Foreign Residence Requirement Laws

The “Foreign Residence Requirement” is an immigration concept that applies to nonimmigrants (that is, foreigners who are only here temporarily) who hold visas in the J-1 visa category. J-1 visa holders are here to engage in an exchange program for educational purposes. In a nutshell, the foreign residency requirement obligates J-1 visa holders to return home for at least 2 years after the end of their exchange program before they can return to the United States.

The idea behind the requirement is that there not be a “brain drain,” with foreigners who are needed at home using their exchange visas as a step toward coming to the United States permanently.

The class of J visas is for intended nonimmigrant aliens who are participating in educational or cultural exchange programs. The Department of State must first approve these programs, including study abroad and student exchange programs. The J visa is especially popular among students obtaining medical degrees in the United States.

As mentioned, they are nonimmigrants, meaning they are only allowed to be in the U.S. for a limited period. In addition, J visa holders cannot:

• Become permanent residents of the United States (that is, they cannot apply for a “green card”)
• While in the United States, change from J-1 status to another type of visa
• At a U.S. consulate abroad, obtain an H-1B temporary worker visa or an L intracompany transferee visa

The prohibition against these actions is not permanent. It lasts 2 years after the end of the period of the J-1 visa. This is known as the foreign residence requirement – for 2 years after they finish their exchange program, J-1 visa holders must live in a foreign residence (typically their home country) before they can return to the United States.

What is the J-1 Visa? Who Can Obtain One?

J-1 visas are reserved for those who are participating in programs that are designed to enhance the international exchange of knowledge, skill, and experience in the fields of art, science, and education.

J-1 visa participants include, but are not limited to:

• Students and teachers at any academic level
• Professors who are conducting research or are teaching at an institution
• Trainees who are obtaining training in the field of medicine
• Trainees who are obtaining on-the-job training
• Visitors who are:
  • Consulting or otherwise sharing specialized knowledge or skills
  • Conducting research
  • Participating in on-the-job training

To obtain a J-1 visa, the applicant must satisfy certain requirements:

• Because they are not allowed to work while in the United States before they can obtain a visa, they must demonstrate that they have enough money accumulated to be able to support themselves financially during their participation in the exchange program
• They must have sufficient academic preparation to take advantage of the exchange program. This includes the ability to speak English proficiently.
• They must carry medical insurance that meets program’s minimum requirements
• They must show that they have no intention to immigrate to the United States. To provide proof of this, they will be asked to provide evidence that they have binding ties to some domicile in their home country

What About Research Scholars and Professors?

There is a special requirement for J-1 visa holders who are research scholars or professors.

Those who come to the United States as a “research scholar” or “professor” are subject to the 2-year repeat participation bar. This means that exchange visitors who have completed their J-1 stay and belong to either of these categories will not be eligible to apply for a stay in the U.S. in either of these categories for 2 more years.

It is important to note that this regulation is not the same as the foreign residency requirement, and as such, it cannot be waived. These exchange visitors cannot apply for nor obtain a waiver.

How and Why the Determination is Made?

Based on U.S. law and reciprocal agreements with exchange countries, the Department of State (DOS) determines who is subject to the 2-year home country residence requirement. This determination is usually made initially when the exchange visitor applies for a visa stamp at a U.S. consulate abroad; however, an exchange visitor can find out later that they are subject to the requirement.

An exchange visitor may be subject to this requirement for one or more of the following reasons:

• The exchange visitor’s participation in an exchange program was financed, directly or indirectly, by the U.S. government or a foreign government for exchange
• The skills that the exchange visitor is coming to develop or exercise are in a field that their home country’s government requested be included on the ‘skills list’ set by DOS.
• The exchange visitor came to the U.S. to receive graduate medical education or training as an alien physician.

An exchange visitor in one of these groups will continue to be subject to the 2-year foreign residency requirement, even if their funding or field of study changes or if they leave the U.S. and return to another status.

How to Have the Determination Waived?

An exchange visitor may request that the 2-year home country residence requirement be waived only on the following grounds:

• Statement from the exchange visitor’s home country that it has no objection to the waiver
• Request for waiver made by an interested U.S. government agency
• Interest of a state agency (only for alien physicians; also known as a “Conrad 30 waiver”)
• Exceptional hardship to the U.S. citizen or permanent resident spouse or child of the exchange visitor
• Fear of persecution on account of race, religion, or political opinion

Some of these waiver options may not be available, depending on why the exchange visitor was subject to the restriction in the first place. It is a very good idea for exchange visitors to consult with a private immigration attorney to help them pursue a waiver.

Do I Need an Attorney for Issues Related to the Foreign Residence Requirement Lawyers?

If you are considering applying for any sort of visa, you should consult with a skilled and knowledgeable immigration attorney. An experienced immigration attorney can help you determine what type of specific visa you should apply for, as well as help you gather all necessary documentation and reports to file along with your application. American immigration laws are complex and designed in such a way that an attorney who practices in the field is the best person to navigate the process.

If you are a J-1 visa holder, an immigration attorney can help you determine whether the foreign residence requirement applies to you. They can also help you file for a waiver if you need or desire one. Additionally, should any legal issues arise concerning the foreign residence requirement or any other aspect of your visa, an attorney can represent you in immigration court as needed.

Because the penalties for any sort of immigration or visa violation are strictly enforced, and the penalties include something as drastic as deportation, an immigration attorney may prove to be a valuable asset in reducing the risk of these penalties and avoiding deportation.