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J-1 Status for Exchange Visitors

Written by Henry J. Chang

General

The United States Information Agency ("USIA"), which previously administered the J-1 exchange visitor category, was dissolved on October 1, 1999. Responsibility for the J-1 exchange visitor category has since been transferred to the Department of State ("DOS ").

§101(a)(15)(J) of the Immigration and Nationality Act (the "Act") defines the J exchange visitor as an alien having a residence abroad in a foreign country which he or she has no intention of abandoning who is:

  1. A bona fide student, scholar, trainee, teacher, professor, research assistant, specialist or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency [this should now be read as the DOS], for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training and who, if he or she is coming to the United States to participate in a program under which he or she will received graduate medical training, also meets the requirements of §212(j) of the Act; and

  2. The spouse and minor children of such alien, if accompanying or following to join the alien.

The status given to the principal alien is called J-1 and the status given to his or her dependents is called J-2.

The DOS designates J-1 exchange visitor programs to implement specific educational and cultural programs. There are three categories of sponsors: U.S. local, state and federal government agencies, international agencies or organizations, and reputable organizations that are "citizens of the United States."

The J-1 category may be used by a broad range of nonimmigrants including (without limitation) students, trainees, teachers, professors, research scholars, foreign physicians engaged in graduate medical training, camp counselors, au pairs and international or government visitors. Each of these categories is briefly described below:

Categories of J-1 Programs

College and University Students

A J-1 student must be pursuing a full course of study leading to a degree from an accredited post-secondary educational institution or be engaged full time in a nondegree prescribed course of study of up to 24 months duration at an accredited post-secondary educational institution. Foreign college and university students are eligible for J-1 status if they or their programs are financed directly or indirectly by the U.S. government, the government of the student's home country, or an international organization of which the United States is a member. However, it is usually is preferable for an alien to seek F-1 status instead, since a J-1 student may be subject to the two-year home country residence requirement (described below.)

J-1 students may engage in employment through academic training related to their course of study or employment related to academic funding, on-campus work or economic necessity. This is similar to the employment provisions applicable to F-1 students. Each type of employment is described below:

  1. Academic Training - Where the student will be paid remuneration, the academic training must be directly related to the student's field of study and be approved in writing by the responsible officer, based upon a written recommendation from the student's academic dean or advisor. Academic training may take place until the objectives of the training are met, up to a maximum equal to the lesser of: (a)the duration of the alien's studies, 18 months (if the alien is engaged in undergraduate or pre-doctoral training), or 36 months (if the student continues into post-doctoral training.)

  2. Other Employment - J-1 students are permitted to engage in employment if it: (a) is pursuant to the terms of a scholarship, fellowship, or assistantship, (b) occurs on the premises of the post-secondary accredited educational institution the J-1 student is authorized to attend, or occurs off-campus when necessary because of serious, urgent, and unforeseen economic circumstances that have arisen since acquiring exchange visitor status. On June 24, 1998, the USIA suspended the requirement of a full-course of study and the 20 hour per week limit for J-1 students whose means of financial support came from Indonesia, South Korea, Malaysia, Thailand, or the Philippines. This was intended to ameliorate the hardship that might result from the currency crises in these countries. This suspension continues to be valid. A J-1 student must remain in good academic standing and continue to be engaged in a full course of study, except for allowed breaks and vacations. The student may work only 20 hours per week except during school breaks and vacation, when it may be full-time. Employment authorization is granted for up to 12 months.

Professors and Research Scholars

Professors and research scholars are pemitted to enter the United States to engage in teaching, research, observing, lecturing, or consulting at research facilities, museums, libraries, post-secondary accredited educational institutions, or other similar institutions. The term "professor" is defined in the DOS regulations as an individual "primarily teaching, lecturing, observing, or consulting at post-secondary accredited educational institutions, museums, libraries, or similar types of institutions." The term "research scholar" is defined in the DOS regulations as an individual "primarily conducting research, observing, or consulting in connection with a research project at research institutions, corporate research facilities, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions."

