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.

Misconceptions

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.

Obtaining Waivers

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. government agencies.

1. The "No Objection" Letter

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 Waiver

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.

Adjustment of Status

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 INS.

Conclusion

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.