Overview of the J-1 Visa Process

Pursuant to the regulations, the J-1 program was established to “increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. Educational and cultural exchanges assist [the U.S. Department of State] in furthering the foreign policy objectives of the United States.”

General Description and Definitions

The J-1 visa is a nonimmigrant status for an exchange visitor wishing to stay temporarily in the U.S. Within the J-1 category, there are a number of different programs. These include: trainee, student, professor or research scholar, non-academic specialist, foreign physician, international visitor, teacher, governmental visitor, camp counselor, au pair, and summer student in travel / work program.

The foreign visitor must be entering the U.S. to take part in an exchange visitor program that has been designated by the U.S. Department of State (DOS). One of the requirements of the J-1 visa applicable to all J-1 applicants includes fluency in English, sufficient funds for the duration of the applicant’s stay, and adequate medical insurance.

The applicant needs to obtain a certificate of eligibility for exchange visitor (Form DS-2019), from the program sponsor. On admission to the United States at the point of entry the applicant will receive an I-94 that is marked for duration of status (D/S). The program sponsor has the responsibility to ensure the J-1 visa holder maintains a valid Form DS-2019.

Duration of status is defined as the completion of the J program plus a 30-day grace period. The total length of time that a J-1 visa holder is permitted to stay in the United States depends on the exchange visitor program. The durational limits for each of the J-1 programs are set forth below.

Professors / Research Scholars: time necessary to complete the program, but may not exceed 5 years. Extension beyond the 5-year limitation is possible when the J-1 visa holder is engaged with a G-7 program sponsor.

Short-term Scholar: no more than 6 months

Trainees and Interns: 18 months, unless the training program is in the field of agriculture, hospitality and tourism. The maximum duration for programs related to these fields is 12 months with a limited exception if the program includes classroom training.

College or University Students: time needed to complete the academic program and practical training not to exceed the duration of program or 18 months (36 months for postdoctoral students)

Teachers: no more than 3 years

Secondary School Students: no more than 12 months

Specialists: no more than 1 year

Physicians Receiving Medical Training in the U.S.: time necessary to complete the program, but may not exceed 7 years, unless the country the J-1 visa holder will return to requires an individual with additional qualifications

International Visitors: no more than 1 year

Government Visitors: no more than 18 months

Camp Counselors: no more than 4 months

Au Pairs: 12 months, but may be extended for an additional 6, 9, or 12 months

Summer Work Travel: 4-month period during post-secondary school summer vacation

Home Residency Requirement

Certain J-1 holders are subject to a two-year home-residency requirement (HRR). If a J-1 visa holder is subject to the HRR, s/he must reside and be physically present in the country of nationality or last legal residence abroad for an aggregate of at least two years after leaving the United States before the previous J-1 visa holder is eligible for an immigrant visa (legal permanent residence) or as a nonimmigrant in H or L status. However, waivers of the HRR may be available for some individuals.

Who is Subject to the Home Residency Requirement

The HRR applies in the following situations:

  • if either the U.S., the home country’s government, or government of the last residence abroad provided financial support for the person’s J-1 program;
  • if the person’s field of endeavor appears on the “skills list” (list of fields in which experts are critically needed) for his/her country; or
  • if the J-1 was obtained for the purpose of graduate medical training, typically a residency or fellowship.

How to be Certain Whether One is Subject to the HRR

An applicant may know that one of the three situations listed above applies to his or her circumstance. However, there are many who are not sure. It is a good idea to check with the program sponsor to clarify whether there was any government funding involved and to consult the skills list issued by the U.S. Department of State (“DOS”), which is a publicly available document. Usually the information on the certificate of eligibility, (Form DS-2019), is the most reliable indication of the applicability of the HRR. There is a special place on the DS-2019 to indicate whether a person is subject to the HRR but sometimes that section of the form is blank. The J-1 visa stamp itself should also have a notation that the “Bearer is subject to 212(e)” or “Bearer is not subject to 212(e).” However, these visa notations are sometimes incorrect – sometimes the consulate issues a visa indicating a person is subject to the HRR when, in fact, there is no legal basis for such a determination.

If it appears that, based upon the three above-listed criteria, a person should not be subject to the requirement but the visa indicates that the “bearer is subject to 212(e),” it may be possible to obtain confirmation from the DOS through an Advisory Opinion. This procedure allows an individual to submit a detailed letter to the DOS requesting an official opinion based upon the particular person’s file. The Advisory Opinion issued by the DOS is the final determination whether the J-1 visitor is or is not subject to the HRR.

