Dear Readers,
I hope you had a Happy Thanksgiving. It always gives me a lot of pleasure welcoming a new attorney to our firm and I wanted to introduce you to Julia Scharff who was sworn in as a new attorney earlier this month. Julia has followed the path of several of our lawyers over the years who worked as immigration paralegals before going to law school. Julia worked at Siskind Susser as a paralegal. During law school, she worked at the firm as a law clerk and now joins us as an associate attorney.
Working as an immigration paralegal before going to law school is a great way to get a true understanding of what immigration law is like before committing to the practice area. I know many lawyers who left the field because it was not what they thought it was going to be and being able to work in a law firm environment, interact with clients, get to know the substantive law in the field, etc. are all invaluable benefits paralegals considering law school get.
I also think law firms benefit greatly when they look at paralegals who leave them for law school as possibilities for recruitment later on. You already know if someone is smart and a hard worker and has the right personality to succeed. And they’re already trained on your systems. So if I’m especially optimistic about Julia’s future with us, these are some of the reasons why. And a salute to all the paralegals out there who are the backbone of an immigration law firm’s success.
In firm news, several of our lawyers are heading to Washington next week for the biennial Physician Immigration Law Institute. This is THE premier conference on this important subject and I’m excited that Elissa Taub, Adam Cohen, and I are all speakers. We’re also going to spend a day on Capitol Hill advocating for better immigration laws for international medical graduates.
I’m also speaking this week at the Immigrants’ List Civic Action’s 2nd Annual Immigration Policy and Advocacy webCLE and my panel is entitled “Hail Marys and Other Long Shot Uses of the Political/Legal Process”. I’m going to talk about how I’ve worked over the years to get various J-1 programs created for physicians.
Best Regards,
Greg Siskind
Ask Visa Law
By Robby Rubin
What is the two-year home residency requirement for individuals in J-1 status, and what are the different ways to complete or waive this requirement?
In 1948, Congress created the J-1 nonimmigrant visa classification for exchange visitors who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training. Within the J-1 category, there are several different programs designed to promote educational and cultural exchanges between the United States and other countries around the world.
Central to the J-1 classification is the ideal of a cultural exchange between foreign individuals and United States citizens/residents, and the sharing of this cultural exchange in the foreign individuals home country. Congress codified this cultural exchange in INA §212(e) which requires that some of those in J-1 status return to their home country for two years after the completion of their exchange program and share the culture, knowledge, and values they gained from their United States colleagues during their exchange program. Those subject to the 212(e)’s two-year home residency requirement are J-1 exchange visitors who participated in programs financed in whole or in part by either their own government or the United States government, or, were engaged in a field of specialized knowledge or skill that the United States Department of State designated as being a knowledge or skill that was needed in the exchange visitor’s country of nationality. Also, those coming for graduate medical training in the US are subject to the home residence requirement.
J-1 exchange program visitors and their dependents that are subject to INA §212(e) must return to their home country for two years in order to fulfil the aims of the intended cultural exchange. Once the two-year requirement has been completed, the foreign national can then apply either to immigrate to the United States or apply for a nonimmigrant temporary work visa, such as an H-1B.
Decades after the introduction of the J-1 exchange visitor program was introduced, Congress amended the statutes to include the possibility of waiving the two-year home residency requirement in certain situations. There are five bases under which a J-1 visa holder can apply to waive the home residency requirement in 212(e).
- Returning to the J-1 visitor’s home country will cause exceptional hardship to the applicant’s United States citizen or lawful permanent resident spouse or child;
- Returning to the J-1 visitor’s home country will result in the applicant’s subjection to persecution on account of race, religion, or political opinion;
- A “no objection letter” from the J-1 visitor’s home country stating that it has no objection if the applicant does not return to the country upon completion of the program (Note that this waiver basis cannot be used for J-1 visitors who came to the United States for the purpose of receiving graduate medical training and who changed or were admitted to J-1 status for that purpose).
- A letter from a United States Interested Government Agency (IGA) demonstrating that the J-1 visitor’s departure would be detrimental to one of its programs or the exchange visitor’s stay in the United States is vital to one of its programs; or
- The State Conrad 30 program, which allows J-1 foreign medical graduates (FMG) to apply for a waiver upon the completion of their J-1 program in exchange for a three-year commitment to serve in a medically underserved area (MUA), medically underserved population (MUP), or health professional shortage area (HPSA). The Conrad 30 program is only applicable for foreign medical graduates using the J-1 exchange program.
