Introduction to the J-1 Home Residency Requirement

Transcription

1 Introduction to the J-1 Home Residency Requirement The most consequential aspect of entering the US on a J-1 visa for graduate medical training is the home residency requirement. The J-1 visa is an exchange visitor visa and its underlying purpose is for J-1 visa holders to go back to their home countries and bring back specific skills as well as a better understanding of the United States. But about four decades ago, persistent physician shortages in the United States caused Congress to create exceptions for certain doctors wishing to remain in the United States upon the conclusion of their J-1 training programs. This chapter will focus on what the home residency requirement does and does not mean and will also discuss how to comply with it if a physician chooses to return to his or her home country. The next several chapters will review options for getting the home residency requirement waived. What is the home residency requirement? The J-1 home residency requirement is found in Section 212(e) of the Immigration and Nationality Act. It reads as follows: No person admitted under section 101(a)(15)(J) or acquiring such status after admission (i) whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence, (ii) who at the time of admission or acquisition of status under section 101(a)(15)(J) was a national or resident of a country which the Director of the United States Information Agency pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his

2 nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 214(l): And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien. Section 212(e) is coupled with INA Section 248(a) which states the following: 248(a) The Secretary of Homeland Security may, under such conditions as he may prescribe, authorize a change from any nonimmigrant classification to any other nonimmigrant classification in the case of any alien lawfully admitted to the United States as a nonimmigrant who is continuing to maintain that status and who is not inadmissible under section 212(a)(9)(B)(i) (or whose inadmissibility under such section is waived under section 212(a)(9)(B)(v)), except (subject to subsection (b)) in the case of (a)(2) an alien classified as a nonimmigrant under subparagraph (J) of section 101(a)(15) who came to the United States or acquired such classification in order to receive graduate medical education or training, 248(a)(3) [1258(a)(3)] an alien (other than an alien described in paragraph (2)) classified as a nonimmigrant under subparagraph (J) of section 101(a)(15) who is subject to the two-year foreign residence requirement of section 212(e) and has not received a waiver thereof, unless such alien applies to have the alien's classification changed from classification under subparagraph (J) of section 101(a)(15) to a classification under subparagraph (A) or (G) of such section. The key takeaways for doctors regarding Section 212(e) s language are 1. Doctors coming to the US on J-1s to pursue graduate medical education or training are subjection to the statute;

3 2. Anyone subject to the statute is required to reside and be physically present in the home country for an aggregate of two years; 3. If a physician is subject to the home residency requirement, they are barred from getting an H-1B visa at a consulate and they are barred from changing non-immigrant status in the US or becoming a permanent resident; 4. The requirement may be waived if the US government determines a waiver would be in the public interest; and 5. Physicians may seek waivers based on the request of a US government agency or state health agency or based on an exceptional hardship or persecution. Are all doctors subject to 212(e)? Most doctors are subject to 212(e) because they are coming to the US to pursue residency or fellowship training. However, a small number of physicians come to the US for observerships. Physicians would only be subject to Section 212(e) in those cases if the physician is either from a country that is on the Department of State s J-1 Skills List ( and which lists medicine (Skill 51.12) for that country. Skills list-based home residency requirements can be waived based on hardships, persecution or the recommendation of a federal agency. Unlike graduate medical training cases, however, they can also be waived if the government of the country of nationality or last residence issues a letter that it has no objection to the home residency requirement being waived. The skills list is only a problem for the exchange visitor if the visitor was subject to it at the time of entering the US as a J-1. If the person s skill was added later, for example, the person is not subject even if the person is granted an extension of stay. The State Department takes the position that if the skill is removed from the skills list after the J-1 enters the US, the person is still subject to the home residency requirement. The exception is if the home country eliminates the skills list entirely after the exchange visitor starts the exchange program. State Department rules also refer to being subject to the skills list based on the country of last residence if the visitor was a permanent resident of that country. That is generally viewed by the State Department to be having a multi-year visa and long-term residence in a country. If a person is considered to have been permanently residing in a country and then comes to the US, the applicant may not be subject to the home residency requirement if the country of last residence is not on the skills list even though the country of nationality is. The reverse may also be the case and in such cases, an individual may want to return to the home country to seek the J-1 visa in order to avoid being subject to a home residency requirement.

