How can I remove the requirement to return to my country of permanent residence for 2 years?
Holders of a J-1 visa, who are often participants in exchange programs, face a requirement under Section 212(e) of the Immigration Act of 1952 to return to their country of permanent residence for two years after completing their studies or program in the United States. This requirement applies to most J-1 visa holders, with some exceptions like those participating in the Work and Travel program.
This regulation prohibits J-1 visa holders from applying for green cards, work visas, or business visas until they have spent two years outside the United States. Therefore, even if a J-1 visa holder marries a U.S. citizen or permanent resident, he or she is not immediately eligible to apply for permanent immigration status.
This requirement can have significant consequences, especially for young families. For instance, if a spouse in the U.S. is on a J-1 visa, they will be required to leave the U.S. for a considerable duration, making his or her return challenging. The visa processing times for spouses of U.S. citizens can extend up to six months or more, and for spouses of green card holders, the waiting period could be even longer. Consequently, the mandated “two-year” residency in one’s home country might be substantially prolonged. There have also been instances where American consular officials have denied visas to spouses who were “exiled” outside America for several years, citing long-term separation as indicative of an insincere relationship.
These challenges under Section 212(e) impact many, including doctors and other professionals who have established strong connections in the U.S. Additionally, foreign nationals who marry Americans during short professional courses in the U.S. often mistakenly believe that marriage will automatically allow them to remain in the country. However, the reality is that the likelihood of starting a family in the U.S. becomes complex for those initially entering on a J-1 visa. Even if someone on a J-1 visa later changes to an F-1 student visa, marries a U.S. citizen, and intends to settle in the U.S., his or her ability to remain is not guaranteed due to these immigration regulations. This situation is reflected in extensive research by social workers and immigration lawyers, illustrating that the two-year overseas residency requirement often leads to family separations and significant personal difficulties.
Waiver Process
Aliens subject to Part 212(e) can petition the Department of State and U.S.C.I.S. to waive the requirement to leave the United States for two years under certain conditions. There are four grounds for potentially waiving this requirement. First, those foreigners whose skills are of direct interest to any department of the federal government may avoid returning to their home country. Secondly, a waiver could be granted if it is shown that the alien’s departure from the U.S. would cause extraordinary hardship to their U.S. citizen or permanent resident spouse or child. Thirdly, the mandatory return provisions of the Immigration Act may be suspended in cases where there is a high likelihood of the alien facing physical, political, or religious persecution upon returning to their home country. Finally, a “no-objection letter” from the embassy of the alien’s home country in Washington, confirming that the country does not object to the alien staying in the U.S. with the prospect of obtaining permanent resident status, can also be a basis for waiver.
However, having compelling evidence for any of these points does not guarantee that a request to waive Part 212(e) will be approved by the Department of State and the Immigration Service. The process to obtain a waiver of the two-year travel requirement is multi-step and challenging. Typically, the most common ground for filing petitions is the “no-objection letter” from the embassy or ministries of the country of residence and evidence that the alien’s departure would cause great hardship to a spouse who is a U.S. citizen or green card holder.
In obtaining a Section 212(e) waiver, the procedure varies depending on the grounds for the waiver request. For the “no objection” scenario, the process is as follows:
1. A “letter of no objection” must be sent from the embassy to the Director of the United States Information Agency.
2. The Director of the United States Information Agency must then recommend to U.S.C.I.S. that the provisions of Part 212(e) be waived.
3. U.S.C.I.S. officials must receive this recommendation and independently determine that waiving Part 212(e) conditions would be in the public interest of the United States.
In cases where the petition is based on evidence of family hardship, the process differs slightly:
1. The director of the local Immigration Services office must review all relevant evidence of extraordinary hardship and determine that such hardship would indeed occur if the alien were forced to leave the U.S.
2. The Director of the United States Information Agency must then recommend to U.S.C.I.S. that the application of Part 212(e) be waived. It is important to note that the Department of State may decline to make such a recommendation even if U.S.C.I.S. has already determined that hardship will occur.
3. U.S.C.I.S., upon receiving the necessary advice, must then decide that waiving the 212(e) conditions for a specific individual would not be contrary to the public interest.
Government Discretion
It is crucial to understand that a negative decision can be made at any stage of the waiver application process. Government officials are not obligated to make a positive decision in any particular case. The State Department and Immigration Services officials have the discretion to base their determination on additional policy and programmatic grounds.
Some exchange program participants mistakenly believe that a short dispatch from their embassy to the State Department or a heartfelt letter detailing spousal hardship to the Immigration Service will easily secure a waiver of Section 212(e). However, in practice, there are often cases where the State Department does not issue the required recommendation, even with a letter from the home country. Similarly, petitions based on extraordinary family hardship are frequently unsuccessful. This basis for waiving the two-year departure requirement is reserved for extreme cases where the alien can demonstrate a high probability that their U.S. citizen spouse would experience severe hardship if separated. This hardship must be proven both in scenarios where the U.S. citizen or permanent resident remains alone in the United States and in hypothetical situations where the citizen spouse (or permanent resident) would join his or her partner for two years in the partner’s home country.
Again, it is crucial not to submit documents to the immigration authorities for a waiver of Part 212(e) without compelling evidence and clear reasoning demonstrating that the individual unequivocally meets all the criteria set by the regulations.
It is also important to remember that the process of reviewing waiver applications can span several months. During this period, the foreign national must maintain legal status in the United States. Given the complexity of preparing a motion to waive the Part 212(e) requirement, which involves meticulous evidence gathering, understanding legal nuances, and constructing a persuasive argument, it is advisable to seek assistance from an experienced attorney.
Soviet Legacy
The U.S. Congress, when establishing exchange programs in the 1940s, 50s, and 60s, aimed to counteract Soviet propaganda that sought to tarnish America’s global image. In enacting the two-year departure requirement for J-1 visa holders (exchange students), the legislators intended for these individuals to return to their home countries and share their positive experiences of America, thereby promoting American values and lifestyle.
When considering constitutional challenges to this requirement, federal courts have historically given weight to the government’s interest in countering Communist propaganda. Therefore, the government’s interest in enforcing the two-year “removal” often outweighed the individual’s interest in family unity. However, the legislative context of Section 212(e) of the Immigration Act may warrant reevaluation in light of the end of the Cold War and the dissolution of the Communist empire. This reevaluation could challenge earlier court decisions regarding the constitutionality of the two-year “removal” requirement.
Since the 1960s, there have been significant changes. In 1977, the U.S. Supreme Court recognized the right of American residents to live with their families, including distant relatives. Subsequent appellate court decisions have invalidated several state laws that unconstitutionally infringed upon residents’ rights to family unity.
In the past four decades, the global political climate has evolved substantially. The U.S. government’s need to counter Soviet propaganda is no longer relevant. Forcibly “expelling” individuals who have studied in the U.S. under exchange programs and started families in America is no longer an effective strategy for promoting a positive image of the U.S. globally. As such, many politicians and legal scholars view Section 212(e), along with other parts of the Immigration Act, as relics of a bygone era of ideological conflict between nuclear superpowers. Nevertheless, the requirement for J-1 visa holders to return to their country of residence for a two-year period remains part of American law. If a lawsuit challenging the constitutionality of Section 212(e) were to reach the U.S. Supreme Court, it is possible that individual interests may prevail over these outdated governmental objectives.
