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Recommendation on a Request for a Waiver of the INA 212(e) Two-Year Foreign Residence Requirement Pertaining to J-1 Exchange Visitors

1. Overview: Are you subject to the two-year foreign residence requirement?

An exchange visitor (EV) may be subject to the two-year foreign residence requirement of Section 212(e) of the Immigration and Nationality Act (INA), for one or more of the following reasons:
  • The EV's participation in an exchange program was funded by the United States Government, EV's own government, or an international organization.
  • The education, training, or skill the EV is pursuing in an exchange program appears on the Exchange Visitor Skills List (1997 Amendment) for EV's country.
  • The EV acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

2. If you are subject, what does that mean?

If you are subject to the two-year foreign residence requirement, you may not change your status to that of H, L, or K, or to immigrant or legal permanent status until you have fulfilled the two-year foreign residence requirement by going back to your home country or receiving a waiver of this requirement.

3. Requesting an Advisory Opinion, if you are not sure that INA 212(e) applies to you.

If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may make a written request for an advisory opinion for the applicability of INA 212(e) to your situation.

4. If you are subject to the INA 212(e) and want a waiver of the two-year foreign residence requirement, there are FIVE GROUNDS FOR WAIVERS.

If a J-1 exchange visitor who is subject to but does not wish to comply with the two-year foreign residence requirement may apply for a waiver of that requirement under any one of the five applicable grounds for a waiver set forth in the INA 212(e). Choose the one that you qualify for or applies to your situation.

* No Objection Statement (NOS):

The EV's home country government issue a No Objection Statement (NOS) through its Embassy in Washington, DC directly to the Waiver Review Division that it has no objection to the EV not returning to the home country to satisfy the INA 212(e) two-year foreign residence requirement and does not object to the possibility of the EV becoming a resident of the U.S. The NOS may also be issued by a designated ministry of the EV's home government and forwarded to the U.S. Chief of Mission, Consular Section, within that country to be forwarded directly to the Waiver Review Division. The EV has the responsibility for obtaining a no objection statement from his/her home government.

Note: The law precludes the use of this option by foreign medical physicians, who acquired J-1 status on or after January 10, 1977, for the purpose of receiving graduate medical education or training.

* Request by an interested government agency (IGA):

If an exchange visitor is working on a project for or of interest to a U.S. Federal Government agency, and that agency has determined that the visitor's departure for two years to fulfill the INA 212(e) requirement will be detrimental to its interest, that agency may request an interested government agency waiver on behalf of the EV for sake of public interest. The IGA request must be signed by the head of the agency or its designee and submitted directly to the Waiver Review Division. The EV has the responsibility for obtaining an IGA request from a U.S. Federal Government agency.

If you are in the process of filing waiver of this type, you will need qualified legal help on your side.  For experienced employment visa advice, contact us today (toll free) at 1-888-678-5724 for a free consultation with an immigration attorney. We look forward to protecting your rights and serving your immigration needs.