J VISA CATEGORY
J-1 Exchange Trainees
If the individual does not qualify for an H visa
classification, he or she may qualify under the J-1 category. The J-1 visa
can be used by any U.S. companies primarily in an entry-level position to
gain work experience and training in his or her field.
The primary purpose of the alien’s J-1 visa
is to improve his or her knowledge of American techniques and operation in
any U.S. industry and take this experience back to Japan to utilize upon
returning home. A person must have at least one year of experience or a
degree in the field in order to qualify for a J-1 visa. The J-1 visa is
valid for the length of time the employer requires the alien’s services,
up to a maximum of 18 months with no renewal.
Of all the possible visas by which foreign
nationals can come to the United States to work or study, none is as
problematic as the J or "exchange visitor" visa.
The major drawback of the J visa is that many
exchange visitors are permitted to enter the U.S. only on the condition
that they exit this country for a minimum of two years after their program
is completed. It is exceedingly difficult to obtain a "J waiver,"
or exception, to this two-year foreign residency requirement. This is true
even if the foreign national has married a U.S. citizen during the course
of his or her stay in the United States.
Nevertheless, in many cases, J visa holders
can obtain waivers.
Prior to discussing waivers, it is important to clarify several
misconceptions about the J visa. First, most J programs do not subject the
foreign national to the two-year residency requirement. Only three types
of programs contain this requirement. One of these programs is for aliens
who obtain J status in order to receive graduate medical education or
training in the U.S. The second is for all persons whose J programs
are financed by the U.S. government or by the visa holder's government.
The last is for persons whose occupations or courses of study appear on
the Exchange-Visitor Skills List published by the U.S. Information
Agency (USIA), the agency which administers all J programs. Foreign
countries in need of certain skills place them on the list, thereby
subjecting exchange visitors who participate in a program involving
designated skills to the foreign residency requirement.
In addition, many people assume that the
affected alien must return to his home country for two years immediately
following the completion of the program, and may not set foot in the U.S.
during those two years. In reality, the foreign residency requirement bars
the alien, for a period of two years, solely from obtaining H (temporary
worker), L (intracompany transferee), or permanent residence status in the
U.S. The alien may return to his home country and reenter the U.S. in
visitor, student or other status. However, any time spent in the U.S. or a
third country does not count toward the two-year residency requirement.
For example, if an International Medical Graduate (IMG), after finishing a
medical residency in the U.S. moves to Canada to avoid the two-year
residency requirement and now wishes to re-enter the U.S., he will still
be obstructed by the two-year rule.
It also should be noted that the foreign
residency requirement attaches not only to the principal alien, but to the
spouse and children who are present in the U.S. in dependent J-2 status.
However, if the spouse and children never obtained J-2 status, they are
not subject to the foreign residency requirement.
There are four methods by
which a foreign national may obtain a waiver of the two-year residency
requirement. Each method requires the approval of one or more U.S.
1. The "No Objection"
The government which financed
the alien's program, or which requested that the alien's skill be placed
on the Skills List, may write a letter to the USIA stating that it
has no objection to a waiver of the foreign residency requirement for a
particular alien. If both the USIA and the Immigration &
Naturalization Service (INS) concur, the waiver is granted. However,
graduates in medical education are ineligible to receive a waiver based
upon a no objection letter.
2. The Hardship Waiver
The alien may obtain a waiver if the imposition of the
foreign residence requirement would impose "exceptional hardship"
on his or her U.S. citizen or permanent resident spouse or children. For
example, a hardship waiver might be granted if the alien were married to a
U.S. citizen, had one or more citizen children, and the family would be
forced by the residency requirement either to separate or to reside
together in a war-torn country. A hardship waiver might also be granted if
a family member were suffering for a life-threatening disease for which
treatment was not available in the country where the alien was a citizen.
Persons facing dramatically negative situations due to family conditions
or conditions in their home country may consider this option.
3. The Asylum Waiver
The foreign residency requirement may be waived by the
INS where it is determined that the alien cannot return to his country of
nationality or last residence because of persecution he or she would be
likely to encounter, based on race, religion or political opinion.
4. The Interested Government Agency
An agency of the U.S.
government may write to the USIA requesting a waiver of the foreign
residency requirement for a particular alien. For instance, the Department
of Health and Human Services could write such a letter on behalf of a
scientist if it was shown that the scientist's research might lead to a
vaccine or cure for a serious disease. If the USIA and the INS agree, and
they almost invariably do, the waiver would be granted.
Besides the Department of Health and Human
Services, the other government agencies most likely to write such letters
on behalf of IMGs are the Veterans Administration (VA), the Appalachian
Regional Commission (ARC), the Department of Agriculture (USDA) and the
Department of Housing and Urban Development (HUD).
Since 1994, individual states may sponsor up
to 20 physicians per year for J waivers through their departments of
health. Over 30 states have established such programs.
INS rules allow most persons
who have received a recommendation that the two-year home residency
requirement be waived by USIA to submit their J-1 waiver request
simultaneously with their application for adjustment of status with the
It is very difficult, though not impossible, to obtain a waiver of
the two-year residency requirement. Before obtaining J status, persons
should determine whether they will be subject to the residency requirement
and, if so, whether any alternative immigration status is readily
available to them.