Exchange Visitor Program Regulations Section 514.44

     

Sec. 514.44   Two-year home-country physical presence
requirement.

(a) Statutory basis for rule. Section 212(e) of the Immigration
and Nationality Act, as amended, provides in substance as
follows:

(1) 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 United States Government or by
the government of the country of his nationality or of his last
legal permanent residence;

(ii) Who at the time of admission or acquisition of status under
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
[See "Exchange Visitor Skills List", 49 FR 24194, et seq. (June
12, 1984) as amended]; 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 is established that such person
has resided and been physically present in the country of
his nationality or his last legal permanent residence for an
aggregate of at least two years following departure from the
United States.

(2) Upon the favorable recommendation of the Director of the
United States Information Agency, pursuant to the request of an
interested United States Government agency (or in the case of an
alien who is a graduate of a medical school pursuing a program in
graduate medical education or training, pursuant to the request
of a State Department of Public Health, or its equivalent), or
of the Commissioner of Immigration and Naturalization after the
latter 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 legal
permanent alien), or that the alien cannot return to the country
of his nationality or last legal permanent 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, the waiver shall be subject to the
requirements of section 214(k) of the Immigration and
Nationality Act (8 U.S.C. 1184).

(3) Except in the case of an alien who is a graduate of a medical
school pursuing a program in graduate medical education or
training, the Attorney General, upon the favorable recommendation
of the Director of the United States Information Agency, may also
waive such two-year foreign residency requirement in any case in
which the foreign country of the alien's nationality or last
legal permanent residence has furnished the Director of the
United States Information Agency a statement in writing that it
has no objection to such waiver in the case of such alien.
Notwithstanding the foregoing, an alien who is a graduate of a
medical school pursuing a program in medical education or
training may obtain a waiver of such two-year foreign
residence requirements if said alien meets the requirements of
section 214(k) of the Immigration and Nationality Act (8 U.S.C.
1184) and paragraphs (a) (2) and (e) of this section.

(b) Request for waiver on the basis of exceptional hardship or
probable persecution on account of race, religion, or political
opinion.

(1) An exchange visitor who seeks a waiver of the two-year
home-country physical presence requirement on the grounds that
such requirement would impose exceptional hardship upon the
exchange visitor's spouse or child (if such spouse or child is a
citizen of the United States or a legal permanent resident
alien), or on the grounds that such requirement would
subject the exchange visitor to persecution on account of race,
religion, or political opinion, shall submit the application for
waiver (INS Form I-612) to the District Office of the Immigration
and Naturalization Service having administrative jurisdiction
over the exchange visitor's place of temporary residence in the
United States, or, if the exchange visitor has already departed
the United States, to the district Office having administrative
jurisdiction over the exchange visitor's last legal place of residence
in the United States.

(2)(i) If the Commissioner of the Immigration and Naturalization
Service ("Commissioner") determines that compliance with the
two-year home-country physical presence requirement would impose
exceptional hardship upon the spouse or child of the exchange
visitor, or would subject the exchange visitor to persecution on
account of race, religion, or political opinion, the Commissioner
shall transmit a copy of his determination together with a
summary of the details of the expected hardship or persecution,
to the Waiver Review Branch, office of Exchange Visitor Program
Services, in the Agency's Office of General Counsel.

(ii) With respect to those cases in which the Commissioner has
determined that compliance with the two-year home-country
physical presence requirement would impose exceptional hardship
upon the spouse or child of the exchange visitor, the Waiver
Review Branch shall review the program, policy, and foreign
relations aspects of the case, make a recommendation, and
forward it to the Commissioner. If it deems it appropriate, the
Agency may request the views of each of the exchange visitors'
sponsors concerning the waiver application. Except as set forth
in Sec. 514.44(f)(4), infra, the recommendation of the Waiver
Review Branch shall constitute the recommendation of the Agency.

