UNCLASSIFIED (U)

9 FAM 302.13

(U) Miscellaneous Ineligibilities - INA 208(d), INA 212(e), 22 U.S.C. 6091 and 22 U.S.C. 6713

(CT:VISA-812; 05-22-2019)
(Office of Origin: CA/VO/L/R)

9 FAM 302.13-1 (U) Statutory and REgulatory Authority

9 FAM 302.13-1(A) (U) Immigration and Nationality Act

(CT:VISA-272; 12-20-2016)

(U)INA 208(d)(6) (8 U.S.C. 1158(d)(6)); INA 212(e) (8 U.S.C. 1182(e)); INA 214(b) (8 U.S.C. 1184(b)); INA 247(b) (8 U.S.C. 1257(b)).

9 FAM 302.13-1(B) (U) Code of Federal Regulations

(CT:VISA-272; 12-20-2016)

(U) 22 CFR 40.202; 22 CFR 40.203; 22 CFR 40.205.

9 FAM 302.13-1(C) (U) Public Laws

(CT:VISA-85; 03-07-2016)

(U) Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (INTCA) (Public Law 103-416).

9 FAM 302.13-1(D) (U) United States Code

(CT:VISA-272; 12-20-2016)

(U) 22 U.S.C. 6091; 22 U.S.C. 6713.

9 FAM 302.13-2 (U) FORMER Exchange Visitors - INA 212(e)

9 FAM 302.13-2(A) (U) Grounds

(CT:VISA-719; 12-20-2018)

a. (U) INA 212(e) and INA 248 provide that certain J-1 exchange visitors are not eligible for immigrant visas, lawful permanent resident status, H, L, or K visas or most non-immigrant status adjustments unless the alien has resided and has been physically present in the country of the aliens nationality or last residence for an aggregate of at least two years following the termination of the aliens exchange visitor status or the foreign residence requirement has been waived by the Secretary of Homeland Security on the aliens behalf.

b. (U) If a former or current J-1 exchange visitor applies for any of these visa categories, the officer should determine whether the applicant was subject to the two-year home country physical presence requirement and if the requirement was satisfied or if a waiver was approved. (See also 9 FAM 402.5-6(L).)

9 FAM 302.13-2(B) (U) Application

9 FAM 302.13-2(B)(1) (U) Aliens Subject to INA 212(e)

(CT:VISA-812; 05-22-2019)

a. (U) In General:

(1) (U) Certain J-1 exchange visitors are subject to the two-year foreign residence requirement of INA 212(e) (see 9 FAM 402.5-6(M)(1)). These exchange visitors must reside and be physically present in their country of nationality or last residence for an aggregate of at least two years following completion of the exchange program and departure from the United States. If the exchange visitors country of nationality differs from his or her country of last residence, then he or she is required to return to the country of his or her residence at the time he or she obtained J status. These exchange visitors are ineligible to apply for or receive an H, K, or L nonimmigrant visa (NIV), nor are they eligible for an immigrant visa (IV) or permanent residence status until they have either complied with the foreign residence requirement, or received a waiver.

(2) (U) The following categories of exchange visitors (and their accompanying dependents in J-2 status) are subject to the foreign residence requirement:

(a) (U) Aliens participating in an exchange program financed in whole or in part, directly or indirectly, by an agency of the U.S. Government, the aliens home government, or an international organization which received funding from the U.S. Government or the aliens home government;

(b) (U) Aliens whose exchange program involves an area of study or field of specialized knowledge that has been designated as necessary for further development of their home countries on the Exchange Visitor Skills List in effect at the time they were admitted to the United States in or acquired, J status; or

(c) (U) Aliens who entered the United States to receive graduate medical education or training.

