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The Odyssey of the J-2: Forty-Two Years of Trying Not to Go Home Again
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By Naomi Schorr and Stephen Yale-Loehr* Introduction This article started out trying to answer one question: Should a J-2 nonimmigrant exchange visitor be subject to the two-year foreign residence requirement of section 212(e) of the Immigration and Nationality Act (INA) if the J-1 principal is so subject? In trying to answer that question, the authors confronted additional issues that seem to have gone unresolved for close to half a century. If a J nonimmigrant is subject, be it J-1 or J-2, where can he fulfill the foreign residence requirement: in the country of his nationality or the country of his last residence? Does he have a choice? Where does a J-2 fulfill? In her J-1 spouse's country of nationality or last residence or her own? Can she combine periods that she spends in both? And how can she fulfill it? Do any periods of stay in the foreign residence count, or must there be a certain quality to periods spent in the foreign country? If a J-1 fulfills the two-year rule overseas but the J-2 remains in the United States, is the J-2 still subject? If so, why? And finally, who gets to decide if the alien is even subject in the first place? The article is intended to serve several purposes: (1) to lead to an understanding of how J-2 nonimmigrants became subject to the foreign residence requirement; (2) to sort out where and how the two-year obligation may be fulfilled; and (3) to provide the legal rationale and justification for a new regulatory scheme that would render the J-2 not subject to the two-year foreign residence requirement. Our research found that there is very little in the legislative history and nothing in the Immigration and Nationality Act (INA) that compels the conclusion that a J-2 is subject to the two-year foreign residence requirement. In fact, a strong argument exists that the J-2 is clearly not subject. For these reasons, we recommend that the State Department and the U.S. Citizenship and Immigration Services (CIS) change their current interpretations and not make J-2s subject to the two-year foreign residence requirement. We decided to write this article after listening to the remarks of a senior State Department official at a recent immigration law conference. That official was very clear in his view that the foreign residence requirement should not be imposed on J-2 nonimmigrants. The remarks of that senior official follow:
This article looks at the legal premises and processes we engage in, examines the legislative history of the exchange visitor program, reviews the questions about J-2s that have been raised in liaison meetings between the American Immigration Lawyers Association (AILA) and the Department of State and the United States Information Agency (USIA), provides excerpts from some of the statements about fulfillment issues that have been made by representatives of those governmental agencies at a variety of AILA conferences since 1998, and analyzes case law, legal opinions, and relevant regulations. In so doing, it necessarily takes a long, hard look not just at the J-2 classification, but also the status to which it appends, the J-1. Legislative History The Smith-Mundt Act of 1948In 1948, Congress passed the United States Information and Educational Exchange Act, popularly referred to as the Smith-Mundt Act. The main purpose of the legislation was to promote mutual understanding between the American people and other countries "to correct misunderstandings about the United States abroad." In 1947, hearings were held by a Senate subcommittee on the proposed legislation, H.R. 3342, that had been introduced in the House of Representatives. Among those testifying was Secretary of State George C. Marshall, who urged the bill's passage:
In recommending passage of the bill, the Senate Committee on Foreign Relations said that the proposed program to promote the exchange of persons, knowledge, and skills "cannot be gainsaid." "The American people," the report warned,
In January 1948, the Senate Committee on Foreign Relations issued an additional report on H.R. 3342, reporting the bill favorably to the Senate and offering several amendments. Before analyzing the bill and its amendments, the Committee thought it wise to step back and discuss the general considerations underlying the legislation. Foremost among them was that:
Section 201 of the Smith-Mundt Act set the groundwork for the immigration portion of the exchange visitor program that we know today. It provided for the interchange between the United States and other countries of "students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill." Those who entered to participate in the exchange program were to be admitted as "nonimmigrant visitors for business under clause 2 of section 3 of the Immigration Act of 1924, as amended." From the start, the exchange visitor program imposed a requirement that those coming to the United States to take part in the program must leave when their program objectives were realized. Anyone so admitted, the 1948 statute warned, who "fails to depart from the United States at the expiration of the time for which he was admitted…shall…be taken into custody and promptly deported." 1952 Amendments In 1952, the Smith-Mundt Act was amended, and §201 was changed to reflect the passage that year of the Immigration and Nationality Act of 1952. "The persons specified in this section," the amendment read, "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." Left unchanged were the general contours of the departure requirement: depart the United States at the expiration of the program, or be taken into custody and promptly deported. 1952 to 1956: Pushing the Envelope Too Far What happened next? Many exchange visitors who completed their visits but who wanted to remain in the United States simply went up to Canada, turned around, and came back. Departure was required, and departure effected. Alternatively, they applied for private bills. Applied for? They flooded the Congress with requests for private bills. Finally, President Eisenhower put his foot down. He vetoed one of those private bills and sent a message to the Senate with his reasons. Those reasons set the stage for the later imposition of what we know of as the two-year foreign residence requirement. Therefore, we quote from the President's message at length. The exchange programs, Eisenhower said, could be maintained as instruments to promote international understanding and good will only:
