Immigration and Nationality Act Section 212(e) Waiver Proceedings: Diligent and Stringent Enforcement or a More Liberal Attitude?
In the context of the Immigration and Nationality Act (“INA”) § 212(e) J-1 foreign residence requirement, U.S. Citizenship and Immigration Services (“USCIS”) currently enforces an exacting waiver adjudication policy, irrespective of whether the particular applicant came to the United States to learn or, on the other end of the spectrum, to educate. Indeed, in adjudicating Form I-612 waiver applications, USCIS categorically “stresses the fundamental significance of a most diligent and stringent enforcement of the foreign residence requirement,” applying the same onerous standard to J-1 Professors and J-1 Students alike. This Note explains why USCIS’s current blanket “stringent enforcement” policy in the context of INA § 212(e) waiver proceedings is inappropriate where the J-1 nonimmigrant came to the United States to impart or share with Americans or teach Americans what he, himself, has acquired abroad in a way of scientific knowledge or skill.
At first blush, the above described J-1 waiver policy may seem narrow or even inconsequential; however, in many cases, it actually results in substantial inequity, motivating Immigration Service Officers (“ISOs”) to assume an unnecessarily adversarial posture in the adjudication of meritorious, approvable waiver applications. Moreover, USCIS’s proffered legal rationale supporting its blanket application of this burdensome waiver policy is tenuous, resting on an incomplete understanding of the germane legislative history. But more importantly, this strict waiver adjudication practice is problematic because it reflects a key misunderstanding of the central purpose of the J-1 visa program and the actual goals of the associated two-year foreign residence requirement.
I. Introduction to J-1 Visa Issues
The goal of the J-1 Exchange Visitor visa program is to foster global understanding through reciprocal educational and cultural exchanges between the United States and foreign nations. The J-1 nonimmigrant visa category is thus authorized for individuals who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training. Examples of specific J-1 Exchange Visitor categories include, but are not limited to:
- Professors or scholars;
- Research assistants;
- Nannies/Au pairs; and
- Camp counselors.
Notably, certain J-1 nonimmigrants[i] are subject to a so-called “foreign residence requirement” under INA § 212(e), which obligates them to return to their home country at the end of the exchange visitor program in order to accrue two years of physical presence. Within the text of INA § 212(e), however, Congress also explicitly provided a legal mechanism for waiving this two year foreign residency period where one of four alternative criteria are met. Specifically, a waiver of the foreign residence requirement is authorized where:
- Enforcement would impose “exceptional hardship” upon the alien’s qualifying U.S. citizen (“USC”) or lawful permanent resident (“LPR”) spouse and/or child;
- The alien cannot return to his home country because he would face persecution on account of race, religion, and/or political opinion;
- The alien’s admission to the United States would be in the public interest; or
- The alien’s home country has furnished a formal written statement indicating its acquiescence in the issuance of such a waiver (a so-called “no objection letter”).
An alien seeking a waiver predicated on the hardship or persecution bases must file an Application for Waiver of the Foreign Residence Requirement (Form I-612) with USCIS.[ii] It is precisely USCIS’s current exacting (and, frequently, unduly burdensome) Form I-612 waiver adjudication policies that form the subject of this Note. Specifically, in deciding I-612 waiver applications, for Professors and Teachers to Students and Trainees alike, USCIS routinely resorts to a blanket application of what it terms “a most diligent and stringent enforcement of the foreign residence requirement.” Crucially, however, the very legal support cited and relied upon by USCIS in justifying this “stringent enforcement” posture actually serves to severely undermine its rationale in many cases – namely those involving applications filed by sources of knowledge, as opposed to recipients thereof.
Accordingly, in the Section that follows, this Note will first argue that USCIS routinely errs in categorically applying such an exacting level of scrutiny, because the appropriate “degree of stringency” to be employed is properly contingent upon on the applicable Exchange Visitor category of the particular waiver applicant. Similarly, Section II.2 will explore the likelihood that this strict enforcement standard may be leading to confusion in the minds of ISOs, resulting in an unlawful abrogation of the applicable preponderance of the evidence standard of proof. Finally, Section III will conclude with a discussion of the proposed legal test and method for properly determining the appropriate degree of stringency to be utilized in § 212(e) waiver proceedings, depending on the specific type of Exchange Visitor applicant.