(3) (U) If an applicant wishes to apply for a waiver of the INA 212(e) foreign residence requirement, the applicant should be directed to the "Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement" website on travel.state.gov (TSG) for an application and all necessary information about the process.  In most cases, post will only be involved in the waiver process if a No Objection Statement is issued by the aliens designated ministry and sent to the U.S. Chief of Mission within that country.  In this case, the No Objection Statement should be forwarded directly by the consular section to the Waiver Division (CA/VO/DO/W) in accordance with 9 FAM 302.13-2(D)(1) below.

b. (U) Two-Year Residence Abroad or Waiver Requirement: An exchange visitor who is subject to the requirements of INA 212(e) is ineligible to apply for the H, K, or L nonimmigrant visa (NIV) categories, an immigrant visa (IV), or permanent resident status until he or she has complied with the foreign residence requirement or a waiver of that requirement has been favorably recommended by the State Department and then approved by Department of Homeland Security (DHS). (See 9 FAM 502.7-3(C)(6) for applicability of INA 212(e) to K visa applicants.)

c. (U) Two-Year Residence Must be in Country of Nationality or Last Residence: Residence for two years in a country other than the country of nationality or last residence, when J status was acquired, does not satisfy the requirements of INA 212(e).  If the country of nationality differs from the country of last residence at the time of admission, or acquisition of, J status, then the alien is required to fulfill the two years in the country of last residence.

d. (U) Time in Country of Nationality or Residence Need Not be Continuous: In determining whether a former exchange visitor has resided and been physically present in the country of nationality or last legal permanent residence for an aggregate of at least two years upon completion of the exchange program and departure from the United States, physical presence need not be continuous and may be cumulative.

9 FAM 302.13-2(B)(2) (U) Applying INA 212(e) to Aliens Issued J-2 Visas

(CT:VISA-525; 03-16-2018)

(U) The spouse or child of an exchange visitor subject to the provisions of INA 212(e) who is issued a J-2 visa is also subject to the provisions of that section.  But, if such a spouse or child ceases to be the spouse or child of the former exchange visitor (that is, the child marries, or turns 21, or, in the case of a spouse, the marriage is terminated, either by death or divorce), and the former J-2 alien wishes to obtain a waiver of the two year foreign requirement, a full report of the circumstances surrounding the case may be submitted by the J-2 alien requesting that the State Department act on his or her behalf for a waiver recommendation. See 9 FAM 302.13-2(D)(1) paragraph b below for mailing address. However, the State Department will act on behalf of such applicants only rarely and for humanitarian circumstances.  Such an application by the J-2 should be submitted as an Interested Government Agency (IGA) request to the State Department. If you receive inquiries regarding the possibility of obtaining such a waiver, direct the applicant to the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website on TSG for additional information.

9 FAM 302.13-2(C) (U) Advisory Opinions

(CT:VISA-272; 12-20-2016)

(U) If post is unsure as to whether INA 212(e) applies to the J applicant, an opinion may be requested from CA/VO/DO/W.

9 FAM 302.13-2(D) (U) Waiver

9 FAM 302.13-2(D)(1) (U) No Objection Statement From Foreign Government

(CT:VISA-812; 05-22-2019)

a. (U) In General: It is the responsibility of the alien to seek and receive a No Objection Statement from his or her applicable government.

b. (U) Diplomatic Missions in the United States May Issue Statement: The No Objection Statement is a diplomatic note from the aliens home government stating that it has no objection to the exchange visitor not returning home for two years to fulfill the INA 212(e) requirement and to the possibility of the alien remaining in the United States and becoming a resident.  It is issued on behalf of the alien by the aliens home government embassy located in Washington, DC or, if there is not an embassy, then by its diplomatic mission.  The No Objection Statement must be sent directly to CA/VO/DO/W from the embassy or the diplomatic mission. It may be emailed to WRD-NOS@state.gov or mailed to:

Waiver Review Division, CA/VO/DO/W
U.S. Department of State
600 19th Street, NW (SA-17, 11th Floor)
Washington, DC 20006

c. (U) Alien Requesting Statement Directly from Own Government: An alien seeking to obtain a waiver of the two-year foreign residence requirement on the basis of a statement from the aliens government should comply with the following:

