If J-1 visa says I'm exempt from two-year home residency requirement; can Skills List override this?
No matter what your visa says, make sure the Skills List doesn't indicate that your expertise is needed in your home country before you return to the U.S.
I'm a Turkish citizen and obtained my J-1 visa in Germany to pursue privately funded chemical engineering graduate studies in the United States. My J-1 visa and the DS-2019 both say, "212(e) does not apply." I obtained an H-1B visa from the same U.S. consulate in Germany last year. Now that I’m applying for a green card, I've been told that I'm subject to the two-year residence requirement after all. Can this be? Is there a way around this?
Based upon what you describe, you're subject to two-year home residency requirement under the Exchange Visitor Skills List. The Skills List itemizes types of work that require specialized knowledge and skills and that are needed in particular, named countries. The policy of the J-1 Exchange Visitor visa program is for persons from those countries to gain the knowledge and skills in the United States and then return to their home country to contribute to the development of their country.
Even though Germany, where you obtained your J-1 visa, does not fall under the Skills List, Turkey does, and chemical engineering is one of the areas listed for Turkey. The Skills List overrules the annotations on your visa and DS-2019 form.
Neither the visa nor the DS-2019 form are controlling when it comes to whether the two-year residence requirement applies. Recall that there are three situations in which the two-year residence requirement may apply to a J-1 visa holder:
1. Program involving an area listed on the Skills List
2. Receipt of government (foreign or U.S.) funding to enroll in a program in the U.S., and
3. Participation in graduate medical training.
Even though you did not have government funding for your studies, the fact that your country and area of study are on the Skills List means that the two-year residence requirement applies to you.
The U.S. consulate apparently made a mistake in issuing your H-1B visa. You are not entitled to an H-1B visa until you complete the two years in Turkey or obtain a waiver of the requirement. At this point, however, there's nothing you can do about that. You just need to obtain the waiver described below.
To continue with your green card process, you'll need to pursue a waiver of the residence requirement under the "No Objection" category. See Nolo's article, "How J-1 Visa Holder Can Apply for a No-Objection Waiver of Two-Year Home Residency Requirement" for step-by-step guidance, or consult an attorney with experience in J-1 visas for help. In a nutshell, you need to submit an application to the U.S. State Department. You then will contact the Turkish Embassy in the United States to request a letter confirming that the Turkish government has no objection to your not spending two years in Turkey.
Unfortunately, the types of mistakes and miscommunications you experienced with your J-1 visa are common. The good news is that your chances are good of obtaining a waiver in several months and then continuing with your green card application.