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USCIS’ Update on J Visa 2-Year Foreign Residence Requirement

USCIS has issued policy guidance regarding the 2-year foreign residence requirement for the nonimmigrant exchange visitor (J) classification. USCIS has updated the USCIS Policy Manual reflecting the policy guidance.

What is the J-1 Classification?

The J-1 classification is for exchange visitors 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 receiving graduate medical education or training.

What is the 2-Year Foreign Residence Requirement?

Certain J-1 exchange visitors are subject to a foreign residence requirement, which requires that they reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least 2 years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.

These exchange visitors subject to the foreign residence requirement are further prohibited from changing status from J nonimmigrant status to another nonimmigrant status, other than A, G, T, or U, or H-1B for physicians receiving waivers based on a 3-year waiver position.

If such exchange visitors cannot return to their country of nationality or last legal residence for two years, they must apply for a waiver. The Department of Homeland Security must approve the waiver before the exchange visitors can change status in the United States or receive a visa in certain categories.

Who is Subject to the 2-Year Foreign Residence Requirement?

As per the INA, exchange visitors participating in the following programs are subject to the foreign residence requirement: 

  • Programs facilitated by the DOS designated sponsor, Educational Commission for Foreign Medical Graduates (ECFMG), for medical trainees;[1]
  • Programs in which the exchange visitor has received any type of government funding or support from the exchange visitor’s home country or country of last legal permanent residence, the U.S. Government, or an international organization, as indicated on the Form DS-2019;[2]
  • Programs in which the exchange visitor’s field of endeavor appears on the DOS Exchange Visitor Skills List (list of fields of specialized knowledge or skills in which the services of exchange visitor participants are critically needed) for the exchange visitor’s home country or country of last legal permanent residence; and
  • Programs whose purpose is graduate medical training, typically a residency or fellowship.

Updated Guidance on the 2-Year Foreign Residence Requirement

The Policy Manual update clarifies how USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement as follows:

Evidence Standard

USCIS determines the exchange visitor has satisfied the 2- year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.

Travel Day Counted

A travel day counts towards satisfaction of the 2-year foreign residence requirement. The travel day includes a fraction of the day spent in the country of nationality or last residence.

USCIS’ Discretion

USCIS considers situations where it is impossible for the exchange visitor to satisfy the 2-year foreign residence requirement on a case-by-case basis.

Exceptions of Contract Requirements for a Foreign Medical Graduate

USCIS further clarifies the following three exceptions to the requirement that a foreign medical graduate (FMG) obtain a contract from a healthcare facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement:

  • If the U.S. 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 3 years, but does not need to do so in a shortage area designated by U.S. Department of Health and Human Services (HHS).
  • If an interested federal agency requests the waiver so that the agency can employ the FMG full time to practice clinical medicine, the FMG may fulfill the obligation by working for the agency for at least 3 years in that capacity, rather than by practicing medicine in an HHS-designated shortage area.
  • If an interested federal or state agency requests the waiver for an FMG who agrees to practice specialty medicine in a facility located in an HHS-designated geographic area, the FMG may fulfill the obligation by practicing specialty medicine in such a facility for at least 3 years. In such a case, the request must demonstrate a shortage of health care professionals able to provide services in the appropriate medical specialty to the patients who will be served by the FMG.

For the USCIS’ original announcement, please visit here.

Disclaimer


[1] ECFMG sponsored medical researchers are generally not subject to the requirement as medical trainees. However, such medical researchers may be subject to the requirement on another basis.

[2] Government-sponsored programs beginning with G in the program number on Form DS-2019 are usually government-funded where the exchange visitor received financial support from the sponsor.

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