Medical trainees and short-term scholars are excluded from this category. The appointment of professors and research scholars must be temporary. These aliens must not be candidates for tenure-track positions. Former J-1 aliens who were physically present in the United States in J status during any portion of the prior 12-month period are barred from this category, unless it was less than six months or was pursuant to a short-term scholar exchange activity.

Normally, J-1 status under this category is initially granted for up to three years. However, the initial period may be authorized for up to six years if the activity is financed directly by the United States or foreign government.

Short Term Scholars

A short term scholar is defined by the DOS regulations as a professor, research scholar, or person with similar education or accomplishments who comes to the United States on a short visit for the purpose of lecturing, observing, consulting, training, or demonstrating special skills at research institutions, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions.

Short-term scholars are exempted from the minimum three-week stay requirement that applies to most of the other exchange visitor categories. The maximum stay for a short-term scholar is limited to six months. No extension of stay are permitted.

Trainees

The DOS regulations define a trainee as an individual participating in a structured training program conducted by the selecting sponsor. The objective of this category is to enhance the exchange visitor's skills in his or her specialty or non-specialty occupation through participation in a structured training program and to improve the participant's knowledge of American techniques, methodologies, or expertise.

J-1 program sponsors under this category must certify that the purpose of their training program is not to recruit and train aliens for employment in the United States and that any J-1 trainees under its program will not be placed in positions which displace full-time or part-time employees. This category is open to specialty occupations and non-specialty occupations, but not to unskilled positions. The term "specialty occupation" is identical to the definition used for H-1B purposes. College and university students engaged in academic training and medical trainees are specifically excluded from the trainee category.

The DOS designates J-1 training programs in the following eleven areas:

  1. Arts and culture;
  2. Information media and communications;
  3. Education, social sciences, library science, counseling and social services;
  4. Management, business, commerce and finance;
  5. Health-related occupations;
  6. Aviation;
  7. The sciences, engineering, architecture, mathematics, and industrial occupations;
  8. Construction and building trades;
  9. Agriculture, forestry and fishing;
  10. Public administration and law; and
  11. Other (specified by the sponsor).

The maximum total stay for a J-1 trainee, except flight trainees, is limited to 18 months. Flight trainees are permitted to stay for up to 24 months.

Specialists

The DOS regulations define a specialist as an individual who is an expert in a field of specialized knowledge or skill coming to the United States for observing, consulting, or demonstrating special skills. Professors, research scholars, short-term scholars, and alien physicians are excluded from this category.

The objective of the specialist category is to promote the exchange of knowledge and skills by providing foreign specialists with an opportunity to observe American institutions and methods of practice and to share their specialized knowledge with their American colleagues. The maximum period of stay for specialists is one year.

International Visitors

This category is used exclusively by the USIA. An international visitor is defined as a recognized or potential leader selected by the DOS for consultation, observation, research, training, or demonstration of special skills in the United States. These international visitors are invited to participate in observation tours, discussions, consultations, professional meetings, conferences, workshops, and travel, in order to enable him or her to better understand American culture and society and contribute to enhanced American knowledge of foreign cultures. International visitors are exempted from the minimum three-week stay requirement that applies to most of the other exchange visitor categories. The maximum period of stay permitted as an international visitor is one year.

Government Visitors

The government visitor category is used exclusively by U.S. federal, state, and local government agencies. A government visitor is defined in the DOS regulations as an individual who is an influential or distinguished person, selected by a U.S. federal, state, or local government agency for consultation, observation, training, or demonstration of special skills in the United States.

Government visitors are exempted from the minimum three-week stay requirement that applies to most of the other exchange visitor categories. The maximum period of stay permitted as a government visitor is 18 months.

Teachers

The teachers category is intended to promote the interchange of American and foreign teachers in public and private schools by allowing foreign teachers to teach in the United States, participate in cross-cultural activities, and then to share their experiences abroad. Teachers under this category may teach full-time at accredited primary or secondary educational institutions. The eligibility requirements are as follows:

  1. The alien must be qualified to teach primary or secondary school in his or her country of nationality or last legal residence, and the U.S. state in which he or she will teach.
  2. The alien must be of good reputation and character.
  3. The alien must seek to come to teach full-time at a U.S.-accredited primary or secondary educational institution.
  4. The alien must have at least three years of teaching or related professional experience.