Going Abroad to Comply with the HRR

If it is clear that one is subject to the HRR, the first option is to comply with the requirement by spending two years in the country of nationality or country of last residence / sponsoring country. Note that it is not just a matter of being outside the U.S. to meet this requirement. Rather, in order to satisfy the HRR, one must be in the country of nationality or country of last residence based on which the HRR requirement attached (sponsoring country). We at the Murthy Law Firm have been asked, for example, whether a person who came as a J-1 visa holder from India and later obtained Canadian permanent resident status could comply with the HRR by going to Canada. The answer is, “No.” However, there may be exceptions to this general rule in rare circumstances. It is advisable to always consult with an attorney before determining if residence in a particular country would satisfy the HRR requirement.

Obtaining a Waiver

An alternative to the HRR may be to obtain a waiver. There are several types of waivers and some are easier to obtain than others. The simplest type of waiver is based upon a statement of “No Objection” from the home / sponsoring country government. The applicant generally would initiate the waiver process by contacting his/her country’s consulate in the United States. After obtaining the required letter/s, the applicant must complete DOS waiver forms.

Sometimes, however, the home / sponsoring country’s government does object. Furthermore, the “No Objection” waiver is not available to those in graduate medical education / training programs. Thus, many people must look to other options such as waivers based upon an “Interested Government Agency,” and programs specifically designed for medical doctors.

Examples of Types of Waivers

No Objection Waiver

A commonly pursued waiver to the HRR is the “No Objection Waiver.” Issuance of a No-Objection Waiver is proper when the exchange visitor’s home / sponsoring country attests that it does not oppose the visitor’s choice to remain in the U.S. Under such circumstances, the home / sponsoring country is expected to issue a No-Objection statement. If the applicant is in the U.S., s/he will make an application through the appropriate embassy. Each country has its own procedures for issuing No-Objection statements. Some countries do not issue such statements as a matter of policy. Accordingly, it is important that an individual who is applying for a No-Objection Waiver research the home / sponsoring country’s specific procedures.

Although the No-Objection Waiver is fairly common, there are specific exchange visitors who are categorically ineligible for this waiver. For example, foreign physicians who receive U.S. graduate medical training are statutorily ineligible. Individuals directly or indirectly funded by the U.S. government are not eligible for the No-Objection Waiver, unless they are able to provide the No-Objection statement to the funding agency and that agency, in turn, does not object.

Hardship to Qualifying Relatives

A J-1 visa holder subject to the two-year HRR may also receive a waiver if returning to his/her home country will cause “exceptional hardship” to his/her U.S. citizen or lawful permanent resident spouse or children. Hardship to the J-1 visa holder is not taken into consideration.

It is important to note that the applicant must demonstrate “exceptional” hardship. Normal hardships associated with separation, or readjustment to the home country, do not suffice. This waiver is particularly difficult to obtain because the J-1 visa holder must demonstrate that the hardship would result whether the spouse or children accompanies her/him abroad or if the family member stays in the United States while the J-1 visa holder is abroad.

A number of factors are considered when determining whether the anticipated hardship meets the high bar of exceptional hardship. Any mental and physical conditions that the spouse or children may have requiring treatment, which cannot be provided in J-1 visa holder’s home country, normally will sway the determination. Other relevant factors include: home country conditions, discrimination and educational opportunities, income contribution of each spouse (particularly that of the exchange visitor), and interruption of the qualifying relative’s career. To have any chance of success in obtaining this waiver, each factor that applies should be well documented.

Persecution Waiver

Exchange visitors subject to the two-year HRR may apply for a waiver if they would be subject to persecution in their respective home countries on account of race, religion, or political opinion. The persecutor may be either the government itself or a group that the government is unwilling or unable to control. The criteria required for the persecution waiver is similar to that required for a grant of asylum. However, the standard for the persecution waiver appears to be far more stringent – asylum is based upon a reasonable fear of persecution while the standard for a J-1 waiver requires the J-1 visa holder to show s/he “would be persecuted.”

Interested Government Agency (IGA)

Any United States Government Agency may facilitate an IGA waiver if the Agency is able to demonstrate that either the exchange visitor’s departure would be detrimental to one of its programs or the J-1 visitor’s stay in the United States is vital to one of its programs. The rationale for an IGA waiver is that it is in the public’s interest to have the visitor remain in the United States. The exchange visitor need not be an employee of the agency unless the agency has internal guidelines requiring that the J-1 visitor is employed by it before a waiver can be recommended.

Under certain circumstances, the DOS itself will act as an IGA. For instance, the DOS may request a waiver on behalf of a J-2 spouse whose marriage to a J-1 visitor has ended by either death or divorce.

Exchange visitors who wish to pursue an IGA waiver should thoroughly research the process and its requirements and be as innovative as possible. Submission of an IGA waiver should include: (a) information about the Agency’s program or service for which the exchange visitor is needed, including its priority within the agency; (b) a description of the exchange visitor’s involvement in, or connection to, the particular program or service; or (c) the exchange visitor’s outstanding credentials, including both education and employment history.

 

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.