II. A “Most Diligent and Stringent Enforcement” or a “More Liberal Attitude?”
USCIS routinely justifies denials of Form I-612 waiver applications by citing page 121 of a 1961 House of Representatives Report entitled “Immigration Aspects of the International Educational Exchange Program” for the proposition that “a most diligent and stringent enforcement of the foreign residence requirement” is required in all 212(e) waiver proceedings, without regard to the applicable J-1 subcategory at issue. Likewise, in Form I-292 Denial Decisions and Form I-797E Requests for Evidence (“RFEs”), USCIS also cites this House Report for the proposition that “[it is] detrimental to the purpose of the [J-1 visa] program and to the national interests of the countries concerned to apply a lenient policy in the adjudication of waivers[.]”
The practice described in the preceding paragraph is problematic for two reasons.
First, the various J-1 Exchange Visitor categories are diverse, often presenting very different factual circumstances. In recognition of this fact, and contrary to USCIS’s assertions, the legislative history identifies many J-1 waiver cases where strict scrutiny is wholly unwarranted and, contrariwise, a “liberal attitude” in the enforcement of the foreign residence requirement is actually merited. USCIS’s reliance on INA § 212(e)’s legislative history – particularly House Report 721, Immigration Aspects of the International Educational Exchange Program, Subcommittee of the House Committee on the Judiciary, 87 Cong., 1st Sess. (1961) (hereinafter “House Report 721”) – is therefore misplaced.
Second, USCIS’s routine use of this so-called “stringent enforcement” policy presents a distinct risk that ISOs will improperly conflate and/or abrogate the applicable modest “preponderance of the evidence” standard governing the adequacy and probative value of documentary evidence.
These topics are discussed in turn below.
1. The Legislative History
In the Form I-612 waiver adjudication context, current USCIS practice mandates an application of a so-called “diligent and stringent enforcement” standard across all waiver applications, irrespective of the applicable J-1 category at issue. In other words, USCIS does not differentiate between such diverse J-1 categories as Professors and Students, despite the fact that they clearly embody very different types of waiver applicants. As such, in many cases, USCIS’s blanket adjudication practice is fundamentally at odds with the intent of Congress, as expressed in INA § 212(e)’s statutory text and attendant legislative history. This note thus advocates for the implementation of what is, at least in the judgment of the author, a fairly simple, common-sense approach and methodology for determining the appropriate standard of enforcement in the adjudication of 212(e) waiver proceedings.
Simply put, where a particular applicant’s Exchange Program participation was not to receive training but rather to impart skills, USCIS is obliged to employ a “liberal attitude” in determining whether a qualifying factual basis for waiving the foreign residence requirement has been adequately established. Conversely, in such cases, USCIS errs in applying heightened scrutiny to these determinations, relying erroneously on an inapposite statement of Congress calling for “a most diligent and stringent enforcement of the foreign residence requirement” in circumstances where the J-1 alien came to the U.S. to receive knowledge.
USCIS apparently contends that INA § 212(e)’s exceptional hardship inquiry requires “stringent enforcement” in all cases, citing page 121 of House of Representatives Report Number 721. However, this wholesale reliance on page 121 is misplaced, as it plainly ignores the material text appearing on the very next page, page 122, which describes circumstances where a “liberal attitude” – a far cry from the “diligent and stringent enforcement” – is properly taken in determining if the necessary degree of hardship has been established. It is incongruous for USCIS to cite House Report 721 as binding authority for the proposition that stringent enforcement is mandated, while simultaneously disregarding its related text explaining circumstances where liberal treatment is appropriate.
