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 that requires 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. skills list
- The exchange visitor entered the United States to receive graduate medical education or training.
If the exchange visitor is subject to INA 212(e) requirement, he or she cannot change his or status to that of H, L, K, or immigrant lawful permanent resident (LPR) until he or she has returned to his/her home country for at least two-years or received a waiver of that requirement.
Waivers of INA 212(E)
There are five statutory bases upon which you can apply for a waiver of the two-year foreign residence requirement:
- a no objection statement from your home government,
- a request from an interested U.S. Government agency on your behalf,
- a claim that you will be persecuted if you return to your country of residence,
- a claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if you are required to return to your country of residence, and
- request by a designated State health agency or its equivalent.
An advisory opinion is a request for a statement from the Waiver Review Division as to whether an exchange visitor is subject to Section 212(e) of the Immigration and Nationality Act.
You should only request an advisory opinion after you have participated in a J-1 program and you have doubts whether you are or are not subject to Section 212(e).