212eeek Overcoming Fear of The Two Year Home Residence Requirement

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212(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

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What 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.

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What 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.

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What 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.

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When 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.

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To 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.

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To 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?

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Country 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.

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Is 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).

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Is 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.

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How 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.

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How 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).

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How 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.

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How 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.

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How 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.

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How 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).

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What 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).

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How 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).

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What 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.

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Examples 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?

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What 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.

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What 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.

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What 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.

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Compliance 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.

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What 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.

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Options 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.

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Options 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.

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Waiver 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.

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Completion 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.

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Completion 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.

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Institutional 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.

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Institutional 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.

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Institutional 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.

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Institutional 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?

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What 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.