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Residence Requirements and Provisions for Waiver

The foreign residence requirement and provision for waiver are found in Section 212(e) of the Immigration and Nationality Act, and as amended by Public Law 91-225, enacted on 7 April 1970. The pertinent parts of this law as they affect the foreign residence requirement and provision for waiver are quoted as follows:

    "(a) General provisions. Section 212(e) of the Immigration and Nationality Act, as amended, provides substantially in part that:

    "(1) No person admitted under section 101(a)(15)(J) of the Immigration and Nationality Act, as amended, or acquiring such status after admission (i) whose participation in the 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 the participant's nationality or his or her last legal permanent residence, or (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 the Director, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the participant was engaged, or (iii) who came to the United States under section 101(a)(15)(J) or acquired such status after entry in order to receive graduate medical education or training, shall be eligible 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 such person's nationality or last legal permanent residence for an aggregate of at least two years following departure from the United States.

    "(2) Upon the favorable recommendation of the Director of the United States Information Agency, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after the latter has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child who is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of the alien's nationality or last legal permanent residence because the alien 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.

    "(3) The Attorney General may, upon the favorable recommendation of the Director of the United States Information Agency, waive such two-year foreign residence requirement in the case of any participant (except an alien who is a graduate of a medical school pursuing a program in graduate medical education or training) if the foreign country of the alien's nationality or the country of his or her last legal permanent residence has furnished the Director of the United States Information Agency such a statement in writing that it has no objection to such waiver in the case of the alien."

In accordance with the above law, the Department of Defense may, as an interested U.S. Government agency, submit requests for waivers to the Department of State. The United States Information Agency (USIA), which acts for the Attorney General in waiver cases, reviews the request from the standpoint of policy, program and foreign relations implications. A favorable review results in a recommendation from the USIA to the appropriate District Office of the Immigration and Naturalization Service that the waiver be granted. If the Immigration Service concurs in the recommendation, the District Office notifies the individual directly that the waiver is granted and also informs him of further steps to be taken.

 

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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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