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The Odyssey of the J-2: Forty-Two Years of Trying Not to Go Home Again:Part Two
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By Naomi Schorr and Stephen Yale-Loehr* By Naomi Schorr and Stephen Yale-Loehr* Part Two 1977:
1979:
Over the course of sixteen years, the law was slowly changed by regulation, with no discussion in the Federal Register explaining why the definitions were altered. Having reviewed fifty years of legislative history, we believe that Congress never meant to impose a requirement that an exchange visitor return to a legal permanent residence. Remember, INA § 212(e) uses the word "reside," not legal permanent residence. The two terms are quite different. INA § 101(a)(33) defines "residence" as the "place of general abode." The same section in turn says that "general abode" means the "principal, actual dwelling place in fact, without regard to intent." The legislative history to the 1952 Act makes clear that the INA's definition of "residence" is a codification of the term as expressed by the Supreme Court two years earlier in Savorgnan v. United States. In that case the Court held that an individual had established a "residence" in Italy by living there from 1941 to 1945, even though she had no intention of establishing a permanent residence there. By contrast, "lawfully admitted for permanent residence" is a separately defined term. It means the status of having been lawfully accorded the privilege of residing permanently in the United States. Even the USIA recognized that not every country has an immigration status equivalent to the U.S. concept of lawful permanent residence. In fact, the USIA interpreted its regulation somewhat liberally, at least back in 1987. At AILA-USIA liaison meetings that year the USIA admitted that it had no formal standards for determining country of last residence. The USIA did volunteer that aliens working and living in a country have a "permanent residence" in that country. Students in a country would require a closer analysis. Citing specific examples, the USIA stated that, "as to Commonwealth aliens in the U.K. they [the USIA] normally accept the U.K. as the country of last residence . . . . For example, an Indian living in the U.K. and there for a while. Here they [the USIA] will use the U.K." The concept of "firm resettlement" in asylum law offers an interesting contrast to the residence issue for § 212(e) purposes. A person is barred from applying for asylum if he or she has "firmly resettled" in another country before coming to the United States. The regulations consider a person firmly resettled if "prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." Courts and the BIA consider a variety of factors in determining whether a potential asylum seeker has firmly resettled in another country. One of those factors is the length of stay. While case law is not consistent on this issue, at least some cases have held that a short stay in another country can constitute firm resettlement and thus bar a person from applying for asylum. For example, in one case the Ninth Circuit agreed with the BIA that the asylum applicant had firmly resettled in Armenia even though his stay lasted only a few months. The court noted that the applicant had the legal right to remain in Armenia as a refugee if he chose to, even though he apparently did not exercise that right. It is ironic that such a short stay can constitute "firm resettlement" to bar someone from asylum, but a longer stay will not help a person meet the two-year foreign residence requirement if it was not his last legal permanent residence before he entered the United States. Another contrast appears in the State Department's rules concerning where a person can apply for an immigrant visa. An alien usually must apply for an immigrant visa in the consular post having jurisdiction over his place of "residence." The State Department's Foreign Affairs Manual (FAM) defines "residence" for this purpose by first quoting INA § 101(a)(33). It then adds: "If an alien can show that his or her 'principal, actual dwelling place' is or was in a specified country, the fact that the alien does/did not have, or intend to have, the status of a lawful permanent resident or any other legal status in that country is not relevant." Why is it that an alien does not have to show lawful permanent resident status in another country to establish residence for purposes of applying for a green card overseas, but must do so to meet the foreign residence requirement of INA § 212(e)? It doesn't make sense. Quality of Fulfillment In 2001, the State Department took part in a panel on J-1 issues at the AILA annual conference. There was a question on the "quality" of fulfillment, concerning whether incremental compliance fulfills § 212: Q. Could you please say a few words on what the State Department recognizes for fulfillment of the two-year home residence requirement. In other words, is it any type of stay in the home country post J-1? Say a person finishes the program but then is here as an F or an O. Earlier, in 1998, the USIA expressed a rather lenient view, at least as applied to Canadians:
By the 2003 annual conference, however, the State Department view on quality of fulfillment seems to have become more restrictive: Q. Last question. What periods of time…..or how do you calculate periods spent in fulfillment of the two-year home residence requirement? Is it (1) it does have to be in periods following the expiration of the period of J-1 exchange visitor status …. That is a given…but is it any period of physical presence or does there have to attach some quality of that physical presence? A. This also would be on the top of your list of discussions here. The way I read the statute, it says the individual has to be resident and physically present for two years, and physical presence is one thing and resident says a little bit more. So, we have to work that one out. I want to see what the legacy USIA policy has been on this and any legislative history as we work through the regulations on that. Why would it say resident if it didn't mean anything? Q. It doesn't say resident. It says reside. A. Residence is defined in the statute as the principal dwelling place. Q. How about the folks that have multiple residences? Many folks do. A. That works. Q. And what you need to do is document the fact that you have multiple residences. That when you go back for your vacation in F-1 status or in O status that you have a residence in your home country and that you are not staying at the Motel 6. A. I think you can prove that. But I think the statute says "reside" for some reason and if you are residing in the United States and just taking vacations one week a year, I think that you may have a problem. According to the FAM, the residence requirement does not mean that an alien must maintain an "independent household." "If the alien customarily resides in the household of another, that household is the residence in fact." That interpretation implies that the "quality" of residence need not be high to satisfy the foreign residence requirement. Even the laws governing citizenship in the United States allow for aggregating periods of residence in this country. To apply for naturalization, a person must be a lawful permanent resident for three or five years, depending on how the person obtained permanent resident status. The person must also have been physically present in the United States at least half of that time. It's a mere counting of days (of course, with no one absence longer than six months, and certainly not longer than a year). You can be here every other day. You can be here for five months and gone for five months. If aggregating days is good enough to allow someone to become a naturalized U.S. citizen, why isn't it good enough to fulfill INA § 212(e)? Regulations Just in case there was not enough confusion surrounding INA § 212(e), the State Department regulations add a little more. The current definition of "exchange visitor" found at 22 C.F.R. § 62.2 provides:
(Emphasis added.) Next, review the definition of home-country physical presence requirement, found in the same section. It means:
Now, wait a second. By its own definitions, the State Department says the two-year rule does not apply to J-2 dependents because they are not part of the definition of exchange visitor, and only an exchange visitor is subject. Was it always that way? In 1963, the regulations defined an exchange visitor as a "'participant'…and the 'immediate family'" and defined country of nationality or last residence as "the country of which the exchange visitor was a national at the time he acquired status as an exchange visitor or the last foreign country in which he resided before he acquired" that status. In other words, the J-2 was included. But in 1977, the definition of exchange visitor was:
And the home country physical presence requirement in that year was defined to mean:
for the requisite period of time. So, who was a participant?
In other words, not a J-2. In 1993, the regulations changed. "Exchange visitor" was defined as: a foreign national who has been selected by a sponsor to participate in an exchange visitor program and who is seeking to enter or has entered the United States temporarily on a J-1 visa. The term does not include the visitor's immediate family. In that year, the home-country physical presence requirement meant, "the requirement that an exchange visitor who is within the purview of section 212(e)…must reside and be physically present in the country of nationality of last legal permanent residence." In other words, not a J-2. That means that, for the most part, the exchange-visitor regulations have not imposed the two-year rule on immediate family members. So then how are they subject? For that, one has to look for another provision in the Department of State regulations:
A similar provision is found in the USCIS regulations:
