Potential Restrictions in Granting Waivers to J Exchange Visitors Subject to 212(e)

International Student and Scholar Services

Updated January 29, 2018

 

The U.S. Department of State may publish a new rule in March 2018 that may end or limit the number of 212(e) waivers granted to those who are on or who have in the past held J-1 or J-2 status. 

We currently have very limited information at this point in time.  The intention may be viewed on the Office of Management and Budget website at this time. 

If published as an “interim final rule” in the Federal Register, this means the rule will take effect immediately.

This information is meant to assist those who are in J status at the University of Iowa, or any University of Iowa F students who have held J status in the past.  We are unable to advise those who hold J-1 status through another university or organization.

 

Contents

Does this apply to me?. 1

What is 212(e)?. 1

I held J status a long time ago and now I’m in a different status. 2

I held J status a long time ago and now I’m back in J status. 2

I held or hold J-2 status, am I subject?. 2

What if I am/have been subject but have no plan to apply for an H-1B or a green card in the future?. 3

Is this the same as the 12- or 24-month bars to return in J status?. 3

What is a waiver and how is it obtained?. 3

If I apply for the waiver now, before the new rule may be published, then it is guaranteed I’ll get it?. 4

Should I just go ahead and apply for the waiver now?  Is there any reason I might not want to do this?. 4

Who can help me?. 5

 

Does this apply to me?

 

  • I currently hold or have at any time in the past held J-1 or J-2 status in the U.S.:
    • I know that I am not/have never been subject to 212(e) (Then this will not apply to you.)
    • I know that I am/have been subject to 212(e), but I have no interest or plan to apply for a waiver.  (Then this will not apply to you.)
    • I know that I am/have been subject to 212(e), and am either interested in applying for a waiver or am uncertain.  (Then keep reading the info below.)
  • I have never held J-1 or J-2 status in the U.S.  (Then this does not apply to you.)

 

What is 212(e)?

 

This applies only to some who currently hold or have in the past held J-1 or J-2 status. 

The ISSS information page on the “Two-Year Home Country Physical Presence Requirement” explains in detail the following information:

  • What 212(e) is
  • Who becomes subject to 212(e)
  • What restrictions are placed on those subject to 212(e)
  • What to do if you are uncertain whether you are subject
  • A link to the Department of State waiver application site

 

I held J status a long time ago and now I’m in a different status

 

  • You may still be subject, depending on whether or not (1) you lived in your home country for two years after your J status ended, or (2) you obtained a waiver.  But 212(e) does not just go away if you obtain another status without having done one of those two things.  ISSS can help you begin to sort out whether or not you may still be subject.

 

I held J status a long time ago and now I’m back in J status

 

  • Even if you received a waiver or lived in your home country for two years, you may once again be subject to 212(e) as several things can “reapply” it to you situation, including later obtaining J status again.  An ISSS advisor can help you begin to sort out whether or not you may be subject.

 

I held or hold J-2 status, am I subject?

 

  • You may be.  If your J-1 spouse/parent was subject, then all J-2 dependents will be as well.  ISSS can help you begin to sort out whether or not you may be subject.

 

What if I am/have been subject to 212(e) but have no plan to apply for a waiver?

 

  • Then you can disregard this as it won't apply to you.  However, if there is any uncertainty about your immediate future plans, you may still wish to speak with an ISSS advisor.

 

Is this the same as the 12- or 24-month bars to return in J status?

 

  • No, 212(e) is a separate issue.

 

What is a waiver and how is it obtained?