The maximum period of stay permitted for a J-1 teacher is three years.

Secondary School Students

Under this category, secondary school students may visit the United States for up to one year to study at a U.S. public or private secondary school. However, while in J-1 status they must live with a U.S. host family or at an accredited U.S. boarding school.

J-1 secondary school students are required to pursue a full course of study at an accredited educational institution for at least one, but not more than two, academic semesters. J-1 programs are generally conducted on an academic calendar year basis.

Secondary school students in J-1 status may participate in school-sponsored extracurricular activities, if certain requirements are met. However, these students are not permitted to work, with the exception of sporadic or intermittent employment such as babysitting or yard work.

Camp Counselors

The camp counselor category is intended to promote international understanding by improving American knowledge of foreign cultures while enabling foreign participants to increase their knowledge of American culture. It is not intended to bring in foreign nationals to work as administrative personnel, cooks, or menial laborers in summer camps.

A camp counselor is defined by the DOS regulations as an individual selected to be a counselor in a summer camp in the United States who imparts skills to American campers and information about his or her country or culture. Camp counselors must be at least 18 years old and be bona fide youth workers, students, teachers, or individuals with special skills. They may be placed only at camping facilities that are:

  1. Accredited;
  2. Members of the American Camping Association;
  3. Officially affiliated with a "nationally recognized non-profit organization";or
  4. Inspected, evaluated, and approved by the J-1 program sponsor.

The maximum period of stay permitted for a camp counselor is four months.

Au Pairs

The au pair category was intended to permit foreign nationals to enter the United States to live with a U.S. host family and to participate directly in the home life of that family, while providing limited child care services and attending a U.S. post-secondary educational institution. The au pair program is available to applicants from all countries, except those without diplomatic relations with the United States. Au pairs must be between the ages of 18 and 26, be high school graduates, and be proficient in the English language.

The DOS regulations require au pairs to be personally interviewed in English, provide three non-family related references, and successfully pass a background investigation (including criminal record check, physical examination, and personality profile.) A report is given to host families so that they can develop an informed opinion regarding the au pair's compatibility with their household.

The host parents must be either U.S. citizens or legal permanent residents, be fluent in spoken English, and must also pass a background check. Adult family members living in the home are personally interviewed by the J-1 program sponsor.

The au pair must enroll in and attend a U.S. post-secondary educational institution for at least six semester hours of academic credit or its equivalent. In addition, the au pair must not provide more than 45 hours per week or 10 hours per day of child care services. He or she must be given at least one and one-half days off each week, one full weekend off each month, and two weeks of paid vacation. The host family must have adequate financial resources to pay the au pair a weekly stipend (at least the minimum wage) and up to $500 for his or her academic work.

Au pairs may not be placed in households where:

  1. The family has a child less than three months old, unless a parent or other responsible adult is present in the home;
  2. The family has children under two years old, unless the au pair has at least 200 hours of documented prior infant child care experience; or
  3. The family cannot provide the au pair with a suitable private bedroom.

The maximum period of stay permitted for an au pair is one year. Additional requirements relating to au pairs appear at 22 §CFR 62.31.

Summer Student Travel/Work Program

The Summer Student Travel/Work program allows foreign university students to travel and work in the United States during their summer vacations. Program participants may also not be employed as domestic employees in United States households or in positions that require the participant to invest his or her own monies to provide themselves with inventory for the purpose of door-to-door sales.

J-1 participants must be between 18 and 23 years old and be bona fide post-secondary school students in their home country. They must have a prearranged job with a U.S. employer, firm appointments with prospective employers, or adequate personal funds to ensure that they are financially independent if they are not employed.

