H-1B Applicants who currently hold or have ever held J Exchange Visitor status must provide ISSS with one of the following:
- Proof that the J-1 Two Year Home Residency Requirement was Fulfilled By Spending 2 Years in Country of Residence OR
- An Advisory Opinion issued from the US Department of State in the past six months declaring that H-1B Applicant is not subject OR
- Waiver Recommendation from US Dept of State AND Form I-612 from USCIS
ISSS cannot determine if someone is subject to the Two Year Home Residency Requirement by looking at the Preliminary Endorsement on a DS-2010 Form
There are a couple of preliminary indicators of whether an exchange visitor is subject to the requirement:
- The J visa will often bear a notation as to whether the consulate issuing the visa believes the exchange visitor is subject.
- Posts are instructed to place one of the following notations on each J visa issued: "BEARER IS SUBJECT TO SECTION 212(e). TWO YEAR RULE DOES APPLY (Name of country)," or "BEARER IS NOT SUBJECT TO SECTION 212(e). TWO YEAR RULE DOES NOT APPLY (Name of country)." The country in parenthesis is the country "that would satisfy the two-year residence and physical presence requirement if applicable." [9 FAM 403.9-5(E)]
- The "subject" notation may also continue to be applied to subsequent visas in other nonimmigrant categories used for later entries to the United States so long as the individual remains subject to 212(e).
- The Form DS-2019 may also be marked in the lower left-hand corner, either by DOS or DHS.
Note, however, that these endorsements are based on a specific DS-2019. A single DS-2019 does not necessarily reflect the historical record of whether the exchange visitor may be subject from a past visit. Also, the consular officer may have inadequate or inaccurate information on the sources of funding or the skills represented. Errors in the preliminary endorsements are not uncommon. To determine whether 212(e) applies, funding, skills, and copies of all DS-2019s covering an exchange visitor's stay in the United States must be examined.
Current or former J exchange visitors subject to INA 212(e)
An alien who is subject to the two-year home country physical presence requirement of INA 212(e) is limited in his or her eligibility to obtain H-1B status in the following ways:
If an alien subject to INA 212(e) is outside the United States:
An alien who is subject to the two-year home country physical presence requirement of INA 212(e) is not eligible for an H visa unless the requirement has been waived or fulfilled. INA 212(e) [8 USC 1182(e)]
If an alien subject to INA 212(e) is in the United States in J status:
If an alien who is subject to the two-year home country physical presence requirement of INA 212(e) is currently in the United States in J status, he or she is ineligible for a change of status from J to H (or to any other category except A or G) 8 CFR 248.2(c) and (d)