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.
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: