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Recent USCIS Policy Guidance Clarifies Residency Rules for J Visa Holders

We’ve become accustomed to governmental changes seeming dramatic, but that’s largely because those are the actions that get covered. On October 24, United States Citizenship and Immigration Services (USCIS) issued “policy guidance” for applicants for J-class visas, visas for individuals approved to participate in exchange visitor programs in the United States, but the sky didn’t fall in.

Since we work extensively with people potentially affected by the changes, we were glad to see that USCIS largely clarifies gray areas that have existed between USCIS and the State Department and formalize in policy some trends we have seen in adjudication and positions we have inferred from USCIS.

J-1 visa holders must return to their home countries for two years after their visitor exchange program, but how that time is counted has been a little fuzzy. Since we work with J-1 teachers, scholars and researchers, we’ve had to parse the letter of the law and realities of rulings regarding that two-year requirement. Under the new guidance, a fraction of a day spent in the home country of last permanent residence will count as a day toward satisfying the two-year requirement.

In some situations, compliance with the two-year requirement would be dangerous if not impossible. In cases when there are situations such as war or civil unrest in the home country, USCIS will consult with the State Department to consider on a case-by case basis whether compliance with the two-year residence requirement is impossible. This may mean that USCIS could waive the two-year home residence requirement for a Fulbright recipient. This isn’t earthshaking, but it’s reassuring to those on J-1 visas that they won’t have to risk their lives and those of their families to follow the requirements of their visas.

Finally, USCIS will use the preponderance of the evidence standard to determine whether an exchange visitor has met the two-year foreign residence requirement.

USCIS has a series of provisions to try to bring medical professionals from other countries to work in areas with too few health care personnel to serve the region properly. Foreign Medical Graduates (FMG) may apply for a waiver from the two-year requirement if they agree to work in an area designated as a health care shortage.

According to the new guidance, if the Department of Veterans Affairs (VA) request the waiver, then the FMG must practice medicine with the VA for at least three years, but not necessarily in a geographic area designated by Health and Human Services (HHS) as having a health care shortage.

In general, if a federal agency requests the waiver, the FMG may work for the agency for three years instead of serving in an HHS-designated shortage area. Similarly, if a federal or state agency asks the FMG to practice specialty medicine in a facility in an area designated by HHS as having a health care shortage, the FMG may fulfill the obligation by working there for three years. But, the request must be accompanied by evidence that there is a shortage of the specialty services the FMG can provide.

Many of these changes stand to reason, but we work with health care professionals who are dealing with these questions and the clarifications will make their lives easier.

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