These programs student travel/work programs provide foreign post-secondary students the opportunity to work and travel in the United States for a four-month period during their summer vacations. Extensions of program participation are not permitted. Additional requirements relating to these programs appear at 22 §CFR 62.32.

Foreign Medical Graduates

Foreign medical graduates who wish to enter the United States to pursue an internship, residency or other clinical training in the U.S. under J-1 status may only be sponsored by the Educational Commission for Foreign Medical Graduates ("ECFMG"). A J-1 alien who engages in graduate medical training or other clinical care while in a program other than the program sponsored by the ECFMG will be in violation of his or her status.

Foreign medical graduates engaging only in observation, consultation, teaching or research may be sponsored by other accredited academic institutions. However, in such circumstances, patient care must be limited to only that which is incidental to teaching or research and the sponsor must certify that:

  1. The program predominantly involves observation, consultation, teaching or research;

  2. Any incidental patient contact by the J-1 alien will be under the supervision of a U.S. citizen or resident alien licensed to practice medicine in the jurisdiction;

  3. The J-1 alien will not have final authority in the diagnosis or treatment of patients;

  4. The J-1 alien's activities will comply with State licensing requirements and other health care regulations; and

  5. Any experience gained will not be creditable towards the clinical requirements for medical specialty board certification.

Rather than seeking J-1 status under a non-ECFMG sponsored program, physicians who seek to enter the United States for teaching or research purposes not involving patient care should instead consider the H-1B (they are not required to pass the FLEX or equivalent examination in such cases). Similarly, Canadians physicians entering the United States for teaching or research purposes not involving patient care should instead consider TN status under NAFTA. Please refer to the article on nonimmigrant options for physicians elsewhere in this handbook.

The definition contained in §101(a)(15)(J) of the Act specifically requires J-1 aliens receiving graduate medical education or training to comply with §212(j) of the Act. The regulations define graduate medical education or training generally as a residency or fellowship program involving health care services to patients, not including programs involving observation, consultation, teaching or research in which there is no element or only incidental elements of patient care.

Under §212(j) of the Act, foreign medical graduates seeking to enter the United States for graduate medical education or training are precluded from J-1 status unless they meet the following requirements:

  1. The school offering the medical education or training must be accredited by a body or bodies approved for the purpose by the Secretary of Education and must agree in writing to assume responsibility for the alien's education or training. Any participating hospital must join in the agreement. The only body approved by the Secretary of Education for this purpose is the Liaison Committee for Medical Education ("LCME").

  2. The school must be satisfied that the alien is a graduate of a medical school that is accredited by a body or bodies approved for this purpose by the Secretary of Education, or that the alien has passed Parts I and II of the National Board of Medical Examiners examination ("NBMEE") or its designated equivalent, is competent in oral and written English, is adaptable to the educational and cultural environment at the place of study or training and has adequate prior education and training. Graduates from medical programs accredited by the LCME are not required to have passed Parts I and II of the NBMEE. Since the NBMEE has now been discontinued, the alien graduate of a medical school that is not accredited by the LCME will have to show equivalency through prior passage of either the Foreign Medical Graduates Examination in Medical Sciences (or its predecessor, the Visa Qualifying Examination) administered by the ECFMG or passage of the current United States Medical Licensing Examination ("USMLE"), Parts I and II. English competency can be shown by showing graduation from a LCME accredited medical school or by passing the ECFMG English test.

  3. The alien must have made a commitment to return to his or her home country upon completion of his or her graduate medical education or training, and the country must have provided a written assurance in precise language that there is a need in that country for persons with the skill acquired by the alien through education or training in the United States.

  4. The alien must furnish the Attorney General each year with an affidavit that he or she is in good standing in the program and will return to his or her home country when it is completed.

A foreign medical graduate pursuing graduate medical education or training in J-1 status is limited to the time typically required to complete such a program, to a maximum of 7 years. Extensions of stay beyond the applicable maximum period will not be permitted unless the alien physician can show an exceptional need for the medical specialty in his or her home country which justify the granting of an extension.

