10 May J – The Visa That Can Come Back to Haunt You
A J-1 visa (J-2 for dependents of J-1 visa holders) is a non-immigrant visa issued by the United States to research scholars, professors and exchange visitors participating in programs that promote cultural exchange, especially to obtain medical or business training within the U.S.
The Immigration and Nationality Act (INA), section 212(e), defines the two-year Physical Presence Requirement applicable to certain J-visa holders. If subject, a J-visa holder will have to physically reside within their last country of legal permanent residence for two-years before they may return to the U.S. as an H-1B visa holder, L visa holder, K visa holder or as a Legal Permanent Resident (LPR). Also if subject, J-visitors are unable to apply for a change of status within the U.S. However, being subject to this regulation does not prevent a visitor from returning to the U.S. in another visa status, such as F-1 (student), B1/B2 (tourist/business) or under the visa waiver program.
There are three reasons a J-1 visitor may be subject to the 212(e):
- Their J-1 program is funded in part or wholly by the United States government, the visitor’s government, or an international organization.
- Their J-1 program is engaged in one or more of the skills listed on the Exchange Visitor Skills List for his/her country (https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor/exchange-visitor-skills-list.html).
- The J-1 visa holder is receiving graduate medical education or training.
KEEP YOUR RECORDS
Each J visa issued has a corresponding Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1), which is part of the administration of the J visa program and shows details of the J visa holder, their sponsor, validity dates, exchange category, and estimated cost of the exchange program.
Ideally, a beneficiary will have kept their J visas and DS-2019s among their records, and thus can include copies of those documents with their petition or application for an H, L, K visa or LPR. However, understandably, not all beneficiaries have.
In one case, our firm prepared an application for adjustment of status for a beneficiary who had held J visas in the late 1990s and early 2000s, but no longer had the physical visas, which had been destroyed years prior after the passport containing them expired. The corresponding DS-2019s were also not available. Copies of newer DS-2019s can be requested of the exchange program’s sponsor, but sponsors destroy older records, many after just 3 years since the end of the J-visa holder’s program ended, so in this case, the sponsors had shredded those 1990s/2000s documents long ago. There is no statute of limitations on the 2-year home residency requirement and the need to prove a beneficiary’s satisfaction of that requirement. If the beneficiary held a J visa 20 years ago, the requirement still applies. In our case, we instructed the beneficiary to gather travel itinerary and other evidence of their time in their home country since the end of the J visa program, and their adjustment-of-status application stated, “if the beneficiary was subject to the 2-year physical presence requirement, they have met that requirement, as evidenced by the enclosed travel documentation.”
Even if you have copies of your J visa(s) and corresponding DS-2019(s), those documents could actually be inaccurate on the 2-year physical presence requirement, because of government error in preparing those documents. For instance, a J visa could state, “IS NOT SUBJECT TO INA 212(E),” and be incorrect. Likewise, the DS-2019 could be checked, “Not subject to the two-year physical presence requirement,” and be incorrect.
So how do you ultimately determine whether you are subject to the 2-year physical presence requirement? Refer to the DS-2019, which states the program’s name, and the source of funding for the program. If the program is on the Exchange Visitor Skills List for the beneficiary’s country, the requirement applies. However, applicability comes down to the source of funding, i.e., if the program is funded in whole or in part by the United States government, the visitor’s government, or an international organization, the 2-year physical presence requirement applies. So, even if the program is not found on the Exchange Visitor Skills List, the requirement would still apply if the funding source fell within one of those categories.
Only the U.S. Department of State can make a final determination of whether a J-visa holder is subject to the two-year physical presence requirement.
For more information on J-1 two-year requirement, visit the Department of State website (https://www.state.gov).
WAIVER
If a beneficiary is uncertain whether they are subject to two-year physical presence requirement, they will need to apply for a Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement. However, not all J-visa holders are eligible, and the waiver application process can take months. See the Department of State’s web page regarding waivers here https://travel.state.gov/content/travel/en/us-visas/study/exchange/waiver-of-the-exchange-visitor.html/
BOTTOM LINE
If at all possible, keep all records associated with current and past J visas. If you are starting the process toward an H, L, or K visa, or an LPR application, make sure the J-visa question is answered as soon as possible, so action can be taken if needed. Lastly, know that a waiver is not guaranteed and the associated process will delay your case.
The above does not constitute legal advice.
At ALG, most of our staff has personal experience with the U.S. immigration system. We channel this experience into our work to provide the best possible service to our clients. Our passion for the field drives us to stay on the cutting edge of U.S. immigration law.
Get in touch with our experts for your immigration needs. Call our office directly at (512)732-0555, or email us at [email protected].