August 04, 2015

J-1 Physicians: Two Year Foreign Residence Requirement

Some physicians who come to the United States as Exchange Visitors (J-1 visas) for Graduate Medical Education (GME) or Training are subject to The Two Year Foreign Residence Requirement. Physicians subject to this requirement must return to their home country or last place of residence at the end of their GME or Training.

The Two Year Foreign Residence Requirement applies in three situations:

  1. the exchange visit was financed, directly or indirectly, by the United States or a foreign country’s government;
  2. the exchange visitor is engaged in a field which is designated by the exchange visitor’s government as being in short supply in that country; or
  3. the exchange visitor has come to the United States to receive ‘Graduate Medical Education or Training’ (i.e., to participate in a residency or fellowship program).

For purposes of this discussion, we will focus on the third category, exchange visitors who come to the United States to receive GME or Training.

GME generally consists of a training program involving patient care services under the supervision of an attending physician that leads either to an unrestricted state medical license or certification by a specialty or subspecialty board. Residency or fellowship programs involving patient care services are included in graduate medical education and training.

An exchange visitor coming to engage in GME or training must be sponsored by the Educational Commission on Foreign Medical Graduates (ECFMG). However, not all ECFMG sponsored physicians are engaged in graduate medical education or training; ECFMG also sponsors physicians for observation, consultation, teaching or research.

To comply with the Two Year Foreign Residence Requirement, physicians must:

  • return to home country or the country of last residence or nationality (depending upon which skills list or financing caused the visitor to be subject to the requirement). Residence in a third country does not satisfy the requirement. An exception to this rule may be “where an exchange visitor is engaged in services by the government of his or her home country and is assigned abroad (even in the United States) in connection with that government employment” and
  • residence in home country or the country of last residence or nationality for a full two years, though it does not need to be an uninterrupted two years. An exchange visitor who returned to the home country for one year, then departed for a few days or years is still subject to the requirement. However, he will only need to reside in the home country for one more year to satisfy the requirement. Time spent in the home country during short visits may be counted to satisfy the requirement.

Many physicians opt for a waiver of the Two Year Foreign Residence Requirement in order to stay in the United States and continue their careers.

There are four options for obtaining a waiver:

  1. Statement of ‘no objection’ from the home country;
  2. Hardship to certain relatives if the physician returns to the home country;
  3. Persecution if physician returns to the home country; and
  4. Interested Government Agency (IGA) sponsorship.

Obtaining a waiver does not grant employment authorization or status. It only confers the benefit to allow the physician to stay in the United States. For employment authorization the physician must obtain an H-1B visa.

Angela M. Lopez
Shareholder
alopez@cowlesthompson.com
214.672.2162