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U.S. Immigration: Waiver of Foreign Residence Requirement

How Do I Get a Waiver of the Foreign Residence Requirement if I am an Exchange Visitor?

What is the Foreign Residence Requirement? A nonimmigrant temporarily enters the United States for a specific purpose. Exchange visitors are nonimmigrants (J-1 status) who participate in the Exchange Visitor Program. This program, which is administered by the Bureau of Consular Affairs, seeks to promote peaceful relations and mutual understanding with other countries through educational and cultural exchange programs. Accordingly, many exchange visitors entering the United States are subject to a requirement that they return to their home country to share with their countrymen the knowledge, experience and impressions gained during their stay in the United States. Unless INS approves a waiver for this requirement, exchange visitors must depart from the United States and live in their country of residence for two years before they are allowed to apply for an immigrant visa, permanent residence, or change to a new nonimmigrant status. Who is Subject to the Foreign Residence Requirement? You are subject to the foreign residence requirement, if you are a (J-1 visa status) participant in the Exchange Visitor Program and:

Any part of your participation in the exchange program was paid for, directly or indirectly, by your government or the United StatesGovernment. Your program sponsor should have noted on your IAP-66 (Certificate of Eligibility for Exchange VisitorStatus) if your program was paid for directly or indirectly byyour government or the United States Government. You can also discuss this issue with officials from the Bureau of Consular Affairs.

You are from a country which has been designated by Bureau of Consular Affairs as requiringyour skills (please see the Exchange Visitor Skill List for more information); or

You arrived in the United States on or after January 10, 1977 to obtain graduate medical education or training. If you fall into one of the above categories, your dependent spouse and child are also subject tothe foreign residence requirement. Your IAP-66 will usually indicate whether you are subject to the foreign residence requirement.

Who is Eligible to Apply for a Waiver? You may be eligible to apply for a waiver of theforeign residence requirement if:

1. You have a U.S. citizen or lawful permanent resident spouse or child and you can provide evidence that returning to your country would impose exceptional hardship on your spouse orchild;

2. You cannot return to your country because you would be subject to persecution because of your race, religion, or political opinion;

3. A U.S. government agency requests a waiver directly from the Bureau of Consular Affairs for you because you are engaged in a project of official interest to the agency;

4. Your country provides a written statement to the director of the Bureau of Consular Affairs stating that your country has no objection to a waiver. (If you came to the United States as an exchange visitor to receive graduate medical education or training, you are ineligible to receive a waiver on this ground.); or

5. A state of the United States, through the state office of public health or its equivalent, sponsors you to work as a physician in a health man power shortage area within the state for three years as a nonimmigrant in H-1B status (temporary worker in specialty occupation). If you are granted the waiver, you must agree to begin your employment with the state within 90 days of receiving the waiver. This state request is submitted to the director ofthe Bureau of Consular Affairs.

Can I Appeal the decision on my Waiver request? If your application for a waiver is denied by the Bureau ofConsular Affairs or the INS, you will receive a letter that will tell you why the application was denied. You will also be told whether you have a right to appeal this decision and how you should appeal.

Waivers of the two-year foreign residence requirement can be difficult to obtain and it is therefore recommended that you seek competent legal representation in such a matter.

Maury D. Beaulier is a U.S. immigration lawyer with a national practice focusing on family based and work based immigration. Mr. Beaulier can be reached at (952) 746-2153 or on his web site at http://www.workvisalawyers.com

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