 

  • A waiver is a special request made to the U.S. government and possibly also the home government, asking to be released from having to live in the home country for two years. 
  • This pending rule will impact these types of waivers:
    • No Objection – A J exchange visitor’s home country may issue a “no objection” statement in response to a waiver application when 212(e) was based on either (1) the exchange visitor Skills List or (2) home government funding.  It is rare to receive waiver approval if funding was received from the U.S. government.  Also those who are foreign medical graduates or alien physicians who obtained J status for medical training/education are not eligible for a waiver based solely on a no objection statement.
    • Hardship – A very rare form of waiver reserved for those who hold/held J status but whose departure from the U.S. for two years would cause exceptional hardship to any U.S. citizen or permanent resident spouse/children, OR if the J exchange visitor would be subject to persecution based on race, religion, or political opinion if returning home.  Current or former exchange visitors hoping to apply for a waiver based on Hardship should consult experienced immigration attorneys as this is beyond the scope of ISSS to advise on, but ISSS can provide information on reputable immigration attorneys in the area.

 

If I apply for the waiver now, before the new rule may be published, then it is guaranteed I’ll get it?

  • Unfortunately we cannot guarantee that.  As mentioned, we have very limited information about this pending rule at this time.
  • It is entirely possible that those applications received before this rule is published may still be handled according to any new restrictions.
  • The goal for ISSS to bring this to the attention of our current J exchange visitors is for you to decide whether or not you think applying for the waiver now may be worth it, understanding that it may not make a difference in the end.

 

Should I just go ahead and apply for the waiver now?  Is there any reason I might not want to do this?

Receiving a waiver recommendation from the Department of State may impact the ability of a J to take certain actions regarding their remaining J status.  In some cases we have also seen arguments that simply requesting a waiver, before a decision is even issued, could potentially restrict the J exchange visitor from taking certain actions while waiting for a waiver decision.  Some things to think about:

  • Do I need to extend my DS-2019?  If I’m a student, will I graduate before or by the program end date listed on my DS-2019?  Or if I am here as a J-1 scholar, will my program wish to have me stay longer, if my J category permits it? – You will not be able to request an extension of the DS-2019 if your waiver is approved, and some argue that you cannot request an extension once you apply for the waiver, before a decision is made.
  • Do I wish to transfer my J status to another institution?
  • Do I want to apply for Academic Training before or after graduation?  This pertains only to those here as current J-1 students.  Academic Training requires making an update to the DS-2019.  As a result it is viewed as prohibited once a waiver has been approved, and could potentially be considered prohibited once a waiver is requested but before it is approved.

 

Who can help me?

 

  • Currently in J-1/J-2, or F-1/F-2 who previously held J status at any time in the past, currently on an active University of Iowa DS-2019 or I-20 – International Student and Scholar Services staff will first hold group information sessions on the following dates/times.  We will also then make appointment times available with specific staff who are familiar with 212(e) to help you assess your situation and decide whether or not applying for a waiver before March may be in your best interest.  Because this issue is very complicated, we ask that you not seek guidance during regular walk-in hours or via email.  We will send an announcement when the individual appointment system is available and also post instructions here.
    • Monday, February 5, 12:00 p.m. – Big10 Theatre (room 348), IMU
    • Tuesday, February 6, 3:00 p.m. – Big10 Theatre (room 348), IMU
  • Currently employed by the University of Iowa in a status sponsored by the University of Iowa (ex. H-1B, O-1, TN) – If you have concerns about your current status (specifically as it relates to  previous J-1/J-2 status), consult with Faculty and Staff Immigration Services, https://hr.uiowa.edu/immigration/ or contact your Immigration Case Coordinator directly - last names A-L (rebecca-mitchell@uiowa.edu) or last names M-Z (nina-thompson@uiowa.edu)
  • University of Iowa department planning to sponsor someone for an H-1B or green card who previously held J status - Faculty and Staff Immigration Services, https://hr.uiowa.edu/immigration/ or contact your Immigration Case Coordinator directly - last names A-L (rebecca-mitchell@uiowa.edu) or last names M-Z (nina-thompson@uiowa.edu)
  • University of Iowa student or employee on a DS-2019 issued by another organization (ex. Fulbright, ISEP, etc.) – You must consult with your program sponsor.  ISSS is unable to assist you.