Department of Defense
Responsibility of Review of Waiver Requests
Waiver requests will be processed only for those individuals working on a Defense contract. The Office of the Under Secretary of Defense for Acquisition, Technology and Logistics acts as a clearing house for waiver requests based mainly on the exchange visitor's potential contribution to research and engineering work in defense laboratories, universities and defense industry. The objective is to have a DoD focal point for information and referral purposes and to assure uniformity of review and judgment in the application of standards designed to protect the integrity of the Exchange Program and yet make it possible in compelling cases to retain persons of unique and outstanding qualifications whose services are urgently required for programs of significant official interest to the Department of Defense. It is clearly against national policy to use the Exchange Program as a recruitment source for critical specialists of exceptional caliber who have been tried and proven on the American scene. Additionally, the letter of support from the DoD agency or Service funding the contract must be detailed as far as the criteria below and signed by the agency head, Senior Executive Service (SES) appointee or flag officer (General/Admiral) of the sponsoring Service. It should also clearly state why it is of public interest for the applicant to be in the US and why it is mission critical for the Department of Defense. In accordance with this policy, each waiver request will be individually and strictly evaluated in terms of the following considerations and standards:
- High priority character of the program or activity involved. The services of the exchange visitor should be needed on a high priority program of official interest to the Department of Defense. The documentary evidence submitted by the employer and supported by the sponsoring Defense activity should indicate the nature, scope, specialized personnel requirements and national security interests serviced by the program. Waivers should not be requested to overcome a local manpower shortage or a recruitment problem of an institution or firm.
- Essential relationship of the exchange visitor to the program. The exchange visitor should be needed as a principal participant in the program or activity involved. The documentary evidence should clearly indicate specifically how the loss or unavailability of the exchange visitor's services would be seriously detrimental to the initiation, continuance, completion or success of the program or activity.
- Critical qualifications of the exchange visitor. The exchange visitor should possess unique and outstanding qualifications, training and experience, including a clearly demonstrated capability to make original and significant contributions to the program. In the case of scientists and engineers, this generally involves specialized training at the doctoral or postdoctoral level for a position on the Department of Labor List of Critical Occupations; recognition of excellence and originality in the international scientific and engineering community and through professional publications; and abilities and skills that are urgently needed and not otherwise available.
- Need for special clearance for person on an official Exchange Program of the U.S. Government. In the case of an exchange visitor who came to the United States on an official Exchange Program of the U.S. Government, the documentary evidence should include information on satisfactory clearance with the sponsoring agency. For example, a recipient of a Fulbright Travel Grant through the Conference Board of Associated Research Councils needs to request their permission to forfeit the return potion of his grant and possibly to repay his travel to the United States. This will be determined by the Fulbright Commission in his own country which is generally reluctant to release a grantee from the pledge to give his country the benefit of his U.S. training for two years. If the Commission approves his request, the Conference Board will generally release him from his obligations to them as his Exchange Program sponsor.
- Relevance of other factors. Consideration of waiver requests is not restricted to the professional aspects of the exchange visitor's present or potential contributions to programs of official Defense interest. Other relevant facts concerning the exchange visitor's nonimmigrant status, his commitment to return home, the attitude of his government, and the prospects for making effective use of the knowledge and capabilities acquired in the United States will be taken into account. The objective is to reach a sound and equitable Defense decision in terms of all relevant factors.
- Application of policy to exchange visitor's dependents. Waiver requests for an exchange visitor's dependents, when required, will be included in the Defense request on behalf of the exchange visitor. Normally, when granted, the waiver will apply to the requester and his dependents. The exception is when a wife is also an exchange visitor in her own right (J-1 status) and not as her husband's dependent (J-2 status), a separate fact sheet should be completed for her. In order for DoD to sponsor a waiver, she/he must be working on a Defense contract.
- Hardship waivers. Waiver requests based on the exceptional hardship provision of section 212(e) of the Immigration and Nationality Act should be made directly to the nearest District Office of the Immigration and Naturalization Service which has sole jurisdiction in such cases.
Obtaining waivers for Medical Doctors. Applications for a waiver of the two-year residence requirement must be processed through and endorsed by the interested Government Component's Surgeon General's Office. The USIA will not process the application without this endorsement.
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