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Matthews Immigration Group | Raleigh Law Firm | J-1 / J Waivers

J-1 Visas / J Waivers

Generally, a citizen of a foreign country who wishes to enter the United States must first obtain a visa, either a nonimmigrant visa for a temporary stay or an immigrant visa for permanent residence. The visa allows a foreign citizen to travel to a U.S. port of entry and request permission of the U.S. immigration inspector to enter the United States. Nonimmigrant visas ("NIVs") are issued to individuals who intend to remain in the United States temporarily. NIVs are designated by letters of the alphabet. The type of visa a foreign national is issued depends principally upon the nature of the foreign national's proposed activities in the United States, the duration of those activities, and in some instances, his or her nationality. It is often easiest to understand NIVs and their limitations, criteria, and characteristics by distinguishing them in terms of the principal activity authorized by the visa: (a) employment-based NIVs; (b) NIVs for students and exchange visitors; (c) NIVs for business visitors and tourists; and (d) other NIV categories including diplomats, international civil servants, and family relatives.

Temporary worker visas are for persons who want to enter the United States for employment lasting a fixed period of time and are not considered permanent or indefinite. Most of these visas requires the prospective employer to first file a petition with the U.S. Citizenship and Immigration Services ("CIS"). An approved petition is required to apply for a work visa.

J-1 Exchange Visitors

The J-1 classification is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training.

In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 nonimmigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange of persons, knowledge, and skills, in the fields of education, arts, and science.

The purpose of the J-1 exchange visitor visa category is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. The U.S. Department of State (DOS) oversees and approves Exchange Visitor Programs to administer J-1 exchange visas for au pairs; camp counselors; college, university or secondary students; government or "international" visitors; physicians; professors; research or  short-term  scholars; specialists; summer work or travel visitors; teachers; and trainees and interns. U.S. organizations can directly sponsor foreign nationals for J-1 status once they have established their own DOS-approved Exchange Visitor Program, provided that the eligibility requirements  are  met.  Alternatively, they  may also make arrangements for a foreign national's J-1 visa through another organization's DOS-approved Exchange Visitor Program but, again, only provided that all eligibility requirements are met.

Trainees and Interns

The regulations distinguish between two subcategories: "Interns" and "Trainees."

A J-1 Intern is defined as a foreign national who either:

  1. is currently enrolled in and pursuing studies at a degree or certificate granting post-secondary academic institution outside the United States; or

  2. has graduated from such an institution no more than 12 months prior to his or her exchange visitor program start date, and who enters the United States to participate in a structured and guided work-based internship program in his or her specific academic field.

Interns will have a program duration limit of 12 months; however, interns may participate in an unlimited number of additional internship programs as long as they maintain student status or begin a new internship program within 12 months of graduation. If an individual no longer meets these conditions, he or she may participate as a trainee after two years of residence outside the U.S. following the last internship program.

A J-1 Trainee is defined as a foreign national who either has:

  1. a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in his or her occupational field acquired outside the United States; or

  2. five years of work experience outside the United States in his or her occupational field, and who enters the United States to participate in a structured and guided work-based training program in his or her specific occupational field.

 

Trainees have a program duration limit of 18 months and are eligible for additional training programs after a period of no less than two years residence outside the United States following their initial training program. This is an important change, as under the previous regulations, it was not possible for a foreign national who had previously participated in a J-1 training program in the U.S. to return to the U.S. for additional J-1 training with the same company. The new regulations permit additional training in the U.S. as long as the applicant has met the two-year requirement before applying for another J-1 visa.

Application Process

 

The U.S. Department of State plays the primary role in administering the J-1 exchange visitor program, so the first step in obtaining a J-1 visa is to submit a Form DS-2019, Certificate of Eligibility for Exchange Visitor Status, (formerly known as an IAP-66). This form will be provided by your sponsoring agency. You should work closely with the officials at your sponsoring agency who will be assisting you through this process. An official who is authorized to issue Form DS-2019 is known as a Responsible Officer ("RO") or Alternate Responsible Officer ("ARO"). Your RO or ARO will explain to you what documents are needed in order to be issued a DS-2019. 

 

After you have obtained a Form DS-2019, you may then apply for a J-1 visa through the U.S. Department of State at a U.S. embassy or consulate. The waiting time for an interview appointment for applicants can vary, so submitting your visa application as early as possible is strongly encouraged (though you may not enter the United States in J-1 status more than 30 days before your program begins).

Required Documentation

  • A copy of the candidate's university degree(s) and transcript(s), with certified English translation(s) if in a foreign language;

  • A copy of all stamped, biographical , and photograph pages of the candidate's passport(s) and any dependent family members accompanying him/her to the U.S.;

  • A list of the candidates country or countries of citizenship, permanent residence, and temporary residence;

  • A copy of any U.S. visa(s) previously issued to the candidate;

  • A copy of the candidate's most recent resume;

  • The location(s) and complete description of all proposed activities to be performed by the candidate in the U.S. in J-1 visa status;

  • A description of the purpose of the candidate's proposed J-1 activities;

  • The title of the proposed position to be held in J-1 status in the U.S.;

  • A summary of any compensation and benefits to be offered to the foreign national, and their source;

  • The city and country of the U.S. Consulate at which the candidate intends to apply for his or her J-1 visa subsequent to issuance of the Form DS-2019.

Upon receipt of a certified DS-2019 from the DOS-approved Exchange Visitor Program, the candidate may present the form to a U.S. Consulate in his or her country of residence/citizenship. The U.S. Consulate may require the candidate to also present:

  • Evidence that the candidate plans to remain in the U.S. for a temporary, specific, limited period;

  • Evidence of funds to cover the expenses of the candidate in the United States;

  • Evidence of the candidate's compelling social and economic ties abroad, and other binding ties which will ensure his or her return abroad at the end of his or her visit in J-1 status.

Health and Accident Insurance Requirements for J-1 Visas

Federal regulations require that each J-1 exchange visitor, and his or her dependent spouse and children, have insurance in effect that covers them for sickness and/or accident throughout the duration of their stay. Minimum coverage shall provide:

 

  • Medical benefits of at least $50,000 per accident or illness;

  • Repatriation of remains in the amount of $7,500;

  • Expenses associated with the medical evacuation of the exchange visitor to his or her home country in the amount of $10,000; and

  • A deductible not to exceed $500 per accident or illness.

 

An insurance policy secured to fulfill the above requirements:

 

  • May require a waiting period for pre-existing conditions which is reasonable as determined by current industry standards;

  • May include provision for co-insurance under the terms of which the exchange visitor may be required to pay up to 25% of the covered benefits per accident or illness; and

  • Shall not unreasonably exclude coverage for perils inherent to the activities of the exchange program in which the exchange visitor participates.

 

Any policy, plan, or contract secured to fill the above requirements must, at a minimum, be:

  • Underwritten by an insurance corporation having an A.M. Best rating of "A-" or above, an Insurance Solvency International, Ltd. (ISI) rating of "A-i" or above, a Standard & Poor's Claims-paying Ability rating of "A-" or above, a Weiss Research, Inc. rating of "B+" or above, or such other rating as the Department of State may from time to time specify; or

  • Backed by the full faith and credit of the government of the exchange visitor's home country; or

  • Part of a health benefits program offered on a group basis to employees or enrolled students by a designated sponsor; or

  • Offered through or underwritten by a federally qualified Health-Maintenance Organization (HMO) or eligible Competitive Medical Plan (CMP) as determined by the Health Care Financing Administration of the U.S. Department of Health and Human Services.

 

Employment

 

Some J-1 nonimmigrants enter the United States specifically to work (as a researcher, nanny, etc.) while others do not. Employment is authorized for J-1 nonimmigrants only under the terms of the exchange program. J-1 scholars may, under certain circumstances, receive permission to engage in "academic training" that is similar to Optional Practical Training ("OPT"). No Employment Authorization Document ("EAD") is issued. J trainees and interns may only work for the sponsoring employer or institution. J-2 spouses may receive EADs for work, as long as the J-2's compensation is not necessary for the support of the J-1 visa-holder.

