Section 212(e) Waivers of the Two-Year Foreign Residence Requirement for IMGs (1999 Memo)

October 4, 1999

Memorandum For Regional Directors
Service Center Directors District Directors

From: Michael A. Pearson
Executive Associate Commissioner
Office of Field Operations

Subject: Waivers of the Two-Year Foreign Residence Requirement under section 212(e) of the Immigration and Nationality Act (the Act).

Purpose: The purpose of this memorandum is to provide guidance on waivers of the two-year foreign residence requirement of section 212(e) of the Act with respect to foreign medical graduates (FMGs). Section 622 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) imposed new terms and conditions on section 212(e) waivers granted FMGs that are based on a request by an interested U.S. Government agency (Federal program). These terms and conditions are specified in section 214(l) of the Act (formerly section 214(k) of the Act).

 

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Discussion:

1. Significant Changes. Section 212(e) of the Act, as amended by Section 622 of IIRAIRA, provides that FMGs granted waivers of the 2-year foreign residence requirement under the Federal program are subject to specific terms and conditions. Section 214(k) of the Act, which already specified the terms and conditions imposed on waivers of the 2-year foreign residence requirement based on a request by a State Department of Public Health (State Program), was also amended by Section 622 of IIRAIRA to now include the terms and conditions imposed on FMGs granted waivers under the Federal program.

In addition to amending sections 212(e) and 214(k) of the Act, IIRAIRA also redesignated section 214(k) of the Act as section 214(l) of the Act. This redesignation, however, unintentionally resulted in two different sections 214(l) of the Act, as section 625 of IIRAIRA also created a new section 214(l) of the Act to impose terms and conditions on certain F-1 academic students. For purposes of this memorandum, section 214(l) of the Act refers to the terms and conditions imposed on section 212(e) waivers granted to FMGs under the Federal and State programs.

2. Terms and Conditions of the Waiver. The terms and conditions of the waivers granted to FMGs under section 212(e) of the Act are as follows:

  • The FMG must submit a no objection statement from the government of his or her country of nationality or last residence abroad (home country)–unless the FMG has no contractual obligation to return to his or her home country upon completion of the graduate medical research or training.
  • The FMG must practice medicine at the health care facility named in the waiver application for at least three years, and only in HHS-designated shortage areas. There are two exceptions to this requirement:
  • If the United States Department of Veteran’s Affairs (VA) requests the waiver so that the FMG could practice medicine with the VA, the FMG must practice medicine with the VA for at least three years, but does not need to do so in an HHS-designated shortage area.
  • If an interested Federal agency requests the waiver so that the agency can employ the FMG full-time in medical research or training, the FMG may fulfill his or her obligation by working for the agency for at least three years in that capacity, rather than by practicing medicine in an HHS-designated shortage area.
  • The FMG must fulfill the three-year obligation as an H-1B nonimmigrant.
  • The FMG must agree to start employment within 90 days of receipt of waiver approval.
  • An FMG who does not fulfill the three-year obligation for the health care facility named in the waiver application becomes subject once again to the two-year foreign residence requirement, unless the Attorney General finds that early termination of the employment contract was because of extenuating circumstances, such as closure of the facility or hardship to the alien. The FMG will, however, be required to serve the balance of the three-year period with another qualifying health care facility or other employer.
  • The maximum number of section 212(e) waivers that may be granted under section 214(l) of the Act at the request of each State is limited to 20 during each fiscal year. There is no limit for the number of waivers that may be granted to FMGs under the Federal program.
  • An FMG who obtains a waiver under section 214(l) of the Act may not obtain permanent residence, whether by an immigrant visa or by adjustment of status, until the FMG has satisfied the service obligation that the FMG agreed to accept.

To prevent claims that an FMG did not know the obligations that accompany a waiver under section 214(l) of the Act, Service officers shall affix the attached addendum to the I-797 approval notice. This addendum specifies the terms and conditions imposed on the waiver. Service officers shall check the appropriate public law number on the addendum to identify whether a State Department of Public Health or an Interested U.S. Government Agency made the request for a waiver. In addition, Service officers must list the applicable public law number on the Form I-797 itself.

3. Effective Date. The IIRAIRA amendments to section 212(e) of the Act became effective on September 30, 1996. The reasoning in Matter of Soriano, Interim Decision No. 3289 (BIA 1996; AG 1997), compels the Service to adjudicate the waiver according to the law in effect at the time of adjudication. With this in mind, FMGs who were granted a waiver of the two-year foreign residence requirement by the Service on or after September 30, 1996, based on a request by an interested Federal agency are subject to the terms and conditions of section 214(l) of the Act, regardless of the date the waiver request was initiated by the interested Federal agency of State Department of Public Health. These FMGs may not apply for any other change of nonimmigrant status or for status as a lawful permanent resident (including the Diversity Visa (DV) lottery program), unless the terms and conditions of section 214(l) of the Act have been met.

4. Ability to Change Status From J-1 to H-1B. Section 214(l)(2)(A) of the Act, as amended by section 622 of IIRAIRA, allows a change of status from J-1 to H-1B for those FMGs who were granted waivers of the 2-year foreign requirement under either the State or Federal programs. The FMG, however, must be otherwise eligible to apply for a change of nonimmigrant status under section 248 of the Act. This includes the requirement for timely filing of the change of status application. The statutory ineligibility for change of status under § 248 continues to apply to FMGs who obtain a § 212(c) waiver based on exceptional hardship or persecution (i.e. under § 212(e) itself, rather than § 214(l)).

