J1 Visa Home Residency Requirement warnings, Got a previous J1 visa, review carefully before proceeding... Add to Watch List Options

[em79sugar]

Hi Everyone,

Some of you may have seen my previous posts or questions about something called the Home Residency Requirement or the 212 (E). I am now almost the end of our K1 visa process. Recently, after our NOA 2 was issued, I became very worried that he was subject to this rule, as it is a requirement that sometimes applies to previous exchange Visa's such as a J1, which he had. We had a copy of the J1 visa that was issued, and very clearly it states that the bearer is NOT Subject to the rule. You would think that being these words are on a VISA, then they must be the truth and the final say. NOT!

Because of this nagging intuition, I asked my fiance to look at the paperwork he completed prior to his J1 Visa interview, it s called a DS-2019 or a IAP-66. Clearly on the DS 2019 form it states that he IS subject to this rule, based on government funds he received from his home country. So, now I was very worried, the Visa says he is Not, the DS-2019 says he is....so what one is right?

I decided to get my congressmans office involved, some people advise against this, but considering my fiance was in his home country and not here trying to change his status, and we were in the middle of a K1 Visa process, I needed help quick. My attorney was helpless and could have cost us our visa had my fiance gone to his interview and found out he was subject.

I got in contact with someone in immigration in the Congressmans office and she immediately got on the ball. However, we still needed to wait for our petition to get to the NVC so she could get our new case number and contact the US Embassy in Sweden to review his case about the HRR as soon as our file arrived. She honestly believed that the Visa supercided the DS-2019 form and told us NOT to apply for the HRR WAIVER that one can do if they are subject to this rule and to get the rule removed.

Following her instructions, I DID NOT apply for the waiver until the case got to the US Embassy because she may be able to get us an answer to save us time and money. It took almost 5 weeks for our petition to get to the NVC, that set us back quite a while and then once it got there, she received word that regardless what the Visa said, the DS-2019 form is the final sayer. WHAATTT???? Ya I know, the visa was printed after the government reviewed the DS-2019 form, so shouldn't that be correct? NO!

We just applied for the waiver today and can hopefully get it expedited with assistance from the Congressmans office so we can mail back the packet three papers as we are stalling right now. SUCKS!

So please, if you find yourself in this predicament, check the DS-2019 form and go by that form, apply for the Waiver if you can and don't waste your time like I did.

[tomsandi]

Thank you for this post, I never even knew about the Home Residency Requirement until I read this. I (Tom) had an exchange year during the 04/05 academic year, on a J1 visa. I still have the visa in my passport, but I don't have form 2019 anymore (I don't remember what happened to it in 2004).

Am I right in thinking that because I've been back in the UK since summer 2005, the Home Residency Requirement is redundant in my case?

Many thanks

[Tea and Honey]

Thank you for this post, I never even knew about the Home Residency Requirement until I read this. I (Tom) had an exchange year during the 04/05 academic year, on a J1 visa. I still have the visa in my passport, but I don't have form 2019 anymore (I don't remember what happened to it in 2004).

Am I right in thinking that because I've been back in the UK since summer 2005, the Home Residency Requirement is redundant in my case?

Many thanks

As far as I understand the HRR is completed if 'it has been established that the alien has resided and has been physically present in the country of the alien's nationality or last residence for an aggregate of at least 2 years following the termination of the alien's exchange visitor status as required by INA 212(e)' (http://law.justia.com/us/cfr/title22/22-1.0.1.5.26.12.1.2.html)

I believe you should have no problems.

Natalia

[ddkm]

Now i am getting really worried about this. I was working for 2 months in summer 2006 on a J1 Visa and am worried that i may be subject to the 2 year home residency requirement. It doesnt say anything about it anywhere on the visa that's still in my passport, and i dont have the ds2019 anymore. If it makes any difference i didnt do any studying at all, and the trip was 100% funded by me and not by any 3rd party/government.
Am i worrying unnecessarily???

[ddkm]

ok i think i can sleep easy now....