While noting that many private bills were approved based on "humanitarian and equitable considerations," the President decided that the bill before him did not warrant his approval, and took the opportunity to urge a statutory change:
1956: The Birth of the Blues The legislation the President was referring to was S. 2562, which the Senate Committee on Foreign Relations endorsed. The purpose of the bill, as the Senate report that accompanied the bill has it, was to give effect to the President's 1955 recommendation to tighten up on the requirement that an exchange visitor depart the United States when his program was over. Although, as the Senate report said, exchange visitors were prevented by law from changing their status or from applying for suspension of deportation orders, "there is nothing to deter them from qualifying for an immigration visa after leaving the United States, and from being readmitted immediately from a neighboring country such as Canada or Mexico." To deal with this problem, Congress amended § 201 of the Smith-Mundt Act by adding subsection (b), which read, in pertinent part: 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…. Quite interesting for historical purposes, and as a background for our later analysis of the scope of the foreign residence requirement, is the evolution of the language of this crucial provision. Therefore, in the interest of developing the record, we think that we should linger a moment here and talk about how the statutory language came to be as it was in 1956. Later, we will see how it evolved into what it is today. First, who and what is an "exchange visitor"? According to State Department regulations of 1958, it means "any foreign national who has been selected by a sponsor to participate in the Exchange-Visitor Program." Second, what is a "cooperating country"? Department of State regulations from that same year define "cooperating country" as "any country with which the Department is authorized to conduct exchange of persons under the provisions of section 201 of the act." A 1961 House report stated that "[t]he United States generally considers all countries with which it maintains diplomatic relations as 'cooperating countries' within the meaning of the educational and cultural exchange program." Therefore, virtually any country was a "cooperating" one, and an exchange visitor could fulfill the two-year departure rule in any country or combination of countries.
In the course of its deliberations, the committee's attention was drawn to the possibility that certain language in the bill…might be subject to misinterpretation. The language in question literally would have required continuous physical presence outside the United States for an aggregate of 2 years. This could be construed as meaning that if a former exchange visitor made a brief visit to the United States or to a noncooperating country, there would be a break in the 2-year period and he would be compelled to start his foreign residence all over again. Such a requirement appears altogether too severe and is unnecessary for the purposes of the bill. For this reason, the committee voted to delete the word 'continuously' which precedes the words 'physically present' from the bill. Finally, a discussion of the word "aggregate." Almost five decades after its inclusion in the statute, practitioners and government officials are still uncertain what it refers to or what it means. It is rather a challenge to understand how one can be "continuously" physically present for an "aggregate" period of time. Those two terms are more or less the opposite of each other. Had Congress left the word "continuously" in the statute, which was deleted so that periods spent in the United States or a noncooperating country would not interrupt the two years, it would have meant that one could "aggregate" the two years in one or in any combination of cooperating countries. Note: there was not yet a requirement in 1956 to return to one's country of nationality or last residence. Once "continuously" was deleted, "aggregate" surely had to refer to tacking on disparate periods of time spent in any number of cooperating countries. We discuss these concepts later in this article. So where are we in 1956? First, an exchange visitor was to enter the United States as a nonimmigrant under an unspecified subsection of INA § 101(a)(15). In what status did he enter? Consular officers originally issued "EX" visas, and later on, J visas. Second, an exchange visitor was not eligible for H status, for adjustment of status, or for an immigrant visa until he had departed the United States and then resided and was physically present in any cooperating country or countries for at least two years. Waivers of the foreign residence requirement were available upon the request of an interested government agency if the alien's admission was found to be in the public interest. Waivers were also available by regulation where "undue" hardship would result to the exchange visitor who was the spouse of a U.S. citizen or lawful permanent resident, or where fulfillment would be detrimental to a program in which the U.S. government was interested. What about the spouse and children of the exchange visitor? On what type of visa did they enter the United States? They were issued tourist visas, entered under INA § 101(a)(15), and were not referred to as "exchange visitors." 1961: Who Remembers Quemoy and Matsu? In 1961, Congress passed the Mutual Educational and Cultural Exchange Act, popularly called the Fulbright-Hays Act, which consolidated a variety of existing laws primarily concerned with the educational and cultural aspects of exchange programs. Those laws covered the operations of five major programs, which were growing in an ad hoc, piecemeal fashion, and were operating under different pieces of legislation and initiatives passed without much consideration for each other. Remember, this was 1961, and the Cold War was in full force. In its report on H.R. 8666, the bill that was eventually adopted into law, the House Committee on Foreign Affairs said:
The House and Senate carefully considered the legislation that became the Fulbright-Hays Act, particularly Subcommittee Number 1 of the House Committee on the Judiciary, which held extensive hearings on the immigration law aspects of that bill, § 109 of H.R. 8666. It was the House bill that eventually passed, rather than the bill proposed by the Senate, S. 1154, but both chambers published their own reports on the legislation. Important in this regard is the role played by the House Committee on the Judiciary, whose greater expertise in immigration matters was acknowledged by the House Committee on Foreign Affairs:
After hearings on the workings of the exchange program, Congress enacted legislation that added subsection J to INA § 101(a)(15):
It also amended INA § 212:
The Spouse and Children of Exchange Visitors in 1961 The report of Subcommittee Number 1 of the House Committee on the Judiciary is 122 pages. The House Committee on Foreign Affairs issued its own report: another twenty-four pages. The House debates on the Act as reported in the Congressional Record fill another twelve pages. The Senate report on its bill, S. 1154, the bill that did not pass, is another forty-four pages. What can we gather from the record about the dependents of exchange visitors? Did Congress explicitly intend to make them subject to the two-year foreign residence requirement? We note that the plain language of the statute itself apparently does subject the J-2 to the foreign residence requirement. "No person admitted under section 101(a)(15)(J) or acquiring such status after admission," the statute reads, is eligible for adjustment of status, or an immigrant visa, or an H visa, unless that person complies with the two-year foreign residence requirement. "No person" would appear to include J-2s. However, in using the term "person," the Congress was merely using the same language it had used since 1948 in each version of the evolving exchange-visitor legislation. Recall, for example, that in 1948 a "person" who failed to depart at the end of his program was deportable. In 1956, when the two-year return requirement was statutorily imposed, the legislation read: "No person admitted as an exchange visitor" could become an H nonimmigrant or a permanent resident unless he complied with the two-year rule. And "exchange visitor" was defined as "any foreign national who has been selected by a sponsor to participate in the Exchange-Visitor Program." The term did not include the spouse and child of the exchange visitor, who were relegated to visitor's visa admissions and were thus not subject to the rule. Did Congress actually intend to subject J-2s to the restrictions of INA § 212(e)? We think not. Before 1961, the spouses and children of exchange visitors entered on visitor visas, and their periods of admission were not necessarily coextensive with that of the principal. For this reason, primarily, the dependents of exchange visitors were admitted in J-2 status after 1961. In the House debates over the Fulbright-Hays Act, Rep. John V. Lindsay said:
And that's all that the House of Representatives had to say about the terms of admission of J-2 nonimmigrants. In 158 pages of the legislative history of the congressional house that was acknowledged to be the moving force in this legislation, there was never even a hint that J-2 dependents were to be subject to the foreign residence requirement. In fact, in addition to providing a defined visa category for the dependents of exchange visitors, and in addition to permitting them to stay for the duration of the principal's program participation, the 1961 Act added another provision for the benefit of J-2 nonimmigrants: permission to request employment authorization. Nowhere is there any suggestion that the House legislation intended to subject J-2s to the foreign residence requirement. The report of the Senate Committee on Foreign Relations that accompanied its bill, S. 1154, the bill that was not enacted, does contain one sentence about the foreign residence requirement as it pertains to J-2s: "To the extent that the spouse and minor children of the person admitted under the new category (J) are issued a visa in that category, they, too, would be subject to the 2-year residence abroad provision." How much importance should attach to that statement? The same Senate report proposed a number of other changes to the exchange visitor law that never saw the light of day. For example, the Senate bill would have amended INA § 241 to exempt from being a ground for deportation the employment of J-2 nonimmigrants if such employment was for the support of the J-1 alien or the J-2 spouse. The Senate bill also would have amended not § 212, but rather only § 245, to bar the adjustment of status of J nonimmigrants until they had complied with the two-year rule. Finally, the Senate bill would have given a choice between visa categories for certain foreign scholars and medical personnel so that they "would not necessarily have to enter this country as exchange visitors and be subject" to the two-year rule. We think that Congress never intended in 1961 to make the spouse and minor children of J-1 aliens subject to INA § 212(e). The one sentence in the Senate report should not be given any weight, particularly because the Senate bill was not enacted into law. Moreover, even if J-2s became subject to INA § 212(e) in 1961 based on the plain language of the statute, changes made by Congress in 1970 and subsequent regulatory changes made them not subject again. So, where are we at the end of 1961? Exchange visitors and their dependents are to enter on J visas. Still subject to the two-year foreign residence requirement, the exchange visitor must now return not to a "cooperating country," but to the country of his nationality or his last residence, or to another foreign country, provided that residence in another foreign country serves the purpose and the intent of the Act. The spouse of the exchange visitor is permitted to accept employment. By strict statutory language, though not necessarily by legislative intent, the J-2s are also subject to the foreign residence requirement. But where they are to return to--to the country of the J-1 or to their own country of nationality or last residence--is nowhere mentioned. 