(1) (U) The alien should apply directly to his or her government for such a statement. It is up to the aliens government to determine whether it will issue such statement;

(2) (U) The No Objection Statement, a diplomatic note from the aliens home government stating that it has no objection to the exchange visitor not returning home for two years to fulfill the INA 212(e) requirement and to the possibility of the alien remaining in the United States and becoming a resident, may also be issued by the designated ministry of the aliens country. Such a statement must be sent from the designated ministry to the U.S. chief diplomatic mission in the home country; and

(3) (U) Upon receipt at the U.S. mission, the U.S. consular section should forward the statement directly to CA/VO/DO/W by email to WRD-NOS@state.gov. See paragraph b above for mailing address.

d. (U) Foreign Government's Opinion to Determine Who May Make Statement: It is the prerogative of the aliens government to determine which ministry or official is authorized to issue a No Objection Statement on its behalf.  Once made, however, the statement should be transmitted to CA/VO/DO/W as stated in 9 FAM 302.13-2(D)(1) paragraph b or 9 FAM 302.13-2(D)(1) paragraph c above.

e. (U) Contents of No Objection Statement: To enable the Department to process the case expeditiously, a copy of the Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, (part of the Student and Exchange Visitor Information System (SEVIS) program) should be attached to the No Objection Statement along with the aliens waiver case number issued by CA/VO/DO/W, if available, and should contain the following information:

(1) (U) Full name of exchange visitor, date and place of birth;

(2) (U) Date of entry into the United States;

(3) (U) List of exchange visitor program or programs and program numbers, if known, in which the alien participated;

(4) (U) The exchange visitor's alien registration number, if known; and

(5) (U) The name of the foreign government official with whom the case can be discussed, if necessary.

f. (U) No Objection Statement Does Not Guarantee Waiver Approval: Some exchange visitors have incorrectly assumed that No Objection Statements by their governments guarantee that waivers will be granted. It should be emphasized that the submission of such a statement by a foreign government serves only to initiate the consideration of the alien's request for a waiver. Each waiver case is reviewed on a case-by-case basis and a recommendation is made to DHS after reviewing program, policy, and foreign relations considerations. If an alien has received U.S. Government financing to participate in the exchange program, such funding may be an indication of strong program considerations against granting the waiver.

g. (U) No Objection Waiver Unavailable to Medical Graduates: Exchange visitors who came to the United States, or those who acquired such status after January 9, 1977, in order to receive graduate medical education or training, are precluded by INA 212(e) from obtaining a waiver based solely on a No Objection Statement from their government. They may, however, request waivers on the basis of one of the other situations outlined in INA 212(e). (See 9 FAM 302.13-2(D)(2), 9 FAM 302.13-2(D)(3), 9 FAM 302.13-2(D)(4), and 9 FAM 302.13-2(D)(5) below.)

9 FAM 302.13-2(D)(2) (U) Exceptional Hardship to U.S. Citizen or Permanent Resident Spouse or Child

(CT:VISA-272; 12-20-2016)

a. (U) If an exchange visitor believes that fulfillment of the two year home country residence requirement would impose exceptional hardship upon his or her U.S. citizen or U.S. lawful permanent resident (LPR) spouse or child, the exchange visitor may apply to DHS for a waiver based on exceptional hardship.

b. (U) If you are receiving inquiries regarding the possibility of obtaining waivers under INA 212(e) on exceptional hardship grounds, direct the applicant to the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website on TSG for additional information and advise the applicant:

(1) (U) To communicate with the DHS office having jurisdiction over the issue; and

(2) (U) Applications for waivers on the basis of exceptional hardship must be made to DHS on Form I-612, Application for Waiver of the Foreign Residence Requirement, (under Section 212(e) of the Immigration and Nationality Act, as Amended).