4 And applicants should make sure that the correct skill was entered on the DS-2019 form and the home residency requirement is not triggered based on work in a different area. That may be the case if the skill being developed in the US is different than was being developed in the home country. The home residency requirement is triggered based on the actual J-1 program activity, not the skills being used in the home country. The home residency requirement can also be triggered if physician coming for an observership or for another purpose (e.g. research) received funding, in whole or in part, from the US government, from the home country or from the country of last residence. If funding is the basis for the home residency requirement, the money also must be provided directly to the exchange visitor or, in the case of indirect funding, the funds were provided for the purpose of financing international education or cultural exchange. Physicians subject to the home residency requirement for either of these reasons may also seek a waiver based on receiving a no objection letter from the physician s home country government or the government of the country of last residence. However, if US government funding was received, a no objection letter alone may not be enough if the funding agency objects to the waiver being granted. Also, there is no longer a de minimis exception to the rules if the amount of funding is small. And paying back government funds will also not end the home residency requirement unless the funds were from a foreign government and the government then issues a no objection letter based on the repayment. Are family members subject to 212(e) as well? Though Section 212(e) does not specifically mention family members, both the State Department and USCIS take the position that J-2 spouses and children are subject to Section 212(e). The spouse or child would no longer be subject to 212(e) when the J-1 doctor has gotten the J-1 waiver. USCIS and DOS take the matter a few steps further, however. First, if the J-1 returns home for two years but the J-2 spouse does not, the J-2 is still considered subject to 212(e) and must independently satisfy the home residency requirement. Additionally, if the J-1 receives a waiver, USCIS will only approve a change from J-2 to H-4 status in the US and a spouse or child seeking an H-1B visa must apply for the visa at a US consulate outside the United States. Advocacy groups have long argued that none of this is required under the statute and J-2s should not even be subject to 212(e). The matter is likely not going to be resolved until a court rules on the issue or Congress changes the law. Note that J-2s cannot normally apply for a waiver of the home residency requirement independently. An exception is made, however, in the case of J-1 and J- 2 spouses divorcing, if a J-2 child reaches the age of 21, or if a J-2 child marries. In such cases, the US State Department will act as an interested government agency and approve a waiver of the home residency requirement.

5 What if a J-2 spouse or child previously held a J-1? In the case of a physician couple, it is not unusual for one spouse to have a J-1 and the other to have a J-2 where the J-2 also engages in graduate medical training on the basis of having a J-1 employment authorization document. The J-2 spouse may previously have had a J-1 visa or may switch at a later point to a J-1 visa. A single J-1 waiver will not suffice for these couples. Each would need to obtain an independent waiver of Section 212(e). What are the restrictions on a physician who fails to either meet the home residency requirement or have the requirement waived? J-1s subject to 212(e) have three major restrictions: 1. They cannot seek an immigrant visa at a US consulate (a green card) or apply for adjustment of status in the United States; 2. They cannot change from a J-1 to another non-immigrant status from within the US; and 3. They cannot seek an H or L visa at a US consulate. Note that physicians are not barred from starting the green card process such as filing a labor certification or I-140 petition (more on this process can be found at ) nor are they barred from seeking visas other than Hs and Ls at US consulates abroad. Also, physicians not needing visa stamping (such as those from Canada) are may be able to obtain H-1B status. And physicians who return to the US in categories other than an H or L may change to H or L status in the United States. However, those physicians would likely still need a visa stamp if they traveled abroad and would very likely face difficulty re-entering the country if a waiver had not yet been approved. Can a J-1 leave the US and reenter in another non-immigrant category other than H or L? Yes. There is no bar on seeking a visa at a consulate and re-entering in any other non-immigrant category other than H or L. However, there are two things to consider. First, obviously you must qualify for the visa category and that includes complying with INA Section 214(b) that requires an applicant to convince a consular officer that the applicant is not an intending immigrant. Those who have already been in the US for long periods of time may find this difficult. That s one reason the O-1 visa

