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 host 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. Students in degree programs below the doctoral level may also engage in training programs or internships of up to 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 two-year extension if warranted to permit the alien to complete a specified project or research activity. J-1 exchange visitors are permitted a 30 day grace period to depart upon completion of their program.

Certain J-1 exchange visitors are subject to a two-year home country return requirement. 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. Waivers of the requirements are available in some cases.

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 designated host institution, 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, it 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 placed at 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 a 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 placement is permitted. The program sponsor may be required to provide an updated Form DS-2019 and update SEVIS for such placement, or a transfer of program may be required.

DISCLAIMER: This information is intended for clients of Jackson & Hertogs only. This is not intended to provide legal advice to non-clients of this firm. Nor will we respond to inquiries from non-clients. You should seek your own legal counsel in these matters.