UNDERSTANDING THE TWO YEAR HOME RESIDENCE REQUIREMENT AND WAIVERS
Many professors and researchers come to the United States in J-1 nonimmigrant status as Exchange Visitors; indeed, the Professor and Researcher subcategory of J-1 is broadly used by institutions of higher education and research organizations to bring visiting scholars from abroad for collaborative research. Certain professors and researchers, by virtue of their participation in an exchange visitor program, must return to their home countries and be physically present there for two years before being eligible to change nonimmigrant status in the United States or to obtain immigrant ('green card') status, or certain nonimmigrant visas based on employment. This requirement, set forth in Section 212(e) of the Immigration and Nationality Act, is known as the '212(e) requirement,' or the 'two year rule.' The 212(e) requirement is integrally related to the underlying purpose of the J-1 exchange visitor category, which is the facilitation of mutual cultural exchange. The 212(e) requirement does not apply to all exchange visitors, however, and even when the 212(e) requirement applies, a professor or researcher may have other options to live and work in the United States. In addition, the 212(e) requirement may be waived in certain circumstances. This chapter outlines the two year rule, its application, and possible waivers.
I. Is the J-1 Subject to the Two Year Home Residence Requirement?
The 212(e) requirement applies in three situations: when (1) the exchange visit was financed, directly or indirectly, by the United States or a foreign country's government; (2) the exchange visitor is engaged in a field which is designated by the exchange visitor's government as being in short supply in that country; or (3) the exchange visitor has come to the United States to receive 'graduate medical education or training' (i.e., to participate in a residency or fellowship program).
It is important to note that a person who comes to the United States as the spouse or child of an exchange visitor (admitted as a J 2 nonimmigrant), will be subject to the 212(e) requirement if, and only if, the J 1 exchange visitor spouse or parent is subject.
A. Government Financing
An exchange visitor is subject to the 212(e) requirement if his or her participation in the exchange program 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. The regulations define a program as 'financed directly' if the funding for the program comes, entirely or partially, from the U.S. government or the exchange visitor's government, and the funds are contributed directly to the exchange visitor in connection with his or her participation in an exchange visitor program. The funds may be in the form of compensation, as when an exchange visitor researcher works at a government laboratory, or in the form of a stipend, scholarship, or grant, such as the Fulbright grant program. The regulations define a program as 'financed indirectly' if the funding for the program comes through an international organization with funds contributed by either the United States or the exchange visitor's government for use in financing international educational and cultural exchanges, or is financed by an organization or institution with funds made available by either the United States or the exchange visitor's government to further international educational and cultural exchange.
B. The Exchange Visitor Skills List
A professor or researcher is subject to the 212(e) requirement if he or she, at the time of obtaining exchange visitor status, was engaged in a field of specialized knowledge or skill that had been designated by the Department of State (DOS) as clearly required by the exchange visitor's country of nationality or last residence. The DOS makes such designations in consultation with the State Department and foreign governments, and publishes the designations in the Federal Register. This designation, known as the 'exchange visitor skills list,' was last updated in 1997.
The skills list is divided by country and contains nine skills categories with two to twenty specialty fields in each category. Countries may designate all fields as needed in that country, or may select particular fields in some categories and all or none in others. Countries may change their skills list in consultation with the DOS, and such change becomes effective upon publication in the Federal Register. The skills list is divided into two parts. Part I is a general listing of designated fields of specialized knowledge or skill. It presently includes specified designations involving public administration; social services; professions such as medicine, nursing, dentistry, psychology, law, religion and teaching; professions involving communication, transport and construction; scientific professions; and business. Part I is useful for locating the exchange visitor's area of skill with accuracy. Part II lists, by country, the designated fields of knowledge or skill required in that country. If a country is listed in Part II but the exchange visitor's skill is not listed under that country, then the exchange visitor is not subject to the 212(e) requirement based on that country's skills list.
Changes in the skills list for a country may change the application of the 212(e) requirement to persons currently engaged in the exchange visitor program. If an exchange visitor's skill is added to the skills list after the exchange visitor comes to the United States, the exchange visitor does not become subject to the 212(e) requirement because the requirement is determined by the skills list at the time the exchange visitor acquired that status. As long as the exchange visitor is pursuing the original program objective, he or she will not become subject to the 212(e) requirement, even if the exchange visitor is granted an extension of stay or departs the United States briefly and returns. If the exchange visitor was originally subject to the skills list but his or her area of knowledge is removed from the skills list, the exchange visitor will be deemed to be relieved of the 212(e) requirement.
