Chapter 5 Introduction to the J-1 Home-Residency Requirement

• Jurisdiction: United States

The most consequential aspect of entering the United States 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 return to their home countries with specific skills as well as a better understanding of the United States.

However, about four decades ago, persistent physician shortages in the United States caused the U.S. 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. It also will 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 §212(e) of the Immigration and Nationality Act (INA). It reads as follows:

212(e) 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 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 §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—

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248(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) 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 INA §212(e)’s language are:

1. Doctors coming to the United States on J-1s to pursue graduate medical education or training are subject to the statute;

2. Anyone subject to the statute is required to reside and be physically present in the home country or country of last permanent residence for an aggregate of two years;

3. If a physician is subject to the home-residency requirement, he or she is barred from getting an H-1B visa at a U.S. consulate and is barred from changing nonimmigrant status in the United States or becoming a permanent resident;

4. The requirement may be waived if the U.S. government determines a waiver would be in the public interest; and

5. Physicians may seek waivers based on the request of a U.S. government agency or state health agency, or based on an exceptional hardship or persecution.

The Department of State’s J-1 Skills List can be found at http://bit.ly/J1skills.

Are all physicians subject to INA §212(e)?

All doctors who come to the United States in J-1 status to pursue a residency or fellowship are subject to §212(e). A small number of physicians come to the United States for observerships or to engage in research. Physicians might be subject to §212(e) in those cases if the physician is either from a country that is on the U.S. Department of State’s J-1 Skills List, which also lists medicine (Skill 51.12) for that country, or the physician received government funding from the physician’s home country or from the U.S. government.

Skills list–based home-residency requirements can be waived based on hardships, persecution, or the recommendation of a federal...