A J-1 foreign medical graduate who acquired such status in order to receive graduate medical education training is ineligible to change status from J-1 to another nonimmigrant category from within the United States. However, he or she may leave the United States and apply under a different category at a U.S. consulate abroad. This restriction does not apply to other J-1 exchange visitors such as J-1 physicians engaged in observation, consultation, teaching or research. An exception to permit a change of status from J-1 to H-1B where the J-1 physician has obtained an interested government waiver from a State's Department of Health (as discussed below in the context of the two-year home country presence requirement).

Procedure Followed by the J-1 Exchange Visitor

Each alien who is selected by the sponsor to participate in the exchange visitor program is given a Form DS-2019, which confirms the alien's acceptance in the program. The Form DS-2019 describes the period and the terms of the proposed visit. The J-1 exchange visitor presents Form DS-2019 to the consulate when applying for a visa (unless he or she is visa-exempt, such as a Canadian) and then to the United States Customs & Border Protection ("USCBP") officer at the port of entry in the United States. The alien retains the pink copy of Form DS-2019, which is needed for visa revalidation or for reentry to the United States after a temporary absence.

J-1 exchange visitors are subject to the Student and Exchange Visitor Information System ("SEVIS"). SEVIS enables J-1 sponsors to electronically submit exchange visitor program applications, update sponsor information, submit updates to the DOS that require approval, and create and update exchange visitor and dependent records.

The SEVIS fee, which must be paid by each J-1 exchange visitor is currently $100.00USD. J-1 exchange visitors are required to pay the SEVIS fee after they obtain the Form DS-2019 but before they apply for the visa; the fee is non-refundable, even if the applicant fails to obtain a visa. However, the fee is not required for a J-2 dependent or a J-1 exchange visitor who has come to the United States as a participant in a program sponsored by the Federal Government. The SEVIS fee may be paid in one of two ways:

  1. The alien may pay the fee by mail, by submitting Form I-901 (Fee Remittance for Certain F, M, and J Nonimmigrants) together with a check or money order drawn on a U.S. bank and payable in U.S. dollars to "I-901 Student/Exchange Visitor Processing Fee"; or
  2. The alien may submit the fee electronically, by completing Form I-901 online and using a credit card.

The Department of Homeland Security ("DHS") will issue a payment receipt that the applicant will present, along with the Form DS-2019, at the time of visa application (unless the alien is visa-exempt), port of entry admission, and with each subsequent request for an immigration benefit. Applicants who submit their payment electronically will be able to print an electronic receipt immediately.

A consular officer may issue a J-1 visa to an alien any time before the beginning of his or her exchange program, which will be shown on Form DS-2019.

Two-Year Home Country Requirement

§212(e) of the Immigration and Nationality Act subjects certain J-1 aliens to a two-year home country presence requirement, meaning that the alien must return to his or her home country for at least two years before becoming eligible for H status, L status or permanent residence, unless a waiver of this requirement can be obtained. The requirement is imposed where:

  1. The alien's exchange program was financed, in whole or in part, by the home country government or by the U.S. government:

  2. At the time of admission of acquisition of J-1 status, the alien's skills were determined by the DOS to be in short supply in the home country; or

  3. The alien has engaged in graduate medical education or training.

A J-1 alien who enters the United States under the ECFMG sponsored program will be engaging in medical education or training and will be subject to the two-year home country requirement on this ground alone. The phrase does not include participation in a non-ECFMG program which involves observation, consultation, teaching or research and only incidental patient care. Nevertheless, the J-1 alien may still be subject to the foreign residence requirement if the program was financed, in whole or in part, by the home country government or the U.S. government or if the aliens skills were on the DOS skills list for the alien's home country at the time of J-1 admission or acquisition of status.

An alien subject to the requirement must return to his or her home country for a period of two years before being allowed to seek U.S. permanent residence. The term "home country" is defined as the country of nationality or the country where the alien last had a right of permanent residence if not the home country. However, a J-1 alien who departs for a third country and who subsequently becomes resident there will not satisfy the requirement.

