WAIVER OF THE TWO YEAR HOME RESIDENCY
REQUIREMENT FOR EXCHANGE VISITORS

Nonimmigrant aliens who received their medical education outside the United States and wish to pursue medical residencies and other clinical training in the US in J-1 status must enter the US under the sponsorship of the EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL GRADUATES. It is difficult to qualify for entry to such programs. Participation subjects the alien to the 2 year home country physical presence requirement in INA 212(e). The requirement of 212(e) is rarely waived for an international medical graduate. Duration is limited to seven years, except for exceptional needs. (Does not include persons who are graduates of US medical schools.

Section 212(e) originally required all exchange visitors to return to their home country, or country of last residence, or to another foreign country for a period of two years before being able to acquire temporary worker (H) status or LPR status. A prohibition on acquisition of intracompany transferee (L) status was later added. This requirement was absolute with no provision for waiver. Those exchange visitors who are subject to the 2 year requirement include three groups of exchange visitors:(J-1s and J-2s)

1. Those that are financed by the exchange visitor's home government, the government of his/her last residence, or the US government;

2. Those which give the exchange visitor new skills which have been determined by the home government to be in short supply in the home country (per se skills list published by DOS); or

3. Exchange programs involving graduate medical education or clinical training;

The requirement is fulfilled by the alien's return to, and actual physical presence in, the home country for an aggregate of two years - hence, the more accurate term, "two year home country physical presence requirement." The 2 years need not be continuous.

Waivers

Provisions to waive the requirement have also evolved to cover those whose compliance with the requirement would in certain instances cause an exceptional hardship to the exchange alien's US citizen or LPR alien spouse or child, or result in persecution to the exchange alien on the basis of race, religion, or political opinion. These provisions also allow for a waiver of the requirement when the embassy of the alien's home country issues a letter of "no objection" to the alien not returning, or where an interest government agency recommends the waiver as being in the national interest. Originally, only US government agencies could act as interested agencies, but the Immigration and Nationality Technical Corrections Act of 1994 allowed states to become interested agencies for the J-1 visitor physicians working in medically undeserved areas.

1. No Objection Statement - Where an alien (other than a Foreign Medical Graduate engaged in graduate medical education or training) is subject to INA 212(e) based on the Exchange Visitor Skills List or receipt of home county government funding (not on the basis that the alien received US government funding, if the alien is in this category, the no objection statement may be sought either directly or indirectly, however, not as likely to be successful)

   A waiver may be sought with a no objection statement from the visitor's home country. The no objection statement is a formal, diplomatic communication from the alien's home country made directly to the DOS. In other words, neither the alien nor an attorney may receive the actual no objection statement and then forward it to the DOS. NO form or fee is required. The alien should not contact his/her home country government embassy to requires issuance of the statement, before first obtaining a case number from the DOS and transmitting this number to the embassy with the request that the no objection statement reference the DOS case number. The No Objection Statement usually results in an approved waiver.

   Foreign medical graduates are specifically precluded by statute from applying for a waiver based solely on a no objection statement if they have pursued a program of graduate medical education or training in the US. A waiver on the basis of a request by a state department of health in the US its equivalent, or an interest US government agency is allowed.

2. Exceptional Hardship - An application with the fee may be made to Service request a waiver of the INA 212(e) on the basis that exceptional hardship to a US citizen or LPR alien spouse or child would follow if the visitor complied with the requirement. The application is made by filing I-612 and is submitted to the regional service center with jurisdiction over the alien's place of US residence. Documentation of the exceptional hardship must be submitted with the application. Evidence of severe medical hardship, likelihood of persecution of the US citizen or LPR alien, or other hardships should be submitted. Career interruptions, economic loss, children's separation from US relatives and language difficulties in the alien's country are not individually given much weight by the service. A totality of circumstances may rise to the level of hardship.

   IF the service finds exceptional hardship, then the application and supporting documentation are sent to DOS for review. The DOS waiver review branch consults with the original program sponsor and then renders it s opinion. That opinion is then sent back to the service. IF DOS recommended the waiver the service almost always grants the waiver. It is important to note that the service is not obligated to grant the waiver after the DOS renders a favorable opinion however, the service may not grant a waiver if the DOS did not render a favorable opinion.

3. Persecution - A third basis for waiver is a claim that the alien will be persecuted on account of his/her race, religion, or political opinion, if the alien is required to return to the home county. Unlike asylum applicants, a waiver based on persecution may not be granted based on nationality or membership in a social group. Again, Form I-612 and supporting documentation are filed with the service center having jurisdiction over the alien (fee of $170.00) A waiver must be obtained from the service before filing an application for change or adjustment of status.

   Must prove that he/she would be subject to persecution. The standard of proof is higher than in asylum cases, which only require a reasonable likelihood of persecution. If the service agree with he applicant, it will forward the case to the DOS waiver review board which will, in turn, send it to the office of Asylum Affairs (OAA), Bureau of Democracy Human Rights and Labor, of the DOS for an opinion. If the OAA finds a basis for the applicant to fear persecution the DOS will recommend a waiver.