Title 22 of the United States Code, “Foreign Relations and Intercourse,” Chapter 33, “Mutual Educational and Cultural Exchange Program,” Section 2451 sets forth the “Congressional statement of purpose” applicable to the J-1 nonimmigrant visa program, providing in pertinent part: “The purpose of this chapter is to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange[.]” 22 U.S.C. § 2451 (emphasis supplied). The J-1 visa program is thus intended to promote a reciprocal exchange of knowledge between the United States and foreign countries – i.e., not merely a one-sided U.S. conferral of knowledge on arriving J-1 nonimmigrants, but also, equally important, the U.S.’s receipt of the skills and wisdom of talented foreign persons, such as scholars and professors. With this in mind, a stringent application of the INA § 212(e) foreign residence requirement and the attendant waiver regulations may or may not be appropriate or necessary, depending on the specific nature of the J-1 visa holder’s participation in the actual exchange program at issue. That is, the fundamental policy consideration of the foreign residence requirement is to ensure that the participating alien return to his country as a source of knowledge newly acquired through the completion of a training program, internship, or university coursework. And, accordingly, where the J-1 visitor served as the source of knowledge rather than the recipient thereof, § 212(e)’s underlying imperatives simply do not apply with equal force.
In enacting the operative J-1 visa legislation, the U.S. Congress explicitly recognized this common sense distinction. Indeed, it is in this context that the Congress, in prescribing the rules governing the scrutiny applicable to foreign residency waivers, differentiated between “two clearly discernible categories of exchange visitors,” to wit:
“(1) the person whose primary purpose in coming to the United States is to acquire education, skill, experience, and training; and – on the other side of the ledger – (2) the person who comes to the United States to impart or share with Americans or teach Americans what he, himself, has acquired abroad in way of scientific knowledge or skill.” House Report 721 at 122.
House Report 721 then proceeds to note that the INA § 212(e) “waiver policy could be applied with a different degree of stringency to exchange visitors in each of the two categories.” Id. (emphasis in original). Indeed, House Report 721 continues,
“[w]hile 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 permitted to evade the ‘return home’ rule, the person who – in exchange – has come here to education Americans, may have an equitable claim for remaining[.]” Id. (emphasis in original).
Moreover, the well settled administrative precedent, relying explicitly on the germane legislative history referenced above, has consistently held that a “liberal attitude may be taken in determining if the necessary degree of hardship has been established” in the case of a J-1 waiver applicant who “impart[ed] her skill to persons [in the U.S.]” Matter of Duchneskie, 11 I&N Dec. 583 (DD 1966) (citing House Report 721 at 122); see also Matter of Coffman, 13 I&N Dec. 206 (DAC 1969). The operative test under the above cited precedent decisions is strictly whether the J-1 alien actually imparted his existing skills to U.S. persons. See id. In fact, this “liberal attitude” standard has been held applicable even to J-1 aliens who received additional training in the U.S., so long as they also imparted a benefit of their existing skills. See Matter of Duchneskie, 11 I&N Dec. 583 (applying “liberal attitude” standard to J-1 alien who imparted her existing skills but also received further training). This legal principle was first announced by Congress in 1961, and subsequently analyzed, validated, and applied in legacy INS published precedent decisions such as Matter of Duchneskie and Matter of Coffman, decided in 1966 and 1969, respectively. This venerable commonsense rule has thus persisted for well over half a century in this nation’s J-1 visa jurisprudence.
2. Preponderance of the Evidence Issues
USCIS’s routine use of so-called “stringent enforcement” policy described above also presents a distinct risk that ISOs will improperly conflate and/or abrogate the applicable modest “preponderance of the evidence” standard governing the adequacy and probative value of the documentary evidence. Indeed, USCIS adjudicators must take care to differentiate between the statutory “exceptional hardship” determination (the legal question that must be resolved) and the applicable “preponderance of the evidence” burden (a standard of proof governing the sufficiency of the evidence).
