USCIS Clarification on Discretionary Waivers of the J-1 Foreign Residency Requirement

On October 24, 2023, the U.S. Citizenship and Immigration Services (USCIS) released guidance clarifying aspects of the two-year foreign residency requirement for certain J-1 visa holders. The policy update provides guidance on how the USCIS determines whether an individual has met the foreign residency requirement and whether, in certain cases, the requirement can be excused if an individual cannot meet the requirement.

Overview of J-1 Nonimmigrant Status

The J-1 visa is a nonimmigrant status for an exchange visitor wishing to stay temporarily in the United States. Within the J-1 category, there are a number of different programs. These include: trainee, student, professor or research scholar, non-academic specialist, foreign physician, international visitor, teacher, governmental visitor, camp counselor, au pair, and summer student in a travel / work program, as explained in the MurthyDotCom NewsBrief, Overview of the J-1 Visa Process (07.Sep.2023).

Certain J-1 holders are subject to a two-year foreign residency requirement. If a J-1 visa holder is subject to the foreign residency requirement, the individual must reside and be physically present in the individual’s country of nationality or last legal residence abroad for an aggregate of at least two years after leaving the United States before the individual is eligible for an immigrant visa (lawful permanent residence) or as a nonimmigrant in H or L status.

Preponderance Standard and Documentary Evidence

The updated policy guidance clarifies that the USCIS determines whether a J-1 visa holder has met the foreign residency requirement using a preponderance of the evidence standard, which means showing that it is “probably true” or “more likely than not” that the requirement has been met. Acceptable evidence for showing that the foreign residency requirement has been met includes a chart of days spent in the home country, passport stamps, travel receipts, employment records, school transcripts, leases, or affidavits. Additionally, any day where even a fraction of a day is spent in the home country is counted toward the foreign residency requirement.

Circumstances Justifying Discretionary Waiver

The new guidance also explains when the USCIS may determine that the foreign residency requirement is impossible for an individual to meet and therefore can be excused or waived. Circumstances in an individual’s home country, such as war or civil unrest, a periodic ban on travel by the home country, shifting borders, or other political changes may make it impossible to satisfy the foreign residency requirement. In such cases, the USCIS will make a case-by-case determination, in consultation with the U.S. Department of State (DOS), on whether the requirement can be excused, and the waiver granted of the home residency requirement.

Waiver for Working in a MUA or HPSA

In certain cases, a J-1 visa holder who is a foreign medical graduate may apply for a waiver of the foreign residency requirement through a recommendation of a state or federal agency interested in facilitating the individual’s employment as an H1B nonimmigrant in a federally designated medically underserved area (MUA). This is sometimes referred to as the Conrad 30 waiver. Among other requirements for this type of MUA waiver, the J-1 visa holder must obtain a contract from a health care facility located in a health professional shortage area (HPSA) or other designated area in the state.

The updated policy guidance clarifies three exceptions to the requirement to obtain such a contract. The three exceptions include when a waiver is requested for the foreign medical graduate by the U.S. Department of Veteran’s Affairs (VA) for the individual to practice medicine at a VA facility, when a waiver is requested by a federal agency to employ the foreign medical graduate as a full-time clinical practitioner, and when a waiver is requested by either a federal or state agency for a foreign medical graduate to practice specialty medicine in a geographic area designated by U.S. Department of Health and Human Services (HHS).

Conclusion

The updated USCIS guidance regarding the J-1 foreign residence requirement provides foreign nationals and immigration law practitioners with a better understanding of how the USCIS will evaluate a case. As every case is different, a J-1 visa holder should consult with an experienced U.S. immigration attorney to discuss how this USCIS guidance may apply to an individual’s particular circumstances.

Copyright © 2023, MURTHY LAW FIRM. All Rights Reserved