When hiring a foreign student with OPT, consider that you will have to make a decision about whether to sponsor the employee for another type of nonimmigrant visa - typically, the H-1B.

 

Family of J-1 Visa Holders

 

Your spouse and unmarried children under 21 years of age, regardless of nationality, are entitled to J-2 classification. Your spouse and children are entitled to work authorization; however, their income may not be used to support you.

The Two-Year Home Residency Requirement

One of the major issues with J-1 status is determining whether or not you are subject to the two-year home residency requirement, and if so, what options are available.

The two-year home residency requirement (or 212(e), as it is referenced in the immigration statute) means that those who come to the U.S. in J-1 status cannot become permanent residents in the U.S., change status in the U.S., or get work- or family-based visa status such as H, L, or O until they return to their country of last permanent residence for at least two years cumulatively.

 

Who is Subject?

Those in J-1 status (and their J-2 dependents) can become subject if any of the following apply to the J-1 program:

  1. If the J-1 receives funding from the U.S. government, home government, or an international organization to use for the J-1 program.

  2. If the J-1 worked or studied in a field that appears on the DOS "skills list." This is a list of fields of specialized knowledge and skills that are needed in the J-1's country of last permanent residence for its development. Canada, Australia, and Germany are examples of countries that are not on the list. China, India, and South Korea are examples of countries that have many skills on the list.

  3. If the J-1 participated in a graduate medical training program in the United States under the sponsorship of the Educational Commission for Foreign Medical Graduates.

 

If you are not sure whether you should be subject to the two-year home residency requirement, contact your immigration attorney. Also, you may always request an official "advisory opinion" from the U.S. Department of State. This advisory opinion is a formal determination whether or not you are subject to the two-year home residency requirement.

Can the Requirement Be Waived?

If you received funding from your home government or an international organization, or are subject based upon the skills list, it is often possible to get a waiver by requesting a "no-objection letter" from your home country's embassy in Washington, DC.

 

If you received U.S. government funding (such as a Fulbright), it is very difficult to get a waiver.

 

If you are interested in a waiver, timing can be critical. If you start the waiver process too early, you will not be able to travel in and out of the U.S. as a J-1, get an extension (including for Academic Training), and you may not be able to transfer your J-1 program.

It is important to know that people can be subjected to the two-year home residency requirement multiple times. For example, a student from China who comes to the U.S. as a J-1 Student and then returns as a J-1 Scholar will be subjected to this requirement twice. Even though one can be subjected on multiple occasions, one can serve out the multiple requirements concurrently. The Chinese Student/Scholar only needs to spend two years in China after the last J-1 program to meet the requirements. If he or she elected to apply for a waiver, however, a waiver for each individual program will be needed.

 

Note also that it is often indicated on both the visa and/or DS-2019 form whether one will be subject to this requirement. However, this only serves as an initial determination. Contact our office if you think that you were wrongly subjected to the requirement.

The Two-Year Repeat Participation Bar

All Exchange Visitors who come to the United States in the "Research Scholar" or "Professor" categories are also subject to the two-year repeat participation bar. The effect of this regulation is that Exchange Visitors who have completed their stays in the U.S. in either the "Research Scholar" or "Professor" category are not eligible to apply for a stay in the U.S. in either the "Research Scholar" or "Professor" category for two whole years. This regulation applies only to these two J-1 categories and has no effect on eligibility for any other visa category or status. For example, it does not apply to Exchange Visitors in the "Short-Term Scholar" and "Student" categories. This regulation is not indicated on the visa stamp or DS-2019 form and is not the same as the two-year home residency requirement. Lastly, this requirement cannot be waived.

More detailed, case-specific advice is available from Matthews Immigration Group by scheduling a consultation.

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