9 FAM 302.13-2(D)(3) (U) Alien Subject to Persecution

(CT:VISA-272; 12-20-2016)

(U) An exchange visitor who believes that he or she would be subject to persecution on account of race, religion, or political opinion if he or she returned to his or her home country to fulfill the two-year home residence requirement may submit a waiver application to DHS. If you receive inquiries regarding the possibility of obtaining a persecution-based waiver under INA 212(e) direct the applicant to the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website on TSG and advise the applicant:

(1) (U) To communicate with the DHS office having jurisdiction over the issue; and

(2) (U) Applications for waivers on the basis of persecution must be made to DHS on Form I-612.

9 FAM 302.13-2(D)(4) (U) Request from Interested Government Agency

(CT:VISA-525; 03-16-2018)

a. (U) An applicant who wishes to request a waiver based on an Interested Government Agency (IGA) acting on his or her behalf should be directed to the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website on TSG for additional information.  Such a request by an IGA must state that the alien's services are considered to be essential to a program or activity of official interest to that U.S. Government agency and:

(1) (U) A U.S. Federal Government agency must make a written request signed by the head of the requesting agency, or the designated signatory, for a waiver of the aliens INA 212(e) requirement;

(2) (U) Such a request must state that it is in public interest for the waiver to be granted and that it will be detrimental to a project sponsored by or of interest to the requesting agency if the alien is unable to continue his or her involvement with the project; and

(3) (U) The request must be submitted directly from the requesting agency to CA/VO/DO/W. See 9 FAM 302.13-2(D)(1) paragraph b for the mailing address.

b. (U) If the request is recommended by the Department, it will be forwarded to the DHS office having jurisdiction over INA 212(e) waivers. The DHS office will inform the alien of the final decision.

9 FAM 302.13-2(D)(5) (U) Requests from State Departments of Public Health for Certain Foreign Medical Graduates

(CT:VISA-812; 05-22-2019)

a. (U) Section 220(c) of the Immigration and Nationality Technical Corrections Act of 1994 (INTCA) (Public Law 103-416) established the Conrad State 20 Program (later changed to the Conrad State 30 Program), which provides for a waiver of the two-year foreign residence requirement for alien physicians, who were in J-1 status to pursue graduate medical education or training, in return for at least three years of medical service in an underserved area or for services to patients from underserved areas. If you receive inquiries regarding the possibility of obtaining waivers on this basis, direct the applicant to the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website on TSG for additional information.

b. (U) This waiver basis allows each states Department of Public Health, or its equivalent, to submit 30 such applications annually on behalf of J-1 physicians:

(1) (U) Who were admitted in, or acquired J-1 status before September 30, 2019, to pursue graduate medical education or training in the United States;

(2) (U) Who entered into a bona fide, full-time employment contract for three years to practice medicine at a health care facility located in an area designated by the Secretary of Health and Human Services as having a shortage of health care professionals;

(3) (U) Who agree to commence employment within 90 days of receipt of the waiver and agree to practice medicine for three years at the facility indicated by the state and named in the waiver application; and

(4)  (U) For whom the requesting state agency has submitted in writing that it is in public interest that a waiver of the two-year foreign residence requirement be granted and for whom the Department submits a favorable waiver recommendation to DHS.

9 FAM 302.13-2(D)(6) (U) Failure to Fulfill Three-Year Employment Contract

(CT:VISA-272; 12-20-2016)

a. (U) If a foreign medical graduate fails to meet the terms and conditions imposed by the waiver under INA 214(l) the alien will again become subject to the two-year foreign residency requirement.

b. (U) For extenuating circumstances, DHS may exercise discretion to excuse early termination of a specific three-year employment contract, but the full three years of service must still be provided.  Extenuating circumstances may include, but are not limited to:

(1) (U) Closure of the facility named in the waiver application; or

(2) (U) Hardship to the alien.

c. (U) Under no circumstances may an alien who fails to comply with the waiver conditions be allowed to change status, apply for adjustment of status to lawful permanent resident or apply for an immigrant visa (IV) prior to completing the three-year period of employment.