The exceptional hardship and persecution waivers are codified at INA §212(e), while the no objection letter, IGA, and Conrad 30 waivers are codified at INA §214(l). The waiver application process is initiated via the submission of the Department of State’s Form DS-3035. For Exceptional hardship and persecution waivers, the applicant is then required to file Form I-612 to USCIS. If USCIS determines that the applicant established exceptional hardship or persecution it transmits the application to the Department of State’s Waiver Review Division (DOS-WRD) where the Department then reviews the application in light of its own policies and foreign relations and makes a recommendation to USCIS on how to adjudicate the application.
For waiver applications based no objection letters, IGA, or Conrad 30 programs, the waiver applicant completes Form DS-3035, and the interested agency is required to send supporting documentation to the DOS-WRD, where the Department reviews the application and relays its recommendation to USCIS.
Exceptional Hardship Waiver:
- Requires a J-1 visitor subject to 212(e) to establish that returning to their home country would cause exceptional hardship to their United States citizen or permanent resident spouse or child.
- The hardship must be beyond the normal hardship experienced as a result of temporary relocation or separation.
- Exceptional hardship can be established by showing either that the qualifying spouse or child(ren) would experience hardship if they relocate to the applicant’s home country, or that the qualifying spouse or child(ren) would experience hardship if they were to be separated form the applicant for the two-year home residency period.
- The following is a sampling of factors considered by USCIS when determining whether the applicant has made a showing of exceptional hardship:
- Whether the anxiety, loneliness, and altered financial circumstances to the qualifying family member is greater than normal hardship;
- The country conditions of the country of foreign residence;
- Medical conditions of the qualifying family member or members where treatment in the country of foreign residence is insufficient or where the medical problems would be worse in the country of foreign residence than in the United States; and
- Other relevant evidence submitted by the applicant.
Persecution Waiver:
- Requires a J-1 visitor subject to 212(e) to establish that they would be subject to persecution on account of their race, religion, or political opinion if they returned to their home country in accordance with the requirements of 212(e).
- Notably, the standard for establishing persecution in the context of a J-1 waiver is higher than that in claims for asylum, where the standard is a “well-founded fear of persecution.”
No Objection Letter:
- The no objection letter must be sent from the J-1 visitor’s home country (or their embassy in the United States), directly to the DOS-WRD via official diplomatic channels.
- The letter must state that the government has no objection to the applicant not returning to their home country, nor any objection to the possibility of the applicant becoming a United States permanent resident.
- This waiver is unavailable to J-1 visitors who came to the United States for graduate medical training, or who changed to J-1 status in the United States for graduate medical training.
- Additionally, a no objection letter is typically an insufficient basis for a favorable recommendation from DOS-WRD when the applicant’s exchange program received federal funding.
IGA Waivers:
IGA waivers require the head of the agency or its designee to sign and submit a letter to DOS-WRD requesting a waiver on behalf of the J-1 visitor. The IGA must demonstrate that either the J-1 exchange visitor’s departure would be detrimental to one of its programs or the exchange visitor’s stay in the United States is vital to one of its programs. The idea behind an IGA waiver is that the United States desires to retain workers whose immediate presence and employment in the United States is in the national and public interest. It is not necessary (for most IGAs) to employ the J-1 visitor they are recommending for a waiver.
Federal, State, Conrad 30 Waivers for Foreign Medical Graduates:
These waivers are only available to foreign medical graduates upon the completion of their exchange visitor program (typically, medical school). Federal, State, and Conrad 30 programs operate on a similar rationale as the IGA waiver, however, the requirements are quite different.
The federal or state public agency recommending the waiver must be offering the foreign medical graduate employment under H-1B status, and the employment must be for three years in an area designated by the U.S. Department of Health and Human Services as a Health Professional Shortage Area (HPSA), a Medically Underserved Area (MUA), or Medically Underserved Population (MUP). An exception to the requirement that the H-1B employment take place in an HHS-designated shortage area is if the Department of Veteran’s Affairs (VA) requests the waiver. In this case, the FMG can practice medicine at the VA location, which does not need to be an HHS-designated shortage area. All three years must be completed at the named healthcare facility in the waiver application.