So according to one set of regulations, the J-2s are subject to INA § 212(e). According to another, they are not. Does this make any sense? Of course not. But nothing in this area does. As Winston Churchill once stated in another context, "it is a riddle wrapped in a mystery inside an enigma." Hypotheticals We think it may be useful to consider a few not-so-hypothetical questions to underscore how unworkable the two-year return rule is for J-2 dependents and why it should be abolished. 1. Let's start with a question we posed earlier. A J-2 spouse who is a citizen of Nigeria had spent four years in France studying before entering the United States on an F-1 visa to complete graduate studies here. In the middle of her studies, she married a J-1 research scholar receiving U.S. government funding, quit school for a while, and changed her status to J-2. Her husband is a U.K. national and a landed immigrant of Canada, where he was living before coming to the United States. They both plan to return home for two years after his research is complete, and then hope to return to the United States. Where does she go to fulfill the § 212(e) obligation? In all of our reading of close to fifty years of exchange visitor literature, we have never seen any reference to, no less an answer for, the question of where the J-2 spouse fulfills: in her country or her spouse's. Although one State Department official has stated informally that she must return to her husband's fulfillment country, some practitioners have assumed that she returns to her own country of nationality or last residence. Let's add some facts to our hypothetical. Assume that a year after changing status to J-2, this Nigerian woman decides to go back to school. She obtains an F-1 visa and then completes a doctorate in microbiology, writing a dissertation on tropical diseases. She's been offered a position by the department of health in Nigeria to conduct research into the treatment of malaria. She would like to take the position for at least two years, while her husband fulfills his § 212(e) obligation. Can she do so and have those two years count as fulfilling her § 212(e) obligation? Would it make any sense at all for this J-2 spouse to be forced to go with her husband-and we still don't know to which country he's obligated to return-when she would be making a far more useful contribution by going back to Nigeria? Does it serve any program or policy interest of this government or the exchange program for this woman to have to go to the United Kingdom or Canada, countries not known for their struggles against malaria, to fulfill a residence requirement incurred by her husband? 2. A dual national couple, both citizens of Israel and the United Kingdom, have come to the United States for the husband to work as a research scholar in a university's department of Ural-Altaic languages. He is receiving U.S. government funding. They were living in Israel when they came to the United States, but would like to spend the fulfillment years in England, where the husband has been offered a grant to study at the University of Cambridge. Can they fulfill there? What possible interest does the United States have in the question of which country this couple returns to? Why should the long arm of our laws reach out and tell them where they must reside over the next two years to be able to return to the United States with an H-1B, L-1, or immigrant visa? 3. A Pakistani physician came to the United States on a J-1 visa to engage in graduate medical training. His son, 13 years old at the time, accompanied him in J-2 status, as did his wife. The doctor did a residency here, then a fellowship, and the family stayed for five years. The doctor leaves the United States, but does not go back to Pakistan, the country that issued the physician-need statement. Instead, he goes to Uganda, where he has been offered a challenging position as an infectious diseases doctor heading up an AIDS program in that country. When he leaves to go to Africa, his son, now 18, wants to study at a U.S. university. He goes abroad, obtains an F-1 visa, and returns to the United States to complete four years of university, and later, five years of doctoral studies in toxicology. He is now 27, and has been offered a research position by a top U.S. pharmaceuticals company, which offers to sponsor him for H-1B employment. The way things stand today, this former J-2 toxicologist cannot secure an H-1B visa abroad. He never fulfilled the two-year obligation, and neither did his father, who never planned to come back to the United States, except for short-term visits. State Department rules do not permit a J-2 to independently seek a waiver of § 212(e) obligations except upon the death of the J-1 or in the case of spouses, the divorce of the J-1 and J-2. While there may be some flexibility in State Department rules, this particular toxicologist, a great admirer of the certainty of scientific measurement and analysis, does not know what to make of the Department's response to his case: "Send it in, and we'll look at it." Or must he try to secure a spot in an exchange visitor program himself, change his status to J-1, and then apply for his own waiver? Does this make any sense? 4. A dual national of Egypt and Canada graduates from a medical school in Quebec. He would like to do his residency in internal medicine at a hospital center in Los Angeles. Canada will not issue the physician need statement for primary care medicine, so the doctor gets that statement from Egypt, and comes to the United States with his French wife, who is also a landed immigrant in Canada. Because Egypt has issued the need statement, he can't fulfill his two-year obligation in Canada, the country of his nationality and his last permanent residence. Instead, as the State Department now seems to insist, he must go back to Egypt. And his wife? Where does she fulfill the two-year residence requirement? The examples can go on and on. Conclusion Let's stand back for a second and view the situation from a historical perspective. In 1961, the year the Fulbright-Hays Act was passed, John F. Kennedy was sworn in as President, President Wilson's widow