Exchange Visitor: Waiver of Foreign Residence Requirement Possible With Expert Representation

Aliens who have entered the United States, as participants in an exchange visitor program approved by the U.S. government were the subjects of a recent State Department release. The State Department issued new instructions concerning the process necessary for applying for a waiver of the two-year foreign residence requirement for certain exchange visitors.

Several subgroups of J-1 exchange visitors are subject to a two-year foreign residence requirement, which requires those aliens to return to their home country or the country where they last resided for two years in the aggregate before they are eligible to return to the United States as a permanent resident or non-immigrants in the H or L classifications.

The foreign residence requirement means that an alien must spend the two years in his country of citizenship or last residence; time spent in other countries does not count in totaling the two-year time period.

The requirement of foreign residence is applicable to three main groups:

1. exchange visitors whose participation in the program was financed in whole or in part, directly or indirectly, by an agency of the U.S. government or by the government of the alien’s country;

2. exchange visitors possessing skills particularly required by their own countries that are found on the ‘skills list’;

3. exchange visitors who came to the United States in order to receive graduate medical training.

Determining of whether an alien is subject to the foreign residence requirement involves checking the application for exchange visitors or the IAP-66, the passport J-1 visa stamp or by referring to the skills list.

As a general rule, if a program designation on Form IAP-66 begins with the letter “G” it is usually considered a government-funded program, while a program designation that begins with the letter “P” does not involve governmental funding. Close scrutiny of the IAP-66 may reveal how the State Department views the particular program.

The State Department publishes a “skills list” of fields with a chronic short supply of trained personnel for each foreign country. For the most part, the countries of Western Europe are not included on the skills list. Where a skill is not on the list at the time of entry but later is added the rule is that the skills list at the time of entry is controlling. Where a skill is listed at entry and then removed from the list, the removal is considered retroactive.

Where an exchange visitor enters the United States for the purpose of graduate medical training, which is defined as a residency and or a fellowship program involving direct patient care, the alien is subject to the two-year foreign residence requirement.

In addition to these methods of determining whether an alien is subject to the requirement, a notation may also be made on the alien’s passport next to the J-1 visa stamp. All of these determinations are only preliminary and may be challenged by a request for an advisory opinion. If the determination is correct then the alien must seek a waiver of the requirement in order to remain in the United States.

An alien subject to the foreign residence requirement may ask for a waiver from the requirement based upon one of four separate bases: the alien’s home government issues a letter of “no objection” to the alien remaining in the United States, the alien can show that he or she would be subject to persecution in his or her home country or country of last residence, the alien can show that imposition of the foreign residence requirement will result in “exceptional hardship” to a U.S. citizen or permanent resident spouse or child and, the waiver is requested by an interested U.S. government agency.

The recent State Department release details the new procedural requirements necessary to obtain a waiver for those aliens subject to the foreign residence requirement. This process can be very complex and should only be done with the help of a firm experienced with J-1 waivers.