9 FAM 302.13-2(D)(7) (U) Required Evidence for Excuse of Early Employment Termination

(CT:VISA-272; 12-20-2016)

a. (U) A foreign medical graduate who seeks to have early termination of employment excused due to extenuating circumstances shall submit to DHS:

(1) (U) An employment contract with another health care facility in an HHS-designated shortage area for the balance of the three-year period;

(2) (U) Evidence that the facility he or she worked for has closed or is about to be closed; or

(3) (U) Evidence that hardship was caused by unforeseen circumstances beyond his or her control.

b. (U) Note that the decision whether extenuating circumstances justify a change of employer is made by DHS and is not subject to review by the consular officer.

9 FAM 302.13-2(D)(8) (U) Waiver Review Responsibility in the Waiver Division (CA/VO/DO/W)

(CT:VISA-272; 12-20-2016)

(U) The office responsible for INA 212(e) waiver recommendations in the Department is CA/VO/DO/W. The waiver applicant should access the Visa Office Web site for information on the waiver application process and to download the J-1 visa waiver recommendation application Form DS-3035, Waiver of the J Visa Two-Year Foreign Residence Requirement, 212(e). Once the applicant has applied and received a waiver case number, he or she may obtain the current information on the status of his or her application on the Waiver of the Exchange Visitor Two-Year Home-Country Physical Presence Requirement website on TSG.

9 FAM 302.13-2(E) Unavailable

9 FAM 302.13-2(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.13-2(E)(2) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.13-3 (U) unauthorized disclosure of United States confidential business information - 22 U.S.C. 6713(f)

9 FAM 302.13-3(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) 22 U.S.C. 6713(f) prohibits the issuance of a visa to any person who:

(1) (U) is, or previously served as, an officer or employee of the Organization for the Prohibition of Chemical Weapons, and who has willfully published, divulged, disclosed, or made known in any manner or to any extent not authorized by the Chemical Weapons Convention any United States, confidential business information coming to him in the course of his employment or official duties, or by reason of any examination or investigation of any return, report, or record made to or filed with the Organization, or any officer or employee thereof, such practice or disclosure having resulted in financial loses or damages to a United States person and for which actions or omissions the United States has been found liable of a tort or taking pursuant to this Act;

(2) (U) traffics in United States confidential business information, a proven claim to which is owned by a United States national;

(3) (U) is a corporate officer, principal, shareholder with a controlling interest of an entity which has been involved in the unauthorized disclosure of United States confidential business information, a proven claim to which is owned by a United States national; or

(4) (U) is a spouse, minor child, or agent of a person excludable under paragraph (1), (2), or (3).

9 FAM 302.13-3(B) (U) Application

(CT:VISA-272; 12-20-2016)

(U) For purpose of 22 U.S.C. 6713(f) , the term "United States confidential business information" means any trade secrets or commercial or financial information that is privileged and confidential

(1) (U) Including:

(a) (U) data described in section 6724(e)(2) of title 22, United States Code,

(b) (U) any chemical structure,

(c) (U) any plant design process, technology, or operating method,

(d) (U) any operating requirement, input, or result that identifies any type or quantity of chemicals used, processed, or produced, or

(e) (U) any commercial sale, shipment, or use of a chemical, or

(2) (U) As described in section 552(b)(4) of title 5, United States Code, and that is obtained

(a) (U) from a United States person; or

(b) (U) through the United States Government or the conduct of an inspection on United States territory under the Convention.

9 FAM 302.13-3(C) (U) Advisory Opinions

(CT:VISA-272; 12-20-2016)

(U) An AO is not required for a potential 22 U.S.C. 6713(f) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.13-3(D) (U) Waiver

9 FAM 302.13-3(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver available for immigrant visa applicants ineligible under 22 U.S.C. 6713(f).

9 FAM 302.13-3(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver available for nonimmigrant visa applicants ineligible under 22 U.S.C. 6713(f).

