On October 24, 2023, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance in the USCIS Policy Manual regarding the two (2)-year foreign residence requirement for the nonimmigrant exchange visitor (J) visa classification.
The J-1 visa 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.
Certain J-1 exchange visitors are subject to the foreign residence requirement of INA Section 212(e), 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 two (2) years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.
The new policy guidance clarifies the following aspects of the two (2)-year foreign residence requirement:
- Country of nationality or last legal residence: Such country is the country of nationality or legal permanent residence listed on the Certificate of Eligibility for Exchange Visitor Status (Form DS-2019) and is referred to herein as the “Home Country.”
- Determining whether the foreign residence requirement has been met: USCIS determines whether the exchange visitor has met the two (2)-year foreign residence requirement within the context of a subsequent application or petition under the preponderance of the evidence standard.
- Inability to meet the foreign residence requirement: USCIS considers situations in which it is impossible for the benefit requestor to satisfy the J-1 two (2)-year foreign residence requirement on a case-by-case basis, and that USCIS consults with the Department of State in this situation.
- Travel days: A travel day, where a fraction of the day is spent in the Home Country of nationality or last residence, counts towards satisfaction of the J-1 two (2)-year foreign residence requirement.
- Exceptions to the contract requirement for foreign medical graduates: Foreign Medical Graduates (FMGs) who receive a waiver based on a request from the US Department of Veteran Affairs (VA) or a federal agency must practice medicine full-time with the VA or agency for at least three FMGs who receive a waiver based on a request from a federal or state agency to practice specialty medicine in an HHS-designated shortage area must practice specialty medicine in such a facility for at least three years. In this case, the request must demonstrate a shortage of healthcare professionals able to provide services in the appropriate medical specialty to the patients who will be served by the FMG.
- Family members of J-1 Exchange visitor: J-2 spouses of J-1 Conrad 30 waiver recipients cannot change their status to H-1B until the J-1 spouse has completed three years of employment in a designated medically underserved area. Once the J-1 spouse has fulfilled all requirements, the J-2 spouse can change to another nonimmigrant status or apply for a green card. J-2 spouses and children of FMG waiver recipients must submit Form I-539 to change status to H-4. The waiver recipient must practice medicine for three years in an HHS-designated shortage area.
Implications for Exchange Visitors
The new policy guidance provides greater clarity and predictability for exchange visitors who are subject to the two (2)-year foreign residence requirement. It also provides some flexibility for exchange visitors who may be unable to meet the requirement due to unforeseen circumstances.
Exchange visitors who are subject to the two (2)-year foreign residence requirement should carefully review the new policy guidance to ensure that they understand their obligations. They should also consult with an immigration attorney to discuss their specific circumstances and options.
To find more information about Exchange Visitors (J), please visit https://www.uscis.gov/policy-manual/volume-2-part-d.