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Subject to 212(e)

If the prospective employee was ever in J status, he/she could be subject to the 212(e) two year home country requirement.

This requirement is clearly marked on the passport visa page and on the DS-2019.

  • Check the J-1 visa page to see if the notation says Subject to 212(e) Two year rule applies.
  • Check the DS-2019 to see if the US consul marked the box (box #2) for 212(e) on lower left side of DS-2019.

If either or both of these indicators appear, the employee must have a waiver, or be able to prove that he/she spent two years in the home country after the J program was completed and such evidence must be included in the H-1 petition.

If the employee was ever subject to 212(e), the H-1 documentation must include either of these:

  • Form I-797 on which Approval of Waiver of Home Country Residency Requirement is indicated.
  • Evidence of fulfillment of the requirement, which can take the form of a home country employer's letter, evidence of enrollment at an institution in the home country, rent receipts, or other evidence that would establish the beneficiary's two year presence in the home country.

Failure to provide such evidence can result in denial of the H-1 petition.