When is the right time to get the waiver for the 212e rule (Two-Year Home Country Physical Presence Requirement)

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I have decided to write about this, because when I needed my waiver, I had some problems that other people didn’t, and most of the people even didn’t know about them. Most of the people with a J1 Visa will get the 212e rule in their DS2019 and/or Visa stamp. It is based on the skills/area/field you are in, and the necessity that your home country has for those. You can always check the list of skill on the US Department of State website. There are three categories that will make you get a “X” in your DS2019: government funding, area/skills in need at the home country, and if you will receive a MD degree in the US.

So, with this rule, you are not eligible to apply to a nonimmigrant Visa such as H1b or even green card. The important think to know is that the waiver will froze your DS-2019, so no extensions or transfers can be done after you get your waiver. So, timing is everything. Usually, the first DS2019 is for 1-3 years period, and you can extend it (of course, if the PI agrees) up to 5 years. So, you should request the waiver when your DS2019 is up to the maximum extended time. My DS2019 was extended in 2014, so in May 2014 I got my waiver. The thing is, some people confuse why you need the waiver, but if you are current in a J1 program and you are going to get a new Visa stamp within the same program you won’t need the waiver. I got my waiver in May 2014, and went home in October 2014, and got a new Visa stamp.

The problem was that my waiver did not apply to my new Visa, and I had no idea! My Visa said “Rule 212e does not apply”, and I was happy about that. In 2016, I started my green card application, and my lawyer recommended that I requested a “Advisory Opinion” from the US Department of State. I sent them all my documents, including my first waiver, and their opinion was that I needed a second waiver.

Then, everything was a turmoil, because I had a deadline for my greencard and for the H1b Visa application. I have friends that got the waiver, went back home, got a new Visa stamp, and had no problems after that. My DS2019 had still a “X” in the skills/area, while my Visa said I was not subject to the rule. It was brought to my attention that the person that give you the stamp, sometimes don’t add the rule in the stamp by mistake. So, you should always check with US Department of State, as soon as possible. And, after getting it, you should avoid go outside US, or be aware that you might need another waiver when you come back. The advisory opinion took around 5 weeks, then the answer was yes, and the waited started.

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It took another 5 months to get the waiver. So, check ASAP if you will need the waiver. I even talked with some immigration lawyers in the internet that said I didn’t need another waiver. So, trust no one, always check with the US Department of State, because they oversee the waiver evaluation for USCIS. So, usually, for J1, the base for the waiver is “No objection” from your home country. For this, you need to send some documents to your consulate, and they will send the letter direct to the US Department of State. You will also fill the forms, and send all the requested documents to the US Department of State. This last one, will analyze everything and give their response to USCIS. Then, USCIS will analyze your case and send you or not the waiver. USCIS has a published calendar that is updated once a month so you can check which month they are analyzing, and calculate your waiting time.

Good luck with your preparation, and I hope you guys don’t have any further problems.