Exchange Visitors (J1)
Persons coming to the U.S. in an approved exchange program may be eligible for the J-1 Exchange Visitor's visa. J-1 programs often cover students, short-term scholars, business trainees, teachers, professors and research scholars, specialists, international visitors, government visitors, camp counselors and au pairs. In some cases, participation in a J-1 program will be coupled with the requirement that the beneficiary spend at least two years outside of the U.S. before being permitted to switch to a different non-immigrant visa or to permanent residency. Birg & Meltser routinely seeks waivers to the home residency requirement that applies to many J-1 visa holders.
J-1 VISAS
GENERAL DESCRIPTION
The J-1 Visa is a "catch-all" category used by Exchange Visitors to enter the U.S. pursuant to U.S. Government-Approved Exchange-Visitor Programs, for the purpose of gaining experience, studying, working or doing research in their respective fields. The U.S. sponsor must proceed through an Exchange-Visitor Program designated by the U.S. Information Agency (USIA). Sponsors may proceed through another organization’s already established program or establish their own exchange-visitor program by applying to the USIA.
There are eight types of programs through which sponsors may bring exchange visitors to the United States. They include students, short-term scholars, business trainees, teachers, professors, research scholars, specialists, foreign medical graduates, summer travel/work for students, au pairs and other visitors. The terms of the J-1visa depends upon the type of program.
FOREIGN RESIDENCY REQUIREMENT AND WAIVER
Most J Visas are subject to a two year foreign residency requirement. Such programs require a J visa holder to return to his home country for a period of at least two years upon the expiration of the J program before he is eligible to obtain another visa or become a permanent resident. In some cases, a J visa holder may be eligible to apply for a Waiver of the two year foreign residency requirement.
FOREIGN MEDICAL GRADUATES
Foreign medical graduates may obtain J-1visas for the purpose of participating in internships and residencies in the United States.
TERM
Foreign medical graduates may be admitted for the length of their program, with a usual maximum of 7 years. Additional time may be conferred, under the USIA rules under certain circumstances.
FAMILY MEMBERS
Dependent family members (spouses and minor children) are eligible for the J-2 visa, which allows them to enter and remain in the United States in J-2 status for as long as the principal J-1 visa holder.
USIA EXCHANGE VISITOR PROGRAM
Foreign medical graduates must be sponsored through the Educational Commission for Foreign Medical Graduates. This program has been approved by the USIA. The Educational Commission for Foreign Medical Graduates is the only USIA approved program for foreign medical graduates.
SPECIAL REQUIREMENT
J-1 visa holders subject to the foreign residence requirement are ineligible for permanent residence, H1B or any other visa until he spends 2 years in his home country or country of last residence. Waivers of the requirement are available in some situations.
The foreign residence requirement applies to three categories of J-1 visa holders:
- Those who possess skills that have been determined to be in short supply in their own countries;
- Those whose training program is financed in whole or in part by either an agency of the U.S. government or by the government of the alien’s home country; and
- Those who come to the United States to receive graduate medical education or training.
"Graduate medical training" is defined to include residency and fellowship programs involving direct patient care but it does not include programs involving observation, consultation, teaching or research, in which there is only incidental patient care.
Therefore, a J-1 foreign medical graduate is not subject to the foreign residency requirement if he or she is engaging in incidental patient care only, and which is connected to the program’s primary purpose of, for example, research or teaching.
Note: Often the U.S. Consulate or Embassy that issues the J-1 visa will indicate on the visa whether the alien is subject to the foreign residency requirement. However, the officer’s determination is not binding and a further examination of all the facts may be necessary to conclude if the alien is indeed subject to the requirement.
WAIVERS OF THE TWO-YEAR FOREIGN RESIDENCY REQUIREMENT
Waivers of the two-year foreign residency requirement may be obtained through one of the following procedures:
1. Obtain a letter of “no objection” from the alien’s home country’s government;
2. Obtain a request from an interested U.S. government agency;
3. Establish that the foreign residency requirement would impose an exceptional hardship on the alien’s U.S. citizen or permanent resident spouse or child
4. Establish that the alien would endure persecution in the alien’s home country;
The easiest of the procedures is obtaining the “no objection” letter from the alien’s home country’s government. Note that this option is not available to aliens subject to the foreign residency requirement on the basis of receiving graduate medical training. Unfortunately, many governments are not willing to provide such a letter. In that case, the alien must look at the other options.Obtaining a request from an interested U.S. government agency is often available in situations where the alien is working on a project contracted by a U.S. government agency such as the National Science Foundation, National Endowment for the Arts or the Department of Defense. The government agency would make a recommendation for a waiver if the alien’s contribution to the project is sufficiently significant.
If the alien has a U.S. citizen or permanent resident spouse or child who would suffer exceptional hardship, should the alien complete the foreign residency requirement, a waiver may be granted. A successful case would carefully document the reasons why the spouse or child would suffer hardship that is above and beyond the hardship that would be normally expected. Also it is necessary to establish that both a separation would pose exceptional hardship and as well as accompanying the alien to his or her home country.
Although there are numerous basis upon which to obtain a waiver of the foreign residency requirement, often the best method for foreign medical graduates of receiving a waiver is by obtaining a request from an interested government agency. Any federal agency can make a request on an alien’s behalf. However, certain agencies have guidelines and procedures in place especially for handling such requests. These agencies include the Department of Health and Human Services (HHS), the Department of Veterans Affairs (VA), the Appalachian Regional Commission (ARC), the U.S. Department of Agriculture (USDA), the Department of Housing and Urban Development (HUD) and state-level health departments.
There are three bases upon which an interested government agency can make a request on an alien’s behalf:
- The existence of an employer/employee relationship between the sponsor and the alien;
- Academic research in a health are of perceived importance to the United States; or
- Commitment of the alien to work in a medically under-served area.
Note that if a J-1 holder is subject to a 2-year foreign residency requirement, this would apply to family members in J-2 status as well. If the principal J-1 visa holder obtains a waiver of the foreign residency requirement, then the requirement is waived for the derivative J-2 visa holders.