Who is subject to this requirement?
Not all J-1 status holders are subject to this requirement. There are three ways to be subject to the requirement:
- Skills List: In an effort to prevent brain drain in other countries, the State Department has asked other countries to provide a list of occupations/skills that are in short supply and needed to further develop in that country. This is known as the skills list. Individuals whose occupations/fields of work are listed for their home country are subject to the two year requirement. The State Department periodically updates this list and provides access to the current version of the Skills List.
- Government funding: An individual whose J-1 exchange program has been directly funded by the U.S. government, his/her home government, or by an international government organization is also subject to the requirement.
- Foreign Medical Graduates: Foreign physicians who come to the U.S. for medical study or training are sponsored through the Educational Commission for Foreign Medical Graduates (ECFMG) and are subject to this requirement.
Determining Applicability of 212(e)
At the time that a J-1 visa is issued, the consular officer makes a preliminary determination about whether or not the exchange visitor is subject to the two-year home country physical presence requirement. He or she will indicate the determination on the following documents:
- Form DS-2019: In the lower left hand section of the form, the consular officer may have endorsed a preliminary determination by checking a box and signing his/her name. It's important to note sticker mistakes are sometimes made.
- Annotation on the visa: The consular officer often adds an annotation to the visa to indicate whether or not the exchange visitor is subject to 212(e). It's important to note that mistakes are sometimes made.
The Department of State's Exchange Vistor Program reserves the right to make the final determination regarding whether or not someone is subject to the two-year home country physical presence requirement.
Getting an Advisory Opinion
In situations where it is not clear whether an exchange visitor is subject to 212(e), the State Department can provide an advisory opinion. OIS does not submit requests for advisory opinions.
To request an advisory opinion the following documentation should be compiled:
- Letter requesting an advisory opinion
- All copies of DS-2019/IAP-66's
- stamped, self-addressed envelope for the opinion to be returned
Requests for advisory opinions are submitted to the following address:
INA 212(e) Advisory Opinion Request
The Waiver Review Division, CA/VO/L/W
SA-1, L-603
U.S. State Department
2401 E Street, NW
Washington, D.C. 20522-0106