""Two-Year Foreign Residency Requirement

An exchange visitor is subject to INA 212(e) requirement, if the following conditions exist:

The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the United States government or the government of the exchange visitor's nationality or last residence;
The exchange visitor is a national or resident of a country designated as requiring the services of persons engaged in the field of specialized knowledge or skills in which the exchange visitor was engaged for the duration of their program (Exchange Visitor Skills List 9 FAM 41.62, Exhibit II);
The exchange visitor entered the United States to receive graduate medical education or training. """

taken from http://travel.state.gov/visa/temp/types/types_1267.html#12

[em79sugar]

ok i think i can sleep easy now....

""Two-Year Foreign Residency Requirement

An exchange visitor is subject to INA 212(e) requirement, if the following conditions exist:

The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the United States government or the government of the exchange visitor's nationality or last residence;
The exchange visitor is a national or resident of a country designated as requiring the services of persons engaged in the field of specialized knowledge or skills in which the exchange visitor was engaged for the duration of their program (Exchange Visitor Skills List 9 FAM 41.62, Exhibit II);
The exchange visitor entered the United States to receive graduate medical education or training. """

taken from http://travel.state.gov/visa/temp/types/types_1267.html#12

Yes, you should be fine as you do not fall under the criteria AND, your original VISA probably says you are not subject.

[Natalie+Martin]

Hey

I am pretty confused by this, and now a little worried - I was planning on spending the summer with my fiancee this year on a J1 visa, then start the K1 process upon my return to the UK.

Will the fact I would have spent the summer on a J1 visa cause problems during the K1 process?

[Don E]

em79sugar,

I went through this scenario with my ex-wife several years ago. She was subject to the FRR (or HRR as you refer to it). We were married after she returned to her home country following a one year stay in the U.S. on a J-1. She applied for the waiver but was denied, and we had to wait for the two years to expire. Based on my experience, it's not easy at all to get such a waiver. You have to prove extreme hardship (typically financial or medical) because of the separation that would be resolved if the beneficiary can come to the U.S., or you have to have some connections or get lucky with the beneficiary's home government helping out and letting the beneficiary off the hook. So, while it is possible, I'm just saying that you have to have some unusual extenuating circumstances or alot of luck. Do plenty of research, and try to find someone (best if they're from your home country) who has gone through the process with success. I wish you the best of luck!

[rebeccajo]

From what I've read anecdotally here, by the time these waivers are granted (if at all) the residency requirement has been fulfilled.

[em79sugar]

From what I've read anecdotally here, by the time these waivers are granted (if at all) the residency requirement has been fulfilled.

Luckily, his Country already sent the No Objection letter, so from my understanding, if his home country does not deny a no objection letter, then he should be ok. However, it is supposed to take 6-8 weeks for the process, and we have a congressmans office involved, so we will see what they can do if anything.

[MacPara]

I'm currently in the state that we collect all the required documents for the AOS based on IR-1. I am in the US on a J-1 right now and my DS-2019 says I'm NOT subject to INA212(e). There is no statement on that on the visa in my passport. Anyway, I'm German, so I got concerned about this anyway ;-).
Googling for it revealed, that even if your DS-2019 shows that INA212(e) does NOT apply it doesn't mean nothing. "Decisions of consular officers on INA212(e) are not authoritative and can be changed during later review." is what I found somewhere in the list of rules.

The only way to definitely find out if INA212(e) applies or not seems to be asking for advise from these guys:
This is copied from this link: http://travel.state.gov/visa/temp/info/info_1288.html

Requesting an Advisory Opinion, if you are not sure that INA 212(e) applies to you.

If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may request in writing an advisory opinion on applicability of INA 212(e) to your situation. The advisory opinion request should include all copies of DS-2019/IAP-66 issued to you, along with a self-addressed envelope, and should be sent to:


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

I found at another place that the opinion of the committee is authoritative and therefore much more reliable than a tick in the box on your DS-2019 made by a consular officer.

So, I stopped my AOS process for now and sent my documents there to see if I have a problem.

I'll keep you posted,
Torsten.