As in most administrative immigration proceedings, the standard of proof in INA § 212(e) waiver applications is the “preponderance of the evidence” standard. See Matter of Chawathe, 25 I&N Dec. 369 (AAO 2010). This standard is deemed satisfied where the proffered evidence establishes that a claim is “more likely than not” or “probably true.” See Matter of E-M-, 20 I&N Dec. 77, 79-80 (Comm’r 1989); see also U.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987). As such, it is well settled that the preponderance of the evidence standard is not an onerous one. See, e.g., Matter of E-M, 20 I. & N. Dec. 77, at 83 (BIA 1989) (citing Charlton v. FTC, 543 F.2d 903, 907 (D.C. Cir. 1976) (explaining that “in American law a preponderance of the evidence is rock bottom at the fact-finding level of civil litigation”) (emphasis supplied)).
Where USCIS applies its stringent enforcement approach, it is not uncommon for the operative “preponderance of the evidence” standard to appear to have been abrogated in violation of the law. USCIS’s reliance on this legislative history and associated degree of stringency analysis is problematic, in that it can give rise to an unnecessarily harsh treatment of what would otherwise be deemed credible and probative evidence. Indeed, where USCIS’s evidentiary demands appear to exceed the preponderance of the evidence standard, this may fairly be attributable to an erroneous belief that a different standard of proof applies in 212(e) waiver proceedings.
III. The Proposed Solution
In determining the appropriate degree of stringency applicable to a given waiver application, the key threshold inquiry that must be resolved is relatively straightforward and simple to grasp: whether the primary purpose of the J-1 alien in coming to the U.S. was to “impart, share, and/or teach,” or, alternatively, to “acquire education, skill, and/or training.” For the former, the ISO’s adjudication is properly informed by the “liberal attitude” approach described in the legislative history and INS decisional framework highlighted above.
The application of this proposed bifurcated waiver adjudication methodology does not appear to present undue procedural challenges, particularly as Congress has expressly articulated a serviceable test for accomplishing such determinations. Indeed, while recognizing that the determination of which category a given J-1 Exchange Visitor fits into will ordinarily be self-evident, the Congress nevertheless furnished additional guidance on this point, directing adjudicators to identify whether the alien entered as (1) a Student, Trainee, or Specialist, which fall into the first category; or, alternatively, (2) a Teacher, Guest Instructor, or Professor, falling into the second category. See House Report 721 at 122. This information can be gleaned by referring to the relevant background data appearing on the underlying Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status – including such fields as block 1 “Position,” block 2 “Participating Program Official Description,” and, perhaps most tellingly, block 4 “Exchange Visitor Category” – in conjunction with 22 C.F.R. § 62.4(a)-(h), defining the various “[c]ategories of participant eligibility.”
J-1 nonimmigrants admitted to the U.S. for the purpose of imparting a benefit or knowledge are currently encountering unjustifiably restrictive enforcement standards in the adjudication of Form I-612 waiver applications by USCIS. Unfortunately, the problem is rooted in the agency’s erroneous belief that such a punitive enforcement standard is actually compelled by the underlying legislative intent, as discerned through the associated legislative history – viz., page 121 of House Report 721. USCIS ought to revisit and reconsider the propriety of this approach, particularly in light of the legal authorities outlined in Part II, supra, which critically undermine USCIS’s proffered legal reasoning. Notably, a reconsideration of USCIS’s current approach does not appear to be infeasible from an administrative standpoint, as evidenced by the eminently workable method advocated in Part III, supra, and first advanced by the drafters of INA § 212(e)’s foreign residence requirement and corresponding waiver eligibility provisions.
[i] J visa holders subject to the two-year foreign residence requirement are persons: (1) whose participation was financed in whole or in part, directly or indirectly, by an agency of the government of the U.S. or by the government of his nationality or last residence; (2) who, at the time of admission or acquisition of status, was engaged in a field on the Department of States (“DOS”) Exchange Visitor Skills List; and/or (3) who came to the U.S. or acquired J status after January 10, 1977 to receive graduate medical education or training. See INA § 212(e)(i)-(iii).
[ii] The filing of Form I-612 with USCIS is actually the third step in a complicated, back-and-forth four-step process that begins with the submission of a Data Sheet to the DOS Waiver Review Division (“WRD”) and ends with the WRD transmitting its final decision back to USCIS.