J-1 Visas for Exchange Students

The Exchange Visitor program, administered by the U.S. Department of State, is a multifaceted program that enables foreign nationals to come to the U.S. to teach, study, conduct research, demonstrate special skills, or receive on the job training for periods ranging from a few weeks to several years. Exchange visitors enter the U.S. on the “J” visa, their spouses and dependents on the J-2. One of the important limitations of the visa is that holders must have a residence outside the U.S. to which they intend to return after the expiration of their J-visa. Another limitation is that, after the expiration of the visa, some exchange visitors must live for two-years in the country of which they were residents when they applied for the visa (this is known as the “two-year home country residence requirement”). On the other hand, the J-visa is very flexible, having application in many different circumstances (the next section outlines the various J categories). Furthermore, spouses and dependents of exchange visitors often can get employment authorization in the U.S., giving the J-1 an advantage over several other nonimmigrant visas. Finally, note that those employed in the U.S. in J-1 status are exempt from Social Security and Medicare tax, although they are subject to personal income tax.

It is important to note that the one J-visa category, the trainee category, can be used for on-the-job training in a wide variety of occupations, including non-professional occupations that may not be appropriate for the H-1B visa (or even some that are appropriate for an H-1B visa), and that the J-visa itself authorizes the trainee to work for the employer. An employer that wishes to offer an exchange visitor training program to a foreign worker must submit its own practical training program which, if accepted as the basis for a J-visa, will allow the worker to engage in authorized and legal on-the-job training in the U.S. Employers and employees should consult with our office if they are interested in such programs. We can help find one to suit your needs, and also assist in developing the training program. The J-1 visa categories are explained below.

A J-visa Categories

Trainees

The J-1 visa can be appropriate for people engaged in a wide variety of fields to come to the U.S. for a structured training program in the person’s field. The purpose of such training programs must be to enhance the trainee’s skills and to familiarize him or her with techniques, methods, or expertise unique to the U.S. The training program may be “on-the-job” training, and the trainee may receive a salary with which to support him or herself during the visit, but the program may not be designed to recruit and train people for employment in the U.S., and the trainee may not be given a position that otherwise would be filled by a U.S. worker. J-1 visas in this category generally may be issued for three to eighteen months.

Teachers

The J-1 visa can be appropriate for foreign teachers to come to the U.S. in order to accept a temporary job (up to three years) teaching in a U.S. primary or secondary school (students of which generally are five to eighteen years old). Most teachers will prefer the H-1B visa, which has several advantages over the J-1 (not least of which is the absence of the home country residency requirement), but which may a little longer to get.

Postsecondary Students

The J-1 visa can be appropriate for college and university students who wish to come to the U.S. to further their post-secondary education, if their studies somehow will be financed by the U.S. government, the government of the student’s home country, or an international organization of which the U.S. is a member, or if the student’s program is based on an official exchange program. Most university and college students will prefer the F-1 student visa, as the F-1 visa lacks the restrictions and possible home country residence requirement of the J-1 visa. The advantage of the J-1 for students is that their spouses, who are eligible for the J-2 visa, can get work authorization, whereas spouses of F-1 students (holding F-2 visas) cannot work in the U.S.

Students enrolled in foreign colleges and universities can also use the J-1 visa to travel and work in the U.S. during their summer vacations (work authorization in this J category is given only for work “of a commercial or industrial nature,” rather than for employment such as that as an au pair or camp counselor, for whom other J categories may be appropriate).

Secondary School Students


The J-1 visa can be appropriate for students who wish to engage in one or two academic semesters of study in a U.S. secondary school (or “high school”) while living with an approved host family or at an accredited boarding school. Students in this J-1 category may not accept employment in the U.S. other than “sporadic or intermittent employment such as babysitting or yard work.” Some secondary school students will prefer the F-1 visa, as it has no home country residency requirement and can be valid until graduation (rather than being limited to one school year). A major advantage of the J-1, however, is that the student need not reimburse the school district for the cost of the education, whereas an F-1 student may not attend a public secondary school unless the student bears the cost.

Professors and Research Scholars

The J-1 visa can be appropriate for professors and researchers to wish to teach, study, or conduct research at U.S. colleges and universities, libraries, corporate research facilities, and the like. The appointment of the J-1 professor or researcher must be temporary, and cannot be for tenure-track positions. Most employers of temporary professors and researchers will prefer the H-1B visa, primarily because of the possible home residency requirement that might accompany the J-1 visa. The advantage of the J-1 in these situations is that it is often quicker and simpler to get than is the H-1B visa.

Short-Term Scholars

The J-1 visa can be appropriate for scholars, writers, scientists, and the like for visits to the U.S. to exchange ideas with colleagues at universities and other such institutions. The short-term scholar category is the only non-government-sponsored J category that allows for visits of fewer than three weeks. The maximum stay is six months.

Specialists

The J-1 visa can be appropriate for “specialists” to come to the U.S. to observe U.S. methods and institutions and to share their specialized knowledge or skill with U.S. colleagues. The regulations define a “specialist” as someone “who is an expert in a field of specialized knowledge or skill,” and the category excludes professors, scholars, and physicians (for whom groups other J-1 categories may be appropriate). The J-1 specialist may be given a stipend by his or her U.S. sponsor, and the visit may last up to one year. People eligible for this category of J-1 may also be eligible for the H-1B visa, which has several advantages over the J-1 (not least of which is the absence of the home country residency requirement), but which carries unique restrictions and takes longer to get.

