Title: 212eeek Overcoming Fear of The Two Year Home Residence Requirement
1212(e)eek! Overcoming Fear of The Two Year Home
Residence Requirement
- David Ware dware_at_david-ware.com
- Betsy Bedient betsy.bedient_at_chsc.edu
- Michele Stelljes micheles_at_bcm.tmc.edu
2What is This Session Going to Teach Me?
- What the two year home residence requirement is.
- How to determine if someone is subject to the
requirement. - What is and is not permitted while a person is
subject to the requirement. - How to relieve oneself of the requirement.
- Appropriate institutional responses to the
requirement. - What alternatives are available while remaining
subject to the requirement.
3What is the Two Year Home Residence Requirement?
- PLAIN LANGUAGE DEFINITION Requirement that J 1
and J 2 dependants to whom requirement has
attached return to country of nationality or last
permanent residence for total of two years
following the J program. The individual remains
subject to the requirement for life, until it is
satisfied or it is waived, and while subject, is
barred from obtaining permanent residence, or an
H or L visa, or obtaining change of nonimmigrant
status, if last admitted as a J who is subject.
4What is the Requirement?
- STATUTORY DEFINITION Sec. 212(e) of the
Immigration and Nationality Act No person
admitted as a J or acquiring such status after
admission (i) who participation in the program
for which he came to the US was financed in
whole or in part, directly or indirectly, by an
agency of the US govt or by the government of
the country of his nationality or his last
residence, (ii) who at the time of admission or
acquisition of status as a J was a national or
resident of a countryclearly requiring the
services of persons engaged in the field of
specialized knowledge or skill in which the alien
was engaged, or (iii) who came to the US or
acquired such status in order to receive graduate
medical education or training, shall be eligible
to apply for an immigrant visa, or for permanent
residence or for an H or L visa, until it has
been established that the person has resided and
been physically present in the country of his
nationality or his last residence for an
aggregate of at least two years following
departure from the US.
5When Does the Requirement Attach?
- The requirement attaches when an individual is
admitted in J status or when a request for change
of nonimmigrant classification to J is granted,
or when the EV changes to a program activity
which is subject to the requirement. - IT HAS NOT ATTACHED
- When a person obtains a DS 2019.
- When a person obtains a J visa abroad.
- When a person applies for change of status to J.
6To Whom Does it Attach?
- It attaches to the J 1 principal and all
dependants who are admitted as J 2s or who
acquire J 2 status. Dependants are spouse and
unmarried children under 21. - IT DOES NOT ATTACH TO
- Dependants admitted in other statuses (eg, F-1).
- Dependants who never come to the US.
7To What Country Does the Person Have to Return?
- THE COUNTRY OF NATIONALITY usually the country
of citizenship, but can be country to which the
individual owes allegiance, if he or she is
stateless. - Easiest way to determine nationality what
countrys travel document does the person hold?
Is it a passport or some other type of document?
Does it indicate citizenship?
8Country of Return?
- COUNTRY OF LAST RESIDENCE Generally means
country in which individual last permanently
resided, if they were living outside their
country of nationality or were stateless.
Permanent residence is determined by the laws of
the country involved, and may not have exactly
the same parameters as our own lawful permanent
residence. Examples landed immigrant (Canada),
FM 3 (Mexico). This area is somewhat gray we
recommend advisory opinion, and great care in
completing the DS 2019. - Does not include Temporary stay for study,
tourism, employment or the like, even if long
term. - Some countries, such as Saudi Arabia, do not
grant permanent residence. - Must be permanent because person must have
right of return in order to comply.
9Is Every J Subject to the Requirement?
- No. Only those (and their dependants), who
- Receive funds for the purpose of their exchange
program from the US government, their own
government, or a public international agency to
which the US makes significant contributions (eg,
WHO, PAHO). - US government funds received by the sponsoring
institution not specifically for the exchange
visitors program do not trigger the requirement
(eg. alien works on research grant funded by
Dept. of Energy).
10Is Every J Subject to the Requirement?
- Those whose country of nationality or last
permanent residence has placed their field of
endeavor on the Department of States Skills
List. - Those who became Js in order to acquire graduate
medical training. Such training must be clinical
training and the DS 2019 must have been issued by
the Educational Council on Foreign Medical
Graduates. Researchers, observers, are not
acquiring graduate medical training.
11How Do I Determine if the Requirement Applies?
- STEP I Pay NO attention to the endorsement on
the visa or on the DS 2019/IAP 66. Its usually
wrong! - STEP II Make sure you have copies of all DS
2019s/IAP 66s for all programs in which person
has participated. - STEP III Read the forms. Look at COUNTRY OF
NATIONALITY/RESIDENCE, FIELD, FIELD CODE, and
SOURCE OF FUNDING.
12How Do I Determine?
- STEP III Verify with individual that foregoing
items are correct. ROs/AROs sometimes make
mistakes. - STEP IV Skills List Analysis.
