applying for a “fast-track” green card, that is applying as an alien of extraordinary ability, outstanding researcher or professor, or applying for the national interest waiver. Frequently, those clients are either currently on a J-1 visa and now want to apply for the green card, or they were on J-1 visa previously and have since changed status to H-1B or another visa category.
Those clients who have been on J-1 previously may have an additional hurdle to face, in addition to meeting the other requirements to obtaining permanent residence. This is because J-1 visa holders are sometimes subject to the two year home residence requirement. This means that they must return to their home country for a period of two years before they apply for permanent residence.
A J-1 visa holder can be subject to the two year home residence requirement (sometimes referred to as 212(e), referencing the relevant section of the law) either:
– Because he/she received government funding, or
– Because he/she is subject to the “skills list,” which is a list published by the US Department of State and organized by country, or
– If he/she came to the US to receive graduate medical education or training.
If you have ever been subject to the home residence requirement, you will need to either obtain a waiver, known as a 212(e) waiver, or you will need to obtain an Advisory Opinion from the US Department of State, stating that you are not subject to the requirement. Here are the basic steps you should take:
- Determine if you may be subject to 212(e).
- Check the skills list that was in effect at the time you first entered on J-1. If your country is on the skills list, see if your particular skill is contained within that list.
- If your country is not on the skills list, proceed to step 1c. If your country is on the skills list and your skill is on that list, check the 2009 skills list (the most recent available) to see if your country is still on the list. If your country is not on the list, you should not be subject to the requirement based on skills. If your country is on the list but your skill is not still listed, you should still be subject to the 212(e) requirement.
- Check to see if you have received government funding, either from the US government or from your home country government, or from an international organization (UN, NATO, etc).
- If you find that you were subject to 212(e) previously because of the skills list but it has since changed and you are no longer subject, or if there is any doubt as to whether you are subject, you may want to obtain an Advisory Opinion from the Department of State.
- If you are subject to the requirement, you will need to obtain a waiver prior to filing for permanent residence. There are several ways to obtain a waiver, with varying degrees of difficulty depending on the reason you are subject, and the type of waiver you try to obtain.
- Keep in mind that just because your visa and/or DS-2019 says that you are not subject to 212(e) does not mean that you are not subject. While these are correct most of the time, mistakes can be made on both. Therefore you should go through these steps and think through yourself whether you would be subject to the requirement, prior to starting the permanent residence process.
While these extra steps can take a little more time, it is worth it to avoid delays and possible denials in the permanent residence process. If you are interested in a strategy session to discuss your options, we would be happy to speak with you! You can set a time for a consultation here: https://meetme.so/emilysumner.