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Foreign Physicians and the Home Residence Obligation - What Does Home Residence Mean?

Under §212(e) of the Immigration and Nationality Act, a foreign physician who entered the US as an Exchange Visitor Program on a J visa, is required to return to his or her home country or country of last residence for the two years immediately following his or her departure from the United States. Three policies are embedded into this provision. First, the J-1 exchange visitor program is designed to be the preferred nonimmigrant visa classification for graduate medical education (GME) in the United States. Second, regardless of his or her country of nationality or last residence, all J-1 physicians who partake in clinical programs are subject to the two year home residency obligation. Third, J-1 clinical physicians are prevented from obtaining waivers based upon a statement of no objection from their home countries. Currently, the two-year home residency obligation has become a very serious requirement. If you are a foreign medical graduate and need assistance with your J-1 visa waiver, contact us. Our immigration lawyers have more than fifty (50) years of collective experience in all facets of immigration law as they pertain to health care professionals and physicians.

Meeting the Two-Year Requirement

If a waiver is unavailable, the two-year home residency requirement must be fulfilled. An International Medical Graduate (IMG) who hopes to obtain either an H-1B visa or permanent residence on any basis other than asylum and cannot get a waiver, will be required to return home and satisfy the two-year obligation. As such, there are two main problems that surface. First, it needs to be determined where the individual can fulfill the requirement. Second, the home residency obligation of any dependent J-2 visa holders needs to be determined as well.

Fulfilling the requirement

The statute mentions that this obligation can either be satisfied in the IMG’s country of nationality or country of last residence. These terms are actually more complex than they sound. For example, country of last residence has been defined to be a country in which the J-1 visitor was a lawful permanent resident or had a status equal to that. Therefore, this is not the same as a place of one’s general abode, which is used in other areas of immigration law, like in the broad definition of “residence.”

The United States Department of State (DOS), the agency that oversees the J-1 exchange visitor program, has made several policy determinations that are not precisely in line with the statutory provisions. The plain language of the statute suggests that the home residence obligation can be fulfilled in either the country of nationality or the country of last residence, which implies a split in time between the two countries is permitted. Nevertheless, DOS has articulated that the home residence requirement cannot be fulfilled by splitting time between the country of last residence and the country of nationality. Instead, the two year requirement must be fulfilled in only one of the two countries. Additionally, DOS requires that home residence truly means actual residence and not just mere physical presence. The physician must have maintained his or her principle dwelling in the home country. Still, the two years of residence can be aggregated. Although they need not be continuous, brief or casual period of time spent in the home country does not count towards fulfillment of the two-year home residence requirement. DOS has stated that only meaningful periods of residence count.

Effect on J-2 Dependents

Dependents of the J-1 visa acquire the two-year home residence obligation from that individual. This means that if the J-1 visa holder satisfies the two-year requirement, it is not automatically fulfilled for the J-2 visa dependents. Even if a former J-2 visa holder returns to the United States on a different nonimmigrant visa or remains in the United States out of status, DOS says that he or she will still be subject to the two-year requirement if it has not yet been fulfilled. The fact that a dependent J-2 visa holder cannot even pursue a waiver of the two-year requirement independently makes the Department of State’s policy more confusing. The most that DOS will do is to recommend a waiver for the dependents if the J-2 and J-1 spouse have divorced or if the J-1 spouse has died. Therefore, J-2 dependents are also subject to the two-year home residence obligation.

The Law Firm of Shihab & Associates is experienced in representing a wide range of healthcare professionals. We represent healthcare providers and companies as well as professionals in applying for visas (and waivers), and green cards for healthcare professionals. Our experienced immigration lawyers can assist you in Columbus, Ohio, Cleveland Ohio, Southfield, Michigan, as well as Washington, DC.

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