Hiring Individuals Subject to INA Section 212(e)
(The Two-year Home Residency Requirement)
If a selected candidate has previously held J-1 status, the hiring unit must consult with the International Center to determine the appropriate visa category before an offer of employment is extended. When an offer of employment is made to a foreign national candidate who is subject to INA Section 212(e) (the two-year home residency requirement), a plan will be established within six (6) months from the start date of appointment to document the foreign national’s intent to complete or seek waiver of the two-year home residency requirement.
The purpose of this policy is to ensure that the hiring unit and the foreign national effectively address compliance with the two-year home residency requirement at the beginning of the employment relationship to promote continued and lawful employment. Generally, there are two immigration statuses that will allow the hiring of a previous J-1 status holder who has not satisfied the two-year home residency requirement: O-1 status and H-1B for Canadian citizens.
The O-1 category (8 C.F.R. 214.2(o)(1)) is available to foreign nationals who have extraordinary ability in science, art, education, business, or athletics which has been demonstrated by sustained national or international acclaim and whose achievements have been recognized in the field through extensive documentation. Extraordinary ability is a high level of expertise and indicates that the erson is one of a small percentage who has risen to the very top of the field.
O-1 status is issued for temporary employment and can initially be requested for up to three years and extended indefinitely in one-year increments within the U.S., as long as the foreign national is seeking to continue in the service and/or activities for which the O-1 application was filed. The O-1 is available to J-1 visa holders who are subject to the two-year home residency requirement and does not require a waiver of that requirement. However, the O-1 is not a waiver. A waiver or fulfillment of the two-year home residency is required eventually in order to be eligible for permanent residency and longer term employment.
Like O-1 status, H-1B status is also possible for Canadian citizen J-1 visa holders who are able to enter the U.S. through a port of entry without having to apply for an H-1B visa stamp but continue to be subject to the two-year home residency requirement. The grant of H-1B status, however, does not take the place of a waiver and fulfillment of INA 212(e) is still required.
Methods of obtaining a waiver of the two-year home residency
requirement include the following:
- “No objection” statement from visitor’s home country (not
physicians who completed a medical residency under the ECFMG J-1
- Request from an Interested U.S. Government Agency (IGA Waiver).
Generally, the potential sponsoring IGA is a U.S. government agency
that financially supports a research program or has a strong interest
in the person’s area of research;
- Work at the VA (5/8th VA, 3/8th U-M for three years); or
- Claim of persecution in home country if visitor returns OR claim of exceptional hardship to a U.S. citizen or permanent resident spouse or child if visitor returns to home country.
The following steps must be followed when an offer is made to a foreign national who is subject to the two-year home residency requirement based on graduate medical education (ECFMG sponsored J-1); government funding (e.g., Fulbright)or as a spouse of the aforementioned:
- The Dean’s office must approve all O-1 initial petitions and
renewals and all H-1B Canadian/visa-exempt petitions and renewals.
- A plan is developed within six (6) months from the start date of
appointment for the foreign national to complete the J-1 two-year home
residency requirement or otherwise establish a pathway for immigrant or
permanent residency status if a waiver request is unsuccessful. The
hiring unit is encouraged to consult with the International Center on
the Ann Arbor campus regarding the plan for satisfying the J-1 two-year
home residency requirement. This plan should be documented and placed
in the personnel file. When creating a plan, two issues must be
- The location to which the exchange visitor must go to fulfill
the requirement. INA 212(e) mandates that the exchange visitor return
to the country of nationality or last country of legal permanent
residency. Residence in a third country does not satisfy the rule.
- The length of time necessary to comply with INA 212(e). Visits
to the home country in the aggregate can satisfy this rule as long as
such visits took place after the conclusion of the J-program. For
example, an exchange visitor who returned to the country of nationality
or country of legal permanent residency for eighteen months, then
departed the home country for as little as a day or as much as several
years is still subject to the rule, but need only reside in the home
country for six more months to satisfy the requirement. Documentation
should be kept on each visit and can include travel itineraries,
entry/exit stamps to the home country and U.S., receipts from hotels,
rent/utilities, credit card statements, etc.
- All offer and appointment letters must include language that
employment is contingent upon the foreign national maintaining lawful
status. Employment could terminate if the foreign national is ever
ineligible to work.
A foreign national’s failure to comply with the agreed upon plan for completing the J-1 two-year home residency requirement may result in the University’s decision not to process future O-1 or H-1B Canadian/visa-exempt renewals.
The International Center will not process an initial O-1 or H-1B Canadian/visa-exempt petition until the hiring unit submits documentation of compliance with steps (1) and (3) listed above.
 Certain exchange visitors are required to return to their home country or country of last residence upon completion of their U.S. training before they may apply for an immigrant visa, adjustment of status, or change of status to another nonimmigrant visa (except for A, G, or change to H-1B for physicians receiving waivers on the basis of a three-year waiver job). INA 212(e), 8 U.S.C. 1182(e)
[2} 22 C.F.R. 41.62(c)(3). Department of State looks at the country of residence listed on Form DS-2019 to determine where the two-year requirement must be satisfied.
 EU citizens must return to their home country within the EU to satisfy the home residency requirement. Merely residing in the EU is not sufficient.