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Exchange Visitors (J-1 Visas)
The J-1 visa category is used by foreign students, scholars, experts,
medical interns and residents, "international visitors," and industrial and
business trainees to enter the U.S. as exchange visitors in U.S. government
approved Exchange-Visitor Programs. The purpose of the individual's entry is to
gain experience, study, or perform research in the individual's respective field
and to take newly gained skills back to his/her home country. The U.S.
sponsoring employer must obtain approval for work authorization through an
Exchange-Visitor Program designated by the U.S. Department of State (DOS) which
oversees and approves all such programs. Employers can either use their own
existing program, bring in J visa holders through another organization's program
provided that the eligibility requirements are met or establish their own J-1
program by applying through the DOS.
The permissible length of stay
that a J-1 can remain in the U.S. is determined by the exchange category in
which he/she is admitted to the U.S. For example, college and university
students may be admitted for the anticipated length of their academic program
and students in degree programs below the doctoral level may also engage in 18
months of training after completion. Post-doctoral training is permissible for a
period of 36 months after completing the degree. Research scholars can be
admitted for a three-year period with a possible 6-month extension if warranted
to permit the alien to complete a specified project or research activity.
There is a special provision that attaches to certain J-1 exchange
visitors, which is not applicable to the F-1 classification. That provision is a
two-year home country requirement due to admission as a J-1 nonimmigrant. This
is imposed on some categories of exchange aliens once their U.S. stay is
completed. Any J-1 exchange visitor subject to the home country requirement is
ineligible for permanent residence or nonimmigrant visas in the H or L category
until he or she spends two years--after completion of stay--in his/her home
country or country of last residence. Some waivers of the requirements are
available in special cases.
Determining who is subject to the home
country requirement and how to obtain a waiver of such a requirement is a
complex subject. The possibility of a two-year home country requirement,
however, should be considered before this possible avenue of employment is
utilized or when an individual holding J-1 classification applies for a position
with your company. Usually persons are subject to the requirement because of a
skills list for their home country or due to the receipt of government funding
for their J-1 activities. The skills list sets forth skills, which are deemed to
be in short supply in the home country. The rationale for imposing the home
country requirement for skills list individuals is the individual will receive
specialized training and knowledge from the U.S. and bring that training and
knowledge back home. In general, industrialized countries do not have skills
lists.
The J-1 nonimmigrant is authorized to work incident to his or
her status for either the exchange visitor program sponsor or appropriate
designee and only for employment that is within the guidelines of the program as
approved by the DOS. If an employer has not participated in the alien's
sponsorship for J status, either through its own program or through a program
permitting employment with other employers, the employer cannot employ an alien
in J status who applies for work without taking steps to change the alien's
status (i.e., to H-1B) except in some limited circumstances. The exceptions are:
(1) J-1 aliens who are research scholars; (2) J-1 students who are in practical
training; and (3) J-1 Students who demonstrate economic necessity.
J-1
aliens who are participating in a program for research scholars at a U.S.
university and who want to engage in post-doctoral research with the employer
through the university's exchange program, may be employed by an employer that
has not been previously involved with the alien's J status. Either the exchange
visitor or the university may approach the employer to seek job placement for
research purposes. Such employment is permissible under the terms of some
university programs if approved by the university. This approval is not explicit
in the regulations. In order to employ a J-1 research scholar, the employer
should be presented with written authorization from the responsible officer of
the exchange visitor program permitting employment and specifying its terms and
duration. A copy of the Form DS-2019 (formerly IAP-66) must also be provided. If
the letter from the program sponsor does not specify sufficient authorization,
the program sponsor should be contacted to verify that the work is permitted.
In order to accept J-1 practical training employment, a student who is
in J-1 classification must present the following documents to the employer: (1)
an unexpired foreign passport; (2) a letter from the responsible officer of the
exchange program authorizing a period of practical training; (3) a copy of the
most recent Form DS-2019 (formerly IAP-66) issued by the school; and (4) the
student's I-94 form showing lawful admission as a J-1 nonimmigrant.
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