4. Interested Government Agency - Where a US government agency believes a waiver to be in the public interest and the alien's prospective compliance with the 2 year requirement to be detrimental to a program or activity of interest to that agency, it may recommend to the DOS that a waiver be granted. Where an alien is not employed or funded directly by a US government agency, certain other agencies may serve as interested government agency depending on the alien's field. In order for an agency to qualify as an Interested Government Agency, the DOS wavier review branch has a list of designated agencies. The government agency may apply directly to the DOS on behalf of the alien, describing its work and the nexus of the work by the alien to the agency.

   What must be established? The interest government agency must determine that the alien's continued stay in the US is in the national interest. This means that the agency must conclude that it is essential to the initiation, continuation, completion or success of a program or activity of high priority and significance in an area of interest of the particular agency. The statement from the interested agency is submitted directly to the DOS. The DOS reviews the application and forwards its recommendation to the service.

   The Department of Health and Human Services will consider applications from a DHHS division, such as the National Institute for Health, or from a nongovernmental organization where the alien is engaged in health-related fields. The DHHS receives many applications there are stringent standards.

   Another avenue, if the Veterans Affairs (VA) if the alien will be taking at least a half-time paid position with the VA. The local VA must apply to the VA headquarters in Washington DC. The local VA also must prove the need for the physician to support clinical and/or research activities, the specific recruitment efforts the local VA has done to recruit US physicians, and the important and unique contribution that could be made be the alien.

5. The Appalachian Regional Commission (ARC) is an agency that will recommend waivers for physicians who agree to practice medicine with a health care facility or group for at least three years within the defined Appalachian region in a rural Health Professional Shortage Area. The ARC has recently become more restrictive. The ARC is a partnership of state government.

   Requirements:

   1. The employment contract must require that the physician will provide not less than 40 hours per week of primary medial care for a period of not less than three years in a health professional shortage area, medically undeserved area, or mental health professional shortage area;

   2. The employment contract cannot contain a noncompete clause;

   3. The head of the health care facility at which the physician will work must attest that the facility is located in either a HPSA, MUA, or MHPSA area and that the facility provides medical care to Medicaid or Medicare eligible and indigent, uninsured parties;

   4. The physician must attest that he/she has only one pending waiver request and will not purse another one while the immediate request is pending; and

   5. Have evidence of the unsuccessful attempts to recruit US physicians.

   The good news is that the DOS rarely fails to recommend a wavier of the requirement where it has received the recommendation of an interested government agency, except where US government funding is involved.

6. State Public Health Department's Requests for a waiver - International medical graduates may seek a waiver of the 2 year requirement based upon a request for waiver made by a state's public health department. The purpose of this specific waiver is to relieve shortages of health care professionals in certain geographic locations as designated by the Department of Health and Human Services.

   If the service approves a waiver under this provision, then the alien may apply for a change of Nonimmigrant status form J-1 to H-1B status.

   To qualify the International Medical School Graduate must satisfy 5 requirements:

   1. The applicant must have acquired J-1 status or must have been admitted to the US as a J-1 nonimmigrant before June 1, 2002. The J-1 status must have been obtained to purse medical education or training in the US.

   2. Demonstrate that he/she has entered into a legitimate full-time employment contract for at least three years to practice medicine with a health care facility that serves an area designated as having a shortage of primary health care professionals. This is determined by the Secretary of Health and Human Services. The health care facility must be operated by the US government or any of its agencies, the state government or any of its agencies, the state government in which the health care facility is located, a charitable, educational or other nonprofit organization, or by private medical practitioners.

      The critical condition is the three year commitment. If the physician fails to fulfill the three-year commitment the applicant will once again be subject to the two year home residence requirement. Moreover, the three-year commitment is a pre-condition for the applicant's subsequent application for permanent residence, or change to any other nonimmigrant classification. Note, an application may be started, but, will not be approved until the conclusion of the three-year period. However, if the facility goes out of business, the service will consider the alien to have fulfilled his/her obligation under the contract and may then file to adjust their status to another immigrant or non-immigrant classification.

   3. The physician and the prospective employer must agree that employment will commence with 90 days of receipt of the waiver;

   4. The state department of public health must submit a request to DOS recommending the waiver. Then the DOS must submit a favorable waiver recommendation to the service; and

   5. The service may grant the waiver only if the number of waivers for the particular state does not exceed 30 during the current fiscal year.

   Once the service has granted the waiver, the health care facility can file an H-1B petition with the service.

   Notes:
   - No formal appeals from DOS determinations

   - Specific Groups granted Waivers - those individuals selected to receive visa under Chinese Student Protection Act of 1992.

   PROCEDURES

   1. Applicant must complete a data sheet and mail with two self-addressed, stamped envelopes (legal sized), a check for $136.00 per application payable to the US Department of State, to U.S. Department of State/Waiver Review Division.

   2. Once the Waiver Review Board has received the completed data sheet, they will use the self-address stamped envelope to mail a case number and instruction sheet on how to proceed with the with the application under the basis designated on the data sheet. It will include a list of the required documents that must be submitted to complete the waiver review application.

   3. After the case number is received by the applicant, that case number must be included in any documentation submitted as well as noted on the outside envelope of all correspondence with the DOS Waiver Review Division.

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