C. Graduate Medical Education or Training
Exchange visitors who come to the United States to receive graduate medical education or training are subject to the 212(e) requirement. Graduate medical education generally consists of a training program involving patient care services under the supervision of an attending physician that leads either to an unrestricted state medical license or certification by a specialty or subspecialty board. Residency or fellowship programs involving patient care services are included in graduate medical education and training, but programs that consist of observation, consultation, teaching or research in which there is no patient contact or only incidental patient care are not considered graduate medical education. Generally speaking, a researcher or professor coming to the United States to participate in research and/or teaching will not be subject to the two year home residence requirement on this basis, even if the exchange visitor is a physician in the home country.
An exchange visitor coming to engage in graduate medical education or training must be sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG), though not all ECFMG sponsored physicians are engaged in graduate medical education or training since ECFMG also sponsors physicians for observation, consultation, teaching or research.
II. Is the Exchange Visitor Truly Subject to the Two year Rule?
A professor or researcher may have been issued a visa with the annotation 'subject to 212(e)' in error, and the converse is true. To determine whether the rule applies, the information provided by the program sponsor on the visitor's Form DS 2019 (formerly IAP 66) should be checked against the true facts. If the true facts offer an opportunity to argue that the two-year rule does not apply, the professor or researcher can submit a request for an advisory opinion from the Waiver Review Division of the State Department's Bureau of Consular Affairs, in the Visa Office's Advisory Opinion, Legislation and Regulations Branch. If discrepancies exist (for example, the exchange visitor's sponsor indicated that a program received funding from the government when it did not), those facts should be documented. If a skills list issue is involved, letters from the exchange visitor's direct supervisor specifying exactly what field the professor or researcher worked in during the program can be submitted with the advisory opinion request.
Instead of an advisory opinion request, the professor or researcher may simply present the evidence to United States Citizenship and Immigration Services (USCIS) in the course of applying for a change of nonimmigrant status or an adjustment of status to permanent residence since it is USCIS that makes the final determination of whether or not the rule applies to a particular exchange visitor, not the DOS.
Once the true facts are established, the professor can proceed to make an argument that the two year rule does not apply. Helpful strategies for arguing that the rule does not apply to a particular exchange visitor can be found in the chapter of this book entitled 'Exchange Visitors and the Return Requirement: Myths and Realities.'
III. Can the Exchange Visitor Delay the Return Requirement?
A professor or researcher subject to the 212(e) requirement is barred only from: (a) change of status to any other nonimmigrant status except the diplomatic visa categories; (b) obtaining an nonimmigrant visa in the H 1 through H 4 and L 1 through L 2 working visa categories; or (c) applying for an immigrant visa (or K fianc'/fianc'e visa) or adjustment of status to permanent residence. Even though the exchange visitor cannot change status within the United States to a nonimmigrant category such as B (visitors for business or pleasure), E (workers based upon certain treaties), F (students), or O (persons of 'extraordinary ability' in the sciences, arts or business), she or he can depart the United States to obtain any of those visas at a U.S. embassy or consulate.
Further, once the former exchange visitor has returned to the United States on, for example, an F 1 visa, an alien could apply for a change of status from F 1 to H 1B, even though still subject to the 212(e) requirement. Since the 212(e) requirement only prevents an alien from applying for a 'nonimmigrant visa' in the H and L categories, not 'nonimmigrant status,' and since the bar to change of status applies only to an alien actually classified as an exchange visitor, the change of status should be granted.
This strategy is not foolproof, however. First, departing the United States always incurs the risk that the new visa application will be denied and the exchange visitor will not be allowed to return to the United States. Second, even if the visa is issued and the former exchange visitor changes status to a working visa in the United States, the former exchange visitor cannot leave the country and obtain an H 1B visa since the bar to receiving such a visa still applies. Third, this strategy only delays the application of the 212(e) requirement; it does not satisfy or waive it.