(iii) With respect to those cases in which the Commissioner has
determined that compliance with the two-year home-country
physical presence requirement would subject the exchange visitor
to persecution on account of race, religion, or political
opinion, the Waiver Review Branch shall review the program,
policy, and foreign relations aspects of the case, and after
consulting thereon with the Bureau of Human Rights and
Humanitarian Affairs of the United States Department of State,
make a recommendation, and forward such recommendation to the
Commissioner. Except as set forth in Sec. 514.44(f)(4), infra,
the recommendation of the Waiver Review Branch shall constitute
the recommendation of the Agency and such recommendation shall be
forwarded to the Commissioner.

(c)  Requests for waiver made by an interested United States
Government Agency. (1) A United States Government agency may
request a waiver of the two-year home-country physical presence
requirement on behalf of an exchange visitor if such exchange
visitor is actively and substantially involved in a program or
activity sponsored by or of interest to such agency.

 (2) A United States Government agency requesting a waiver
shall submit its request in writing and fully explain why the
grant of such waiver request would be in the public interest and
the detrimental effect that would result to the program or
activity of interest to the requesting agency if the exchange
visitor is unable to continue his or her involvement with the
program or activity.
    
 (3) A request by a United States Government agency shall be
signed by the head of the agency, or his or her designee, and
shall include copies of all IAP-66 forms issued to the exchange
visitor, his or her current address, and his or her country of
nationality or last legal permanent residence.
    
 (4) A request by a United States Government agency, excepting
the Department of Veterans Affairs, on behalf of an exchange
visitor who is a foreign medical graduate who entered the United
States to pursue graduate medical education or training, and who
is willing to provide  primary medical care in a designated
primary care Health Professional Shortage Area, or a Medically
Underserved Area, or psychiatric care  in a Mental Health 
Professional Shortage Area,shall, in addition to the 
requirements set forth in Sec. 514.44  (2) and (3), include:

(i) A copy of the employment contract between the foreign
medical graduate and the health care facility at which he or she
will be employed. Such contract shall specify a term of
employment of not less than three years and that the foreign
medical graduate is to be employed by the facility for the
purpose of providing not less than 40 hours per week of primary
medical care, i.e. general or family practice, general internal
medicine, pediatrics, or obstetrics and gynecology, in a
designated primary care Health Professional Shortage Area or
designated Medically Underserved Area (``MUA'') or psychiatric
care in a designated Mental Health Professional Shortage Area.
Further, such employment contract shall not include a non-compete
clause enforceable against the foreign medical graduate.

(ii)   A statement, signed and dated by the head of the health care
facility at which the foreign medical graduate will be employed,
that  the facility is located in an area designated by the
Secretary of Health and Human Services as a Medically Underserved
Area or Primary Medical Care Health Professional Shortage Area or
Mental Health  Professional Shortage Area and provides medical
care to both Medicaid or Medicare eligible patients and indigent
uninsured patients.  The statement shall also list the primary
care Health Professional Shortage Area, Mental Health
Professional Shortage Area, or Medically Underserved
Area/Population identifier number of the designation (assigned by
the Secretary of Health and Human Services), and shall include
the FIPS county code and census tract or block numbering area
number (assigned by the Bureau of the Census) or the 9-digit
zipcode of the area where the facility is located.

(iii) A statement, signed and dated by the foreign medical
graduate exchange visitor that shall read as follows:

   I, ____________________ (name of exchange visitor) hereby
declare and certify, under penalty of the provisions of 18 U.S.C.
1101, that I do not now have pending nor am I [[Page 28804]]
submitting during the pendency of this request, another request
to any United States Government department or agency or any State
Department of Public Health, or equivalent, other than
____________________ (insert name of United States Government
Agency requesting waiver) to act on my behalf in any matter
relating to a waiver of my two-year home-country physical
presence requirement.  (iv) Evidence that unsuccessful efforts
have been made to recruit an American physician for the position
to be filled.   