Foreign Medical Graduates

The J-1 visa can be appropriate for foreign medical graduates (nationals of other countries who graduated from a medical school either within or outside of the U.S.) who wish to participate in a graduate medical education or training program in the U.S., or who wish to observe, consult, teach, or conduct research in the U.S. The maximum stay under this category is generally seven years. Physicians in this category generally are subject to the home country residency requirement, except those whose training includes no direct patient care, or some patient care that nonetheless is purely incidental to training otherwise consisting of observation, consultation, teaching, or research.

International Visitors

The J-1 visa can be appropriate for “recognized or potential leader(s)” selected by the U.S. State Department to visit the U.S. for up to one year of consultation, observation, research, training, or demonstration of special skills.

Government Visitors

Government agencies in the U.S. may sponsor “influential or distinguished” people to visit the U.S. for up to eighteen months of consultation, observation, training, or demonstration of special skills.

Camp Counselors

The J-1 visa can be appropriate for “youth workers, students, teachers, or individuals with special skills” who wish to accept employment as a summer camp counselor in the U.S. The duration of the employment is limited to four months.

Au Pairs (“Nannies”)

The J-1 visa can be appropriate for foreign teachers to come to the U.S. in order to accept a temporary job (up to three years) teaching in a U.S. primary or secondary school (students of which generally are five to eighteen years old). Most teachers will prefer the H-1B visa, which has several advantages over the J-1 (not least of which is the absence of the home country residency requirement), but which may a little longer to get.

The Two-year Home Country Residence Requirement

The two-year home country residence requirement is a restriction unique to the J-visa, and one that must seriously be contemplated by anyone considering applying for the J visa. Those exchange visitors who are subject to the requirement (and who are unable to obtain its waiver) must, after the expiration of their J-visa and before becoming eligible to change nonimmigrant status in the U.S. or obtaining permanent residency (“green card” status) or certain employment-based nonimmigrant visas, live for two-years in the country of which they were residents when they applied for the visa. The reason for the requirement is that the government policy behind the exchange visitor program is to promote mutual cultural exchange: if exchange visitors to the U.S. did not go home, the U.S. would benefit but the rest of the world would suffer, and, further, the rest of the world would not be as receptive to American participation in similar exchange programs abroad. In cases wherein the requirement applies, it must be satisfied even if the exchange visitor marries a U.S. citizen.

The home country residency requirement applies to a J-1 visa holder:

  • whose J-1 program was to any extent financed by the U.S. government or another country’s government;
  • who, at the time he or she obtained the visa, was engaged in a field of specialized knowledge or skill identified by the U.S. State Department as in short supply in his or her home country (fields and professions appearing on that country’s “skills list”); or
  • whose J-1 program consisted of graduate medical education or training.

Waiver of the Home Country Residence Requirement

Those who think they may be subject to the requirement and who do not wish to go home after their J-visa expires should consult us to conduct a thorough investigation of the application of U.S. law to their particular circumstances to make sure they are, in fact, subject to that requirement. If they cannot argue that they are not subject, they may consider applying to the State Department for a waiver of the requirement. The basis for a waiver are as follows:

  • Possible persecution: If the J-visa holder can demonstrate that he or she would be subject to persecution at home on account of race, religion or political opinion, the home residency requirement may be waived. The standard is similar to that of asylum
  • Exceptional Hardship to United States Citizen: If the J-visa holder can demonstrate that his or her compliance with the home residency requirement would impose exceptional hardship on a U.S. citizen or permanent resident spouse or child, the home residency requirement may be waived. The hardship must amount to more than that normally associated with separation. In other words, forced separation from family always imposes hardship, but for a waiver to be granted the exchange visitor must show some exceptional hardship or combination of hardships, often of a medical, financial, or psychological nature. The likelihood of the hardships must be well documented.
  • “No Objection” Waiver: If the J-visa holder’s home country does not object to the person’s decision not to return home, the home residency requirement may be waived. A “no objection” statement is a diplomatic communication between the home country’s government and the U.S. State Department. Please keep in mind that a “no objection” statement does not compel the State Department and the INS to waive the requirement, and the waiver may still be denied. Also, this form of waiver is generally not granted to those whose exchange visit was funded, directly or indirectly, by the U.S. government, and cannot be granted at all to those whose J program consisted of graduate medical education or training.
  • Request by an Interested Government Agency: A federal government agency (or, in the case of physicians, a state health department) may also request that a waiver be granted. Such an “interested government agency” must show both (i) that granting a waiver is in the public interest, and (ii) that compliance with home residency requirement would be “clearly detrimental” to a program or activity of official interest to the agency. The government agency need not employ or intend to employ the exchange visitor. Requests for waivers should be made as early in the exchange program as possible: the application process is lengthy, and most applicants will want to apply concurrently for an H-1B visa, which is much harder to get at some points in the year than at others. Some of the agencies that most commonly request waivers are the U.S. Department of Health and Human Services, the Department of Education, and, for physicians willing to practice in medically under-served areas, the Appalachian Regional Commission, the U.S. Departments of Agriculture, Veterans Affairs, and Housing and Urban Development, and state health departments. Any federal agency can request a waiver, but some other agencies that somewhat commonly do so are the National Science Foundation, the Departments of Energy and Defense, and the National Aeronautics and Space Administration.

If you are interested in learning more about a waiver of the two-year home residency requirement, please contact us for a consultation.

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