IV. Can the Exchange Visitor Satisfy the Return Requirement?
The easiest solution to the 212(e) requirement is often to comply with the rule. Exchange visitors who want to comply with the rule should, however, be aware of two issues regarding compliance with the rule.
The first issue is the location to which the exchange visitor must go. The 212(e) requirement mandates that the exchange visitor return to the country of last residence or nationality (depending upon which skills list or financing caused the visitor to be subject to the requirement). Residence in a third country does not satisfy the rule, whether or not it meets or exceeds the required two year period. A narrow exception to this rule may exist where an exchange visitor is engaged in services by the government of his or her home country and is assigned abroad (even in the United States) in connection with that government employment.
Second, the period of residence must total two years, though it does not need to be an uninterrupted two years. An exchange visitor who returned to the home country for eighteen months, then departed the home country for as little as a day or as much as several years is still subject to the rule, but need only reside in the home country for six more months to satisfy the requirement. If an exchange visitor has been outside of the home country for many years, he or she may have aggregated enough time during visits to the home country to satisfy the rule.
V. Waivers of the Two year Home Residence Requirement
In the end, the professor or researcher may find that he or she has to obtain a waiver of the two year home country residence requirement in order to continue his or her career in the United States. There are four methods for obtaining a waiver: a statement of 'no objection' from the home country; a finding of hardship to certain relatives if the exchange visitor returns for two years to the home country; a finding that the exchange visitor would be persecuted if returned to the home country; and a request by an Interested Government Agency (IGA) that a waiver be granted.
Procedurally, all waiver applications must begin with a request for a waiver case number from the Department of State. That number must be provided to the organization that will make the request for the waiver (the home country consulate for a 'no objection' waiver; USCIS for a hardship or persecution waiver; and the interested agency for an IGA waiver). Obtaining a number requires completion of a Data Sheet and payment of a J waiver fee, currently $230. Once the case number is assigned, the procedures summarized below are followed for each of the various waiver options.
Obtaining a waiver does not grant employment authorization or status, and so must be coordinated with an application to change the professor or researcher's status to H-1B or O-1, or to apply for adjustment of status and employment authorization. It may take several months to obtain a waiver, and once the waiver recommendation has been issued, it is unlikely that the professor or researcher's J-1 status can be extended. Failing to take current processing times for both the waiver and the subsequent status into account can result in a lapse in employment authorization for the professor or researcher.
A. 'No Objection' Statements
The requirement to return to the home country may be waived if the exchange visitor's home country indicates that it does not object if the exchange visitor does not return to that country for the two year period. The home country must indicate its non objection to a grant of a waiver of the requirement to the DOS in an official diplomatic communication, colloquially known as a 'no objection' statement. Each country has its own rules, regulations and procedures regarding when it will issue a 'no objection' statement to one of its nationals. Some will not issue a 'no objection' statement in any circumstance. Others will require repayment of moneys spent by the government on the exchange visitor's program or earlier education. Other countries will grant a waiver in almost any circumstance. In all cases, however, the basic procedure begins the same way: the exchange visitor contacts the home country government through its embassy in Washington, DC and requests a grant of a waiver. The home country government then provides the exchange visitor with its requirements and procedures for requesting a waiver.
If the exchange visitor's country does not object to the grant of a waiver, it will address a 'no objection' statement to DOS. Upon receipt of a 'no objection' statement with the exchange visitor's case number on it, the Waiver Review Division reviews the exchange visitor's Forms DS 2019 (formerly IAP 66) and completed questionnaire, and contacts any U.S. government agencies that provided funds for the exchange, requesting their comments on the waiver. Based on the agency's response, or in the absence of a U.S. funding source, the Waiver Review Division decides whether to recommend the grant of a waiver. If the Division decides not to recommend a waiver, it informs the exchange visitor. If the Division decides to recommend a waiver, the Division informs the INS, the exchange visitor's program sponsor (or sponsors, if the exchange visitor had more than one), and the exchange visitor. It is the INS that actually grants or denies a waiver of the 212(e) requirement, but the INS follows the Department of State's recommendation in nearly every case.
