J Visa Q & A

DOS Agenda - J Visa Questions AILA DOS Liaison Committee Fall Meeting October 6, 2016

1. Special Administrative Regions as Applied to INA §212(e). AILA members seek clarification with regard to how exchange visitors who last resided in one of the People’s Republic of China’s (PRC) Special Administrative Regions (SARs) (i.e., Macau, Hong Kong) may comply with the two-year home residency requirement of INA §212(e). Hong Kong and Macau are not listed on the 2009 skills list. Please confirm that both Macau and Taiwan are considered independent of the PRC for skills list purposes, and that residents of these SARs cannot be subject to INA §212(e) triggered by the skills list fields applicable to the PRC. Clearly, residents of Hong Kong and Macau who are subject to INA §212(e) based on U.S. or home country funding or clinical medical training can comply with their obligations by residing in either Hong Kong or Macau, respectively. Does State consider residents of these SARs who spend two years in mainland China following completion of their J program as having complied with their 212(e) obligations? Similarly, can a resident of Hong Kong satisfy the two-year home residency requirement in Macau or vice versa? Does the answer to these questions vary depending on whether 212(e) was triggered by home country government funding as opposed to U.S. government funding or clinical medical training? Would a home country funding require residence within the SAR that provided the funding in order to comply with 212(e)?

In this complex area, it is important that prospective exchange visitors clearly understand the obligations they are assuming when choosing to enter the U.S. on a J visa. A comprehensive response would be a helpful tool for J-1 program sponsors and consular officers in advising prospective J visa applicants. As the response to this question may require various permutations, we respectfully request that State consider responding in chart form, similar to its response to NAFSA years ago (See May 24, 2007 letter from Stanley Colvin to Victor Johnson, Associate Director of NAFSA, attached) when clarifying the application of the repeat participation bars.

Hong Kong SAR, Macau, and Taiwan are considered independent of the PRC for 212(e) purposes, including with respect to the Skills List. Since Hong Kong, Macau, and Taiwan do not have a Skills List, J visa recipients from those regions cannot be subject to 212(e) based on the PRC’s Skills List. They will be subject to 212(e); however, if they receive U.S. or home country funding, and if they are engaged in clinical medical training. Correspondingly, individuals subject to INA 212(e) can only fulfill their home residence requirement in the country of nationality and/or last residence, as provided in INA 212(e). If last residence and nationality differ, then the individual would be required to return to the place of last residence. Exchange visitors who were residents and nationals of the PRC may only fulfill the requirement in the PRC; those who were residents of Hong Kong may only fulfill their requirement in Hong Kong, etc.

2. Skills List. The State Department has not published an updated skills list since 2009. Are there any plans to publish a new skills list in the near future? Presumably, formulation of the

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skills list takes into account various diplomatic interests, both of the United States government, as well as the government of the country at issue. Can the Department please share with AILA the process by which determinations are made to add or remove fields from the skills list for a particular country?

Previous Skills Lists were published in 1972, 1984, 1997, and 2009. Periodically, we reach out to countries asking for their skills list. This is a very burdensome exercise that we have done at approximately 12 to 13 year intervals. Each country decides whether or not it wants a Skills List and it decides which subject/skill areas to have on its list. If a country wishes to add or remove fields at any other time, it can make that request via a diplomatic note, and the list will be amended and published in the Federal Register at that time.

3. Reconsidering INA 212(e) in Europe Following Brexit. Under the assumption that a united and cohesive Europe is in the United States' interest, in light of the uncertainty following the Brexit vote, would State reconsider its current position that citizens of European Union (EU) member countries are not residents of all EU member countries for purposes of fulfilling INA 212(e)? In other words, would the State Department be willing to consider citizens and

lawful permanent residents of EU member countries eligible to satisfy the two-year home residency requirement anywhere in the EU and not merely in their country of citizenship, regardless of what triggered 212(e)? Alternatively, would State consider enabling fulfillment in any EU member country where the 212(e) trigger was based on EU funding as opposed to funding from the government of the exchange visitor’s constituent country government? A policy shift such as this could be a small diplomatic step in underscoring the United States government’s support for European unity.

The EU is comprised of sovereign member states. Regarding the first part of Question 3, under INA 212(e), an exchange visitor who is subject to the two-year home residency requirement must complete the requirement “in the country of his nationality or his last residence [emphasis added].” To allow an exchange visitor from an EU member state to complete the requirement anywhere in the EU would require not a change in State Department policy but a change in U.S. law. Regarding the second part of Question 3, one “trigger” of the two-year home residency requirement is when “participation in the program for which [the exchange visitor] came to the United States was financed in whole or in part, directly or indirectly, by . . . the government of the country of his nationality or his last residence [emphasis added].” Given that the EU is funded by its member states, EU funding of an exchange visitor from an EU member state comes in part, indirectly, from the exchange visitor’s country of nationality or country of last residence. Again, to allow such an exchange visitor to complete the two-year home residency requirements anywhere in the EU would require not a change in State Department policy but a change in U.S. law.

4. Scope of Advisory Opinions. What is the scope of Waiver Review Division’s (WRD) authority to issue advisory opinions? Beyond opining as to whether an exchange visitor is

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subject to 212(e), it would seem that WRD would also be best positioned to opine as to whether an exchange visitor complied with the requirements of INA §212(e), given that the J-1 visa is a special cultural exchange visa under the auspices of the State Department. Is this something that is within WRD’s authority? If so, would that be within WRD’s authority only in the context of a consular nonimmigrant or immigrant visa matter? If not, would that determination fall to LegalNet? If this assessment is within WRD’s authority for consular matters, would WRD be willing to issue advisory opinions regarding this issue generally, even though such a determination might have an impact on L, H and permanent residency matters pending at USCIS?

