J-1 visas (“Exchange Visitors”) are non-immigrant visas (which often include work authorization) for participants in approved training and internship programs.
The goal of J-1 programs is to encourage teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.
Generally, corporations sponsor J-1s for training or internships. Other examples of exchange visitors include:
- Professors or scholars
- Research assistants
- Nannies/Au pairs
- Camp counselors
All J-1 candidates must be 18 years or older and proficient in English. The qualification standards for the J-1 work-authorized programs are as follows:
Interns (up to 12 months)
- Must be currently enrolled as a full-time student in a post-secondary academic institution outside of the United States OR has graduated from such an institution no more than 12 months prior to start of program
Trainee (up to 18 months)
- Must have a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience outside the United States OR five years of work experience outside the United States in the desired training field.
Unlike other types of work authorized non-immigrant classifications, the J-1 process is administered through non-government pre-certified Sponsoring Agencies. The initial application for the J-1 including information on the sponsoring company, information on the intern / trainee applicant and information on the internship or training plan is submitted to the Sponsoring Agency for review and analysis. The Sponsoring Agency reviews the merits of the application and upon approval issue a DS-2019, recommending the U.S. Embassy or Consulate issue a J-1 visa.
Beneficiaries of J-1 visas may be joined by their qualifying dependents (spouses and children). Qualifying dependents would apply for dependent J-2 dependent visas and upon entrance into the U.S. are eligible to apply for work authorization.
Train USA programs may last from 3 weeks to 18 months. The duration of the program depends on the needs of the sponsoring company we as the qualifications of the applicant. Generally, J-1 internships can last up to 12 months, while J-1 training programs can last up to 18 months. J-1 programs generally cannot be extended beyond the maximum validity and the J-1 is a non-immigrant visa which requires the Beneficiary to leave the U.S. upon completion of the visa period.
2 Year Home-Country Residency Requirements / Waiver
Certain J-1 Exchange Visitors are subject to a two-year home-country physical presence (foreign residence) requirement. Exchange Visitors who are subject to this requirement must return to their home country for an aggregate total period of at least two years before they are eligible to change status to H or L-1 classification. Additionally, those subject to the two year home-residency requirement are not eligible to Adjust Status to Lawful Permanent Residence (“green card”) using family or employment based immigrant petitions. And, finally, they may not receive any H, L, K or Immigrant Visas at a U.S. Embassies or Consulates abroad.
Generally, the DS-2019 and the Visa Stamp affixed to the J-1 Exchange Visitor’s passport will indicate if they are subject to thetwo-year home-country physical presence requirement. The reasons an Exchange Visitor could be subject to the requirement include:
- Government funded exchange program - The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the U.S. government or the government of the exchange visitor's nationality or last residence;
- Graduate medical education or training - The exchange visitor entered the U.S. to receive graduate medical education or training;
- Specialized knowledge or skills (“skills list”)
If an Exchange Visitor who is subject to the requirement is unable to return to his or her home country to fulfill the two-year requirement, that person must obtain a waiver approved by the Department of Homeland Security prior to changing or adjusting status in the U.S. or being issued a visa in certain categories for travel to the U.S.
There are five bases for the Department of State and USCIS to recommend a waiver of the two year foreign residency requirement:
- No Objection Statement;
- Request by an Interested U.S. Federal Government Agency;
- Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child of an exchange visitor; or,
- Request by a designated State Public Health Department or its equivalent.
Securing waivers of the two-year home-country physical presence requirement can be highly complicated and are often dependent on the J-1 program, the home-country. It is recommended that applicants seeking a waiver of this requirement consult with an experience immigration attorney. Our firm has extensive experience with waiver applications for nationals from around the world and would be happy to meet with you to consult on this matter.
Dual Intent and Future Green Card Applications
J-1 visas are non-immigrant in nature do not enjoy the full benefit of dual intent. The requirement to establish intent at the time of green card filing is a lower legal standard than other strictly non-immigrant visas and it is possible to file a green card case while on J-1 visa status. However, timing is absolutely critical and in order to protect the non-immigrant status and any green card application, all travel and entries into the U.S. should be carefully monitored in association with the progress of the green card application.
Additionally, J-1 beneficiaries who are subject to the two-year home-country physical presence requirement cannot apply for a green card application until they fulfill the requirement or secure a waiver.
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