USCIS has issued new policy guidance explaining how it determines whether a beneficiary has met the two-year home residence requirement applicable to nonimmigrant exchange visitors in J status.

Individuals in J status come to the United States 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 to receive graduate medical education or training. At the conclusion of their J-1 status, they generally must spent an aggregate of two years in their home country before being eligible to apply for other immigration benefits in the United States.

Under the new policy, which went into effect immediately:

  • USCIS will use a preponderance of the evidence standard to determine whether the requirement is met.
  • The country of where the requirement must be met will be determined based upon the country listed in the DS-2019, Certification of Eligibility for Exchange Visitor Status.
  • In calculating the two-year requirement, USCIS considers any partial day spent in the required country as a full day.
  • If the beneficiary cannot return to the relevant country due to civil unrest, travel bans, or other similar issues, the USCIS will consider whether the two-year home residence requirement can be waived on a case-by-case basis.
  • Foreign medical graduates (FMGs) who work for three years practicing medicine in a healthcare facility in a designated underserved area can obtain a waiver of the two-year requirement. The new policy guidance clarifies the three exceptions to meeting the waiver criteria:
    • An FMG may practice medicine for three years with the U.S. Department of Veterans Affairs (VA), even if the VA facility is not in a designated shortage area.
    • An FMG may practice clinical medicine for three years employed by an interested federal agency rather than practicing in a designated shortage area.
    • An FMG may practice specialty medicine for three years, as requested by an interested state or federal agency, which demonstrates there is a shortage of the specialty available to patients in the area who will be served by the FMG.

Jackson Lewis attorneys are available to assist all those subject to the two-year requirement, including FMGs, with the process of strategizing for and applying for waivers.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.