US Citizenship and Immigration Services (USCIS) has indicated that it has updated a section of its policy manual dealing with how its officers adjudicate whether a current or former J-1 visa holder is subject to the two-year foreign residency requirement.

Some J-1 visa holders accept a requirement, by accepting and entering on the J-1 visa, that they return abroad to a specific country for two years before they are able to obtain certain US immigration benefits.  A J-1 may be subject to this requirement if they are coming to the US for graduate clinical medical training, if the program is funded by the US or home country government, or if the subject matter is on a State department-maintained “skills list” (a list of skills that are in short supply in the relevant country). The rationale is that the J-1 is an “exchange visitor” visa intended to transfer skills and training obtained in the US to other counties.

The update to the policy manual is intended to serve the following purposes:

• Clarifies that when counting days spent abroad to satisfy the requirement, partial days spent in the required country (for instance, date of arrival or departure from that country) do count.
• The “Preponderance of the evidence” standard the applicable standard of proof for these adjudications, where USCIS adjudicates the question in the context of a future application (such as for an H-1B visa or permanent residence)
• USCIS considers situations in which it is impossible for the individual requesting a benefit to satisfy the 2-year foreign residence requirement (i.e.: can no longer return to the country to which they would be obligated to return to satisfy the requirement) on a case-by-case basis, and that the US Department of State may be consulted.
• Clarifies the three exceptions to the requirement that a foreign medical graduate obtain a contract from a health care facility in an underserved area when seeking a waiver of the 2-year foreign residence requirement.