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.
Example. An individual may have been in the United States for 3 months on a Fulbright student exchange and returned 1 year later as a visiting researcher with J documentation that does not appear to subject him to the requirement. Because his visa and DS-2019 for the latter visit are based on the documentation presented for the visiting researcher position, they may indicate he is not subject. Due to his previous Fulbright, however, he does have a 212(e) home residence requirement.
Both USCIS and DOS are involved in different ways in determining whether an exchange visitor or former exchange visitor is subject to the two-year home country physical presence requirement. USCIS has the discretion to determine whether or not 212(e) applies in the context of adjudicating an alien's application for change of nonimmigrant status or adjustment to lawful permanent residence, and USCIS has been granted sole statutory authority to actually waive 212(e) when it does apply. DOS consular officials, on the other hand, have the discretion to determine whether or not the two-year residence requirement applies in the context of deciding whether an immigrant visa or an H, L, or K nonimmigrant visa can be issued. Lastly, the DOS Waiver Review Division, which is responsible for issuing waiver advisory opinions and recommendations to USCIS that a waiver be granted, is part of the DOS Bureau of Consular Affairs. Legal arguments concerning whether it is DOS or DHS that determines whether an exchange visitor is subject to the two-year residence requirement are frequently overshadowed by practical reality. For most waiver requests, USCIS is required to seek the recommendation of the DOS Waiver Review Division, and it gives almost complete deference to that Division's recommendations.
Government financing
An exchange visitor is subject to 212(e) if "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 United States Government or by the government of the country of his nationality or of his last legal permanent residence..."
The terms financed directly and financed indirectly are specifically defined in the regulations:
Financed directly means, "Financed in whole or part by the United States Government or the exchange visitor's government with funds contributed directly to the exchange visitor in connection with his or her participation in an exchange visitor program."
Financed indirectly means, "(1) Financed by an international organization, with funds contributed by either the United States or the exchange visitor's government for use in financing international educational and cultural exchange, or (2) Financed by an organization or institution with funds made available by either the United States or the exchange visitor's government for the purpose of furthering international educational and cultural exchange."
Exchange visitor's government is defined as "The government of the exchange visitor’s country of nationality or last legal permanent residence."
22 CFR 62.2 exchange visitor's government
These definitions incorporate the idea that the purpose of the funding in important in determining whether government funding is of a type that would subject the individual to 212(e). For example, a student on a research assistantship or grant, the funds for which were made available to the institution by the U.S. government for another purpose (such as a faculty NSF grant for a specific research project), may or may not be considered to be financed either directly or indirectly by the U.S. government, depending on whether the funds were provided "for the purpose of further international and cultural exchange." Since the funding section on Form DS-2019 is used to determine whether funding is a basis for being subject to 212(e), it is important to accurately identify the source of the funds.
There have been reports that the DOS Waiver Review Division tends to see any government funding during an exchange visitor's participation as subjecting an individual to 212(e), regardless of the purpose of the funding. For example, there are instances where the Waiver Review Division has found that an individual who continues to receive his or her salary from a government-funded school while participating in an exchange visitor program in the United States as being subject to 212(e) on the basis of having received government financing.