6 is a common option since demonstrating a foreign residence is not necessary for individuals seeking that classification. Second, USCIS takes the position that indirect attainment of a change of status is prohibited. That means that if one leaves the US and reenters the US in another nonimmigrant category, a change of status from that new category to another category would be prohibited. In the past, such changes were not usually challenged and individuals could even change to H-1B non-immigrant status in the US. Of course, departing the US would normally trigger the need for an H-1B visa and as this is prohibited without a waiver, applicants undertaking this strategy would normally not seek to travel. But USCIS has added language to its Adjudicator s Field Manual (AFM 30.3(c)(5) that says An applicant may not evade these restrictions [on nonimmigrant status changes] by virtue of having attained an intermediate status. Where must the home residency requirement be satisfied? Section 212(e) mandates that the J-1 recipient return to the country of nationality or last residence. In the case of those subject to the home residency requirement based on a skills list or government funds, the country should be the one that triggered the home residency requirement. Unless the country of last residence is listed on the DS-2019 form, most physicians will need to return to the country of nationality. Merely leaving the United States is not enough (unlike the case of H-1B recipients who use up their six years of eligibility). The only exception to this is in the unusual case of an individual being employed by the home country government in a third country (even if it is the United States). The State Department also takes the position that for Europeans, the requirement must be satisfied in the actual country of nationality (and not another EU country) and for those from the former Soviet Union, the requirement must be met in the actual country the person is from and not another former Soviet country. Can the two year requirement be met if the applicant is working for the home country in a place other than the home country? Yes. The Waiver Review Division states that one can satisfy the home residency requirement in another country (including the United States) if he or she is employed by the home country government s military or career foreign service. To qualify, applicants must submit a written statement from an official of the home government (through the home country s embassy in Washington) stating that the individual was or will be serving in the US or a third country in the service of

7 his/her home country at that government s request. Note that embassy employment not connected to the military or career foreign service will not count. When must the return requirement be satisfied? The requirement to return to the home country need not take place immediately after completing the J-1 program nor does it need to be uninterrupted. The exchange visitor can aggregate two years of residence back in the home country and there is no time limit over which this must take place. However, the burden is on the exchange visitor to document the requirement has been satisfied. Section 212(e) does say that a person must reside in the home country. That has been interpreted liberally over the years by the State Department. However, the State Department s Waiver Review Division has indicated that it may provide guidelines regarding what constitutes residence. Does one get credit for time spent in the home country during the J-1 program? No. Trips back to the home country only begin to count toward the home residency requirement after the exchange visitor has ended his or her participation in the J-1 program. How do you prove the return requirement has been satisfied? The State Department has never provided specific guidelines on how to demonstrate that the home residency requirement has been satisfied. However, there are many types of documents that can be presented by the exchange visitor to show residence and physical presence in the home country including the following: - paystubs and payroll records - tax records - banking and ATM receipts - utility bills - rent or mortgage bills - receipts for purchases - social media records with tags documenting the location of the person making the post - airline and other transportation records - affidavits This list is certainly not exhaustive and individuals can present other evidence.

8 Can the requirement be satisfied if one is commuting to work in the United States? Yes. This is most common for Canadians who can obtain H-1B status approval and enter the US to work without an H-1B visa (which would be unavailable because of Section 212(e). There are a number of Canadian cities just across the border from US communities and it is not unusual for a person to reside on the Canadian side of the border while working on the US side. In these cases, Section 212(e) compliance is demonstrated based on where the individual sleeps each night, not where the person works. What if a person has acquired another citizenship since coming as a J-1? In the 1990s, the State Department opined that if a person acquired citizenship in another country that caused the individual to lose home country citizenship because the home country did not recognize dual citizenship, the home residency requirement would no longer apply. That turned out to be the case for many Chinese nationals. However, within just a few months of making this announcement, the State Department scaled back it s pronouncement and indicated that the exchange visitor would need to document that it was not possible to work in the first home country (presumably by applying for and being denied a work visa). In theory, this is possible, but the author is not aware of any instances where such cases have been adjudicated in the years since. Is substantial compliance enough? There have been a handful of cases where courts have considered the home residency requirement met if the exchange visitor has substantially complied. Furthermore, the State Department has acted from time to time as an interested government agency and supported a waiver of the requirement. But examples of individuals bypassing fully completing the home residence requirement are rare. What if it is unclear whether the home residency requirement applies? As noted above, there are cases where physicians are coming to the US on J-1 visas for purposes other than pursuing graduate medical training. It s not always clear whether someone triggers the 212(e) home residency requirement based on a skills list or receiving government funding.

