American University Law Review
December, 1999
COMMENT
The Hardship Waiver of the Two-Year Foreign Residency Requirement Under Section 212(E) of the INA: The Need for a ChangeInna V. Tachkalova*
INTRODUCTION
Under the Immigration and Nationality Act (INA), aliens who
wish to be admitted to the United States must avoid any determination of
inadmissibility. This Comment addresses one specific ground
of inadmissibility, the two-year foreign residency requirement imposed
on former exchange visitors. Section 212(e) of the INA, as
currently in force, prohibits certain exchange program participants
from applying for permanent resident status, temporary worker visas,
or business visas after completion of an exchange program, unless
the exchange students first return to their home countries and reside there
for at least two years.
This two-year foreign residency requirement is often a significant
life hurdle for exchange students. For example, after
coming to the United States as exchange visitors, some exchange students
marry U.S. citizens or permanent residents and have children, especially
when the students continue their studies in the United States after completion
of the exchange program. Requiring departure from the United
States for two years can result in: the separation of exchange students
from their U.S. citizen or permanent resident spouses, children, or other
relatives; a disruption of the exchange students and spouses careers;
and financial difficulties for the exchange students and their spouses.
The INA provides an exception to the two-year foreign residency requirement,
however, if the exchange visitors can demonstrate that their departure
will cause exceptional hardship upon their U.S. citizen or permanent resident
spouses or children. Courts and administrative agencies apply
this hardship exception in a narrow fashion. Moreover, even
if the former exchange student demonstrates exceptional hardship, the United
States Information Agency (USIA) still may refuse to grant a waiver
on the grounds of program and policy considerations.
Part I of this Comment briefly reviews the underlying purposes for launching exchange programs, and examines the legislative intent of the two-year foreign residency requirement for exchange students and the manner in which courts and federal agencies have interpreted the exceptional hardship provision. Part II.A demonstrates how the foreign residency requirement infringes upon the constitutional rights of U.S. citizens and permanent residents, and suggests that when balancing the competing interests of students and their families against governmental interests, governmental interests should not receive undue deference. Part II.B argues that section 212(e) of the INA contradicts the numerous concessions granted to bona fide marriages by other provisions of the INA. Part II.B suggests that the process of adjudicating hardship waivers under 212(e) requires consent of an additional agency, USIA, and now its successor, which is not required for other waivers. Part III recommends that Congress create a bona fide marriage exception to the two-year foreign residency requirement imposed on exchange students.
* Articles Editor, American University Law Review, Volume 49; J.D. Candidate, May 2000, American University, Washington College of Law; B.S., 1996, Georgetown University. I am grateful to my family whose encouragement and understanding have been invaluable. I also would like to thank Michael Maggio of Maggio and Kattar, P.C., Washington, D.C., for his insight and comments on earlier drafts.
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