5. FMGs Who Again Become Subject to the Two-Year Foreign Residence Requirement. As noted above, an FMG who obtains a waiver under § 214(l) may not obtain permanent residence until the FMG has completed his or her service obligation. A waiver under § 214(l), moreover, is void if the FMG does not complete this requirement. Under section 214(l)(3)(A) of the Act, an FMG who does not practice medicine for three years for the health care facility named in the waiver application again becomes subject to the two-year foreign residence requirement. The alien may, however, request the Attorney General to excuse early termination of employment with the health care facility named in the waiver application for extenuating circumstances, which can include hardship or closure of the health care facility. As part of the request, the alien must submit an employment contract with another health rare facility in an HHS-designated shortage area for the balance of the 3 years. If the interested Federal agency was the VA, the alien must submit an employment contract with another VA facility for the balance of the three years. Current regulations at 8 CFR 212.7(c)(9)(iv) state that under no circumstances will a foreign medical graduate be eligible to apply for change of status to another grant category, for an immigrant visa or for status as a lawful permanent resident prior to completing the requisite 3-year period of employment for a health care facility located in an HHS-designated shortage area.

Under section 214(l)(3)(B) of the Act, the FMG also becomes subject to the two-year foreign residence requirement once again if at any time during the three-year period following approval of the waiver, his or her employment ceases to benefit the public interest.

6. Notifications Concerning Changes in Employment. Current regulations for section 212(e) waivers for FMGs under the State program at 8 CFR § 212.7(c)(9)(vi) state that FMGs granted a waiver of the two-year foreign residence requirement under the State program must notify the Service of any material change in the terms and conditions of the H-1B employment during the three-year period following waiver approval. Regulations implementing these waivers for FMGs under the Federal program are under development. Until such regulations are published, the procedures in 8 CFR § 212.7(c)(9)(vi) should be followed for FMGs granted waivers under the Federal program requesting a change in employment because of extenuating circumstances. However, when the interested Federal agency is the VA, the alien is only required to establish that he or she or she will work for another VA facility for the balance of the three years.

In exercising its statutory discretion to excuse the FMG’s failure to complete the three-year contract with the health care facility named in the waiver application, the Service may consult with USIA, the interested Federal agency or State Department of Public Health that initiated the waiver request, or the health care facility named in the waiver application. Prior to affirming the underlying section 212(e) waiver and approving the new H-1B petition, Service officers should, as a matter of course, contact USIA so that the sponsoring Federal agency or State Health Department may be consulted.

7. Requests for Additional Information. If there are any additional questions, please contact Kevin J. Cummings in Headquarters Adjudications at 202/514-4754 through appropriate channels.

ADDENDUM TO SECTION 212(e) WAIVERS GRANTED PURSUANT TO PUB.L. 103-416 AND PUB.L. 104-208

Because of your current or prior J-1 status (J-2 for your spouse and children) as a foreign medical graduate, you are subject to the 2-year foreign residence requirement established under section 212(e) of the Immigration and Nationality Act (the Act), 8 U.S.C. 1182(e). On the basis of a waiver request made under

____ Pub.L. 103-416 (by a State Department of Public Health) OR

____ Pub.L. 104-208 (by an interested U.S. Government Agency),

the United States Information Agency has recommended the waiving of the foreign residence requirement in your case.

Upon consideration of the evidence of record, and on the basis of the favorable USIA recommendation, the Service grants you and your J-2 dependent family members who are subject to the 2-year foreign residence requirement a waiver of section 212(e) of the Act. If any member of your immediate family was ever subject to the 2-year foreign residence requirement because of his or her own current or prior nonimmigrant status as an exchange alien (independent of you), that family member will need to apply for a separate waiver in his or her own behalf to remove that obligation.

Your approved waiver is subject to the following terms and conditions specified in section 214(l) of the Act:

1. Within 90 days of the date of this notice you must commence employment with the health care facility named in the request submitted to USIA within 90 days.

A. Unless paragraph B or C applies to your case, you must practice medicine at this health care facility for at least 3 years. During this 3-year period, you may only practice medicine in geographic areas designated by the Secretary of Health and Human Services as having a shortage of health care professionals.

B. If the United States Department of Veterans’ Affairs requested the waiver in your case, you must work for the VA for at least 3 years, but you are not limited to HHS-designated shortage areas.

C. If a Federal agency requested the waiver so that the Federal Agency may employ you full-time in medical research or training, you must work for that agency in medical research or training for at least 3 years.

2. You may complete the required 3-year period of employment only as an H-1B nonimmigrant. You may not change to another nonimmigrant classification, apply for adjustment of status to lawful permanent resident, or apply for an immigrant visa, unless you have fulfilled the 3-year employment contract with the health care facility named above.

3. IF YOU DO NOT COMPLY WITH THE TERMS AND CONDITIONS IMPOSED ON THIS WAIVER, YOU AND YOUR IMMEDIATE FAMILY MEMBERS HBO WERE INCLUDED IN THE WAIVER APPLICATION WILL AGAIN BECOME SUBJECT TO THE 2-YEAR FOREIGN RESIDENCE REQUIREMENT UNDER SECTION 212(e) OF THE ACT.

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