The new administration is subjecting visa applicants and even permanent residents (green card holders) to additional vetting and has placed a “temporary pause” on certain green card applications “to do more vetting.” For example, the green card applications of parolees, asylees and refugees.

Secretary of State Marco Rubio recently sent a cable to some Department of State employees on enhanced screening and social media vetting of visa applicants. Among other things, the cable states that effective immediately, consular officers must refer new or returning student and exchange visitor (F, M, and J) visa applicants to the Fraud Prevention Unit (FPU) for a mandatory social media check if they meet certain criteria:

• An applicant who the officer has reason to believe has openly advocated for a designated foreign terrorist organization;
• An applicant who was previously in the United States in F-1, M-1, or J-1 visa status between October 7, 2023, and August 31, 2024;
• An applicant whose previous SEVIS record was terminated between October 7, 2023, and the present.

​The cable states that evidence that an applicant:
…advocates for terrorist activity, or otherwise demonstrates a degree of public approval or public advocacy for terrorist activity or a terrorist organization, may be indicative of ineligibility. [This may be] evident in conduct that bears a hostile attitude toward U.S. citizens or U.S. culture (including government, institutions, or founding principles). Or it may be evident in advocacy or sympathy for foreign terrorist organizations. All of these matters may open lines of inquiry regarding the applicant’s credibility and purpose of travel.
The cable notes that a consular officer’s revocation of a visa “must be based on an actual finding that the individual is ineligible for the visa,” not merely on suspected ineligibility or based on derogatory information that is insufficient to support an ineligibility finding “other than a revocation based on driving under the influence.” If an officer suspects ineligibility, the post should refer the case for further review. Some students on visas or even with green cards have been detained and targeted for removal under INA § 237(a)(4)(C)(i), which authorizes the Secretary of State to “personally determine that [an] alien’s presence would compromise a compelling U.S. foreign policy interest” even if their statements, associations, and beliefs would be lawful.
​

The Department of State (DOS) revised the J-1 Skills List, which lists home countries to which foreign nationals are subject to a two-year foreign home residency requirement.

• The 37 countries that have been removed from the J-1 Skills List are: Albania, Algeria, Argentina, Armenia, Bahrain, Bangladesh, Bolivia, Brazil, Chile, China, Colombia, Costa Rica, Dominican Republic, Gabon, Georgia, Guyana, India, Indonesia, Kazakhstan, Laos, Malaysia, Mauritius, Montenegro, Namibia, Oman, Paraguay, Peru, Romania, Saudi Arabia, South Africa, South Korea, Sri Lanka, Thailand, Trinidad and Tobago, Turkey, United Arab Emirates, and Uruguay.
• This change applies retroactively. J nonimmigrant exchange visitors who were subject to the two-year foreign residency requirement based upon the Skills List at the time of their admission to the United States in J status will no longer be subject to the residency requirement if their country has been eliminated from the list.
• This change is particularly impactful for professionals who often face significant career disruptions and personal hardships due to the two-year foreign home residency requirement. Exempted individuals will be able to pursue further training and employment in the U.S. without disruption.
• The elimination of this requirement for certain countries may make the United States a more attractive destination for top talent.

The change, however, does not affect individuals who are subject to the two-year requirement on other grounds, such as government funding or physicians in the United States for graduate medical training.
J-1 visas are work-and-study-based exchange visitor programs established by DOS. The Skills List that became part of that program was established to identify countries with a shortage of certain skills and then ensure that those who gained those skills in the United States would return to their home countries to ensure that knowledge and skills gained during the exchange program would be shared with the individual’s home country. From time to time, DOS revises the list to ensure it is accurately accomplishing the goal that foreign nationals return to their home country when most needed. In this revision, DOS is updating the countries included on the Skills List, but not updating the skills listed.

U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual regarding the 2-year foreign residence requirement for the nonimmigrant exchange visitor (J) classification.
The update adds information about how USCIS determines whether the requirement has been met, the evidence a benefit requestor may submit to show compliance with the requirement, and how it 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, of one of the foreign medical graduates’ grounds for waivers of the foreign residence requirement. This update includes the ground and clarifies employment requirements.
The guidance is effective immediately on publication.
The J-1 nonimmigrant classification is for exchange visitors who intend to participate in an approved program in the United States 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.

For more information see here. Also the federal code is here. 

Certain J-1 exchange visitors are subject to a foreign residence requirement, which requires that they reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least 2 years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.

On June 8, 2023, USCIS published comprehensive guidance on the exchange visitor classification in the Policy Manual. USCIS’s latest Oct. 24б 2023 guidance further clarifies how the agency determines whether a benefit requestor has met this foreign residence requirement.
Policy Update Highlights

• USCIS uses the preponderance of the evidence standard in determining whether the exchange visitor has met the two-year foreign residence requirement.
• Travel days—where a fraction of the day is spent in the country of nationality or last residence—count toward satisfaction of the foreign residence requirement.
• USCIS will and does consult with the U.S. Department of State on a case-by-case basis when it is impossible for the benefit requestor to satisfy the two-year foreign residence requirement.
• The policy guidance defines the three exceptions to the requirement that a foreign medical graduate (FMG) obtain a contract from a health care facility in an underserved area when seeking a waiver of the two-year foreign residence requirement:
  • If the U.S. Department of Veteran’s Affairs (VA) requests the waiver, the FMG must practice medicine with the VA for at least three years, but does not need to do so in a U.S. Health and Human Services (HHS)-designated shortage area.
  • If an interested federal agency requests the waiver, the FMG may fulfill the obligation by working for the agency for at least three years, rather than by practicing medicine in an HHS-designated shortage area.
  • If an interested federal or state agency requests the waiver for an FMG who agrees to practice specialty medicine in a facility located in an HHS-designated geographic area, the FMG may fulfill the obligation by practicing specialty medicine in such a facility for at least three years. The request must demonstrate a shortage of health care professionals able to provide the relevant specialty services.

Those with questions about the J-1 foreign residency requirement or related waivers should consult with experienced immigration counsel

Policy Manual:

F. Foreign Residence Requirement

Certain J-1 exchange visitors are subject to a 2-year foreign residence requirement.[11] After leaving the United States, J-1 exchange visitors subject to the requirement must reside and be physically present in their country of nationality or last legal residence abroad for an aggregate of at least 2 years before they are eligible to apply for an immigrant visa, adjustment of status, or a nonimmigrant H, L, or K visa.[12] Such country is the country of nationality or legal permanent residence listed on the Certificate of Eligibility for Exchange Visitor Status (Form DS-2019), and is referred to herein as the “Home Country.”
These exchange visitors are further prohibited from changing status from J nonimmigrant status to another nonimmigrant status, other than A, G, T, or U, or H-1B for physicians receiving waivers on the basis of a 3-year waiver position.[13]
Exchange visitors participating in the following programs are subject to the foreign residence requirement: [14]

• Programs facilitated by the DOS designated sponsor, Educational Commission for Foreign Medical Graduates (ECFMG), for medical trainees. (ECFMG sponsored medical researchers are generally not subject to the requirement as medical trainees, but may be subject to the requirement on another basis);
• Programs in which the exchange visitor has received any type of government funding or support from the exchange visitor’s home country or country of last legal permanent residence, the U.S. Government, or an international organization, as indicated on the Form DS-2019. (Government-sponsored programs beginning with G in the program number on Form DS-2019 are usually government-funded where the exchange visitor received financial support from the sponsor);
• Programs in which the exchange visitor’s field of endeavor appears on the DOS Exchange Visitor Skills List (list of fields of specialized knowledge or skills in which the services of exchange visitor participants are critically needed) for the exchange visitor’s home country or country of last legal permanent residence; [15] and
• Programs whose purpose is graduate medical training, typically a residency or fellowship.

Determining if the Foreign Residence Requirement Has Been Met
USCIS determines whether the exchange visitor has met the 2-year foreign residence requirement within the context of a subsequent application or petition. USCIS applies the preponderance of the evidence standard when it makes this determination.
Benefit requestors may submit any relevant evidence showing their physical presence in the Home Country. For example, benefit requestors may submit a chart of days spent in the Home Country. Benefit requestors may also submit supporting evidence such as passport stamps, travel receipts, employment records, school transcripts, leases, or affidavits.
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.
In certain cases, conditions in the applicant’s Home Country, such as war or civil unrest, may make compliance with the 2-year residence requirement effectively impossible. Additionally, some countries have periodically imposed travel bans that have made traveling to the Home Country effectively impossible. In other cases, the applicant’s Home Country is now part of another country due to shifting borders or other political changes. USCIS considers these circumstances, on a case-by-case basis, in consultation with the Department of State.