- Find Skills List valid for date of initiation of
program (there have been several over the years
latest became valid for J status acquired on or
after 3/17/97).
13How Do I Determine?
- STEP IV Skills List Analysis
- Find J Field Code and compare it to field entered
on form. Pre SEVIS Field Code Manual post
SEVIS Classification of Instructional Programs,
DOE (sometimes not exact matches). - Check Skills List for appropriate country and
field. - Note Not all countries have a Skills List, eg,
Mexico, Russia. - If not clear or in doubt, request Advisory
Opinion, discussed infra.
14How Do I Determine?
- STEP IV Skills List Analysis
- Find J Field Code and compare it to field entered
on form. Not an RO/ARO? Order Classification of
Istructional Programs, DOE. - Check Skills List for appropriate country and
field. - Note Not all countries have a Skills List, eg,
Mexico, Russia. - If not clear or in doubt, request Advisory
Opinion, discussed infra.
15How Do I Determine?
- STEP V Government Funding Analysis.
- Determine source of funding. Remember that forms
are sometimes incorrectly completed. To subject
individual to requirement, US funding must be
federal, and specifically intended to fund the
exchange visitors program. - If funding from home country, ascertain whether
entity providing funds is public or private.
Sometimes this is not as easy as it seems. Some
countries have paraestatales, which may not form
part of the government per se. - If funding from an international organization,
determine first whether public or private. Then,
if public, determine whether the US contributes
to the organization. Some public entities doe not
receive US funding, eg, UNESCO.
16How Do I Determine?
- STEP VI Graduate Medical Training Analysis.
- Determine whether ECFMG issued document.
- Determine whether person received clinical
training in a recognized medical specialty,
consisting of a residency, fellowship, or
specialization. Medical research or research
training, or clinical observation alone do not
constitute graduate medical training. However,
note that the relevant Skills List may invoke the
requirement (see Step IV, above).
17What If Im Not Sure if the Requirement Applies?
- It is best practice, whenever someone has been a
J, even when its relatively clear that the
individual is not subject, to request an Advisory
Opinion from the Department of State. Why, you
may ask? Because DOS, not USCIS, has the ultimate
say over the requirement, and USCIS
interpretation is often incorrect. - An Advisory Opinion is free, and usually only
takes a few months. - If youre really not sure, and strategically, it
is not possible to wait two or three months for a
(possibly negative) opinion, there is no problem
in simultaneously requesting an Advisory Opinion,
and a waiver of the two year requirement (see
Waivers, below).
18How is the Requirement Satisfied?
- The alien must spend a cumulative two years in
the country to which the requirement attached. - Any period of physical presence may cumulate to
reach the total of two years. - Residence in other countries will not satisfy the
requirement. - Dependants must also satisfy the requirement,
even if principal has already done so. - Doesnt matter if conditions in country have
changed eg, no job for alien, bad
politics/economy, tho these factors may have
weight in a waiver application (see below).
19What About Successive Programs?
- First determine if the two year requirement has
been satisfied or waived with respect to any of
the programs. Usually the participant will know
this. - If so, that program should not be taken into
account in determining whether person is subject. - Then, follow foregoing analysis for all remaining
programs. - Successive programs do not subject person to two
years per program. - Person is still subject even if Program I had the
requirement, and later, Program II did not.
20Examples Successive Programs
- Dr. Brown, a citizen and resident of the UK,
comes to the US on a Fulbright Scholarship for
one year in 2003. He returns home for 13 months,
and then returns to the US as a Visiting
Assistant Professor of English sponsored by the
University of Florida. Subject? If so, for how
many months? - Dr. Sharma, born in Saudi Arabia, but holding an
Indian passport, enters the US for graduate
medical training, returns to her home in India
for two years, then comes back to the US for a
Ph.D in Biology, sponsored by the Ford
Foundation. Subject?
21What About Reentry in Another Status?
- Js subject to 212(e) are prohibited from
obtaining H or L visas. - However, they may obtain any other kind of
nonimmigrant visa for which they may be eligible. - Moreover, the regulations do not prohibit entry
as an H or L, therefore, Canadians who are
subject are not subject to the visa prohibition
mentioned above. Also, persons reentering
utilizing automatic extension of visa validity,
not a visa per se, may reenter in H or L status.
22What About Reentry?
- Thus, persons subject often reenter in another
status, such as F, B, O, etc. - Occasionally they will erroneously receive an H
visa. - Frequently they form the impression that 212(e)
simply goes away in such situations. Absolutely
not it follows the subject individual FOR LIFE,
until waived or satisfied.
23What About H or L Status After Reentry?
- 8 CFR 248 only prohibits change of status to H or
L for subject persons who last entered in J
status. - There is no prohibition on change of status to H
or L if the subject person last entered in some
other status. - DOWNSIDE The person cannot leave and return in H
or L status, unless Canadian, or by utilizing
automatic extension of visa validity, since H or
L visa issuance is prohibited.