1970: A More Reasonable Approach It does not take a great deal of imagination to figure out that the blanket two-year rule, which applied to all exchange visitors, rubbed some people the wrong way. One of the purposes of the exchange-visitor program, after all, was to engender good will, and good press, for the United States. So what happened? The exact opposite. The law produced hardships on individuals and generated "hard feelings toward the United States on many occasions," and "needlessly created problems for the government and universities, hospitals, and other private American institutions." To correct some of the problems, in 1970 Congress amended INA § 212(e), and limited its application to an exchange visitor who entered on a J visa, or acquired that status after entry, to participate in a program that was financed by the U.S. government or the government of his nationality or last residence, or whose field of specialized knowledge or skill was on the so-called skills list. Also changed were the fulfillment requirements of § 212(e). While before 1970 the requirement could be satisfied in the "country of nationality," "last residence," or any other country if sanctioned by the Secretary of State, the 1970 law limited it to the country of nationality or last residence. We've seen why the two-year rule was limited in its application: to make it easier for exchange visitors to remain here, to satisfy the requirements of U.S. employers, and to avoid causing unnecessary ill-will. Why were the countries of fulfillment changed? Was it to serve the "program or policy" considerations of the exchange program? Was it because fulfilling the requirement in a country other than the country of nationality or last residence was detrimental to the purpose of exchanging cultural, educational, and training experiences? No. It was none of that. The reason Congress limited the countries of fulfillment was simple: "This provision has proved extremely difficult to administer." When an exchange visitor opted to fulfill the two-year rule in a country other than the country of his nationality or last residence, it was not until after he'd spent the two years in that other country that the Secretary of State would determine whether it had served the purpose of the Fulbright-Hays Act. Often, the result was not equitable or uniform. The crucial thing about the 1970 amendments, for J-2 purposes, is that the 1970 law did away with the blanket application of INA § 212(e), and limited it to only a person who enters on a J visa, or acquires J status while in the United States, to "participate in" certain exchange visitor programs or who, at the time of admission or acquisition of J status, was a "national" or "resident" of a country requiring persons "engaged" in a "field of specialized knowledge or skill." How then can the restrictions of § 212(e) apply to the J-2 spouse or child of a J-1 nonimmigrant when they are not here to "participate" in any exchange-visitor program? Is there any rule of statutory construction that would apply such a restriction by implication to a class of alien not specifically mentioned in the statute? We can think of none. Was anything at all said about J-2s in the legislative history accompanying the 1970 act? In the twelve pages of the House Judiciary Committee Report on the amendments to the Act, and in the 102 pages of hearings of Subcommittee Number 1 of the House Committee on the Judiciary, not a single word was said about J-2s. Does that silence mean that Congress intended them to remain subject to the two-year rule? We don't think so. The regulations between 1961 and 1972 reflect this changed interpretation. See the chart at the end of this article. Beginning in 1963, the regulations included immediate family members as part of the definition of exchange visitor, thereby also making J-2s subject to INA § 212(e). In 1972, however, after the 1970 act changes, the regulations were changed to make only "participants" subject to INA § 212(e). The regulations limited "participants" to J-1 visa holders, not J-2s. Nevertheless, through imprecise analysis and incomplete review of the legislative history, J-2s are still considered subject to the two-year residence requirement. Case Law Matter of Gatilao In 1966, Mr. Gatilao, the J-2 architect husband of an exchange visitor, sought to adjust his status to become a lawful permanent resident. His application was denied because, the Immigration and Naturalization Service (INS or Service) said, he was subject to the two-year foreign residence requirement of INA § 212(e) and had neither satisfied it nor had its application waived. The Service offered him voluntary departure. No way, said Mr. Gatilao, who argued that he was not subject to the two-year rule because he had entered the United States not as an exchange visitor, but merely as the spouse of one. He claimed that Congress did not intend the foreign residence requirement to apply to J-1 dependents and that the "statute does not require its application." The Board of Immigration Appeals (BIA or Board) had no trouble disposing of that argument, finding it to be "without merit." Why? It looked at the plain language of the statute, which said that "no person admitted under section 101(a)(15)(J)" is eligible for adjustment of status unless he has complied with the two-year rule. This, the BIA said, is "an unequivocal statement, free of ambiguity, which does not require interpretation." In response to the congressional-intent argument, the Board did a curious thing. Mr. Gatilao argued that the language of the statute may seem clear, but in fact Congress never intended to apply the two-year rule to J-2s. The Board said, yes it did. And what was the Board's authority? The only thing the Board could point to was the language in the Senate report accompanying