J-1 Visas and the Big Question: Does 212(e) or the 2-Year Home Residency Requirement Apply?
Section 212(e) of the Immigration and Nationality Act (INA) states that J-1 exchange visitors must return to their country of citizenship or the last place they resided in at least two years prior to obtaining an H or L visa. This requirement will apply to individuals who are seeking permanent residency that are in an exchange program with medical training, funding from the government or their home country, or if the program is on the Skills list of their home country or last residence. The J-1 Skills List is a list of skills shortage fields separated by country. The Skills List determines if an J-1 exchange visitor is subject to the 2-year home residency requirement.
Attorneys will use the following three steps to determine whether an applicant will need to participate in the two-year home residency requirement;
Step 1: Determine the Applicable Skills List
The first step is to find the Skills List that was in place when the J visitor entered the United States with active status. If the visitor cannot find their home country on the skills list for the corresponding year, INA §212(e) does not apply to them. In this case, the only time INA §212(e) will apply to them is when the individuals country was on the list for any subject code.
Step 2: Determine the Applicable Country
The applicable country will always be the country that the individual has citizenship of unless they were living in a different country prior to coming into the US on a J-1 visa. The prior residency does not apply if the visitor was in another country as a student, tourist, or any transitional title. If their country is not on the Skills List, they are exempt from the requirement.
Step 3: Determine Whether the Exchange Visitor’s Program Field is on the Skills List
If the exchange visitors country is found on the Skills List, the next step is to check for the program field is on that countries list. These are found in section four of Form IAP-66 and Form DS-2019. If the program code is not rightfully listed on the form, another code could possibly be applied.
If you have any questions regarding the J-1 Skills List, please contact Attorney Nicholas J. Mireles, Esq. at Attorney@loonjm.com.