US Issues New Guidance on 2-Year Foreign Residence Requirement for J-1 Visa Holders

The U.S. Citizenship and Immigration Services (USCIS) has recently issued important policy guidance regarding the 2-year foreign residence requirement for nonimmigrant exchange visitors holding J-1 visas.

Understanding Exchange Visitor (J-1) Visa

A J-1 visa is a nonimmigrant visa that allows foreign nationals to participate in work-and-study-based exchange visitor programs in the United States. These programs are sponsored by educational and cultural institutions and are designed to promote the interchange of persons, knowledge, and skills between the United States and other countries.

J-1 exchange visitors can participate in a wide variety of programs, including:

• Teaching and research programs
• Work and training programs
• Cultural exchange programs
• Summer work travel programs
• Au pair programs
• Camp counselor programs

Some J-1 exchange visitors are subject to a foreign residence requirement, which obliges them to spend a total of at least 2 years in their home country or last legal residence abroad before being eligible for immigrant visas, adjustment of status, or a nonimmigrant H, L, or K visa.

Effective Date

This guidance is effective immediately upon publication and applies to benefit requests submitted on or after October 24, 2023. It supersedes any previous guidance on this topic.

Key Policy Highlights for J-1 Visa

1. Determining Compliance: USCIS now clarifies that they evaluate compliance with the 2-year foreign residence requirement when considering subsequent applications or petitions using the preponderance of evidence standard.

2. Counting Travel Days: In an effort to ease compliance, USCIS acknowledges that even a fraction of a day spent in the country of nationality or last residence counts towards fulfilling the 2-year foreign residence requirement.

3. Exceptional Circumstances: USCIS recognizes that some situations make it effectively impossible for the benefit requestor to satisfy the 2-year foreign residence requirement. In such cases, USCIS will review them on a case-by-case basis and consult with the Department of State.

4. Foreign Medical Graduates: USCIS corrects an omission in the existing Policy Manual regarding waivers of the foreign residence requirement for foreign medical graduates. This update clarifies the employment requirements for this specific category.

This new guidance serves as a crucial resource for J-1 visa holders and those involved in exchange visitor programs in the United States, offering clarity on the 2-year foreign residence requirement and its exceptions.

It provides a more comprehensive framework for compliance, ensuring that eligible individuals can smoothly transition to different visa categories or seek permanent residency in the U.S.