INS on Waiver of Foreign Residency Requirement
To: District Directors
Service Center Directors
Officers-in-Charge
Regional Directors
From: Office of Programs
Effective immediately, the Service will accept adjustment of status applications from aliens who are subject to the 2-year foreign residence requirement of section 212(e) of the INA provided that the United States Information Agency (USIA) has recommended a waiver of such foreign residence. A copy of the USIA recommendation must be attached to the alien’s application for adjustment of status.
In order to be eligible to apply for adjustment of status, an alien who has participated in an exchange visitor program and is subject to the 2-year foreign residence requirement must, among other things, either have complied with the foreign residence requirement or have been granted a waiver of that requirement. 8 CFR 245.1(c) (2). An alien who has received a USIA recommendation for a waiver of the foreign residence requirement is deemed to have met the requirement of 8 CFR 245.1(c)(2) and may submit an application for adjustment of status. Nevertheless, Service Officers should adjudicate the waiver request first, as the decision will determine the alien’s eligibility for adjustment of status.
The waiver request is considered properly filed with the Service only at such time as the Service receives a favorable recommendation from the United States Information Agency (USIA).
The statute permits waivers of the foreign residency requirement in four possible circumstances. Waivers may be based on (1) a request by an interested U.S. Government agency; (2) a request by a State Department of Public Health (or its equivalent) on behalf of a foreign medical graduate who will practice medicine for 3 years in a medically underserved area; (3) a statement by the government of the country of the applicant’s nationality or legal foreign residence that it has no objection to a waiver in the applicant’s case (this is statutorily unavailable for foreign medical graduates); or (4) the claim that the exchange visitor’s compliance with the foreign residence requirement would (a) impose exceptional hardship on the applicant’s United States citizen or lawful permanent resident spouse or child, or (b) subject the applicant to persecution on account of race, religion, or political opinion.
Waiver applications based on requests by a U.S. Government agency or State Department of Public Health, or based on no-objection statements, do not involve the filing of a specific form or fee. In these types of cases, USIA mails the favorable recommendation to the Service, with a copy to the applicant. It is, however, the Service adjudicator who has final responsibility for approval or denial of the waiver request. If the adjudicator decides that the Service should concur in the USIA’s favorable recommendation, a notice of approval should be prepared and issued to the applicant and/or the applicant’s legal representative, if applicable. A copy of the notice of approval should be placed in the applicant’s A-file, and the adjudicator should proceed to adjudicate the adjustment application.
Waiver applications based on a claim of hardship or persecution are filed with the Service on Form I-612 (Application for Waiver of the Foreign Residence Requirement of Section 212(e) of the Immigration and Nationality Act). When the Service finds that the applicant has established the requisite hardship or persecution, the Service prepares Form I-613 for submission to USIA. USIA returns Form I-613 to the Service with its views and a recommendation as to whether or not the waiver should be granted. The waiver may be granted only if the USIA recommendation is favorable. If the USIA recommendation is unfavorable, the waiver application must be denied, despite such initial finding of hardship or persecution. In view of these considerations, Service officers should accept the filing of an I- 485 by an applicant with a pending 212(e) waiver application based on exceptional hardship or persecution only after the issuance of a favorable USIA waiver recommendation. In such cases, a copy of the USIA recommendation must be attached to the alien’s I-485.
Paul Virtue
Executive Associate Commissioner