The authority to determine whether an applicant is eligible for a visa is vested in the consular officer adjudicating the application. That determination includes INA 212(e) considerations, to the extent relevant. If the consular officer is unsure whether INA 212(e) applies in a given case, the officer may request an advisory opinion from WRD, as described in 9 FAM 302.10-7(C) Advisory Opinions. Similarly, the authority to determine eligibility for other immigration benefits is vested in DHS immigration officers. As a matter of Department policy and public outreach, WRD offers a public service of providing Advisory Opinions addressing whether J visa recipient are subject to INA 212(e), based on the Skills List, government funding, or status as a foreign medical graduate.

WRD does not investigate or opine on whether an individual has satisfied INA 212(e) requirements. The determination of whether an exchange visitor has resided in his country of nationality or last residence for two years is made by the consular officer or immigration officer adjudicating an application for a visa or another immigration benefit.

5. EV Preferences for Multiple Waiver Filings. AILA acknowledges State’s position that when an exchange visitor pursues more than one type of 212(e) waiver, once DOS recommends one waiver application, it will not consider the other. However, multiple waiver applications may be filed simultaneously, and many exchange visitors have a particular preference that one waiver be approved over the other in the event that State is otherwise inclined to recommend both. For example, J-1 physicians may prefer to obtain a waiver based upon hardship but, in light of their inherently subjective nature, may choose to file both a hardship waiver application and a clinical J-1 waiver application.

AILA respectfully requests that State consider a process whereby, if two waiver applications under different legal theories are received for a particular exchange visitor, the WRD will hold any other waiver application in abeyance until the preferred waiver reaches the WRD for adjudication. Notification of the preference of one waiver over another could be indicated by the applicant at the time of filing the DS-3035 (perhaps in the open field that appears under the Statement of Reason), or via any other method WRD deems expedient.

Managing multiple concurrent applications from the same applicant would be difficult for WRD to achieve, would delay adjudications, would have a negative impact on the overall waiver process, and consequently, would adversely affect service to exchange visitors generally. When AILA Doc. No. 16100706. (Posted 10/7/16) an applicant submits multiple waiver applications, the WRD adjudicates the first complete application (meaning all required documents are in the case file). If an applicant receives a favorable recommendation, the WRD will not consider another application. Since a favorable recommendation nullifies the 212e requirement, it is not necessary to adjudicate another case for the same applicant. However, if the applicant receives an unfavorable recommendation, the WRD will consider another waiver application.

6. Fiscal Year State 30 J-1 Waiver Allocations. INA §214(l)(1)(B) permits each state Department of Health to recommend up to 30 clinical J-1 waivers per fiscal year. Please confirm that a clinical waiver is valid and counted against a particular fiscal year’s quota even if the final approval notice is not issued until after the start of the following fiscal year. For example, where a state Department of Health recommends a J-1 waiver on August 30, 2016, but USCIS does not issue the approval notice for that waiver until October 30, 2016 (i.e., after the start of FY2017), is the waiver nonetheless valid and counted against the state’s quota of 30 for FY2016?

Similarly, at what point during the J-1 waiver process is a state Department of Health’s recommendation of a J-1 waiver counted against the state’s quota of 30 per fiscal year? Is it the date the state sends its recommendation to the Department of State, the date that State receives that recommendation, the date State recommends the waiver, or some other date?

Conrad State 30 Program waivers are counted against the state’s allotment when they are received in the WRD. A Conrad waiver that is post-marked on or before September 30 is counted against the state’s quota for the fiscal year if a waiver is recommended, provided the state has not surpassed its allotted 30 Conrad waivers for that year.

7. Conrad 30 FLEX Waiver Slots for Telemedicine. Technology is making it possible for most professionals to perform their jobs remotely. In the medical field, telemedicine allows patients to receive access to and treatment from physicians, often in situations in which they would otherwise go without needed healthcare. Healthcare providers in rural underserved areas are increasingly relying upon the use of telemedicine services to connect patients who reside in medically underserved areas with physicians who practice elsewhere. INA §214(l)(1)(D)(ii) provides that a state Department of Health may recommend up to ten of its 30 J-1 waivers per year to physicians who are not physically located in a federally designated medically underserved area but “who will practice in a facility that serves patients who reside in one of more geographic areas so designated by the Secretary of Health and Human

Services (without regard to whether such facility is located within such a designated geographic area) ....” Please confirm that, if a state chooses to use one of its ten FLEX waiver slots to recommend a waiver for a physician for a telemedicine position (in which the physician will provide full-time care remotely from a non-underserved area to patients who reside in underserved locations), the Department of State has no objection to such an arrangement provided that all other statutory and regulatory requirements are met.

At this time, the Department would take the position that telemedicine does not meet the requirements of INA 214(l)(1)(D)(ii) and regulations at 22 C.F.R. 41.63(e)(3)(iii), which refer to employment “in a facility” that serves patients residing in a Department of Health and Human Services designated health professional shortage area. Presumably, at the time of enactment of

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Section 214 (1)(1)(D), Congress intended the 10 FLEX slots would be used for J-1 physicians who agreed to work in-person at a qualified facility; however, we recognize that, at the time of enactment, telemedicine was not an accepted form of practice. Consequently, we will consult with Department of Health and Human Services on the legal availability and appropriateness of any possible alternative interpretation of the language.

8. Technical fixes

a. At our October 18, 2011 meeting, AILA asked whether it would be possible to update Form DS-3035 to enable applicants to save it in draft form in order to make corrections or additions before or after submitting the form. WRD stated that it planned to add functionality to t