J-1, Exchange Visitors

The J-1 visa category is designed to permit aliens to enter the U.S. temporarily to participate in an exchange visitor program. J-1 programs are run by U.S. sponsoring organizations who must apply to the U.S. Department of State for approval of an exchange visitor program. J-1 program sponsors must enroll in U.S. Immigration and Customs Enforcement’s (ICE’s) SEVIS system. SEVIS is an online system that allows tracking and monitoring of all international students and exchange visitors in the United States.

Once a J-1 sponsor is approved by the Department of State and enrolled in SEVIS, the sponsor may begin selecting exchange visitors. The sponsor must issue a Form DS-2019 to each J-1 visa applicant so that the applicant may apply for a J-1 visa at a U.S. consular post abroad. Once the J-1 visa is issued, the alien may use it to enter the U.S.

The period of stay permitted for J-1 status depends upon the type of exchange program in which the alien will participate. There are several categories of J-1 programs, including: Au Pairs, Short-term Scholars, Camp Counselors, Specialists, Government Visitors, College/University Students, Interns, International Visitors (Department of State), Summer Work Travelers, Physicians, Teachers, Professors and Research Scholars, and Trainees. Additional information on these categories is available on the Department of State’s website.

The major drawback to using a J-1 program is that many J-1 programs subject alien participants to a 2-year home residency requirement following conclusion of the program. Section 212(e) of the Immigration and Nationality Act provides that the following types of J-1 program participants are subject to this requirement:

  1. Aliens whose participation in the J-1 program was financed in whole or in part, directly or indirectly, by an agency of the U.S. government or by the government of his nationality or last residence. The source of financing is noted on the alien’s DS-2019.
  2. Aliens who at the time of admission or acquisition of J-1 status were nationals or residence of a country in which the United States Information Agency has designated as requiring the services of persons engaged in the field of knowledge or skill in which the alien was engaged in the J-1 program. The Department of State maintains a “Skills List” with this information.
  3. Aliens who came to the U.S. in J-1 status or acquired that status in order to receive graduate medical education or training.

Not all J-1 program participants are subject to this requirement, and many who are may be eligible for a waiver of that requirement. Waivers are available, subject to USCIS discretion, to:

  1. Aliens who are subject to the 2-year home residency requirement based on government financing or being on the “skills list” who:
    1. Obtain a letter of “no objection” from their home government;
    2. Obtain a request for the waiver from an interested U.S. Government agency;
    3. Can demonstrate that his departure from the U.S. would impose exceptional hardship on his permanent resident or U.S. citizen spouse or child; or
    4. Can demonstrate that if he were to return to his country of nationality or last residence, he would be subject to persecution on account of race, religion, or political opinion.
  2. Aliens who are subject to the 2-year home residency requirement based on graduate medical education or training who:
    1. Obtain a request for the waiver from an interested U.S. Government agency or a State Department of Public Health or its equivalent*; or
    2. Can demonstrate that his departure from the U.S. would impose exceptional hardship on his permanent resident or U.S. citizen spouse or child; or
    3. Can demonstrate that if he were to return to his country of nationality or last residence, he would be subject to persecution on account of race, religion, or political opinion.

*Foreign medical graduates who receive a waiver based on this ground are subject to a requirement to work full-time in a medically underserved area for 3 years.

It should be noted that even for those aliens who are subject to the 2-year home residency requirement, the requirement does not bar the alien from remaining present in, or returning to the U.S. in all statuses. It only prevents the alien from applying for a visa in or change of status to H or L status, and from applying for permanent residency prior to the alien satisfying the 2-year requirement (or having it waived). Thus, a J-1 participant who is subject to the 2-year home residency requirement may change status to another nonimmigrant classification such as O-1 or TN, if eligible. In addition, as Canadian citizens are visa exempt, they may circumvent the two-year home residency requirement by applying for admission to the U.S. even in H or L status so long as they do not apply for change of status. However, they would remain ineligible for permanent residency until either meeting the home residency requirement or having it waived.

The 2-year home residency period does not need to occur continuously; rather, it may be fulfilled by sporadic visit over a period of several years, so long as the alien can prove that he spent the time in his home country. Therefore, someone who is subject to the 2-year home residency requirement may, for example, change status to O-1, work as a college professor, spend the summers in his home country and meet the 2-year home residency requirement after several years.

J-1 on the Immigration Newswire

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