died, and continental drift was introduced as a revolutionary theory. The United States broke diplomatic relations with Cuba, East Germany erected the Berlin Wall, the Soviet cosmonaut Yuri Gagarin had us worried when he became the first man to orbit the earth, the Bay of Pigs fiasco took place, Freedom Riders were testing segregationist policies in the South, IBM made a breakthrough by introducing the Selectric typewriter (the one with the bouncing ball type), South Africa withdrew from the British Commonwealth after a rift over apartheid, and Henry Miller's Tropic of Cancer was taken off the banned list and legally published in the United States. Does all this sound dated? It's now 2003. If the legislative history and regulatory chaos are not enough to persuade one that J-2s should not be subject to § 212(e), consider this. These days couples are no longer expected to be joined at the hip. Congress has already recognized this in other contexts. For example, in early 2002 it enacted legislation granting separate work authorization for spouses of intracompany transferees (L-1), treaty traders (E-2), and treaty investors (E-1). Congress also allows women to obtain permanent resident status apart from their spouses if they have been battered or obtained a divorce. Similarly, Congress and the agencies should not tie J-2s to the two-year residence requirement of INA § 212(e) if their spouses are subject. In summary, J-2s should not be subject to § 212(e). First, there is virtually nothing in the legislative history that suggests that Congress intended to bind them to the two-year rule, and since 1970, the statutory language specifically excludes them from the rule's embrace. Second, even if subject, J-2s (as well as J-1s) should be free to return to either their country of nationality or their last residence, whichever they prefer, or a combination of both, and J-2s should be able to return to their country of nationality or last residence or that of their spouses. Third, Congress should review the exchange visitor program and abolish the two-year residence rule. It is antiquated. It is unworkable. It makes no sense. Like 1961, its time has come and gone. A new rule is needed for a new century. Footnote * Naomi Schorr (nschorr@bryancave.com) is Counsel at Bryan Cave LLP in its New York City office, where she practices in the firm’s Corporate Immigration Client Service Group. Stephen Yale-Loehr (syl@millermayer.com) is co-author of Immigration Law and Procedure, published by LexisNexis Matthew Bender. He also teaches immigration law at Cornell Law School and practices immigration law at True, Walsh & Miller in Ithaca, New York. Copyright © 2003 Naomi Schorr and Stephen Yale-Loehr. All rights reserved. No person admitted under section 101(a)(15)(J) or acquiring such status after admission (i) whose participation in the program for which he came to the United States 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, (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 him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply 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 his nationality or his last residence for an aggregate of a least two years following departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he 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 except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 214(l): And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien. This article assumes that the J-2 is not independently subject to the requirements of INA § 212(e) by virtue of prior participation in an exchange visitor program that rendered him so subject. Words of truth can be most powerful weapons of peace if we use them properly and effectively….The committee [is] convinced that by means of the safeguard provisions included in the bill, it is possible for the proposed program to become a powerful instrument for the dissemination of the truth about America, our ideals, and the rights and privileges which are ours as American citizens. H.R. Rep. No. 80-416, at 8 (1947). The Secretary is authorized to provide for interchanges on a reciprocal basis between the United States and other countries of students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill and shall wherever possible provide these interchanges by using the services of existing reputable agencies which are successfully engaged in such activity. The Secretary may provide for orientation courses and other appropriate services for such persons from other countries upon their arrival in the United States, and for such persons going to other countries from the United States. When any country fails or refuses to cooperate in such program on a basis of reciprocity the Secretary shall terminate or limit such program, with respect to such country, to the extent he deems to be advisable in the interests of the United States. The persons specified in this section shall be admitted as nonimmigrant visitors for business under clause 2 of section 3 of the Immigration Act of 1924, (43 Stat. 154; 8 U.S.C. 203), for such time and under such conditions as may be prescribed by regulations promulgated by the Secretary of State and the Attorney General. A person admitted under this section who fails to maintain the status under which he was admitted or who fails to depart from the United States at the expiration of the time for which