S. 1154, the bill that was not enacted: "To the extent that the spouse and minor children of the person admitted under the new category (J) are issued a visa in that category, they, too, would be subject to the 2-year residence abroad provision." Matter of Tabcum After the 1970 amendments to INA § 212(e), the application of the two-year requirement to J-2 spouses was again challenged. This time the respondent, Mrs. Tabcum, was the J-2 spouse of an exchange visitor whose participation in an exchange program had been funded by the U.S. government. Counsel argued, intelligently, that the bar to adjustment was changed by the 1970 act, which precluded the adjustment only of participants in government-financed programs, and not to the accompanying spouse or child. The Service disagreed. How could it disagree? If the Board in Gatilao gave plain meaning to the language of the statute, which said "no person" admitted in J status could adjust without complying with the foreign residence requirement, how could the Service not apply the "plain meaning" standard to the amended statute, which strictly limited application of the rule to participants? How? It just did. The Service said that the J-2 was permitted to enter the country in that status, that she was the "beneficiary" of the "financial aspects" of her husband's participation in the program, and thus "she too derived benefits from such program." It looked at the legislative history of the 1970 amendments, and found it "makes no reference to any intent on the part of Congress to extend the more liberalized provisions of the amended section 212(e) to the accompanying spouse." That, of course, is true. The legislative history is silent on that point. But that could mean a number of things. It may mean that Congress never imagined that limiting the embrace of § 212(e) to participants would burden the immediate family members under the rule. Then the Service engaged in a kind of "back-formation" reasoning, never the basis of a strong argument, to find Mrs. Tabcum subject to § 212(e). It said that, since the regulations permitted the spouse and children of a J-1 alien subject to § 212(e) to be included in his waiver application, they must therefore be subject to § 212(e) themselves. And finally, in case we needed some icing on the cake, the Service offered this up for digestion: If the J-2 spouse were found not to be subject, and were permitted to adjust her status to lawful permanent resident, her J-1 spouse would then be eligible to apply for adjustment based on hardship grounds, "gaining him back-door access to a benefit to which he otherwise would not be entitled." Whether a coincidence or not, it is interesting to note that, on the very day that Tabcum was decided, the State Department amended its regulations to state that, if an alien is subject to INA § 212(e), so are his spouse and child. The State Department offered no reason for the change. We'd like to say something about the Service's notion that the J-2 "benefits" from the program, particularly because the J-2, unlike most other nonimmigrant dependent categories, has always been permitted to be employed in the United States. While this is a benefit, it was not out of governmental largesse that the J-2s were accorded the opportunity to work here. Through the exchange-visitor program, the United States was trying to bring the best and the brightest to our country, those who would not only add their skills and knowledge, take home newly gained expertise (hopefully to redound to our benefit), and spread the good word about America abroad. We wanted to attract the "cream of the crop," the "upper crust of society." One of the only ways to do that was to permit the J-2s, often professionals themselves, to work here. Mr. Gatilao, who was an architect, is an example of this. Permitting J-2s to work was as much a benefit to us as to them. Sheku-Kamara v. Karn In 1978, Mr. Sheku-Kamara entered the United States in J-1 status to participate in a U.S. government-funded program. He clearly was subject to INA § 212(e). In 1979, he changed programs to a privately funded one sponsored by the University of Pennsylvania from which he derived no government financing. In 1979, he married in London. A year later, while he was still in the privately sponsored J-1 program, his wife and child entered the United States in J-2 status. When his wife applied for adjustment of status in 1983, the Service turned her down, finding that she was subject to § 212(e) because of the prior program her husband had been participating in before he married her. The court decided that a Service regulation governed the outcome of the case. And then it added more. The court referred to Tabcum for the proposition that since the J-2 benefits from an exchange program, she should be subject to § 212(e) if the J-1 is. Never mind that in Sheku-Kamara there was no government financing from which the J-2 benefited. "The scope" of the Tabcum decision is "broader," the court explained. The fact that Mrs. Sheku-Kamara received not even a penny of government financing did not matter, because she "received the more significant benefit of having been permitted to enter the United States." Moreover, held the court, if the plaintiff were permitted to adjust her status, it would create the "anomalous result" of putting the derivative Mrs. Sheku-Kamara in a better position than her husband, who was still subject to § 212(e). Finally, finding the plaintiff subject to the two-year rule was "consistent with" one of the primary objectives of the exchange visitor program-"to facilitate the impartation of live impressions of the United States and its culture to other societies." One can only imagine the impression Mrs. Sheku-Kamara imparted upon her return home. But in this regard, the court overreached, acknowledging that the aim of the program "is directed primarily towards the principal alien." Nevertheless, the court did not see why it could not apply equally to the spouse. How about this reason why: Congress didn't intend that result. General Counsel Opinions On May 9, 2000, AILA and the Department of State had a liaison meeting. This was one of the questions on the agenda: AILA thought it was settled law that, when a J-1 has satisfied the two year residency requirement, the J-2 dependent is no longer subject to the two year residency requirement even if the J-2 dependent has not individually satisfied the two year home residency requirement. U.S. Information Agency's ("USIA") General Counsel had confirmed this position several times in the past. It appears that DOS is taking a contrary position in citing FAM 40.202 note 3, which we do not believe is on point. AILA would request clarification and confirmation that: (a) once the J-1 satisfies the 2 year home residency requirement, the J-2 is no longer subject to the two year foreign residency requirement; and (b) instructions will be sent to the field explaining this result. The State Department responded:
How does this question arise? Suppose that a J-1 exchange visitor who is subject to § 212(e) returns to his country of nationality for two years, leaving his J-2 wife behind. She gets accepted into a university, picks up an F-1 visa, and while he's home fulfilling the requirement, she's here studying. Two years later her husband returns on an H-1B visa, and with her studies complete, she would like to change her status to H-1B as well. Any problem with this? This question was asked of the INS in September 1989, and the answer was quite reasonable. Since a J-2 nonimmigrant is subject to the foreign residence requirement only because the J-1 is so subject, "it is reasonable to conclude that in fulfilling the…requirement, a J-1 principal has effectively conferred the same status to the J-2 spouse or dependent child….Thus, a J-2 spouse…should be considered to have fulfilled the two year home residence requirement if the J-1 principal has done so." This opinion seems quite reasonable. But it wasn't left to stand. In November 1989, the General Counsel of the Immigration and Naturalization Service was asked this question: "What is the applicability of the two-year foreign residency requirement to a J-2 dependent under 212(e) of the INA where the J-1 principal has already fulfilled that obligation?" The answer? "A J-2 dependent is legally obligated to satisfy the two-year foreign residency requirement even where the J-1 principal has already fulfilled that obligation." How did the General Counsel arrive at that opinion? It cited Gatilao, Tabcum, and Sheku-Kamara, cases that had nothing to do with the question at hand, for the general proposition that if the J-1 principal is subject to INA § 212(e), so is the J-2. Admitting that "[n]either the regulations nor the cases cited address the issue," the opinion said, "in our view, it makes no legal difference whether or not the principal has already fulfilled the obligation: these J-2 dependents (those where the principal alien is subject to the requirements) must independently satisfy the two-year residence requirement of 212(e) of the Act." That opinion, which makes no sense to us, apparently didn't sit well even with some INS officials, who asked the General Counsel to reconsider its decision. The General Counsel didn't budge. Its second opinion, issued in 1990, held that, because the J-2 "shares the benefits of the J-1's exchange program and is properly considered a participant in the program for incurring the foreign residence requirement," the J-2 must satisfy that requirement independently of the J-1. Even if the 1990 INS General Counsel opinion was considered the final word then, it is not now. A 1998 precedent decision held that General Counsel opinions are not binding on the agency, and may be disregarded. That's where things stand today. Does this make any sense? While AILA was not correct that it is "settled law" that the J-2 is no longer subject when the J-1 satisfies the foreign residence requirement, the "settled law" should be changed. Just as the J-2 should not be subject to INA § 212(e) in the first place, so too a J-2 should be relieved of the foreign residence requirement once the J-1 has satisfied the obligation or had it waived. Whither Thou Goest, I Will Go. But Where Is It? Fulfillment Issues Suppose a J-1 exchange visitor, a research scholar receiving U.S. government funding, is a national of the United Kingdom and a landed immigrant in Canada. Assume that his J-2 wife is a national of Nigeria, who had spent the four years before her admission to the United States in England. She entered on an F-1 visa, but obtained J-2 status after marrying the J-1 principal. She plans to fulfill the two-year requirement, but she doesn't know where to go. Does she have to return to the place that her J-1 spouse is obligated to return to? Or to her country of nationality or last residence? And if she has to go where her husband goes, where is it? England or Canada? The Statute Says "Or" We are often told that government officials cannot be held to what they say at conferences. We agree that remarks made in that venue, often in response to unexpected questions, are not to be given the weight of general counsel opinions or policy memoranda. Nevertheless, they are instructive-in this case of the confusion that exists in this area-and so we think it useful to review the pronouncements of State Department and USIA officials made over the past few years at AILA conferences. The remarks of these officials are almost verbatim, but were edited to turn spoken comments, often disjointed, into proper written prose. We are not presenting these comments to criticize changing views, or to hold the government to opinions voiced one year that may have changed a year later. Rather, we have gone to the trouble of listening to and transcribing these tapes to give manifestation to the utter confusion that surrounds J fulfillment questions, and to urge a rational change to the law. In 2003, a State Department official took part in a panel at the annual AILA conference on J-1 issues. He was asked whether a J-1, subject because of the skills list, who was a national of one country and a permanent resident of another country, had a choice of which country he had to return to. One of the other panelists offered his understanding of the rule: There was no choice. The J-1 must return to the country of his last residence before admission