​

The estimated wait time to receive an interview appointment at a U.S. Embassy or Consulate can change weekly. These are estimates only and do not guarantee the availability of an appointment.

Note: Embassies and Consulates may have a separate process for visa cases where the in-person interview requirement is waived.  In general wait times for those cases are shorter, but they are not reflected in the table below.  Please check the individual Embassy or Consulate website to determine if your case is eligible for a waiver of the in-person interview. 

​Here is the global visa wait times link.

На официальном вебсайте Госдеп США еженедельно публикует список сроков ожидания интервью на не-иммиграционные визы в посольствах и конслуьствах США по всему миру.

Этот список полезен для выбора посольства, куда лучше подать заявление на туристическую или студенческую визу, т.к. сроки ожиданяи интервью очень различаются по разным посольствам.

Информация обновляется каждую неделю: 
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/global-visa-wait-times.html

Question: I was under Au pair J1-visa and finished two years of being an Au pair in the United States, and recently got married to a US citizen within my 30 days grace period. Will there be any conflict when I apply for a marriage-based green card?

Answer: Congratulations!

It should be okay, as long as you don’t have a two-year home residency requirement attached to your J-1 Au Pair visa.
​
Usually, au pair are not subject to sec. 212(e) requirement, but you should check your visa and J-1 paperwork before applying for a green card through adjustment of status based on marriage to a U.S. citizen.

How to Check a Non-Immigrant Visa Appointment Wait Times at Different U.S. Embassies and Consulates Around the World?

If you plan to apply for a nonimmigrant visa to come to the United States as a temporary visitor, please review the current wait time for an interview using the tool at the link below. Examples of nonimmigrant visas: student F-1, visitor B-1/B-2, exchange visitor J-1, H-1B, L visa, etc.

Please note that K-1 fiancee visa is a nonimmigrant visa which has its own scheduling system because it is processed at the Immigrant Visa Unit of the U.S. embassy or consulate.

Click here for visa appointment times.

​To schedule a consultation with an attorney, please email.

U.S. Citizenship and Immigration Services (USCIS) has published a revised final policy memorandum related to unlawful presence. Under the revised final policy memorandum, effective August 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. 

The revised final memorandum published on August 9, 2018 supersedes May 10th memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial.

Accrual of unlawful presence could result in later inadmissibility under section INA 212(a)(9).

Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.   

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.
​
Memorandum is here.

(On August 9, 2018, USCIS published a final revised guidance which supersedes May 10th 2018 memorandum. Please refer to a new USCIS memorandum/guidance we published here).

On May 10, 2018, USCIS posted a policy memorandum changing how USCIS will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status, including F-2, J-2, or M-2 dependents, who fail to maintain their status in the United States.  

This policy aligns with Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States to enforce the immigration laws of the country and will go into effect on Aug. 9, 2018.

Individuals in F, J, and M status who failed to maintain their status before Aug. 9, 2018, will start accruing unlawful presence on that date based on that failure, unless they had already started accruing unlawful presence, on the earliest of any of the following:

• The day after DHS denied the request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after their I-94 expired; or
• The day after an immigration judge or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

Individuals in F, J, or M status who fail to maintain their status on or after Aug. 9, 2018, will start accruing unlawful presence on the earliest of any of the following:      

• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Individuals who have accrued more than 180 days of unlawful presence during a single stay, and then depart, may be subject to 3-year or 10-year bars to admission, depending on how much unlawful presence they accrued before they departed the United States. Individuals who have accrued a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the United States, and who then reenter or attempt to reenter the United States without being admitted or paroled are permanently inadmissible.

Those subject to the 3-year, 10-year, or permanent unlawful presence bars to admission are generally not eligible to apply for a visa, admission, or adjustment of status to permanent residence unless they are eligible for a waiver of inadmissibility or another form of relief.

This policy memorandum is updating Chapter 40.9.2 of the USCIS Adjudicator’s Field Manual.
​
USCIS is accepting comments on the policy memorandum. The 30-day public comment period begins today and closes on June 11, 2018. For complete information on the comment process, visit the Policy Memoranda for Comment page.