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U.S. Information Agency: Waiver of Exchange Visitor Foreign Residence Requirement

Published by the Government Accountability Office on 1990-07-05.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

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GAO
      United States
      General Accounting Office
      Washington, DC. 20648

      National Security and
      International Affairs Division

      B-234667

      July 5, 1990

      The Honorable Alan J. Dixon
      United States Senate

      Dear Senator Dixon:

      On March 15, 1990, we briefed your staff on the 2-year foreign residence
      and waiver provisions of the exchange-visitor (J-visa) program adminis-
      tered by the U.S. Information Agency (USIA). During that briefing, we
      agreed to provide you a fact sheet on the history of the foreign residence
      and waiver provisions, waiver application and review process, and sta-
      tistics on waivers requested and granted. This fact sheet supplements
      information in our report U.S. Information Agency: Inappropriate Uses
      of Educational and Cultural Exchange Visas (GAO/NsIADSoBl,Feb. 16,
       1990).

      Under the exchange-visitor (J-visa) program, about 175,000 participants
      come to the United States each year for educational and cultural pur-
      poses. Because some participants have not wanted to return to their
      home countries, as envisioned by the program, the Congress enacted a
      requirement that certain participants must return home for at least
      2 years after completing their educational or cultural programs. This
      requirement applies to those (1) whose exchange-visitor programs have
      been financed to some extent by the U.S. government or their home gov-
      ernments, (2) whose skills are urgently needed by their home countries,
      or (3) whose purpose in coming to the United States is to receive grad-
      uate medical education or training. Before these participants are eligible
      to apply for immigrant, permanent residence, or H or L work visas in the
      United States, they must reside and be physically present in the coun-
      tries of their nationalities or last residences for 2 years following their
      departure from the United States.

      Participants may generally obtain waivers of the foreign residence
      requirement if (1) interested U.S. agencies can show that such waivers
      are in the national interest; (2) return to their home countries would
      create an exceptional hardship to their U.S. citizen spouses or children;
      (3) return would subject them to persecution because of race, religion, or
      political beliefs; or (4) their home countries do not object to such
      waivers.

      Visitors who wish to receive graduate medical education or training face
      more stringent legislative conditions for participating in the exchange-


      Page 1                                    GAO/NSIAKMO-212FS   USlA Visa Waivers
B-234667




visitor program and for obtaining waivers of the foreign residence
requirement than other participants. For example, they are not eligible
for waivers on the basis that their home countries do not object to their
remaining in the United States. They also have to submit annual affida-
vits to the Immigration and Naturalization Service (INS) attesting that
they will return home after completing their programs in the United
States.

The 2-year foreign residence requirement and the waiver provisions
have evolved through a number of legislative changes since the
exchange-visitor program was authorized in 1948. These changes are
discussed in appendix I.

The INS grants a waiver   of the foreign residence requirement based on
USIA’S recommendation.    However, a participant’s waiver application pro-
cess and the US. government’s review and approval process vary sub-
stantially for each of the four qualifying conditions,

The number of participants subject to the foreign residence requirement
cannot be readily determined from available information. In 1989, USIA
processed 2,235 applications for waivers and recommended to the INS
that 2,043 of them (91.4 percent) be granted. Because requests for
waivers based on hardship are reviewed by INS before they are for-
warded to USIA for review, applications rejected by INS are not reflected
in USIA’s statistics, and no statistical record is kept of the number
rejected by INS. Appendix II provides more information on the waiver
application and review process and waiver statistics.

To obtain the information in this fact sheet, we interviewed officials of
USIA and INS and reviewed pertinent documents and legislative history.
We discussed the information in this fact sheet with responsible USIA
and INS officials and incorporated their views where appropriate.

We are sending copies of this fact sheet to the Director,   USIA,   and other
interested parties.

Staff members who made major contributions to this fact sheet were
Jess T. Ford, Assistant Director; Roy F. Hutchens, Evaluator-in-Charge;




Page 2                                     GAO/NSIAMO-212Fs    USIA Visa Waivera
0.234667




                                                                                6
and Lynda M. Kyte, Evaluator. I can be reached on (202) 275-4128 if
you or your staff have further questions.

Sincerely yours,




WC< 9
Joseph E. Kelley
Director, Security and
  International Relations Issues




Page 3                                 GAO/NSIAD-90-212ES   USIA Visa Waivers
Appendix I

Wtiver of the Foreign ResidenceRequirement
for Exchange Visitors

                        Under the Mutual Educational and Cultural Exchange Act of 1961 ,I the
                        Director of the U.S. Information Agency (USIA) establishes programs
                        intended to promote mutual understanding between the people of the
                        United States and other countries by means of educational and cultural
                        exchanges. Under these exchange-visitor (J-visa) programs, designated
                        organizations sponsor nonimmigrant aliens’ temporary visits to the
                        United States for the purposes of teaching, instructing or lecturing, stud-
                        ying, observing, conducting research, consulting, demonstrating special
                        skills, or receiving training. Participants return to their home countries
                        after completing their programs to pass on the benefits attained.