While the 'no objection' statement mechanism is the most often used waiver method, it is not effective for every exchange visitor. Generally, a 'no objection' statement will suffice to obtain a waiver if the exchange visitor is only subject to the home country residence requirement because of his or her government's designating the exchange visitor's field as needed in the home country (the 'skills list' discussed above), or because the exchange visit was funded by the home country government. Generally, a 'no objection' statement will be insufficient to obtain a waiver if the exchange visit was funded directly or indirectly by the U.S. government. The statute itself precludes using a no objection statement as the sole basis for a waiver if the exchange visitor was a physician receiving graduate medical education or training.
B. Hardship Waivers
An exchange visitor can be granted a waiver of the 212(e) requirement if imposing the requirement would cause 'exceptional hardship' to the exchange visitor's spouse or child who is a U.S. citizen or lawful resident alien. Such a waiver may be granted to any exchange visitor who is subject to the 212(e) requirement, whether through government financing, the 'skills list' or graduate medical education or training.
1. Hardship Waiver Criteria
The following points are key to understanding eligibility for the exceptional hardship waiver:
' The exchange visitor's compliance with the 212(e) requirement must cause 'exceptional hardship' to the U.S. citizen or lawful permanent resident spouse or child of the exchange visitor. Any hardship to the exchange visitor, or to family members not already U.S. citizens or permanent residents, is not considered.
' The hardship to the citizen or permanent resident spouse or child must be 'exceptional,' meaning that the normal hardships associated with a two year absence from the United States, or a two year separation from one's spouse or child, are not sufficient to be granted a waiver.
' 'Exceptional hardship' must arise whether U.S. citizen or permanent resident spouse or child accompanies the exchange visitor to the home country or remains in the United States while the exchange visitor returns to the home country for two years.
The waiver application must demonstrate that 'exceptional' hardship exists, that is, more that mere separation, language difficulties or lack of economic opportunities abroad. To consider a waiver application, factors such as physical or mental conditions of the spouse or child that would be adversely affected by residence abroad, particularly medical conditions for which treatment is unavailable or prohibitively expensive in the home country; conditions of severe discrimination, war, or limitation of educational opportunities to a spouse or child of a particular race, religion, or gender; interruption of a spouse's established career; and severance of one or more close family relationships should all be documented. Fear of persecution by the applicant's government is not generally considered a hardship factor, but is a separate basis for a waiver of the 212(e) requirement.
A mere listing of the factors that may comprise hardship does not provide the entire picture, however, since the assessment of hardship must be based on the totality of the circumstances and the cumulative effects of more than one form of hardship, if present. Where both the spouse and children are citizens or lawful permanent residents, a relaxed administrative policy sometimes will find that exceptional hardship would result from their being separated from relatives and familiar surroundings and the need to adjust to the mores, culture, and language of a foreign country. However, such cases should contain documentation of the hardship these family members would suffer in the home country. Factors such as the waiver applicant's financial inability to maintain the family in the United States while residing and working abroad, particularly if the spouse's need to care for the family precludes working, should be documented.
2. Hardship Waiver Procedures
After obtaining a waiver case number from the Department of State, a professor or researcher applies for a hardship waiver to USCIS on Form I 612. USCIS currently charges a $250 filing fee for this type of waiver. As with all waivers, the exchange visitor's spouse and any children, if subject to the requirement because of derivative (J 2) exchange visitor status, may be included in the application. An applicant in the United States submits the application to the INS Regional Service Center having jurisdiction over his or her place of residence. If abroad, the applicant submits the application to the Regional Service Center office having jurisdiction over his or her place of last residence in the United States.
USCIS must make a threshold determination that sufficient hardship has been shown for USCIS to request that the DOS review the waiver application. If USCIS determines that the applicant has documented 'exceptional hardship' to the citizen or permanent resident spouse and/or child, it will submit the waiver application to the DOS for its recommendation. If the Regional Service Center determines that the applicant has not documented 'exceptional hardship,' this determination may be appealed to the INS Administrative Appeals Office (AAO) in Washington, D.C. The AAO may remand the case to the Regional Service Center for submission to the DOS, or may affirm the denial. The AAO's denial may be reviewed by a federal court, which may remand the case to USCIS if it finds that the agency acted incorrectly.