Federal agencies (for example: Appalachian Regional Commission, Delta Regional Authority, Southeastern Crescent Regional Commission, and any other United States federal department) can request waivers for an unlimited number of J-1 visitors, while each state public health department is limited to 30 waivers per fiscal year (Conrad 30 program). Additionally, if the foreign medical graduate’s home country funded the exchange program, they must obtain a no objection letter from their home government.
A foreign medical graduate is prohibited from obtaining permanent residence, an immigrant visa, or a nonimmigrant visa, until they have completed their three years of service as agreed to in their waiver application, or after they complete their two-year home residency requirement.
In addition to the waiver submitted by the state or federal agency, a foreign medical graduate must also file a Form I-129 along with the DOS-WRD favorable recommendation letter prior the commencement of their employment, in order to change their status from J-1 to H-1B.
In October 2023, USCIS issued policy guidance regarding the two-year home residency requirement, the waivers, and other issues pertaining to J-1 and J-2 statuses.
The following is a summary of the clarifications made by this recent policy guidance:
- Clarifies that the country of nationality or legal permanent residence listed on the DS-2019 is the country USCIS deems the “home country.”
- When proving that someone complied with the two-year home residency requirement, the policy manual now states that any relevant evidence may be submitted. It also states, “Any day where a fraction of a day is spent in the Home Country counts toward satisfaction of the requirement. For example, a travel day, where a fraction of the day is spent in the country of last permanent residence, counts as a day towards satisfying the requirement.”
- Clarifies that USCIS will consider on a case-by-case basis whether compliance with the two-year home residency requirement is impossible, such as where there is a war or civil unrest in the home country. USCIS will consult with DOS on those cases.
- Clarifies that J-2 spouses can change to H-4 status by filing an I-539 (change of status application) along with proof of the waiver.
- Adds the following language restricting the ability of J-2 spouses to change to H-1B status: “J-2 spouses of J-1 Conrad 30 waiver recipients cannot acquire H-1B temporary worker status until the J-1 Conrad 30 waiver recipients have completed the requisite 3-year term of employment in a designated medically underserved area. Once the J-1 Conrad 30 waiver recipients have fulfilled all of the terms and conditions imposed on the waiver, including the 3-year period of employment with the health care facility, the J-1 Conrad 30 waiver recipients (and dependent family member or members) become eligible to change to another nonimmigrant status or adjust status to a lawful permanent resident.
- However, as noted above, the J-2 spouse will still be able to apply for work authorization via the H-4 status.
In the News from ABIL
Executive Order on Artificial Intelligence Includes Immigration-Related Provisions
On October 30, 2023, President Biden issued “Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” Section 5 of the order, “Promoting Innovation and Competition,” includes various immigration-related provisions.
DHS to Supplement H-2B Cap With Nearly 65,000 Additional Visas for FY 2024
On November 3, 2023, the Department of Homeland Security, in consultation with the Department of Labor, announced that it will make available an additional 64,716 H-2B temporary nonagricultural worker visas for fiscal year (FY) 2024 via a temporary final rule. This is on top of the congressionally mandated 66,000 H-2B visas that are available each fiscal year.
Certain Renewal Applicants for Work Authorization Qualify for Automatic 180-Day Extension
U.S. Citizenship and Immigration Services announced that certain renewal applicants who have filed Form I-765, Application for Employment Authorization, qualify for an automatic extension of their expiring work authorization and/or employment authorization documents while their renewal applications are pending.
Beginning November 1, 2023, all H-2A, H-2B, Commonwealth of the Northern Mariana Islands (CNMI)-related Form I-129 petitions, Form I-129CW petitions, and CNMI-related Form I-539 applications must be filed directly with the Texas Service Center.
USCIS Updates Guidance on EB-5 Regional Center Program
U.S. Citizenship and Immigration Services is updating the USCIS Policy Manual with new guidance on the EB-5 Regional Center Program and new content on regional center designation and obligations, project applications, and direct and third-party promoters.