The Immigration and Naturalization Service may waive of the two-year home country presence requirement contained in §212(e) under one of four grounds. However, only three will apply to J-1 aliens who have engaged in graduate medical education or training. The four waiver grounds are as follows:

  1. No Objection Statement - The requirement may be waived on the basis of a "no objection statement" from the home country government indicating that it has no objection to the waiver being granted. However, this ground does not apply to foreign medical graduates engaged in medical education or training.

  2. Exceptional Hardship - An application for a waiver may also be requested on the basis that exceptional hardship will be imposed on a U.S. citizen or permanent resident spouse or child if the J-1 is forced to comply with the requirement. However, hardships such as career interruptions, separation of children from relatives or language difficulties in the J-1's country are not considered exceptional hardship.

  3. Persecution - An application for a waiver may be requested on the basis that the alien will be persecuted on account of his or her race, religion, political opinion or membership in a particular social group if the alien is required to return to the home country. The standard applied is similar to those used in asylum cases.

  4. Interested Government Agency. An application for waiver may be based upon the recommendation of an interested U.S. government agency if the agency believes that a waiver will be in the public interest and that alien's compliance with the requirement will be detrimental to the program or interest of that agency. The agency recommending the waiver must be a Federal government agency. In order to qualify as an interested government agency, the agency must be designated as such by the DOS. This is the most commonly utilize waiver ground for foreign medical graduates. (However, see below for additional restrictions imposed on this waiver as a result of the Illegal Immigration and Immigrant Responsibility Act of 1996 ("IIRAIRA"), which was enacted on September 30, 1996.)

Despite the fact that only Federal government agencies can recommend J-1 waivers under the normal rule, Congress has implemented a pilot program known as the "Conrad State 20" which permits the Department of Health in each State to act as an interested government agency for up to 20 J-1 waivers per year. Under this program, the two-year home country presence requirement contained in §212(e) can be conditionally waived for the purpose of changing status from J-1 to H-1B and subsequently to that of permanent residence. In order to remove the condition, the J-1 physician is be required to practice or three years under H-1B status in an area designated by the Department of Health and Human Services as having a shortage of physicians. A no objection statement from the J-1 physician's home country is required.

IIRAIRA extended the "Conrad State 20" program for foreign medical graduates until the year 2002. However, IIRAIRA extended many of the Conrad State 20 restrictions to the recipients of waivers requested by interested Federal agencies. A Federal interested government agency waiver is now allowed only if: (1) the government of the country to which the alien is contractually obligated furnishes the U.S. Information Agency with a statement in writing that it has no objection to such a waiver; and (2) the alien demonstrates a bona fide offer of employment that has been found to be in the public interest, agrees to begin work at the facility within 90 days of receiving the waiver and agrees to continue working for at least three years, unless extenuating circumstances exist.

The President signed the Justice Authorization bill on November 2, 2002. (Pub. L.107-273). This bill contained several divisions. One such division, the Law Enforcement Tribute Act, amended the Conrad State 20 program by increasing the number of waivers available per fiscal year from 20 to 30. It also extended the program, now known as the "Conrad State 30" program, until 2004.

Although utilization of the J-1 category is quite common for foreign medical graduates seeking graduate medical education or training in the United States, several restrictions imposed on the such physicians (in particular the two-year home country presence requirement) make this category a less desirable choice than the H-1B. For a discussion of the H-1B category (in the context of physicians), please refer to the general discussion of nonimmigrant physician visas by clicking here.

Dependents

The spouse and minor children of a J-1 may accompany or follow to join in the U.S. under J-2 status. J-2 dependents may apply for employment authorization to work for any employer. Financial need does not have to be shown to obtain employment authorization, although the J-2 will be required to establish that his or her income will not be used to support the J-1 alien. Employment authorization for a J-2 will expire at the same time that the authorized period of the J-1 alien's stay expires. A J-2 dependent is subject to the two-year home country physical presence requirement if the principal J-1 alien is subject to the requirement. A waiver of the §212(e) requirement granted to the J-1 also extends to the J-2 dependents unless the J-2 is independently subject to §212(e).


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