9 Consular officers can annotate a visa incorrectly with the statement Bearer ]is/is not] subject to section 212(e) and CBP port of entry officers and USCIS officers may also make an incorrect decision regarding the applicability of the requirement. Individuals can attempt to document what the correct determination should be and argue their cases to the agency making a decision on the matter. They can also seek an advisory opinion from the State Department Bureau of Consular Affairs Waiver Review Division. Information on the process can be found at An applicant for an advisory opinion must send the request with a stamped, selfaddressed envelope and copies of all DS-2019 and IAP-66 forms the J-1 ever received. As of the writing of this book, the WRD reported opinions were issued in an average of 4 to 6 weeks. What are the steps for applying for a waiver? The J-1 process for a physician involves multiple steps and typically three different government agencies. The first step is to apply online for a J-1 waiver case number. If an applicant is applying for a waiver based on a hardship or persecution, the applicant would then file Form I-612 with the USCIS California Service Center along with the required fee (currently $585) and supporting documentation demonstrating the hardship. Detailed information on the hardship waiver process can be found in Chapter. If an applicant is applying for a persecution waiver, the process is similar to the hardship waiver. After obtaining a waiver number, the applicant would file Form I- 612 with the USCIS California Service Center along with the required fee (currently $585) and supporting documentation demonstrating the case for persecution. More information about persecution waivers can be found in Chapter. In the case of interested government agency waivers, after obtaining the case number, the applicant would apply to the interested government agency for a support letter. Each agency has varying rules that must be followed. They will generally require the application have the case number stated on each page of the application. Once the interested government agency approves the waiver, they will submit a letter to the Waiver Review Division with the following information: - the exchange visitor s sponsor by name and program number - the exchange visitor s waiver case number - the exchange visitor s place of intended residence in the United States and - the reason for requesting the waiver Waiver letters based on a physician agreeing to work in an underserved area will also include the address or addresses where the physician will be working. Details on applying for interested government agency waivers can be found in Chapters.

10 Once the Waiver Review Division receives the I-612 from USCIS (in the case of a hardship or persecution waiver) or the interested government agency letter from the sponsoring federal agency or state health agency, it will then review the application and either recommend the waiver or issue a denial. The Waiver Review Division will then send notice of the approval to the applicant and forward its recommendation to USCIS which will issue the actual waiver approval and send it to the applicant. USCIS waiver approval will be on a document called an I-797 and will state the basis for the waiver and, in the case of physicians receiving a waiver based on working in an underserved area, what location or locations have been approved. How do you obtain a Department of State J-1 waiver case number? In any J-1 waiver case, an applicant first needs to seek a case number from the Department of State s Exchange Visitor Waiver Review Branch via the filing of an online DS-3035 form. This is a tracking number that is tied to the J-1 applicant and can be used in multiple waiver applications as well as advisory opinions. The online DS-3035 application for a J-1 waiver case number is found at The online application requests various information regarding a person s immigration background so applicants should be prepared to provide their immigration counsel with the following information and documentation: - A copy of the applicant s latest passport as well as the passport with the J-1 visa - Copies of all DS-2019 and IAP-66 forms. - Names and birth dates of all J-2 dependent spouse or children (or, in the unusual case of a J-2 requesting the State Department act as an interested government agency in a waiver case, name and date of birth of the J-1 spouse) - I-94 Departure Record information - the applicant s Alien Registration A Number if one has been issued The exchange visitor s personal data is entered in to the DS-3035 questionnaire. The next screen requests the basis for the waiver application and one of the following options must be selected: - No objection statement from the home government - State Health Agency Request - Request by a an Interested (US) Government Agency - Exceptional hardship to a US citizen or permanent resident spouse or child of the exchange visitor - Persecution