(5) Except as set forth in Sec. 514.44(f)(4),
infra, the recommendation of the Waiver Review Branch shall
constitute the recommendation of the Agency and such
recommendation shall beforwarded to the Commissioner.

(d) Requests for waiver made on the basis of a statement from the
exchange visitor's home-country that it has no objection to the
waiver.

(1) Applications for waiver of the two-year home-country physical
presence requirement may be supported by a statement of no
objection by the exchange visitor's country of nationality or
last legal permanent residence. The statement of no objection
shall be directed to the Director through diplomatic channels;
i.e., from the country's Foreign Office to the Agency through the
U.S. Mission in the foreign country concerned, or through the
foreign country's head of mission or duly appointed designee in
the United States to the Director in the form of a diplomatic
note. This note shall include applicant's full name, date and
place of birth, and present address. Upon receipt of the no
objection statement, the Waiver Review Branch shall instruct the
applicant to complete a data sheet and to provide all Forms IAP-
66 and the data sheet to the Waiver Review Branch. If deemed
appropriate, the Agency may request the views of each of the
exchange visitor's sponsors concerning the waiver application.

(2) The Waiver Review Branch shall review the program, policy,
and foreign relations aspects of the case and forward its
recommendation to the Commissioner. Except as set forth in Sec.
514.44(f)(4), infra, the recommendation of the Waiver Review
Branch shall constitute the recommendation of the Agency.

(3) An exchange visitor who is a graduate of a foreign medical
school and who is pursuing a program in graduate medical
education or training in the United States is prohibited under
section 212(e) of the Immigration and Nationality Act from
applying for a waiver solely on the basis of no objection from
his or her country of nationality or last legal permanent
residence. However, an alien who is a graduate of a medical
school pursuing a program in medical education or training may
obtain a waiver of such two-year foreign residence requirements
if said alien meets the requirements of section 214(k) of the
Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs
(a)(2) and (e) of this section.

(e) Requests for waiver from a State Department of Public Health,
or its equivalent, on the basis of Public Law 103-416.

(1) Pursuant to Public Law 103-416, in the case of an alien who
is a graduate of a medical school pursuing a program in graduate
medical education or training, a request for a waiver of the
two-year home-country physical presence requirement may be made
by a State Department of Public Health, or its equivalent. Such
waiver shall be subject to the requirements of section 214(k) of
the Immigration and Nationality Act (8 U.S.C. 1184(k)) and this
Sec. 514.44.

(2) With respect to such waiver under Public Law 103-416, if such
alien is contractually obligated to return to her or home country
upon completion of the graduate medical education or training,
the Director of the United States Information Agency is to be
furnished with a statement in writing that the country to which
such alien is required to return has no objection to such waiver.
The no objection statement shall be furnished to the Director in
the manner and form set forth in paragraph (d) of this section
and, additionally, shall bear a notation that it is being
furnished pursuant to Public Law 103-416.

(3) The State Department of Public Health, or equivalent agency,
shall include in the waiver application the following:

(i) A completed "Data Sheet." Copies of blank data sheets may be
obtained from the Agency's Exchange Visitor Program office.

(ii) A letter from the Director of the designated State
Department of Public Health, or its equivalent, which identifies
the foreign medical graduate by name, country of nationality or
last residence, and date of birth, and states that it is in the
public interest that a waiver of the two-year home residence
requirement be granted;

(iii) An employment contract between the foreign medical graduate
and the health care facility named in the waiver application, to
include the name and address of the health care facility, and the
specific geographical area or areas in which the foreign medical
graduate will practice medicine. The employment contract shall
include a statement by the foreign medical graduate that he or
she agrees to meet the requirements set forth in Section 214(k)
of the Immigration and Nationality Act. The term of the
employment contract shall be at least three years and the
geographical areas of employment shall only be in areas, within
the respective state, designated by the Secretary of Health and
Human Services as having a shortage of health care professionals;

(iv) Evidence establishing that the geographic area or areas in
the state in which the foreign medical graduate will practice
medicine are areas which have been designated by the Secretary of
Health and Human Services as having a shortage of health care
professionals.  For purposes of this paragraph, the geographic
area or areas must be designated by the Department of Health and
Human Services as a Health Professional Shortage Area/Medically
Underserved Population ("MUA/MUP").

