Do I need a J1 212(e) waiver for an old J1 visa

[Elsi 0]

Hi,

 

I had a J1 visa to work in the US for two months a couple years ago. This J1 had the 2-year residency requirement 212(e) attached to it. After the visit, I went back to my home country for about a year.

 

In the beginning of this year, I got another J1 to come back to the US to work for a year. This current visa does not have the 212(e) on it. My question is, will the 212(e) on my first J1 visa prevent me from applying for an Adjustment of Status to get a Green Card? My employer in both cases was/is the same. I'm also married to a US citizen if that changes anything. 

 

Thank you for your help!

[HRQX 4,145]

20 minutes ago, Elsi said:

My question is, will the 212(e) on my first J1 visa prevent me from applying for an Adjustment of Status to get a Green Card?

INA 212(e) still applies: "No person admitted under section 1101(a)(15)(J) of this title or acquiring such status after admission (i) whose 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 Government of the United States 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 under section 1101(a)(15)(J) of this title was a national or resident of a country which the Director of the United States Information Agency, pursuant to regulations prescribed by him, had designated as clearly 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 United States 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 a nonimmigrant visa under section 1101(a)(15)(H) or section 1101(a)(15)(L) of this title until it is established that such 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 United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States Government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 1184(l) of this title: And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien."

 

You'll need to apply for a waiver with DOS: https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor.html 9 FAM 302.13: https://fam.state.gov/FAM/09FAM/09FAM030213.html

 

https://icenter.tufts.edu/immigration/j1-requirements/212e-requirement/

Consequences of Section 212(e)

If you are subject to Section 212(e), this means that you will not be able to obtain an H-1B temporary worker visa or US permanent residence (as well as L and K visas) until you have satisfied the two year home residency requirement or had the requirement waived. In addition, you are not permitted to change to another immigration status while in the US. You are allowed, however, to depart the US and then re-enter with a new visa (other than H, K, L, and immigrant / permanent residence visas). For example, a person subject to 212(e) could return to the US using a B-1 / B-2 visitor's visa, F-1 student visa, or O-1 visa for aliens of extraordinary ability, among others.

Duration of 212(e)

Section 212(e) is a lifetime requirement in that it applies to you until the requirement is either fulfilled or waived. For example, if you were a J-1 student subject to the requirement, but then left and immediately returned to the US using as an F-1 student visa, the requirement would still apply to you even after completion of your F-1 program. You would need to document your return to your home country for two years, or obtain a waiver.

[Elsi 0]

Thank you for your response! A follow up question: Will applying for the waiver for my old J1 affect my current J1? I think I read somewhere that applying for a waiver freezes the visa so that it can't be extended etc. Is this true?

[Chancy 6,243]

*** Moved from AOS from Work/Student/Tourist Visas to Student/Exchange Visitor Visas, where topics related to J1 waiver are discussed ***

 

[Coco8 1,042]

On 9/17/2021 at 10:42 AM, Elsi said:

Thank you for your response! A follow up question: Will applying for the waiver for my old J1 affect my current J1? I think I read somewhere that applying for a waiver freezes the visa so that it can't be extended etc. Is this true?

 

It is true, but I think that's only for the previous J1, not for this one that doesn't have the 2-year requirement. I'm not 100% sure though.

 

However, if you get the waiver and submit the AOS package immediately, the only issue you'll have is that you would have to stop doing whatever you were doing on the J1. You'd be unable to work for roughly 8 months since that's how long it has been taking to get an EAD. 

 

The waiver is going to take a while.