on the J-1 visa. When the State Department official was asked about the panelist's statement, he said "his understanding is correct." But, asked the discussion leader, what about a national of the United Kingdom, who entered from Canada, where he is a landed immigrant, who received government funding from England? Where does he return to? "A good question," responded the official, who continued by adding that since the statute says "last" residence, "the statute wins." He goes back to Canada. Realizing, of course, that the area is too confused for rational discussion, the State Department official said that "this is an issue we will revisit." Here are some of the exchanges: Q. One last question on fulfillment and that is, can it only be in one country or can it be in two if you have a division between nationality and last residence? Could there be the aggregate? A. That is a good question. Fortunately, I haven't been faced with that question until this moment. So my off-the-cuff remark would be to base it on the country of the last residence where they're subject, that's where they would have to serve their two years. Q. I just want to wind things up on fulfillment issues. J-2 fulfillment issues. What is the obligation of a J-2 in terms of fulfillment of the two-year home residence obligation? J-1 is subject - that means the dependents derive a two-year home residence obligation. Issue: J-1 goes back and fulfills, the J-2 lawfully or even unlawfully remains in the U.S. Does the J-2 still have a two-year home residence requirement once the J-1 fulfills? A. By regulation, both INS and our regulations subject the J-2 to the two-year requirement. In 1999, the USIA General Counsel was asked the same question on where fulfillment is to take place. He said that the agency procedure is that the J-1 does not have a choice. He acknowledged that whenever the question comes up, "legal interpretation is appropriate." And then he said something quite refreshing in its frankness: "I don't think any of us here are able to articulate it as well as it can be articulated." Here are some of the exchanges on that panel, with responses by the General Counsel and a State Department waiver review officer: Waiver review officer: We go by where [the J-1] was a legal permanent resident when he acquired his J-1 status. There are two blocks on the IAP-66 form: his country of citizenship or legal permanent resident, and we go by that, the last permanent residence. Q. Does the alien have a choice between country of citizenship and country of last permanent residence? Waiver review officer: No. Q. The statute says it does. The statute says that 212(e) can be satisfied in either country of citizenship or country of last permanent residence. I don't understand. The statute says "or." Waiver review officer: Well, they do not have a choice. Q. According to you. The thing is that the agency's procedure is that you do not have a choice. For example, this is a physician case. Physician is a citizen of country A; has last been a permanent resident in country B. But country A signed a "physician need" statement. You're saying that your position has always been that the 212(e) obligation can only be fulfilled in the country signing the physician need statement, which in this case is not even the last permanent residence. Again I am just saying that I don't think that is supported by the statute. Q. What is the result? The result is that they are saying that the person has to go back to the country A, the country of citizenship. Here is the real world situation: You've got a physician who's been a citizen of whatever…Egypt... becomes a citizen or landed immigrant of Canada. Canada does not sign a physician need statement. So therefore they go back to their home country and they say, "home country sign a physician need statement." Your position is that the 212(e) obligation can only satisfied in the country signing the physician need statement. So what I am hearing today, and I think that this is your position, is that in non-physician cases the country of residence required to fulfill the 212(e), because you have to have physical presence in the country to which you have the two year home residence requirement, there is no choice. It is normally the country of last permanent residence except in the case of physicians where it becomes automatically signing the physician needs statement. I mean that is a correct statement…is that correct? General Counsel: Let me answer that…and my answer is going to be almost a non-answer in the sense that I think it's one of those things that I know has come up and whenever it comes up this is definitely one of those things where legal interpretation is really appropriate. I know that we do have a difference of views but to be honest, I don't think any of us here are able to articulate it as well as it can be articulated. I mean if this is still an ongoing conversation that you want to have and you want us to take another shot at formally explaining it to you, we'd be glad to do it. In 1998, the Assistant General Counsel of the USIA was asked the same question. Does the exchange visitor have a choice of country of fulfillment when the country of his nationality is not the same as the country of his last residence? He said that the J-1 had "no choice" in the matter: I can tell you what lies behind it. It's a matter of statutory construction. In determining what country you return to it's the country you entered from and it's not a choice, it's a factual matter. You're either entering from your country of nationality, a no-brainer. "I'm a Brit and I'm coming from England," or your country of last legal permanent residence. Last legal permanent residence is "I'm a Brit and I went to Australia and I'm entering the United States from Australia." That's what that has always meant. That's what it means as far as we're concerned, and we're the ones who get to interpret that. Well, that is not what that has "always meant" and they're not the ones who get to interpret that. Let's review some of the minutes of liaison meetings between USIA and AILA. First October 7, 1986:
Now the minutes of the May 14, 1987 meeting:
If the words in INA § 212(e) are given the meaning that Congress intended, it is clear that these pronouncements are correct. Congress first intended that an exchange visitor fulfill the foreign residence requirement in any country or countries. In 1961, it permitted the residence requirement to be fulfilled in the country of nationality, last residence, or another country if approved by the Secretary of State. And in 1970, for reasons of administrative convenience, it limited fulfillment to the country of nationality or last residence. Had Congress meant that only the "last" residence would satisfy the requirement, as the State Department now seems to insist, the statute would have said that the alien must reside and be physically present in the country of his "last residence," which could either be the country of nationality or not. The question of country of nationality versus country of last residence was squarely put to Congress in 1969 during the House's three days of hearings on H.R. 445, the bill that amended INA § 212(e) in 1970. For example, the written statement of Dr. Ruhe, director of the division of medical education of the American Medical Association, noted: The intent of the amendment in H.R. 445 is clearly to avoid the "brain-drain" of skilled professionals from underdeveloped countries, the hope being that the requirement of 2 years of residence in the country of nationality or of previous residence will help those countries in meeting the professional manpower needs. In some instances, however, the country of last residence has not been a "less developed" country. Consequently, if participants are permitted to return to the country of their last residence before becoming eligible for permanent status in the United States, this may have no beneficial effect upon the health care problems or the "brain-drain" from the country of nationality. A classic example is the case of citizens of India who proceed first to the United Kingdom and then to the United States from England as exchange visitors. If such participants are required merely to return to England there will be no alleviation of the brain-drain from India. We believe, therefore, that the proposed amendment may improve the present situation but that it will not correct it completely. Aside from his written statement, Dr. Ruhe raised this issue two other times, trying to engage the Congressmen in a discussion. Not once did the committee follow up with questions, read a statement into the record, or exhibit the slightest interest in dealing with this question or in changing the law to accommodate those concerns. In fact, in one of its earlier incarnations, H.R. 445 would have allowed satisfaction of INA § 212(e) in the country of nationality or in the country of last residence, "[p]rovided, that such residence in the country of his last residence shall be considered to have satisfied the requirements of this subsection only if the Secretary of State determines that it has served the purpose and intent of the Mutual Educational and Cultural Exchange Act of 1961." In other words, Congress considered limiting compliance to only the country of nationality, with possible compliance in the country of last residence, if the Secretary of State approved it. That provision was never implemented because it has always been the intent of Congress for the exchange visitor to have a choice in which country, or in which countries, he or she could fulfill the foreign residence requirement. Who Gets to Decide Whether a J-1 Is Subject to § 212(e)? According to a former Assistant General Counsel of the USIA, that agency got to decide who's subject to the two-year rule. That's not what two former INS General Counsels said on the issue. In 1989, a senior INS official asked the General Counsel which agency had the authority to determine whether an exchange visitor was subject to § 212(e): the USIA or the INS. The short answer was that the INS had that authority. While the USIA had "considerable" authority in supervising foreign exchange programs, its functions under INA § 212(e) were "narrowly drawn." No alien is subject to the foreign residence requirement unless he has been "admitted" to the United States as an exchange visitor or had his status changed to become one, and he may not adjust status if subject. Only the INS, not the USIA, had the authority to admit exchange visitors or adjust their status. The General Counsel opinion is rather straightforward in its conclusion and clear in its reasoning. Clarity, however, is not the hallmark of § 212(e) discussions. During the March 14, 1991, liaison meeting between USIA and AILA, this exchange took place:
Several years later, a different INS General Counsel had another go at it. In a list of resolved issues sent to the then-current and former General Counsels of AILA, the INS General Counsel wrote: "The issue of whether an alien is subject to the two-year home residence requirement is an issue of law to be determined by the Immigration and Naturalization Service." "Reside" and "Physically Present" The statute says that an alien subject to INA § 212(e) may satisfy the requirement if he has "resided and been physically present" in the country of nationality or last residence for an "aggregate" of two years. Did Congress mean more than "physical presence" by adding the word "resided"? There is no discussion of this in any of the hundreds of pages of legislative history that we examined. We accept the general rules of statutory construction that by using the words "resided" and "physically present," Congress meant more than just physical presence-that by adding the word "reside" it intended that there be some quality to the days present in the country (or countries) of fulfillment. But how did "reside" turn into the current regulatory requirement that the exchange visitor must have spent two years in the country of his or her last "legal permanent residence"? By what rule of construction can fulfillment in a country in which one "resides" turn into a country in which one has a "legal permanent residence"? Keep your eyes focused and watch the moving target as the definitions change over the years. 1963:1972:
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