USCIS Updates Policy Guidance on Two-Year Foreign Residence Requirement for J-1 Visa Holders

On October 24, 2023, USCIS issued policy guidance clarifying how it determines whether a J-1 visa holder has met the two-year foreign residence requirement. Certain J-1 exchange visitors are required to reside in their “home” country (their country of nationality or last legal residence abroad) for at least two years before they are eligible to apply for an immigrant visa, green card, or nonimmigrant H, L, or K visa.

The updated guidance clarifies that:

  • A travel day, where part of the day is spent in the home country, counts towards the two-year foreign residence requirement;

  • When it is impossible for the J-1 exchange visitor to satisfy the two-year foreign residence requirement, USCIS considers the situation on a case-by-case basis, in consultation with the Department of State; and

  • Foreign medical graduates seeking a waiver of the requirement must obtain a contract from a health care facility in an underserved area, unless:

    • The U.S. Department of Veterans’ Affairs (VA) requests the waiver and the foreign medical graduate practices with the VA for at least 3 years;

    • A federal agency requests the waiver, and the foreign medical graduate practices clinical medicine full time for the agency for at least 3 years; or

    • A federal or state agency requests the waiver for the foreign medical graduate to practice specialty medicine where there is a shortage of health professionals able to provide services in that specialty, and the foreign medical graduate practices for at least 3 years.

USCIS determines whether the two-year foreign residence requirement was met under the preponderance of the evidence standard—in other words, USCIS determines whether it is more likely than not that the requirement was met.
The updated guidance applies to benefit requests filed on or after October 24, 2023.

Please note that the above is for informational purposes only and does not constitute legal advice. For specific questions about how the two-year foreign residence requirement may apply to your specific circumstances, please contact your team at D&S.