                        Section 212(e) of the Immigration and Nationality Act2 requires that cer-
                        tain J-visa participants reside at least 2 years in the countries of their
                        nationalities or their last residences after leaving the United States.
                        They must meet this requirement before they are eligible to apply for
                        nonimmigrant visas (H and L) as temporary workers, for permanent
                        residences in the United States, or as immigrants.


                        The 2-year foreign residence requirement and its related waiver provi-
History of the Z-Year   sions evolved through a number of legislative changes after the
Foreign Residence       exchange-visitor program was authorized in 1948.
Requirement
                        There were no foreign residence or waiver provisions in the exchange-
                        visitor program authorized with the passage of the U.S. Information and
                        Educational Exchange Act of 1948.” The act required participants to
                        depart the United States after completing their programs.

                        In 1956, the Congress amended the 1948 act to require that participants
                        reside in and be physically present in their home countries or cooper-
                        ating countries for at least 2 years after their departures from the
                        United States before applying for immigrant visas, nonimmigrant H
                        visas, or adjustments of status to permanent resident. In recommending
                        this amendment, the Senate Committee on Foreign Relations stated that
                        it was needed to counteract situations in which some participants were
                        departing the United States as required, going to Canada or Mexico, and
                        immediately returning to the United States on immigrant visas. The
                        Committee stated that this defeated the primary objective of the

                        ‘Public Law 87-256,75 Stat. 527 (1961).

                        “8 U.S.C. 1 l&Z(e).

                        %blic    Law 80-402,62 Stat. 6 (1948).




                        Page 4                                    GAO/NSLAD-90-212FS   USIA Visa Waivers
Waiver of the ForeQn Residence Requirement
for Exchange Vl&.ors




exchange program, that is, to impart participants’ experiences in the
United States to their countrymen. It further stated, “the amendment
would make perfectly clear to all concerned +..and, above all, the foreign
nationals themselves--that the exchange program is not an immigration
program and should not be used to circumvent the operation of the
immigration laws.“4 The 1956 amendment also provided for a waiver of
the foreign residence requirement based on a request from an interested
U.S. government agency showing such waiver to be in the public
interest.”

In commenting on waivers of the foreign residence requirement, a July
1961 House Judiciary Subcommittee report on Immigration Aspects of
the International Educational Program stated:

“It is believed to be detrimental to the purposes of the program and to the national
interests of the countries concerned to apply a lenient policy in the adiudication of
waivers including cases where marriage-ok&rring in the United States or the birth
of a child or children, is used to support the contention that the exchange alien’s
departure from this country would cause personal hardship....It is axiomatic with
this subcommittee that a person who has come to the United States to learn in order
to give his countrymen the benefit of such education should not be perzd         to
evade the ‘return home’ rule.“”

The Mutual Educational and Cultural Exchange Act of 1961, under
which the exchange-visitor program now operates, enacted the foreign
residence requirement, as an amendment to section 2 1Z(e) of the
Immigration and Nationality Act. Under that provision a participant
could reside 2 years in a foreign country other than his or her home
country. The act also provided for a waiver of the foreign residence
requirement (1) upon the request of an interested U.S. government
agency or (2) upon a determination that departure from the United
States would impose exceptional hardship on the participant’s U.S. cit-
izen spouse or child.

An amendment to the foreign residence provision in 197W removed the
blanket application of the foreign residence requirement for exchange
visitors and imposed it only on participants


4S. Rep. No.84-1608,   March 1, 1956, pages 2 and 3.

“Public Law 84-666,70Stat. 241 (1966).
“H.R. Rep. No. 87-721, July 17, 1961, pages 121~ZZ(emphasisin original).
7Public Law 91-226,&i Stat. 116 (1970).



Page 5                                                  GAO/NSIAIHO-212FS USIA Visa Waivers
                             Appendix I
                             Waiver of the Foreign Residence Requirement
                             for Exchange Visitors




                           9 whose participation was financed in some way by the United States or
                             their home countries or
                           . whose home countries clearly needed their services.

                             Also, participants could no longer meet the 2-year foreign residence
                             requirement by residing in other “foreign countries” but had to reside in
                             the countries of their nationalities or their last foreign residences before
                             coming to the United States. This requirement still applies,

                             Also, the 1970 act established two additional bases for waivers: persecu-
                             tion because of race, religion, or political opinion and statements by the
                             participants’ home countries that they had no objection to the grant of
                             waivers. These bases also still apply,

                             According to USIA, these changes were motivated in part because in some
                             instances the United States had an urgent need for the participant’s
                             skills and the home country did not object if the participant did not
                             return. USIA also indicated that because the Congress was sensitive to
                             the problem of “brain drain” in developing countries, the Congress
                             added the no-objection statement as a basis for waiver. Also, it added
                             persecution as a condition for waiver because individuals were required
                             to return to their home countries rather than to foreign countries of
                             their choice.

