What is the Foreign Residence Requirement?
Exchange visitors in J-1 status who participate in the Exchange Visitor Program are subject to a requirement that they return to their home country to share with their countrymen the knowledge, experience and impressions gained during their stay in the United States. Unless INS approves a waiver for this requirement, exchange visitors must depart from the United States and live in their country of residence for two years before they are allowed to apply for an immigrant visa, permanent residence, or change to a new nonimmigrant status.
Who is Subject to the Foreign Residence Requirement?
You are subject to the foreign residence requirement, if you are a (J-1 visa status) participant in the Exchange Vistor Program and:
- Any part of your participation in the exchange program was paid for, directly or indirectly, by your government or the United States Government. Your program sponsor should have noted on your IAP-66 (Certificate of Eligibility for Exchange Visitor Status) if your program was paid for directly or indirectly by your government or the United States Government. You can also discuss this issue with officials from the Bureau of Consular Affairs.
- You are from a country which has been designated by Bureau of Consular Affairs as requiring your skills (please see the Exchange Visitor Skill List for more information); or
- You arrived in the United States on or after January 10, 1977 to obtain graduate medical education or training.
If you fall into one of the above categories, your dependent spouse and child are also subject to the foreign residence requirement.
Who is Eligible to Apply for a Waiver?
You may be eligible to apply for a waiver for the foreign residence requirement if:
- You have a U.S. citizen or lawful permanent resident spouse or child and you can provide evidence that returning to your country would impose exceptional hardship on your spouse or child.
- You cannot return to your country because you would be subject to persecution because of your race, religion, or political opinion.
- A U.S. government agency ("interested governmental agency") requests a waiver directly from the Bureau of Consular Affairs for you because you are engaged in a project of official interest to the agency.
- A state of the United States, through the state office of public health or its equivalent, sponsors you to work as a physician in a health manpower shortage area within the state for three years as a nonimmigrant in H-1B status (temporary worker in specialty occupation). If you are granted the waiver, you must agree to begin your employment with the state within 90 days of receiving the waiver. This state request is submitted to the director of the Bureau of Consular Affairs.
Because waivers based on persecution or hardship are rare and must be supported by heavy evidence that is not always available to an applicant, most FMGs who seek waivers do so by searching for an interested governmental agency to sponsor them. Below is a list of such agencies.
- State Departments of Public Health. Senator Kent Conrad sponsored an amendment to the Immigration and Nationality Technical Corrections Act of 1994 (Public Law No. 103-416) that created a program under which each state may sponsor up to 30 FMGs for J-1 waivers each year. To be eligible to participate in this program, an FMG must agree to be employed for a minimum of three years in a facility which is located in an area designated by HHS as having a shortage of physicians.
- Veterans Administration (VA). The VA is a major employer of physicians. In addition, many VA hospitals are affiliated with university medical centers. Unlike HHS, the VA will sponsor FMGs involved not only in research but in patient care (regardless of specialty) and teaching.
VA guidelines provide that it will act as an interested government agency only where the loss of the FMG's services would necessitate the discontinuance of a program, or a major phase of it, and that recruitment efforts have failed to locate a U.S. physician to fill the position.
- Department of Health and Human Services (HHS). On December 19, 2002, the HHS published regulations announcing that the Department would act as an interested government agency (IGA) to sponsor primary care physicians who agree to work in federally-designated medically underserved areas for J waivers. In practice, the HHS will act as an IGA only after there is no possibility that the physician will be sponsored under the Conrad program or another federal IGA.
- The Appalachian Regional Commission (ARC). The ARC sponsors primary care FMGs in counties within its jurisdiction in Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia.