If a Department at Temple wishes to sponsor a current or former J Exchange Visitor, the Department should be aware of the Two-Year Home Residency Requirement.

The applicant will need to review all their DS-2019 Forms and J visa stamps placed in their passport(s).

If the H-1B Applicant is/was Subject to the Two-Year Home Residency Requirement

If the H-1B applicant has the notation “Two Year Home Residency Requirement Applies” on any of the DS-2019 Forms or J visa stamps, they will need to have a J-1 Waiver of the Two-Year Home Residency Requirement Recommendation from the Dept of State before ISSS can submit the H-1B petition.

If the H-1B Applicant is/was not Subject to the Two-Year Home Residency Requirement

If the DS-2019 forms and J visa stamps indicate that the “Two Year Home Residency Requirement Does Not Apply”, the Department will need to decide if they would like to move ahead with an H-1B Petition or if they will require the Applicant to obtain an Advisory Opinion first. Timing will be critical as Advisory Opinion Decisions from the Department of State are taking months to adjudicate.

Choice 1:

ISSS submits the H-1B petition without an Advisory Opinion, hoping that USCIS will accept our argument that Applicant is not subject to the Requirement. The issue with submitting an H-1B petition without an Advisory Opinion is that USCIS may issue a Request for Further Evidence (RFE) asking for an Advisory Opinion / Waiver. This will significantly delay the H-1B approval as the Applicant will need to request an Advisory Opinion from the Department of State. If the Department of State issues an Advisory Opinion indicating that the Applicant is subject, we would not be able to respond to the RFE in a time manner as the Applicant would need to apply for a J-1 Waiver which can take at least a year to be approved.

Choice 2

ISSS submits the H-1B petition with an Advisory Opinion indicating that the Applicant is not subject to the Requirement. The issue with applying for an Advisory Opinion is that the US Department State may find the Applicant to be subject to the Requirement. In that case, we could not file an H-1B petition until the Applicant has applied for and been granted a J-1 Waiver Recommendation which may take a year or longer to be issued. If the Applicant has reached the maximum amount of time in J-1 status, the Applicant would not be able to transition to H-1B in the US.  Consular Processing an H-1B from outside the US now requires a fee of $100,000 so that is likely not an option.

Both options have risks. You and your department will need to run a cost/benefit analysis and decide what works best for you and your department.