In her case, GERMANY is not on the J-1 Skills List so, she id not subject to the 2 year requirement of INA 212(e), therefore, may adjust under INA 245(a). As for the employer's problem, that is an issue for ICE, not USCIS and anyway, the situation does not appear to even be a LOW priority for ICE.
For others who may be interested:
INA 212
(e) No person admitted under section 101(a)(15)(J) or acquiring such status after admission (i) whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence, (ii) who at the time of admission or acquisition of status under section 101(a)(15)(J) was a national or resident of a country which the Director of the United States Information Agency pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 214(l): And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien.
The waiver application is found at:
http://travel.state.gov/visa/temp/info/info_1296.html and can ONLY be done online.
The following FROM:
http://travel.state.gov/visa/temp/types/types_1267.html
Two-Year Home-Country Physical Presence (Foreign Residence) Requirement
When you agree to participate in an Exchange Visitor Program and your program falls under the conditions explained below, you will be subject to the two-year home-country physical presence (foreign residence) requirement. This means you will be required to return to your home country for two years at the end of your exchange visitor program. This requirement under immigration law is based on Section 212(e) of the Immigration and Nationality Act, as amended, and Title 22 Part 40 and Part 41 in the Code of Federal Regulations.
Two-year Home-Country Physical Presence Requirement Conditions - An exchange visitor is subject to the two-year home country physical presence requirement if the following conditions exist:
Government funded exchange program - The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;
Graduate medical education or training - The exchange visitor entered the U.S. to receive graduate medical education or training;
Specialized knowledge or skill: Skills List - The exchange visitor is a national or permanent resident of a country which has deemed the field of specialized knowledge or skill necessary to the development of the country, as shown on the Exchange Visitor Skills List. Review the Exchange Visitor Skills List 2009.
Change of Status and Waivers of Requirement - If the exchange visitor is subject to the two-year home-country physical presence (foreign residence) requirement, he or she cannot change his/her status to that of H, L, K, or immigrant lawful permanent resident (LPR) until he or she has returned to his/her home country for at least two-years or received a waiver of that requirement. Such waivers may be requested and if approved, obtained under these five separate bases:
No Objection Statement;
Exceptional Hardship;
Persecution;
Conrad Program, or
Interested Government Agency
For information about waivers, eligibility and process, see Waiver of the J Visa Two-Year Foreign Residence Requirement 212(e).