                             While the 1970 act removed the blanket coverage of the S-year foreign
                             residence requirement, the House Committee on the Judiciary report
                             stated that those subject to it should be given ample notice at the time
                             they acquire J-visa status that they will have to fulfill the foreign resi-
                             dence requirement. Further, in making a J-visa participant ineligible to
                             apply for a newly created L (intracompany transferee) visa unless he or
                             she fulfilled the foreign residence requirement, the Committee stated
                             that “this safeguard is deemed advisable to protect the integrity of the
                             exchange visitor visa category and prevent evasion of the foreign resi-
                             dence requirement”8


Participants in Graduate    After 1970, changes to the foreign residence and waiver provisions pri-
Medical Education or        marily strengthened restrictions on participants coming to the United
                            States for graduate medical education or training. According to USIA, one
Training Face More          effect of the 1970 modifications was to remove almost all restrictions
Stringent Conditions        that had impeded physicians who wished to convert their J visas to

                            ‘H.R. Rep. No. 91-851, February 241970, pages7 and 8.



                            Page 6                                                  GAO/NSIAD-96-212FS USIA Visa waivers
    Appendix I
    Waiver of the Foreign   Residence   Requirement
    for Exchange Visitors




    immigrant visas. USIA noted that the Congress found an increasing influx
    of immigrant doctors to the United States, a majority of whom had
    entered as postgraduate trainees under the exchange-visitor program.

    In 1976, the Congress imposed restrictions on medical graduates’ partici-
    pation in the exchange-visitor program. In the 1976 act, the Congress
    noted

    “that there is no longer an insufficient number of physicians and surgeons in the
    United States such that there is no further need for affording preference to alien
    physicians and surgeons in admission to the United States under the Immigration
    and Nationality Act.“”

    The Congress also tightened immigration laws for foreign doctors and
    strengthened requirements affecting J-visa participants who were
    coming to the United States for graduate medical education or training.
    They were

9 made subject to the 2-year foreign residence requirement whether or not
  their programs were financed by a government;
. made ineligible to apply for waivers on the basis of no-objection state-
  ments from their home countries;
. limited to 3-year stays in the United States;
l required to make a commitment to return to their home countries after
  completing their training; and
l required to provide written assurance by their home countries that after
  completing their training and returning home, they would be appointed
  to positions in which they would fully use the skills acquired in their
  education or training.“’

    According to USIA, as a result of these restrictions, the number of foreign
    medical graduates who participated in the program decreased drasti-
    cally between 1977 and 1980. The 3-year limitation permitted enough
    time to complete a medical residency in only three specialty areas-
    internal medicine, general practice, and pediatrics.

    In 1981, USIA asked the Congress to extend the limit up to 7 years for
    medical doctors to encourage them to study in the United States rather
    than in a communist country. The House Committee on the Judiciary
    questioned USIA officials regarding the likelihood that doctors would be

    %‘ublic   Law 94-484,90Stat. 2243(1976).
    “‘90 Stat. 2301-2(1976).



    Page 7                                            GAO/NSIAD!Mb212FS   USIA Visa Waivers
    Appendix I
    Waiver of the Foreign    Residence   Requirement
    for Exchange Visitors




    willing to return home after 7 years, during which time they may have
    raised families in the United States. The Congress increased the usual
    permissible duration of stay to 7 years, but it imposed additional
    requirements, I I

l   Graduate medical education or training participants were required, as a
    continuing reminder, to furnish annual affidavits to the Immigration
    and Naturalization Service        attesting that they would return to their
                                           (INS)


    home countries upon completion of the education or training for which
    they came to the United States.
l   U.S. officials were required to issue an annual report to the Congress on
    participants who had submitted affidavits, including their names and
    addresses, the programs in which they are participating, and their
    status in the programs.

    In reporting on this legislation, the House Committee on the Judiciary
    “notes the flagrant abuse of the exchange program during the past
    decade and seeks to alleviate possible ‘brain drain’ from various coun-
    tries.” It said that the affidavits were to ensure that the doctors comply
    with the terms of their agreement.12




    “Public   Law 97-116, 95 Stat. 1612 (1981).

    ‘“H.R. Rep. No. 97-264, October 2, 1981, page 16.




