(a) History of the Exchange Visitor Program .

The exchange visitor program was created in 1948 with the passage of the Information and Educational Exchange Act of 1948 (the Smith-Mundt Act). While one of the major goals of the Smith-Mundt Act was to enable aliens to acquire skills and knowledge which would be valuable in their home countries, it did not initially contain a legal requirement that the exchange visitor return to his or her home country for any specified period of time.

Over the years, Congress became concerned that program participants were subverting the goals of the program by immigrating to the United States (thereby creating a “brain drain” in the very countries the program was designed to help). In 1956, the law was amended to provide that all persons who came to the United States under an exchange visitor program would be subject to a two-year foreign residency requirement before being eligible to either immigrate to the United States or obtain temporary worker (H n onimmigrant) status. This provision (which became section 212(e) of the Act) applied to both J-1 exchange aliens and their J-2 family members. The amendment also allowed waivers of the two-year foreign residency requirement under limited circumstances.

The Immigration and Nationality Act (Act) was further amended in 1961 with the passage of the Mutual Educational and Cultural Exchange Act of 1961. (This 1961 Act was known as the Fulbright-Hayes Act, and to this day exchange visitors are sometimes referred to as “Fulbright scholars.”) The Fulbright-Hayes Act allowed waivers under limited circumstances dealing with exceptional hardship.

In 1970, the Act was further changed so that the two-year residency requirement only applied to those exchange visitors who:

•     Participated in programs which were financed in whole or in part by either their own government or the United States government, or

•     Were engaged in a field of specialized knowledge or skill which had been designated by the Director of the United States Information Agency (USIA) as being a knowledge or skill which was needed in the alien’s country of nationality or last residence. (From 1978 to 1982 the exchange visitor program was administered by the International Communication Agency (ICA), which incorporated the former USIA. In 1982 the ICA was renamed the USIA, which was subsequently again renamed the “Waiver Review Division”. )

The Exchange Visitor’s Skills List was first published on April 25, 1972, and has been revised a number of times since then. Appendix 15-1 of the Inspector’s Field Manual contains the current version of the Exchange Visitor’s Skills List. Many aliens who had been subject to the two-year requirement when they initially entered the program were relieved of the requirement in 1970, and only those who acquired J status on or after April 25,1972 needed to be concerned about the Exchange Visitor’s Skills List mak ing them subject to the requirement.

A 1976 amendment to the statute (which took effect in January 1977) made any exchange visitor who seeks any immigrant status or H or L nonimmigrant status after having received graduate medical training subject to the two-year foreign residence requirement.

In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted. Section 622 of IIRIRA imposed new terms and conditions on section 212(e) waivers granted to foreign medical graduates that are based on a request by an interested U.S. Government agency (federal program). The terms and conditions are the same as those applied to waivers requested by a State Department of Public Health. These terms and conditions are specified in section 214(l) of the Act (formerly section 214(k) of the Act).

Note:

If an alien was not subject to the exchange visitor’s skill list at time of his or her initial arrival or change of status, but the list subsequently changes and his or her skill is added to the list, the alien would acquire a section 212(e) obligation if he or she:

·     Departs from the United States and makes a new entry based on a new nonimmigrant visa; or

·     Falls out of status for any reason and Is later reinstated to the exchange classification.

(b) Current Provisions of the Two-year Residency Requirement .

If the alien is subject to the 2-year foreign residency requirement, he or she is barred under section 212(e) of the Act from filing any:

·     Application for an immigrant visa or permanent residence;

·     Application for a nonimmigrant visa under section 101(a)(15)(H) (temporary worker) or section 101(a)(15)(L) (intracompany transferee) of the Act;

·     Application for adjustment of status under ANY section of law (including adjustment under section 209 as an asylee or refugee)

·     Application for change of status to either the H or L nonimmigrant category.

Note:

Section 248 of the Act bars any exchange visitor who is subject to 212(e) from being granted change of status to any nonimmigrant classification, other than A or G, and bars any exchange visitor who received graduate medical training from receiving any change of status (see Chapter 30 of this field manual for a discussion of change of status applications).

(c) Waiver of the 2-Year Residency Requirement .

Section 212(e) also provides that under certain circumstances USCIS may waive the foreign residence obligation. A waiver of the requirement can be based on any of the five following reasons:

(1) Exceptional Hardship .

A claim that the exchange visitor's compliance with the residence requirement would impose exceptional hardship on the applicant's United States citizen or lawful permanent resident spouse or child (see Chapter 45.3 of this field manual);

(2) Persecution .

A claim that the exchange visitor's compliance with the residence requirement would subject the applicant to persecution on account of race, religion, or political opinion (see Chapter 45.4 of this field manual);

(3) Interested Government Agency .

In the case of an alien who did NOT come to the United States as (or was NOT granted a change of nonimmigrant status to) an exchange visitor for the purpose of receiving graduate medical training, the sponsorship of an interested United States Government agency (see Chapter 45.5 of this field manual);

(4) No Objection .

In the case of an alien who did NOT come to the United States as (or was NOT granted a change of nonimmigrant status to) an exchange visitor for the purpose of receiving graduate medical training, a statement by the government of the country of the applicant's nationality or last foreign residence that it has no objection to a waiver in the applicant's case (see Chapter 45.6 of this field manual); or

(5) Employment in a Designated Health Care Shortage Area .

In the case of an alien who did come to the United States as (or was granted a change of nonimmigrant status to) an exchange visitor for the purpose of receiving graduate medical training, and who will be employed in such field, the foreign residence requirement may be waived based on a request by an interested federal government agency (federal program) or the State Department of Public Health of any state or the District of Colombia (State program). Aliens granted such waivers must agree to be employed fo r three years as an H-1b temporary worker at a designated health care facility or organization or a Federal agency involved in medical research or training, in compliance with all the requirements set forth in section 214(l) of the Act. Since 1994, a Graduate Medical trainee can obtain a waiver under section 214(l) of the Act (formerly designated as section 212(k)) of the 2-year requirement by working for 3 years at a heath facility or health care organization for 3 years (see Chapter 45.7 of this field man ual).

Note:

These reasons are not mutually exclusive and it is possible for an alien to base his waiver request on more than one of them, but normally requests are based on only one of the reasons.