11 Note that no objection statements alone will not be an acceptable basis for a physician subject to Section 212(e) based on graduate medical training in the US. Physicians seeking J-1 waivers on the basis of a state health agency request may be required to provide a no objection statement IF the home country government funded any portion of the visitor s participation in the J-1 program (which is very rare). The next screen requests a statement explaining why the exchange visitor is eligible to receive a waiver of Section 212(e). The explanation can be brief and may simply mention that the applicant seeks to further develop their skills as a doctor by pursuing post-training work in the United States, the applicant wishes to avoid the hardships that would be associated with his or her family being separated, or the applicant fears facing persecution upon return to the home country. Once the form is submitted, the system will generate a case number for the applicant. The applicant will print out a document packet and bar code cover sheet and then mail in the application along with two self-addressed, stamped, legal size envelopes to the State Department address in St. Louis provided with the packet along with the required filing fee ($120 as of the time of the writing of this book). Payment may only be made by a cashier s check, money order or bank international money order. The applicant must also provide legible copies of the DS-2019 and IAP-66 forms/ What should an applicant do if a DS-2019 or IAP-66 form cannot be found? The State Department considers it the applicant s responsibility to keep copies of the DS-2019 and IAP-66 forms and it will not proceed with a waiver without that documentation. If a waiver applicant does not have the form, he or she can seek it from the responsible officer or alternate responsible officer of the exchange visitor program (which will be ECFMG in the case of physicians coming to the US for graduate medical training or observerships). If the program sponsor lacks a copy, the Waiver Review Division will accept a signed letter from the responsible program officer with information about the program and the exchange visitor s participation in it. How long does the waiver application process take? Not surprisingly, processing times vary widely depending on the type of application as well as workload factors at the various government agencies that work on the applications. In hardship and persecution waiver cases, as of the time of the writing

12 of this book, USCIS reported it was taking four months to process I-612 applications. For hardship and persecution waivers, the State Department s Waiver Review Division was reporting three to four months as of the time of the writing of this book. Add to that the time it takes to get a case number at the beginning of the case, the time it takes the WRD to log the case and the time after WRD processing for USCIS to issue its final approval and you are looking at adding another month or two to the process. So eight to twelve months is currently a conservative time estimate for these cases. For interested government agency cases, J-1s will want to add the time it takes to get a case number (one to three weeks), the time it takes to get the IGA support letter (a few weeks to many months depending on the particular program), the time it takes the WRD to issue its recommendation (currently reported to be four to eight weeks) and the time it takes USCIS to issue a final approval. And then there is the time it takes to get an H-1B work visa/status approved at the end. Budgeting four to six months is usually a reasonable estimate of processing time in these cases, but exchange visitors should discuss with counsel the most likely time frame in a particular case. Can waiver denials be appealed? There is much confusion regarding whether denials of J-1 waiver applications can be denied. For hardship and persecution waivers, a denial by USCIS in its initial review of the I-612 waiver request can be appealed to the Administrative Appeals Office. And it can be further appealed in court. However, the same is not true if the State Department s Waiver Review Division chooses not to recommend the waiver. WRD will not consider an appeal and requires a new application. Over the decades, attempts to reverse WRD decisions in court have largely been unsuccessful, as courts will generally defer to the WRD s discretionary authority. Can a J-1 obtain an extension of stay if a waiver is granted? The State Department s Foreign Affairs Manual (9 FAM N10.2) instructs that once a J-1 program is notified by the State Department that it has sent a recommendation to USCIS to grant a waiver of the home residency requirement, the exchange visitor is no longer considered eligible for an extension of program beyond the end date shown on the current Form DS However, up until the waiver is recommended by DOS, an extension is permitted. Can a J-1 obtain an extension of stay if a waiver is denied?

13 Yes as long as the physician is still within the maximum duration of participation permitted to a J-1 physician. Can a change of status to a work visa be filed before the J-1 waiver is approved? This has always been somewhat unclear from the rules, but the general policy has been that after the State Department recommends the waiver, filing to change to another non-immigrant status would be permitted. However, the application will not be approved by USCIS until the J-1 waiver is actually approved. Can an adjustment of status to permanent residency petition be filed before the J-1 waiver is approved? As is the case for non-immigrant status changes, this also has never been clear. The Immigration and Nationality Act requires that one be qualified for permanent residency at the time the adjustment application is filed. But USCIS has generally granted cases filed after the State Department has issued its waiver recommendation. Applicants are reminded, however, that there is some risk in filing an adjustment application before the waiver has been approved by USCIS.