[aleena]

I went through the HRR waiver at the end of last year. I had a little bit of trouble with my embassy as they require you to still be in J1 status when u apply for a waiver and i have already returned home at the time of my application. I finally pulled it out after calling embassy in DC a few times and they got me the NO Objection letter. The whole process took about....3 months...maybe a little less if it wasn't for my situation.
I think the requierements for application are different for each country...So you need to check with your embassy in DC.
Best thing to do if you are not sure about the HRR is to request for an Advisory Opinion....as someone mentioned before...but that takes a while ..
Both my visa and my Ds-2019 said i was subject to it so i had no doubts...lol
Also i think the HRR only applies for J1 training or internship programs...not for 2-3 month summer work&travel programs...
I was so happy when i got my waiver ...because it allowed us to step forward and start the K1 process.... Which we actually didn't know about at that time...but that's another story!
We are sending out petition this week and i must say i totally love this forum!
good luck to you all!

Aleena

[MacPara]

Requesting an Advisory Opinion, if you are not sure that INA 212(e) applies to you.

If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may request in writing an advisory opinion on applicability of INA 212(e) to your situation. The advisory opinion request should include all copies of DS-2019/IAP-66 issued to you, along with a self-addressed envelope, and should be sent to:


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

I've found that the procedure to get the Advisory Opinion was recently changed. The details are covered on the State Department website at this link.

The documents can be prepared on the website and you'll receive a PDF file upon completion. You're supposed to print this out, add you copies of DS2019 and visa in your passport and send it to the address provided in the PDF (pretty close to the address I've shown above). You should not forget to write your case number and country of last residence on the envelope.
As you will get a case number, this might speed up the processing time on behalf of the State Department and you'll also be able to verify the staus of your case using the mentioned link.
The same link can be used to apply for a waiver for the HRR - same procedure: fill out the forms online, receive a PDF, print it out, add documents and check and mail it to the same address.

Oh, if you can't easily find the link to get to the Advisory Opinion.... it's a bit hidden.as the main intention might have been to provide a way to apply for a waiver. You find the option for the Advisory Opinion on this page. Follow the option "Online Application" and then click on the option "complete a survey". This will ask you questions about the criteria for being subject to INA212(e) and will then make a guess if if applies to you or not, giving you the option to ask for an Advisory Opinion.
BTW: In my case the guess was wrong. It explicitly stated that Germany would be on the Revised Country Skills List and so I might be subject to the INA212(e). This statement is wrong. Germany is not mentioned in that list at all. But, well, what do I know ...

[FaustineJason]

Hello,
I was subject to this two years home requirement, because in summer 2005, I worked two months for USDA under a J1 visa. The two years are now over (september 2007), but during this time, I didn't stay in my residence country all the time. I visited my boyfriend in the US a couple times, but I didn't need any visa to do so..
Do you think this could be an issue for the K1? I thought that leaving my country for vacation under no visa wouldn't matter for the two years, but no I am worried that this could be an issue for my K1 application... I am an october filer and we are expecting our NOA2 pretty soon..
Can anyone help me????
Many thanks!!!
Faustine

[MacPara]

Requesting an Advisory Opinion, if you are not sure that INA 212(e) applies to you.

If you are not sure whether the INA 212(e) two-year foreign residence applies to you, you may request in writing an advisory opinion on applicability of INA 212(e) to your situation. The advisory opinion request should include all copies of DS-2019/IAP-66 issued to you, along with a self-addressed envelope, and should be sent to:


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

I've found that the procedure to get the Advisory Opinion was recently changed. The details are covered on the State Department website at this link.

The documents can be prepared on the website and you'll receive a PDF file upon completion. You're supposed to print this out, add you copies of DS2019 and visa in your passport and send it to the address provided in the PDF (pretty close to the address I've shown above). You should not forget to write your case number and country of last residence on the envelope.

So, today I checked my status. It's now about 9 weeks after I've applied for their opinion and I am very surprised to find that they consider me being subject to INA212(e). Unfortunately, there's no reason shown on the status page and it just says "Subject" without any further explanantion which leaves me pretty clueless about what to do know.
As I was about to turn in my AoS application this week, I guess I keep on going and pursue this but I should also get prepared to deal with bad news from USCIS as they might be deciding just like the committee. So, would someone here maybe have a recommendation for a good immigration lawyer that has experience with J-1 HRR cases? I still think that I am not subject to this rule as there was no government funding involved in my delegation neither from the US nor from Germany and Germany is not on the Skill List. So I think I would challenge a negative decision and apply for a Waiver in parallel.
Any other suggestions from someone here that could help me???? I'd really appreciate any help from you guys!