Once USCIS submits the waiver application to the DOS for a recommendation, the Exchange Visitor Waiver Review Division will consider the 'program and policy' considerations presented by the waiver application, and may recommend against the waiver even where USCIS has determined that exceptional hardship has been established. Such a negative recommendation may be made, for example, if the hardship would be incurred only by the exchange visitor's spouse (who is presumed to have known about the requirement before marrying the exchange visitor), and the exchange visitor received substantial direct funding for the exchange from the U.S. government. If the DOS recommends against the waiver, USCIS will not grant it, and the refusal of USCIS to grant a waiver over the DOS's objection is not subject to challenge. The DOS's decision whether or not to recommend a waiver is generally not subject to review, although an internal Waiver Review Division and the Secretary of State can both overturn the Waiver Review Division's determination on a waiver.
If the DOS recommends granting the waiver, it will send a letter to USCIS with a copy to the exchange visitor and the exchange visitor's program sponsor containing that recommendation. USCIS then makes the final grant of the waiver. Similarly, when the DOS recommends a denial of the application, USCIS makes the final denial of the application.
C. Persecution Waivers
USCIS may grant a waiver of the 212(e) requirement for an exchange visitor who cannot return to the country of his or her nationality or last residence because he or she would be subject to persecution on account of race, religion, or political opinion. This waiver is based on persecution requires showing that the exchange visitor himself or herself would be persecuted. In some cases, anticipated persecution to a U.S. citizen or LPR spouse or child of the exchange visitor may be one of the factors in an exceptional hardship waiver case. However, for exchange visitors who do not have qualifying dependents to make an exceptional hardship case, a waiver application on the grounds of persecution may be the only viable option. Many exchange visitors who have qualifying dependents raise both an exceptional hardship and a persecution argument if possible to bolster their waiver requests.
As with a hardship waiver, the threshold determination of whether persecution exists is made by USCIS, which then sends the case to the DOS if it considers that proof of persecution was presented. As with all other forms of waivers, though, the procedure is initiated by obtaining a case number and instructions from the Department of State, then filing documentation with USICS on Form I-612 to the USCIS Regional Service Center with jurisdiction over the applicant's place of residence.
If USCIS determines that the exchange visitor has a valid and sufficient claim, it will send its determination to the DOS. The DOS then reviews the program, policy, and foreign relations aspects of the case, and will consult with the State Department's Bureau of Democracy, Human Rights, and Labor. If the DOS concurs with USCIS, it will send its recommendation to USCIS, which will then grant the waiver in most cases.
D. Interested Government Agency Waivers
An interested government agency (IGA) can be any U.S. government entity that is willing and able to assert and show with supporting documentary evidence that the exchange visitor's departure would be clearly detrimental to a program or activity of official interest to that agency. Since September 11, 2001, many agencies have sharply limited the situations in which they will request waivers.
The exchange visitor must apply directly to the federal agency whose program or activity is involved and follow the procedures prescribed by that agency. The DOS will recommend a waiver only upon the interested government agency's request. Generally, a professor or researcher must (1) establish a nexus between the IGA and the intended employment; (2) show how granting this waiver would serve the public interest; and (3) explain specifically how the case merits a favorable decision. The particular government agency should be contacted for criteria in which they will become involved and the format in which they would like the application.
Many agencies are interested in research being conducted at private or public institutions, either because they are funding that research or because it complements research being conducted at their behest. Agencies differ, however, in the criteria they use to make waiver recommendations. Some agencies request waivers so infrequently that they have no established procedure for deciding whether or not to request a waiver, while others have elaborate, formal application processes. The following paragraphs describe the procedures of some of the agencies commonly approached by active classes of exchange visitors.
The Department of Health and Human Services (HHS) has well established procedures for considering J 1 waiver requests from institutions on behalf of biomedical researchers. The HHS has established an Exchange Visitor Waiver Review Board for this purpose. The Board will consider applications from a high priority program or activity of national or international significance involving the broad interests of the HHS. The HHS will not request waivers merely to overcome a local community's or institution's personnel shortage. The HHS will not recommend waivers merely because the exchange visitor has training or skills in short supply in the United States. Nor will it recommend waivers requested by private institutions that claim that their programs of training, research, medical treatment, and the like would be greatly enhanced if they could retain certain exchange visitors indefinitely. Further, a direct relationship must exist between the exchange visitor and the program or activity involved, such that loss of his or her services would necessitate discontinuance of the program. The individual must possess unique and outstanding qualifications, training, and experience and must be making original and significant contributions to the program. Mere specialized training or experience or the occupation of a senior staff position will not in themselves justify a request for a waiver. The unique qualifications of the exchange visitor, the agency's critical need for his or her services, and the unavailability of a suitable replacement must be documented by specific evidence.