9 FAM 302.13-3(E) Unavailable

9 FAM 302.13-3(E)(1) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.13-3(E)(2) Unavailable

(CT:VISA-272; 12-20-2016)

Unavailable

9 FAM 302.13-4 (U) Frivolous Asylum applications - INA 208(d)(6)

9 FAM 302.13-4(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) INA 208(d)(6) provides that an alien who applied for asylum on or after April 1, 1997 and who has knowingly made a frivolous application for asylum after being notified of the consequences is permanently ineligible for any benefit under the INA.

9 FAM 302.13-4(B) (U) Application

(CT:VISA-272; 12-20-2016)

(U) The frivolous asylum application ineligibility only applies if a final order from an Immigration Judge or the Board of Immigration Appeals specifically finds that the alien knowingly filed a frivolous asylum application, consistent with 8 CFR 208.20 and 8 CFR 1208.20.

9 FAM 302.13-4(C) (U) Advisory Opinions

(CT:VISA-272; 12-20-2016)

(U) An AO is not required for a potential INA 208(d)(6) ineligibility; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.13-4(D) (U) Waiver

9 FAM 302.13-4(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver available for immigrant visa applicants ineligible under INA 208(d)(6).

9 FAM 302.13-4(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver available for nonimmigrant visa applicants ineligible under INA 208(d)(6).

9 FAM 302.13-5 (U) Waivers of Rights, Privileges, Exemptions, and Immunities - INA 214(b) and INA 247(b)

9 FAM 302.13-5(A) (U) Grounds

(CT:VISA-272; 12-20-2016)

(U) An alien entitled to nonimmigrant classification under INA 101(a)(15)(A), (E), or (G), who is applying for an immigrant visa and who intends to continue the activities required for such nonimmigrant classification in the United States is not eligible to receive an immigrant visa until the alien executes a written waiver of all rights, privileges, exemptions, and immunities which would accrue by reason of such occupational status.

9 FAM 302.13-5(B) (U) Application

9 FAM 302.13-5(B)(1) (U) Executing Waiver of Rights, Privileges, Exemptions, and Immunities

(CT:VISA-812; 05-22-2019)

(U) In view of the provisions of INA 214(b) and INA 247(b), an applicant for an immigrant visa (IV) who would be eligible for a nonimmigrant classification under INA 101(a)(15)(A), (E), or (G) because of occupational status is required to execute Form I-508, Waiver of Rights, Privileges, Exemptions and Immunities, prior to the issuance of an IV. An appropriate nonimmigrant visa (NIV) may be issued to an otherwise qualified applicant who refuses to sign Form I-508 or who is unable or unwilling to defer departure to the United States until final action can be taken on the IV application.

9 FAM 302.13-5(B)(2) (U) Effect of Waiver

(CT:VISA-272; 12-20-2016)

a. (U) Execution of Form I-508 does not waive any rights, privileges, exemptions, or immunities derived from treaties or other international agreements. 

b. (U) The effect of the waiver is to insure that an immigrant alien employee of a foreign government or international organization may not assert or obtain any privilege which would not be available to a U.S. citizen in a similar situation.  For example, the waiver removes the exemption from payment of Federal income tax but does not affect the statutory provision for immunity from suit and legal process relating to official acts performed by officers and employees of international organizations and does not apply to benefits accorded under double taxation treaties.

9 FAM 302.13-5(C) (U) Advisory Opinions

(CT:VISA-272; 12-20-2016)

(U) An AO is not required for a potential privilege, exemptions, and immunities cases; however, if you have a question about the interpretation or application of law or regulation, you may request an AO from CA/VO/L/A.

9 FAM 302.13-5(D) (U) Waiver

9 FAM 302.13-5(D)(1) (U) Waivers for Immigrants

(CT:VISA-272; 12-20-2016)

(U) There is no waiver of the requirement that an immigrant visa applicant eligible for an A or G visa because of occupational status execute Form I-508.

9 FAM 302.13-5(D)(2) (U) Waivers for Nonimmigrants

(CT:VISA-272; 12-20-2016)

(U) This is not applicable to nonimmigrant visa applicants.

 

 

 

 

 

UNCLASSIFIED (U)