J-1 Visa and Waivers
A J-1 Visa can be obtained by a person working through a sponsored exchange program that has been designated by the Department of State. These exchange programs can be public or private operations that work towards the sharing of experience or skills. Holders of J-1 Visas, or “exchange visitors,” include, but are not limited to, students, research assistants, professors, lecturers, specialists, and nannies/au pairs. Exchange visitors come for the extent of their program and then typically return to their home country. The purpose of the J-1 Visa is to allow the sharing of knowledge and experience in the fields of education, art, and science.
J-1 Visa Application Process
The process of obtaining a J-1 Visa is facilitated by the exchange program. The designated program will provide applicants with Form DS-2019, the Certificate of Eligibility for Exchange Visitor Status. The authorized providers of the Form DS-2019 are referred to as the Responsible Officer (RO) or the Alternate Responsible Officer (ARO). The ROs and AROs at the particular sponsored exchange program will help applicants out step by step to complete the necessary forms and paperwork to obtain a J-1 Visa. It is recommended to apply well before the beginning of the program, as the wait time for the J-1 Visa approval process varies. However, once a person is awarded with J-1 status, he or she can only enter the country for up to thirty days before the start of the exchange program.
Exchange visitors are allowed to work in the country if facilitated by the exchange program. Some J-1 Visas are awarded for the specific purpose of allowing the visitor to work in the country, such as specialists and nannies/au pairs. However, some J-1 Visas do not provide authorization for employment. As a result, interested applicants should inquire about to the specific guidelines or restrictions of their program regarding working during their time as an exchange visitor.
If the exchange visitor with J-1 status has a spouse or children under the age of 21, they can apply for J-2 Visas through the sponsored exchange program. The J-2 Visa allows the family of J-1 exchange visitors to accompany them to the country. However, not all programs provide J-2 Visas. For example, typically au pairs, camp counselors, and secondary school students cannot apply for J-2 Visas for family members or dependents. As a result, interested applicants should look into the specific J-2 Visa guidelines adopted by their exchange program.
Those with J-2 status are permitted to work in the country as long as the income is not used to support the exchange visitor with J-1 status. In order to obtain permission to work, those with J-2 status must file an I-765.
Physical Residency Requirement
At times, a J-1 exchange visitor may be required to spend two years in his/her home country upon completing the program abroad. This requirement is intended to promote the sharing of the skills or experience that the exchange visitor acquired during the program in order to benefit the home country. The physical residency requirement does not apply to all exchange visitors with J-1 status. Typically, this condition applies to those who are seeking and H or L Visa or permanent residence in the United States and fall into one of these three categories: First, those who receive medical training or attend medical school at a graduate level in the country face this stipulation because of the special regulations that apply to International Medical Graduates, or IMGs. Second, those who receive funding from the United States government or their home country for their exchange program must complete the physical residency requirement. Lastly, the State Department produces the Exchange-Visitors Skill List, which comprises types of employment or areas of study. If the J-1 exchange visitor’s occupation or skill area is referenced in the list, he or she will also have to comply with the physical residency requirement.
A J-1 exchange visitor who is affected by the physical residency requirement may travel back to the United States as a visitor or student or spend time in a third country. However, this time away from the home country will not count towards the two year requirement, which must be completed if the visitor wishes to obtain an H or L Visa or apply for permanent residency in the United States. Additionally, the physical residency requirement also applies to the spouse or dependent of the J-1 exchange visitor if the family obtained J-2 status.
The physical residency stipulation can be waived under certain circumstances by applying for a “J waiver.” J waivers can be obtained by having the home country submit a No Objection Letter, stating that the exchange visitor is not mandated to return for the two year period. The request must then be approved by the State Department and the Bureau of Citizenship and Immigration Services (CIS). This method of obtaining a J waiver only applies to exchange visitors whose occupation or skill is found on the State Department’s list and cannot be used by those who are obtaining medical training or graduate level medical instruction. Additionally, an exchange visitor can receive a J waiver by claiming exceptional hardship for instances in which the physical residency requirement may endanger or be harmful to the health of the J-1 exchange visitor or his/her family. The J-waiver can also be obtained if the exchange visitor will face persecution upon returning to the home country. Lastly, J waivers can be awarded to exchange visitors by Interested Government Agencies (IGAs), meaning that a federal government agency applies to waive the requirement and offers employment to the J-1 exchange visitor. This most often occurs with doctors or scientists who are needed by government agencies such as the Department of Health and Human Services (HHS).
Should you have any questions or if you would like to schedule a consultation, please contact me by submitting the form or by calling me at (917) 426-8227 or (248) 979-5390. I accept clients from across the U.S. and around the world. My law offices are conveniently located in Lower Manhattan, New York and in Troy, Michigan for in-person meetings. For phone consultation, you can reach me from any part of the United States or abroad.