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Effective Date: 4/16/75

Series: Miscellaneous

Part 815: Exchange Visitor Program

Chapter 2: Waiver of Home Country Physical Presence Requirement

Originating Office: Office of Insular Affairs

2.1 Purpose. This chapter describes the purposes and objectives of the Exchange Visitor Program, and the procedures to be followed within the Department with regard to applications for waiver of the home country physical presence requirement.

2.2 Statutory Basis. The Mutual Educational and Cultural Exchange Act of 1961 (75 Stat. 527) authorizes the Exchange Visitor Program.

2.3 Purposes of Exchange Visitor Program. The basic purposes of the Program are to increase mutual understanding between people of the United States and people of other countries, to strengthen the ties between the United States and other nations, and to promote international cooperation for educational and cultural advancement.

2.4 Objective. A major objective is to impart knowledge and skills that the exchange visitor may use for the benefit of the people in his home country. Therefore, United States management of exchange programs is designed to avoid the permanent movement of scientific and technical personnel to the United States.

2.5 Changes in Immigrant Status. In instances where an exchange visitor seeks permanent admission to the United States, the following requirements apply in certain circumstances:

A. Home Country Physical Residence Requirement. The requirement is that a participant within the purview of section 212 (e) of the Immigration and Nationality Act, as amended, must reside and be physically present in the country of his nationality or his last residence for an aggregate of at least two years following departure from the United States before he is eligible to apply for a change in immigrant status. The requirement was imposed to prevent the Exchange Visitor Program from becoming a stepping stone to immigration and insure that the exchange visitor makes his new knowledge and skills available to his country.

B. Eligibility to Remain in the United States. The amended immigration and Nationality Act provided that no person admitted with a AJ@ visa, or acquiring such status after admission, would be eligible to apply for an immigrant or non-immigrant visa or for permanent residence until that person has Aresided and been physically present in the country of his nationality or his last residence, or in another foreign country, for an aggregate of at least two years following departure from the United States....@

2.6 Waivers.

A. The Attorney General may waive the two-year home country physical presence requirement in the case of a foreign visitor whose permanent admission to the United States is determined to be in the public interest. He may act only after receiving a favorable recommendation from the Secretary of State, pursuant to the request of an interested United States Government agency.

B. In making a request, the head of the agency or his designee must submit a statement in writing to the Bureau of Educational and Cultural Affairs, Department of State. The statement must determine and attest that, from the point of view of the agency, (1) the granting of the waiver would be in the public interest, and (2) the exchange visitor=s compliance with the two-year home country physical presence requirement would be clearly detrimental to a program or activity of official interest to the agency. Further, the statement must identify by name and location the organization which will use the exchange visitor=s services, indicate his intended place of residence in the United States, and include the views of each of the visitor=s sponsors, past and present, concerning his waiver application.

2.7 Standards. The Department may support an application for a waiver only if all the following standards can be met. These standards constitute, for government agencies, an approved definition of the Apublic interest.@ They were approved and adopted by the Department of State.

A. Importance of Program or Activity Involved. The services of the individual must be needed in a highly important program or activity of national or international significance in areas of interest to the Department. (Evidence indicating the nature, scope, specialized personnel requirements, and national or international interests served by the Program will assist in determining degree of importance.)

B. Essential Relationship of Individual to Program. A direct relationship must exist between the individual and the program or activity involved so that loss of his services would necessitate discontinuance of the program or of a major phase of it. (Specific evidence as to how the loss or unavailability of the individual=s services would adversely affect the initiation, continuance, completion, or success of the program or activity is pertinent to this criterion.)

C. Critical Qualifications of Individual. The individual must possess unusual and outstanding qualifications, training, and experience, including a clearly demonstrated capability to make original and significant contributions to the program.

2.8 Departmental Procedures.

A. Departmental Waiver Review Office. The Office of International Activities, Office of the Secretary, is designated to handle all waiver applications of concern to the Department.

B. Responsibilities. That Office shall (1) receive all requests for support of applications for waivers, whether originating within or outside of the Department; (2) in appropriate instances, request bureaus or offices to supply technical evaluations of waiver requests (a technical evaluation should automatically accompany a waiver request initiated by a bureau or office within the Department); (3) review, with the assistance of appropriate offices, all requests, applications, and technical evaluations; (4) make the final determination whether to support an application; and (5) initiate preparation of necessary correspondence to the Department of State and to the originator of the request for support of an application.

2.9 Responsibilities of Applicants. When requesting the Department’s support of an application for a waiver, an exchange visitor should recite, inter alia, the facts concerning admission to the United States, the places and periods of stay in the United States, and the country of nationality or last residence. He should identify his sponsor or sponsors by name and program number; name the place of his intended residence in the United States; state the reason or reasons why the waiver is being requested; and supply other information considered to be helpful in evaluating the waiver application. The request should be accompanied by a letter from the sponsor or sponsors, expressing their views. In the case of an exchange visitor who came to the United States on an official Exchange Visitor Program of the United States Government, the application should include evidence that the Federal agency with primary interest in the area of the visitor’s activities has agreed to the application being made, or if it has not agreed, the grounds on which it declined.

4/16/75 #1750

Replaces 8/24/72 #1485