USCIS Issues Guidance on 2-Year Foreign Residence Requirement for J Nonimmigrants
The update adds information about how U.S. Citizenship and Immigration Services determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how USCIS considers situations in which it is effectively impossible for the benefit requestor to satisfy the requirement. It also corrects an omission from existing Policy Manual content concerning one of the grounds for waiving the foreign residence requirement for certain foreign medical graduates.
USCIS Allows Additional 30 Days for Comments on E-Verify NextGen and Revisions to E-Verify
U.S. Citizenship and Immigration Services is allowing 30 additional days for public comments on several information collection notices related to E-Verify.
Reminder to Employers: Use New I-9 Form as of November 1
The Citizenship and Immigration Services (CIS) Ombudsman emailed a reminder to employers to use the revised Form I-9, Employment Eligibility Verification, with the edition date 08/01/23, starting November 1, 2023.
The Department of State intends to resume the renewal of H-1B nonimmigrant visas in the United States for certain applicants, beginning with a pilot program in early 2024, and has sent its proposal to the Office of Management and Budget for review.
DHS Plans to Amend H-1B Regulations Governing Specialty Occupation Workers
The Department of Homeland Security plans to amend its H-1B regulations “governing H-1B specialty occupation workers to modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.”
Visa-Free Travel to United States Is Now Available for Israelis
The Department of Homeland Security announced the start of visa-free travel for short-term visits to the United States for eligible Israeli citizens and nationals following Israel’s admission into the Visa Waiver Program. Eligible Israeli citizens and nationals can apply for authorization to travel to the United States through the U.S. Customs and Border Protection’s Electronic System for Travel Authorization.
U.S. Citizenship and Immigration Services (USCIS) issued policy guidance to clarify that a sole proprietorship may not file an L-1 petition on behalf of its owner because the sole proprietorship does not exist as a distinct legal entity separate and apart from the owner. The update also clarifies guidance regarding blanket L petitions.
DHS Announces Family Reunification Process for Ecuador
The Department of Homeland Security announced a new family reunification parole process for certain nationals of Ecuador that also allows for work authorization.
USCIS Reaches H-2B Cap for Temporary Nonagricultural Workers for First Half of FY 2024 U.S. Citizenship and Immigration Services has received enough petitions to reach the cap on H-2B visas for temporary nonagricultural workers for the first half of fiscal year 2024. October 11, 2023, was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2024.
USCIS Provides Guidance on Interpretation of EB-5 Program Changes
U.S. Citizenship and Immigration Services (USCIS) provided additional guidance on its interpretation of changes to the EB-5 program made by the EB-5 Reform and Integrity Act of 2022, specifically the required investment timeframe and how USCIS treats investors who are associated with a terminated regional center.
Visa Bulletin for November Includes Reminder About Religious Workers Category Expiration
The Department of State’s Visa Bulletin for November 2023 includes a reminder that the non-minister special immigrant program expires on November 17, 2023.
Temporary Need Exemption Extended for Certain Guam and CNMI H-2B Workers
U.S. Citizenship and Immigration Services issued policy guidance reflecting the extension of the exemption from the temporary need requirement for petitions for temporary nonagricultural H-2B nonimmigrant workers on Guam and in the Commonwealth of the Northern Mariana Islands through December 30, 2024.
DHS Announces Relief for Cameroonian F-1 Nonimmigrant Students
Effective December 8, 2023, through June 7, 2025, Cameroonians in lawful F-1 nonimmigrant student status may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 nonimmigrant student status.
USCIS Launches New Online Change-of-Address Tool
U.S. Citizenship and Immigration Services (USCIS) has launched a new Enterprise Change of Address (E-COA) self-service tool to allow those with pending applications, petitions, or requests to update their addresses with USCIS online.
DOS Publishes DV-2025 Instructions, List of Countries
On October 3, 2023, the Department of State published instructions and eligibility requirements for the Diversity Visa (DV) program for fiscal year 2025 (DV-2025). The online registration period for the DV-2025 diversity visa program concludes on Tuesday, November 7, 2023, at 12 noon ET.
DOS Restores Previous Version of Regulation Governing Public Charge Grounds of Visa Ineligibility
The Department of State announced that its regulation governing the public charge grounds of visa ineligibility has been restored to the version that was in place before October 11, 2019.
