Talk about U.S. Immigration

J-1 Visa and Two Year Residence Requirement

February 4, 2009 on 6:59 pm | In statements | No Comments

J-1 visa to U.S. is for training and educational purpose. Although, more foreign medical graduates use this visa to enter U.S. to complete a residency or fellowship program in a specialty field, exchange visitors in other areas of study also seek this visa.

Often the j-1 visa holder is subject to a two yr. home residency requirements which means the visa holder after accomplishing the purpose of j-1 visa (J-1 program/course) is required to return to his country of last permanent residence for two years before seeking L or H work visa or lawful permanent resident status.

Whether a J-1 visa holder is subject to the two yr. home residence requirement depends upon three things: If the foreign exchange visitor (1) received government funds to complete the program, whether from U.S. or the foreign country; (2) is coming to complete a program in a field of study that is listed by the U.S. government as in short supply in the exchange visitor’s country aka skills list; or (3) the exchange visitor is a foreign medical graduate coming to U.S. to complete graduate medical education or training.

Those who are subject to the home residence requirement may seek a waiver of this condition from the government of the foreign country. Often grant of the waiver take some time as a lot of government procedural steps are to be completed and often means long waiting period. Grounds on which a waiver may be sought are: (1) the U.S. citizen or permanent resident spouse or child would suffer exceptional hardship, (2) the exchange visitor would be subject to persecution because of his race, religion or political opinion upon return, (3) if the foreign country of the exchange visitor’s nationality of last residence gives a no objection to such waiver, (4) the exchange visitor’s admission is in public interest and that his services are required by an interested state or federal government agency.

The physician receives waiver conditioned upon that he or she would serve as such for three years in a designated geographical area that meets the criteria for Medically Underserved Population (MUP) or Health Professional Shortage Areas (HPSA) and can change to H-1B status and permanent residence.

The three year period may be shortened in certain extreme cases if the employment is taken up at another health facility for the balance of the three year period. Also, the criteria and the process to designate MUPs and HPSAs has been recently revised that should provide a more realistic data.

Dependents: Dependents of the exchange visitors entering U.S. as such are also subject to the home residence requirements. There are interesting issues involving in which country should the foreign national reside for two years if he is a national of one country but permanently resides in another; whether residence in each country for part of the requisite period could be combined; or when an accompanying or following to join dependent is also subject to the home residency requirement – what effect if the dependent is a national or permanent resident of a country different from that of the exchange visitor; or if the dependent spouse divorces the exchange visitor after entering U.S. as his/her dependent. Not all the instances are explained but rules do not provide any leniency to accommodate these variations.