24Compliance With the Requirement
- Satisfying the two year home residence
requirement means spending two cumulative years
in the country to which the requirement has
attached. - Two years in any other country does not count.
- The two years can be cumulated over a long period
of time (summers, etc). - Institutions that value a faculty or staff member
can assist in this process by granting
sabbaticals, leaves of absence, research forays
or guest professorships abroad. - Assisting someone in complying with the
requirement in no way compromises or calls into
question an institutions own J program exchange
requirements, even if the person was a
participant thats ALL that DOS requires.
25What Are the Options for Waivers of the
Requirement?
- Types of Waivers
- No objection requires a no objection statement
from home country very difficult where US govt
funding not available to graduate medical
trainees. - Hardship exceptional hardship to USC or LPR
spouse or child must be more than hardship of
separation for two years. Educational, cultural,
health, language, economic reasons, among others,
are taken into account. Must address two
scenarios family accompanies alien family
remains in US.
26Options for Waivers?
- Persecution Must prove well founded fear of
persecution in home country due to race,
religion, national origin, political opinion, or
social group. Quite difficult to prove. - Interested Government Agency an agency of the US
federal government must make a request to the
Department of State that the requirement be
waived. Most agencies have strict rules in this
regard some will only sponsor their direct
employees or will not sponsor at all. In the case
of graduate medical trainees, a State Department
of Public Health can also act as an IGA. IGAs
almost never sponsor students for waivers.
27Options for Waivers?
- Department of State as Interested Government
Agency. Sometimes the DOS will act as an IGA, in
cases involving - Spousal or child abuse, or death or divorce from
the J principal - Change of nationality, where the alien did not
change nationality for the purpose of a waiver,
and where he/she is unable to comply with the
requirement as a result of the change of
nationality. DOS very strict in this regard. - Conditions in home country have deteriorated
severely natural disaster, civil strife, or war.
28Waiver Options?
- It should be noted that all waivers are first
recommended by the Department of State and then
granted by USCIS. Grant of an H or L visa,
immigrant visa, or permanent residence cannot
occur until USCIS has granted the waiver. Thus a
waiver applicant should never proceed abroad for
a visa until USCIS has taken action. - If no I 612 approval received, resend DOS letter
to CIS. - Practice tip USCIS often will grant the waiver
more quickly in the context of an application for
change of nonimmigrant status or adjustment of
status to permanent resident.
29Completion of DS 2019 and 212(e)
- Some 212(e) problems are created by institutions
themselves, through improper completion of Form
DS 2019. The following items should be carefully
verified prior to completion - Country of nationality/permanent residence.
- Source of funding for program.
- Field of endeavor in the US.
30Completion of DS 2019
- Incorrect completion of any of these areas can
give the false impression that the individual is
subject to the home residence requirement and may
require either corrective action by the
institution, or necessitate a request for an
advisory opinion from The Department of State.
31Institutional Responses to 212(e) Issues
- Compliance. As mentioned before, assisting a
faculty or staff member in complying with the
requirement in no way compromises an
institutions commitment to its own J programs.
Indeed, this is what the Department of State
prefers the individual do. - Compliance assistance could include
- Liberal grants of leave or sabbatical.
- Assisting the employee in forging links which
could lead to visiting research or teaching
abroad. - Allowing the employee to continue working from
abroad.
32Institutional Responses
- Waiver assistance.
- While there is no regulatory issue involved in
assisting another institutions program
participant with a waiver, such as providing
letters of support, etc., institutions may, as a
matter of policy, refuse to provide such
assistance, as it may be considered to run
counter to general principles of exchange.
33Institutional Responses
- What should be an institutions response to a
request for waiver assistance from its own
program participants? While there is no
regulatory prohibition from DOS, it should be
noted that the institution accepts participants
for its programs with the intent of fostering
exchange, and this principle should be taken into
account in elaborating institutional policies in
this regard.
34Institutional Responses
- It should be noted that a J researcher or
professor cannot be placed in a tenure track
position, whether or not sponsored directly by
the institution. There is no such prohibition
regarding J 1 students (academic training) or J 2
dependants. - It should also be noted that once a J receives a
waiver recommendation from the Department of
State, he or she may not be accorded extensions
of program status. Does such an extension
resubject the individual?
35What if No Waiver is Possible?
- All other visa types, other than H or L, are
possibilities. - J 2s, if subject, cannot change status, but can
reenter with a new J 1 visa or other permissible
visa type, eg, F. - A new J program or program transfer may be
possible. - The O visa is possible only in limited
circumstances since about March 2002 INS/CIS has
held petitioners strictly to the extraordinary
ability or achievement standard. The O can be
extended indefinitely. - TN, for Canadians and Mexicans, likewise, can be
extended indefinitely. - Consider the E-3 for Australians.