(v) Copies of all forms IAP-66 issued to the foreign medical
graduate seeking the waiver;

(vi) A copy of the foreign medical graduate's curriculum vitae;

(vii) If the foreign medical graduate is otherwise contractually
required to return to his or her home country at the conclusion
of the graduate medical education or training, a copy of the
statement of no objection from the foreign medical graduate's
country of nationality or last residence; and,

(viii) Because of the numerical limitations on the approval of
waivers under Public Law 103-416, i.e., no more than twenty
waivers for each State each fiscal year, each application from a
State Department of Public Health, or its equivalent, shall be
numbered sequentially, beginning on October 1 of each year.

(4) The Agency's Waiver Review Branch shall review the program,
policy, and foreign relations aspects of the case and forward its
recommendation to the Commissioner. Except as set forth in Sec.
514.44(g)(4)(I), the recommendation of the Waiver Review Branch
shall constitute the recommendation of the Agency.

(f) Changed circumstances. An applicant for a waiver on the
grounds of extreme hardship or probable persecution on account of
race, religion, or political opinion, has a continuing obligation
to inform the Immigration and Naturalization Service of changed
circumstances material to his or her pending application.

(g) The Exchange Visitor Waiver Review Board.--(1) The
Exchange Visitor Waiver Review Board (``Board'') shall consist of
the following Agency officers:

(i) The Associate Director of the Bureau of Educational and
Cultural Affairs, or his or her designee;

(ii) The Director of the geographic area office responsible
for the geographical area of the waiver applicant, or his or her
designee;

(iii) The Director of the office of Congressional and
Intergovernmental Affairs, or his or her designee;

(iv) The Director of the Office of Academic Exchange, or his
or her designee; and

(v) The Director of the Office of Research, or his or her
designee.

(2) A person who has had substantial prior involvement in a
particular case referred to the Board may not be appointed to, or
serve on, the Board for that particular case unless the General
Counsel determines that the individual's inclusion on the Board
is otherwise necessary or practicably unavoidable.

(3) The Associate Director of the Bureau of Educational and
Cultural Affairs, or his or her designee, shall serve as Board
Chairman. No designee under paragraph (g)(3) shall serve for more
than 2 years.

(4) Cases will be referred to the Board at the discretion of
the Branch Chief, Waiver Review Branch, of the Agency's office of
Exchange Visitor Program Services. The Waiver Review Branch shall
prepare a summary of the particular case referred and forward it
along with copy of the relevant file to the Board Chairman. The
Chief, Waiver Review Branch, or his or her designee, may, at the
Chairman's discretion, appear and present facts related to the
case but shall not participate in Board deliberations.

(5) The Chairman of the Board shall be responsible for
convening the Board and distributing all necessary information to
its members. Upon being convened, the Board shall review the case
file and weight the request against the program, policy, and
foreign relations aspects of the case.

(6) The General Counsel shall appoint, on a case-by-case
basis, from among the attorneys in the Office of the General
Counsel, one attorney to serve as legal advisor to the Board.

(7) At the conclusion of its review of the case, the Board
shall make a written recommendation either to grant or to deny
the waiver application. The written recommendation of a majority
of the Board shall constitute the recommendation of the Board.
Such recommendation shall be promptly transmitted by the Chairman
to the Branch Chief, Waiver Review Branch.

(8) The recommendation of the Board in any case reviewed by
it shall constitute the recommendation of the Agency and such
recommendation shall be forwarded to the Commissioner by the
Branch Chief, Waiver Review Branch.