J-1 Home Residency Requirement Not Applicable to Canadians Entering on H1B15 Apr 2019
On March 27, 2019, the U.S. District Court for the Western District of New York granted summary judgment to a Canadian physician who sued the U.S. Department of Homeland Security (DHS) after U.S. Customs and Border Protection (CBP) refused him admission to the United States in H1B status. CBP denied admission to the physician because he was subject to a two-year home residency requirement (HRR). However, immigration law has long been interpreted to not prohibit admission of a Canadian citizen in H1B status based on an HRR. The physician therefore challenged CBP’s decision in federal court.
Background on Home Residency Requirement
A foreign medical graduate who participates in a J-1 program may be subject to a two-year HRR following the training. The HRR typically must be met or waived in order for the individual to be eligible for certain immigration benefits, such as being issued an H1B visa foil (commonly referred to as a visa “stamp”) or being granted a change of status to H1B.
Canadians generally are visa exempt and therefore are in the unique position of being able to be admitted to the U.S. in H1B status without having to first obtain an H1B visa stamp. This therefore has made it possible for a citizen of Canada to be admitted in H1B status, even if the individual is subject to the HRR.
Sudden Change in Policy by CBP
Without explanation or warning, CBP at the Peace Bridge Port of Entry refused admission to a Canadian citizen physician who applied for admission in H1B status. CBP argued that the physician was required to first obtain a waiver to the HRR before he could be admitted in H1B status.
If left unchallenged, this would be a reversal of decades of federal policy and interpretation of this provision of immigration law. The practical consequences were sizeable, as well. Northern border communities, sometimes amongst the poorest in the nation, routinely employ this exception to recruit Canadian physicians who have completed training in the United States in J-1 status. These Canadian physicians routinely serve medically indigent, medically underserved, underrepresented, and oftentimes poverty-stricken United States citizens and lawful permanent residents living in these communities.
District Court Rejects CBP’s Reinterpretation of the Law
Following his denial of admission, the Canadian physician filed a lawsuit in federal court. In his decision, the federal judge sided with the physician, agreeing that, because he was Canadian and therefore visa exempt, the HRR did not prevent him from seeking admission in H1B status. The judge concluded that CBP had acted arbitrarily and capriciously in violation of the law in refusing to admit the Canadian physician.
Under the Trump Administration, the DHS had made numerous attempts to implement policies that chisel away at the ability of foreign nationals to lawfully enter and work in the United States. Fortunately, affected stakeholders can combat unlawful decisions through administrative actions and the federal court system.
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