he was admitted, or who engages in activities of a political nature detrimental to the interests of the United States, or in activities not consistent with the security of the United States, shall, upon the warrant of the Attorney General, be taken into custody and promptly deported pursuant to section 14 of the amended Immigration Act of 1924 (43 Stat. 162, 8 U.S.C. 214). Deportation proceedings under this section shall be summary and the findings of the Attorney General as to matters of fact shall be conclusive. Such persons shall not be eligible for suspension of deportation under clause 2 of subdivision (c) of section 19 of the Immigration Act of February 5, 1917 (54 Stat. 671, 56 Stat. 1044; 8 U.S.C. 155). S. Rep. No. 80-811, supra note 10, at 4. (f) Section 201 of the Act of January 27, 1948 (Public Law 402, Eightieth Congress, second session, 62 Stat. 6) entitled [sic] '‘An Act to promote the better understanding of the United States among the peoples of the world and to strengthen cooperative international relations’' is amended to read as follows: SEC. 201. The Secretary is authorized to provide for interchanges on a reciprocal basis between the United States and other countries of students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill and shall wherever possible provide these interchanges by using the services of existing reputable agencies which are successfully engaged in such activity. The Secretary may provide for orientation courses and other appropriate services for such persons from other countries upon their arrival in the United States, and for such persons going to other countries from the United States. When any country fails or refuses to cooperate in such program on a basis of reciprocity the Secretary shall terminate or limit such program, with respect to such country, to the extent he deems to be advisable in the interests of the United States. The persons specified in this section shall be admitted as nonimmigrants under section 101 (a) (15) of the Immigration and Nationality Act, for such time and under such conditions as may be prescribed by regulations promulgated by the Secretary of State and the Attorney General. A person admitted under this section who fails to maintain the status under which he was admitted or who fails to depart from the United States at the expiration of the time for which he was admitted, or who engages in activities of a political nature detrimental to the interests of the United States, or in activities not consistent with the security of the United States, shall, upon the warrant of the Attorney General, be taken into custody and promptly deported pursuant to sections 241, 242, and 243 of the Immigration and Nationality Act. Deportation proceedings under this section shall be summary and the findings of the Attorney General as to matters of fact shall be conclusive. Such persons shall not be eligible for suspension of deportation under section 244 of the Immigration and Nationality Act. Pub. L. No. 82-414, § 402(f), 66 Stat. 163, 277 (1952). Note that exchange visitors were to be admitted under INA § 101(a)(15). At the time the statute did not specify a subsection of § 101(a)(15) for exchange visitors. The 1952 Act included only INA § 101(a)(15)(A)-(I). [S]ection 201 of the Act of January 27, 1948 (Public Law 402, Eightieth Congress, 62 Stat. 6, as amended by section 402 (f) of the Immigration and Nationality Act, 66 Stat. 163) entitled [sic] '‘An Act to promote the better understanding of the United States among the peoples of the world and to strengthen cooperative international relations'’ is amended by inserting “(a)” after the section number and by adding a new paragraph reading as follows: (b) No person admitted as an exchange visitor under this section or acquiring exchange visitor status after admission shall be eligible to apply for an immigrant visa, or for a nonimmigrant visa under section 101 (a) (15) (H) of the Immigration and Nationality Act, or for adjustment of status to that of an alien lawfully admitted for permanent residence, until it is established that such person has resided and been physically present in a cooperating country or countries for an aggregate of at least two years following departure from the United States: Provided, That upon request of an interested Government agency and the recommendation of the Secretary of State, the Attorney General may waive such two-year period of 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: And provided further, That the provisions of this paragraph shall apply only to those persons acquiring exchange visitor status subsequent to the date of the enactment hereof. [I]nasmuch as the law requires the exchange alien to return to a country or countries, the singular and the plural being used, you take the position that since he is not forced to go to a country where he might be subject to persecution and he has a choice of another country, therefore you want him to comply with the law and select a country where he could stay for 2 years unharmed?” (Emphasis added.) Mr. Skora replied: “Yes; that is correct.” Q. Am I correct in stating that the ‘J’ visa used by consular officers…derives from section 201 of the International Educational Exchange Act…and the Department’s regulations, rather than from section 101(a)(15) of the Immigration and Nationality Act? A. When we were faced with that