    Page 8                                              GAO/NSIAD-!)@212FS   USIA Vim Waivers
c-Appendix II

 Whir           Application and Review Process


                        The INS approves a request for a waiver based on USIA’Srecommenda-
                        tion. A participant’s waiver application process and the U.S. govern-
                        ment’s review and approval process, however, vary substantially for
                        each of the four qualifying conditions.


                        Participants apply directly to INS for waivers of the Z-year foreign resi-
 Exceptional Hardship   dence requirement on the basis of exceptional hardship to their U.S. cit-
                        izen or lawful resident spouses or minor children. INS determines
                        whether the hardship claim is meritorious. If the claim is not merito-
                        rious, INS denies the waiver. If the claim is meritorious, INS submits the
                        application to USIA for weighing the hardship in relation to U.S. pro-
                        gram, policy, and foreign relations considerations. USIA considers each
                        application on a case-by-ease basis and has no published criteria that it
                        uses in making its recommendation to INS.


                        Participants also apply directly to INS for waivers if they believe that
 Persecution            they will be subject to persecution because of race, religion, or political
                        opinion. INS does not make a determination on such applications, how-
                        ever, but acts on determinations made by the Department of State,
                        which are usually routed through USIA.


                        Applicants make direct requests to interested U.S. government agencies
 Interested U.S.        for sponsorship to remain in the United States. If interested, agencies
 Government Agency      apply to USIAfor waivers on behalf of the participants, Agencies’
                        requests are based on their direct interests in participants’ programs or
                        projects and their determinations that participants’ remaining in the
                        United States is in the national interest. USIAsubmits its recommenda-
                        tions to INS, which in turn informs the agencies of its decisions.


                        When participants apply for waivers based on statements by their home
No Objection by Home    countries that they have no objections to such waivers, the statements
Country                 are directed to USIA through official channels, such as the countries’ for-
                        eign offices or embassies. USIA considers the waiver applications and
                        submits its recommendations to INS. INS notifies USIA of the final
                        decisions.




                        Page 9                                     GAO/NSIALb90-212FS   USIA Visa Waivers
                                         Appendix II
                                         Waiver Application       and Review Process




                                          USIA estimates that about 175,000 participants enter the United States
USIA Review                               each year. The number of participants subject to the Z-year home resi-
                                          dence requirement cannot be readily determined from available infor-
                                          mation. Participants’ visa application forms contain a preliminary
                                          determination of whether they are subject to the foreign residence
                                          requirement, but statistics are not kept on this information.

                                          USIA provided us information on the number of waiver cases it processed
                                          for 1988 and 1989. As shown in table 1.1, USIA recommended to INS that
                                          waivers be granted in about 90 percent of the cases. Information is not
                                          available on the number of hardship cases rejected by INS and not sub-
                                          mitted to USIA.


Table 1.1:Waiver Applications Processed by USIA
                                                            1988                                                    1989
                                                     Waivers         Granteda                                 Waivers       Granteda
Type of application                               processed      Number     Percent ___~-                  processed     Number    Percent
No-objection statement                                  1,212      1,110        91.6____.-.-                     1,571     1,463       93.1
Exceptional hardship                                      153         98
                                                                  ~~ _“________ 64.0                               221       163       73.8
Interested U.S. government agency                           328           321           97 0                       397       397      100.0
Persecutlod                                                  33            19           5z---              _-__-    46        20       43.5
Total processed                                         1,726           1,548           89.7                     2.235    2.043        91.4
                                         “USIA recommendations       to INS that wabvers be granted.
                                         t’USIA forwarded   Department of State advisory oplnlons to INS


                                         USIA’S Waiver Review Branch reviews the program, policy, and foreign
                                         relations aspects of waiver cases. Three GS-12 waiver review specialists
                                         whose experience ranges from 2 to 10 years do the reviews. When their
                                         decisions differ from those of other U.S. government entities, cases are
                                         referred to a Waiver Review Board whose decisions are final. The
                                         Board, which is part of USIA’S internal administrative decision-making
                                         process, is an ad hoc panel comprising three USIA officials who are
                                         selected as the need arises. The Board is composed of an attorney
                                         assigned on a rotating basis, a person representing the geographic area
                                         of the participant’s home country, and a person in USIA’S Education and
                                         Cultural Affairs Bureau.

                                         According to IJSIA information, 128 cases had been assigned to the
                                         Waiver Review Board since the first case in early 1987 through January
                                         1990. Six cases were withdrawn from consideration, and information
                                         was not presented on the disposition of 21 cases. Of the remaining



                                         Page 10                                                       GAO/NSlAD9&212FS   USIA Visa Waivers
           Appendix II
           Waiver Application   and Review   Process




           101 cases, the Board recommended that waivers be granted in 68 (or
           67 percent) of the cases.




(462594)   Page 11                                     GAO/NSIAIMO-212ESUSIAVisaWaivers
              I.          1.



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