[Code of Federal Regulations]
[Title 22, Volume 1]
[Revised as of April 1, 2001]
From the U.S. Government Printing Office via GPO Access
[CITE: 22CFR41.63]

[Page 199-204]
 
                       TITLE 22--FOREIGN RELATIONS
 
                     CHAPTER I--DEPARTMENT OF STATE
 
PART 41--VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED--Table of Contents
 
                Subpart G--Students and Exchange Visitors
 
Sec. 41.63  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;

[[Page 200]]

    (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 
Secretary of State of the Department of State, 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 Secretary of State of 
the Department of State, 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 Secretary of 
State of the Department of State, 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 
Secretary of State of the Department of State 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-

[[Page 201]]

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 Division, office of 
Exchange Visitor Program Services, in the Department of State's Office 
of Bureau of Consular Affairs.
    (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 Division 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 Department of State 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 Division shall constitute the recommendation of the 
Department of State.
    (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 
Division 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 Division shall constitute the 
recommendation of the Department of State and such recommendation shall 
be forwarded to the Commissioner.
    (c) Requests for waiver made by an interested United States 
Government Department of State. (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(c) (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

[[Page 202]]

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 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 Division shall constitute the 
recommendation of the Department of State and such recommendation shall 
be forwarded 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 
Secretary of State through diplomatic channels; i.e., from the country's 
Foreign Office to the Department of State 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 Secretary 
of State 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 Division 
shall instruct the applicant to complete a data sheet and to provide all 
Forms IAP-66 and the data sheet to the Waiver Review Division. If deemed 
appropriate, the Department of State may request the views of each of 
the exchange visitor's sponsors concerning the waiver application.
    (2) The Waiver Review Division 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 Division shall constitute the 
recommendation of the Department of State.
    (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.

[[Page 203]]

    (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 his or her home country 
upon completion of the graduate medical education or training, the 
Secretary of State of the Department of State 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 Secretary of State 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 Department of State's Exchange Visitor Program office.
    (ii) A letter from the Secretary of State 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 (``HPSA'') or as a Medically Underserved 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 Department of State's Waiver Review Division 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),

[[Page 204]]

the recommendation of the Waiver Review Division shall constitute the 
recommendation of the Department of State.
    (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 Division. (1) The Exchange 
Visitor Waiver Review Division (``Division'') shall consist of 
Department of State positions equivalent to the following positions:
    (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 Division may not be appointed to, or 
serve on, the Division for that particular case unless the Bureau of 
Consular Affairs determines that the individual's inclusion on the 
Division is otherwise necessary or practicably unavoidable.
    (3) The State Department official equivalent to the Associate 
Director of the Bureau of Educational and Cultural Affairs, or his or 
her designee, shall serve as Division Chairman. No designee under 
paragraph (g)(3) shall serve for more than 2 years.
    (4) Cases will be referred to the Division at the discretion of the 
Chief, Waiver Review Division, of the Department's Office of Exchange 
Visitor Program Services. The Waiver Review Division shall prepare a 
summary of the particular case referred and forward it along with copy 
of the relevant file to the Division Chairman. The Chief, Waiver Review 
Division, or his or her designee may, at the Chairman's discretion, 
appear and present facts related to the case but shall not participate 
in Division deliberations.
    (5) The Chairman of the Division shall be responsible for convening 
the Division and distributing all necessary information to its members. 
Upon being convened, the Division shall review the case file and weight 
the request against the program, policy, and foreign relations aspects 
of the case.
    (6) The Bureau of Consular Affairs shall appoint, on a case-by-case 
basis, from among the attorneys in the Office of the Bureau of Consular 
Affairs, one attorney to serve as legal advisor to the Division.
    (7) At the conclusion of its review of the case, the Division shall 
make a written recommendation either to grant or to deny the waiver 
application. The written recommendation of a majority of the Division 
shall constitute the recommendation of the Division. Such recommendation 
shall be promptly transmitted by the Chairman to the Division Chief, 
Waiver Review Division.
    (8) The recommendation of the Division in any case reviewed by it 
shall constitute the recommendation of the Department of State and such 
recommendation shall be forwarded to the Commissioner by the Division 
Chief, Waiver Review Division.

[58 FR 15196, Mar. 19, 1993; 58 FR 18305, Apr. 8, 1993; 58 FR 48448, 
Sept. 16, 1993; 60 FR 16787, 16788, April 3, 1995; 60 FR 53125, Oct. 12, 
1995; 62 FR 19222, Apr. 21, 1997; 62 FR 28803, May 28, 1997. 
Redesignated and amended at 64 FR 54539, 54540, Oct. 7, 1999]