language in 1952, we had a reference to section 101(a)(15), but we did not have a specific reference to one of the subsections of 101(a)(15). Consequently, we tried to determine the intent of Congress as far as this specific reference to 101(a)(15) is concerned. It was our belief, as reflected in our regulations…that it would be the most desirable method of adding to the subdivisions of nonimmigrants, the subdivision which originally was referred to as '‘EX,'’ standing for exchange visitors, and which more recently was changed to '‘J’' for reasons of management. Id. The application [for a waiver of the two-year residence requirement] must be supported by documentary evidence that ineligibility for permanent residence would (a) impose undue hardship upon the exchange visitor that could not have been anticipated at the time exchange visitor status or the last extension of stay as an exchange visitor was granted….(Emphasis added.) Note there is no reference to so-called “qualifying relatives,” the U.S. citizen or permanent resident spouse or child of the exchange visitor. By 1961 the regulation had changed, and a waiver was available if compliance would “impose undue hardship upon an exchange visitor who is the spouse of a United States citizen or of a lawfully resident alien that he could not have anticipated at the time he acquired exchange-visitor status.” 22 C.F.R. § 63.6(e), as reprinted in H.R. Rep. No. 87-721, supra note 26, at 12. The classification of a nonimmigrant alien as an exchange visitor for visa purposes created by Public Law 402--proposed for regularization in a new category (J)--was designed to apply to persons entering this country in connection with the official exchange programs of the U.S. Government. In practice, however, use of the informally designated ‘exchange visitor visa’ has been extended to cover large numbers of nonimmigrant aliens teaching or otherwise employed here who are not sponsored by the U.S. Government or supported in any way with public funds. These persons thus are automatically brought under the 2-year residence abroad requirement; the result often has been to deprive our universities of needed foreign faculty members and to encourage a flood of waiver applications…. This problem is not resolved in S. 1154. S. Rep. No. 87-372, supra note 40, at 20. Bear in mind that, until 1970, for the alien to be eligible for H-1 classification, a job offer had to be temporary, similar to the H-2B category of today. See 2 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 20.08[2] (rev. ed. 2003). Therefore, that visa category was not appropriate for many jobs, and foreign nationals coming to work in the United States often entered as J-1 exchange visitors instead. SEC. 2. Section 212(e) of the Immigration and Nationality Act (8 U.S.C. 1182(e) is amended to read as follows: “(e) No person admitted under section 101(a)(15)(J) or acquiring such status after admission whose (i) participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United Stated or by the government of the country of his nationality or his last 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 Secretary of State, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, shall be eligible to apply 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 his nationality or his last residence for an aggregate of at least two years following departure from the United States: Provided, That upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency, or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he 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: And provided further, That the Attorney General may, upon the favorable recommendation of the Secretary of State, waive such two-year foreign residence requirement in any case in which the foreign country of the alien’s nationality or last residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien.” Q. Residence, Chargeability and Compliance - INA 212(e) imposes a two year home residence requirement, which needs to be fulfilled in the country of “nationality or...last residence.'’ For physicians, it is our understanding that the DOS maintains that the home residence requirement can only be fulfilled in the country issuing the physician need statement, even in instances in which there is a split between country of residence and country of nationality. Would L/W please verify the current position of the DOS on this topic? A. The exchange visitor regulations, which we have inherited from USIA and which have not been modified, state that physicians must provide a statement of need from the government of the country of their last legal permanent residence at the time they acquire J-1 status. Such statements must provide written assurance, that there is a need in that country for persons with the skill the alien physician seeks to acquire and shall be submitted to the Educational Commission for Foreign Medical Graduates by the participant’s government. Accordingly, the residence requirement should be served in the country that issued the statement of need, and to which the physician was a legal permanent resident at the time the he/she acquired the J-1 visa status. Report of the AILA/Visa Office Liaison Meeting (Mar. 7, 2002), available at http://www.aila.org/infonet (last visited Oct. 9, 2002) (document no. 02031472).
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