The Department of Education had established an Exchange Visitor Waiver Review Board to evaluate waiver requests submitted to the Department on behalf of professors with outstanding qualifications, training, and experience. At present, the Department of Education has suspended that program.
Procedures similar to those discussed above are followed when making requests for a waiver to other interested government agencies. Agencies, including the National Science Foundation, the Department of Energy, the Department of Defense, the Smithsonian Institution and the National Aeronautics Space and Administration, will generally request waivers for their own employees, or for researchers and professors employed pursuant to grants funded by those agencies. To a limited extent, some of the agencies will consider applications submitted by non-grant recipients, if the research being done is directly related to areas of interest to t hat agency. In each instance, the sponsor, not the J 1 exchange visitor, should address the request, supported by appropriate documents, to the interested federal agency. Normally a government agency will recommend a waiver only if it determines that the exchange visitor's services are irreplaceable.
In rare cases, the DOS itself will consider acting as the interested government agency in requesting a waiver on behalf of a J 2 spouse whose marriage to a J 1 exchange visitor has terminated either by death or divorce, if there is no other agency with a greater or more direct interest. Also, if a J 2 child marries, turns 21 or leaves the household, the DOS may consider a waiver request for the child independently. If a former J 2 spouse or child wishes to return to the United States as an immigrant or as an H, K, or L nonimmigrant before completing the 212(e) requirement, the consular officer is to send a full report of the circumstances surrounding the case to the DOS.
An IGA waiver request to the DOS virtually assures a waiver will be granted, provided that the exchange visitor has not violated any of the DOS's policies and unless substantial U.S. government funding was involved in the exchange program. In such cases, the DOS will weigh the requesting government agency's interest in keeping the exchange visitor in the United States with the funding agency's interest in having the exchange visitor return to the home country.
The two-year home residence requirement can be the primary stumbling block in an exchange visitor's path to a career in the United States. With appropriate planning and patience, however, the exchange visitor can avoid the requirement, or comply with its terms without major interruption to his or her career. If neither of those options is available, there are many options to obtain waivers of the two-year home country residence requirement.
1 - 22 CFR ' 41.62(c)(4).
2 - 22 CFR ' 62.2.
3 - Id.
4 - 62 Fed. Reg. 2448 (January 16, 1997).
5 - The Internet site for the ECFMG is at http://www.ecfmg.org.
6 - Contact and processing information can be found at http://www.travel.state.gov/visa/tempvisitors_info_waivers.html.
7 - In the past, administrative practice has been to regard any physical presence in the home country as partial satisfaction of the requirement. Some officials within the Visa Office, however, have noted the requirement in the statute that the former exchange visitor have 'resided and been physically present in' the home country for two years, and commented that 'residence' implies more than short term presence for vacations or business trips. While this issue is still unresolved, exchange visitors seeking to satisfy the rule partially over several trips should consider making those trips of a more extended nature (for example, a six month sabbatical rather than three two-month summer vacations).
8 - Current procedures can be found at http://www.travel.state.gov/visa/tempvisitors_info_waivers2.html.
9 - A collection of 'no objection' procedures from many countries can be found in Siskind, Stock and Yale-Loehr, J Visa Guidebook, Appendix B (LexisNexis 2004).
10 - Some U.S. government sponsors will not object to a waiver if the Waiver Review Division informs them that the home country government has issued a 'no objection' statement and requests their opinion on the granting of a waiver, making the 'no objection' statement effective for some recipients of U.S. government financing. A good example is the National Institutes of Health (NIH), which subjects the postdoctoral researchers it brings from abroad to the rule by virtue of their salaries during their participation. If the home country issues a 'no objection' statement and the exchange visitor presents a written offer of employment from a U.S. employer, the NIH will inform the USIA that it does not object to a waiver. It should be noted, though, that most agencies sponsoring J visitors object to granting a waiver on any grounds.
11 - Many of the application procedures and applications are set out in the J Visa Guidebook, supra note 9, at Appendix C.
12 - http://www.hhs.gov/oia/exchange.html.