IMMIGRATION LAW MONTHLY

January, 1997

I am a Canadian on a J-1 visa doing Neuroscience research in Oregon. I have a Ph.D. and came down with fellowship money from NIDA. There is a good possibility that I might be offered a tenure track job at a University in another state. The International Student Office seems to think that Canadians are not required to go back to their home country for two years following the completion of the fellowship (even if the postdoctoral fellowship was funded by a US agency). Is this so?

If you are subject to the two-year home country requirement you will not be exempt just because you are a Canadian.

If you are subject to the requirement, you cannot apply for H, K, or L nonimmigrant status or apply for permanent residence until the condition is satisfied. Also, you cannot apply for a change status from J-1 to another nonimmigrant category in the U.S. (other than to A or G status, which would not be relevant to your situation). However, you are not barred from applying under other nonimmigrant categories from abroad. In other words, there is nothing stopping you from applying for a nonimmigrant status (other than H, K, or L) once you get back to Canada.

For example, Canadian citizen university or college level teachers with a bachelor degree or greater in the field can qualify for a TN status under NAFTA, which the two-year requirement does not prohibit. You cannot change status from J-1 to TN within the U.S., but you can return to Canada and apply for TN status outside of the United States.

Keep in mind that, even if you get a TN, the two-year requirement will continue to haunt you. You will not be able to apply for a change status in the U.S., apply for H, K, or L status or apply for permanent residence until you have satisfied the requirement or obtained a J-1 waiver thereof.

The Immigration and Naturalization Service may waive of the two-year home country presence requirement contained in §212(e) under one of four grounds. However, only three will apply to J-1 aliens who have engaged in graduate medical education or training. The four waiver grounds are as follows:

No Objection Statement - The requirement may be waived on the basis of a "no objection statement" from the home country government indicating that it has no objection to the waiver being granted. However, this ground does not apply to foreign medical graduates engaged in medical education or training.
Exceptional Hardship - An application for a waiver may also be requested on the basis that exceptional hardship will be imposed on a U.S. citizen or permanent resident spouse or child if the J-1 is forced to comply with the requirement. However, hardships such as career interruptions, separation of children from relatives or language difficulties in the J-1's country are not considered exceptional hardship.
Persecution - An application for a waiver may be requested on the basis that the alien will be persecuted on account of his or her race, religion, political opinion or membership in a particular social group if the alien is required to return to the home country. The standard applied is similar to those used in asylum cases.
Interested Government Agency. An application for waiver may be based upon the recommendation of an interested U.S. government agency if the agency believes that a waiver will be in the public interest and that alien's compliance with the requirement will be detrimental to the program or interest of that agency. In order to qualify as an interested government agency, the agency must be designated as such by the USIA.

We are Canadian's who own and operated a woodcraft business here in Canada. We would like to go to the U.S. to attend craftshows and have already been accepted into a few in some of the southern states. Over the course of time, we have heard many horror stories about other crafters attempting to cross the border. We would like to know what we have to do to legally attend shows in the U.S. and sell our wares. We have read some of your information on the E-1 Treaty Trader Visa and are wondering if we could qualify and if it would allow us to do the above.

As stated in my article on E visas, the E-1 treaty trader visa is available to enterprises engaged in trade with the United States. The trade must be substantial, principally between the United States and the treaty country (i.e. Canada), and the employee or principal trader entering the United States must serve the company in either a managerial, executive or specialized knowledge capacity.

The word "Trade" is defined as including the exchange, purchase or sale of goods having intrinsic value and/or services. For E-1 purposes, the word "substantial" is defined as meaning where at least 51% of the total volume of the foreign business's trade is between the U.S. and the treaty country (i.e. Canada). The total income earned from such trade does not have to be substantial as long as the volume of trade itself is substantial. The treaty country must show a continued course of trade so trade must have already commenced prior to the alien applying for E status.

Even assuming that at least 51% your trade is with the U.S., I see some problems with your current level of trade. If you are not trading a large volume of goods with the U.S. or generating significant income therefrom, you will have trouble establishing substantial trade. Substantial trade must exist before an E-1 visa will be granted.

If you cannot meet the substantial trade requirement for an E-2 visa, your only option is to enter as a B-1 visitor for business. However, under B-1 status the sale of goods and their delivery to the same United States buyer are precluded on the same business trip. In other words, if you want to use the goods you bring only as samples and then ship the final product to the customer from Canada after the trip, this is acceptable. However, selling the products that you bring with you is not permitted under B-1 status.

I'm a Canadian citizen, an ENT surgeon working in Quebec. I have applied for and gotten a fellowship position in California. My preceptor is presently only in private practice and no longer affiliated with a university. However, in order to get the J-1, I need to have a form IAP-66 filled out by the sponsoring organization. Since my preceptor is no longer affiliated with the University of California but only in private practice, the university can't fill out the form for me. I phoned the USIA and they told me that the only way to get a J-1 is to be in a ECFMG-approved program. Since my fellowship is sponsored and organized by the American Academy of Facial Plastic and Reconstructive Surgery, would that make it ECFMG-approved?

Foreign medical graduates coming to the United States to pursue graduate medical education or training may do so as J-1s under the sponsorship of the Educational Commission for Foreign Medical Graduates (ECFMG). The regulations define graduate medical education or training generally as a residency or fellowship program involving health care services to patients, not including programs involving observation, consultation, teaching or research in which there is no element or only incidental elements of patient care.

While J-1 programs involving observation, consultation, teaching or research in which there is no element or only incidental elements of patient care do not have to be sponsored by the ECFMG (and can be sponsored by some other organization), your fellowship will probably involve more than incidental patient care. Even if the American Academy of Facial Plastic and Reconstructive Surgery is an approved sponsoring organization under the J-1 program, if your fellowship program involves providing health care services to patients (and I strongly suspect that it does) the program cannot be sponsored by anyone other than the ECFMG.

In order to obtain a J-1 under the sponsorship of the ECFMG, the school that is offering the medical education or training must be accredited by a body or bodies approved for this purpose by the Secretary of Education and must agree in writing to assume responsibility for the alien's education or training. Any participating hospital must join in the agreement.

The University of California was more than likely accredited for this purpose. However, I strongly suspect that your perceptor (who is in private practice) is not. If the university is not going to sign your IAP-66, you must find some other ECFMG approved school or organization that will take responsibility for your program. If you cannot, the J-1 is probably not appropriate in your case.