U.S. to Resume Direct Repatriation of Venezuelans Without Authorization
The Department of Homeland Security announced that it “will resume direct repatriations of Venezuelan nationals who cross our border unlawfully and do not establish a legal basis to remain.”
DHS to Extend and Redesignate Cameroon for Temporary Protected Status
The Department of Homeland Security will extend and redesignate Cameroon for Temporary Protected Status for 18 months, beginning on December 8, 2023, and ending on June 7, 2025.
DOS Announces U.S. Passport Processing Times, Tips
The Department of State announced that U.S. passport processing times have fluctuated several times in 2023. As of October 2, 2023, routine applications were being processed in eight to 11 weeks, and expedited applications in five to seven weeks, not including mailing time.
In a groundbreaking judgment, the Vienna Administrative Court recently held that descendants of former concentration camp inmates and forced laborers who were nationals of successor states of the Austrian-Hungarian Empire (e.g., Hungary, Czechoslovakia, Poland, Romania, Yugoslavia), were deported to Austria during WWII, and remained in Austria after the liberation of concentration camps on Austrian territory in spring 1945, if only for a period of a few months, are entitled to Austrian citizenship in privileged ancestry proceedings if there are indicators that they tried to establish a center of vital interests (or main domicile) in post-war Austria.
DHS Releases List of Countries Eligible for H-2A and H-2B Programs, Adds Eswatini
Each country’s designation is valid until November 9, 2023.
To ensure its continued compliance with several court orders, the Department of Homeland Security is automatically extending the validity of certain temporary protected status (TPS)-related documentation for beneficiaries under the TPS designations for El Salvador, Haiti, Nicaragua, Sudan, Honduras, and Nepal through June 30, 2024.
E-Verify Issues Reminder to Employers and Program Administrators on Terminating User Accounts
Failure to promptly terminate user access upon separation is a violation of the memorandum of understanding.
CIS Ombudsman Introduces Revised Form for Requesting Case Assistance
The updated Form 7001, which expires on September 30, 2025, includes embedded instructions with questions, expanded and reorganized sections, detailed instructions on supporting documentation, and an option to include multiple employment-based beneficiaries on one case assistance request.
The U.S. Embassy in Havana, Cuba, will resume full immigrant visa processing beginning on January 4, 2023. U.S. Embassy Georgetown in Guyana will continue to process Cuban immigrant visa applicants scheduled for appointments there through the end of December 2022.
President Accepts Resignation of CBP Commissioner
Chris Magnus was accused of unprofessional behavior by other officials working with him.
DHS Increases FY 2024 Limit on H-2B Nonagricultural Workers and Provides Portability
In consultation with the Department of Labor, the Department of Homeland Security is increasing the total number of noncitizens who may receive an H-2B nonimmigrant visa by up to 64,716 for fiscal year 2024. 20,000 visas are reserved for nationals of Guatemala, El Salvador, Honduras, Haiti, Colombia, Ecuador, and Costa Rica.
DOJ Reaches Several Immigration-Related Discrimination Settlement Agreements
Following on the heels of the Department of Justice’s (DOJ) $25 million settlement agreement with Apple Inc., DOJ has settled immigration-related discrimination cases with a New York City health care system and a staffing agency with offices nationwide.
USCIS Expands myProgress to Forms I-485 and I-821
U.S. Citizenship and Immigration Services (USCIS) announced that it is expanding myProgress (formerly known as personalized processing times) to Form I-821, Application for Temporary Protected Status, and Form I-485, Application to Register Permanent Residence or Adjust Status. myProgress will initially only be available for family-based or Afghan special immigrant I-485 applicants.
The Department of Justice has secured a $700,000 agreement with two transportation logistics and long-haul trucking companies headquartered in Chattanooga, Tennessee. The agreement resolves DOJ’s determination that the companies violated the anti-discrimination provision of the Immigration and Nationality Act by routinely discriminating against non-U.S. citizen workers when checking their permission to work in the United States.
Global Entry Program Expands to PortMiami Seaport
Starting December 1, 2023, PortMiami will be the first seaport to host a Global Entry Enrollment Center to assist the traveling public with completing new and renewal applications for the “trusted traveler” program.
State Department Visa Bulletin
To view the December 2023 Visa Bulletin from the State Department: click here.