The J-1 visa is a non-immigrant visa with many different categories that each have their own set of benefits and restrictions. They range from academic categories — such as student, scholar, professor, and teacher — to exchange-based work experiences such as trainees and interns, au pair, camp counselor, and the summer work/travel program. Many primary and secondary exchange teachers are in the United States pursuant to the J-1 visa program.
Entering the U.S. in J-1 status may make you subject to the two-year home residency requirement (sometimes referred as 212(e)). One becomes subject to the two-year home residency requirement in three ways:
When the DS-2019 is created, the sponsor must enter certain information into the form which will guide the Department of State in making their determination of whether the J-1 visa holder will be subject to the two-year home residency requirement. The first is the funding information. If the sponsor accurately indicated U.S. government or home government funding, then the international individual is most likely subject to the two-year home residency requirement due to funding.
The second piece of information entered by the sponsor is the Subject/Field code, which gives information on the field in which the J-1 visa holder participates. If this code appears on the skills list for the individual's country, then it is likely that the Department of State will determine he or she is subject to the two-year home residency requirement.
Sometimes the determination whether an individual is subject to the two-year home residency requirement is made in error: the sponsor misunderstood the source of the funding or entered the wrong Subject/Field code; or, the Department of State made an error in its initial determination. If the decision was truly an error, the J-1 visa holder can apply for an advisory opinion from the U.S. Department of State.
If the two-year home residency requirement applies, it prevents someone subject to that the requirement from changing visa statuses within the United States, from applying for an H or L non-immigrant visa, or from applying for permanent residence or an immigrant visa — unless the waiver is fulfilled either: by returning to your home country of nationality or permanent residence for an aggregate period of two years; or by obtaining a waiver of that requirement from the U.S. Department of State.
The two-year home residence requirement can be waived on the following bases, with different procedures to follow based on the type of waiver being sought:
The Department of State website provides additional information on waivers of the two-year home residency requirement.
Read more here about U.S. immigration options for teachers. If you are a teacher or employer in need of assistance with immigration issues, we welcome you to contact Sivaraman Immigration Law to request a consultation.