On Oct. 24, 2023, U. S. Citizen and Immigration Services (USCIS) issued updated policy guidance to its Policy Manual regarding the two-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 a foreign residence requirement, mandating they live and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least two years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.

On June 8, 2023, USCIS published comprehensive guidance on the exchange visitor classification in the Policy Manual. USCIS’s latest Oct. 24 guidance further clarifies how the agency determines whether a benefit requestor has met this foreign residence requirement.

Policy Update Highlights

• USCIS uses the preponderance of the evidence standard in determining whether the exchange visitor has met the two-year foreign residence requirement.
• Travel days—where a fraction of the day is spent in the country of nationality or last residence—count toward satisfaction of the foreign residence requirement.
• USCIS will and does consult with the U.S. Department of State on a case-by-case basis when it is impossible for the benefit requestor to satisfy the two-year foreign residence requirement.
• The policy guidance defines the three exceptions to the requirement that a foreign medical graduate (FMG) obtain a contract from a health care facility in an underserved area when seeking a waiver of the two-year foreign residence requirement:
  
  • If the U.S. Department of Veteran’s Affairs (VA) requests the waiver, the FMG must practice medicine with the VA for at least three years, but does not need to do so in a U.S. Health and Human Services (HHS)-designated shortage area.
  • If an interested federal agency requests the waiver, the FMG may fulfill the obligation by working for the agency for at least three years, 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 three years. The request must demonstrate a shortage of health care professionals able to provide the relevant specialty services.

Those with questions about the J-1 foreign residency requirement or related waivers should consult with experienced immigration counsel.