Exchange Programs (J-1)

The United States established the exchange visitor programs in order to, in the words of the State Department, "increase mutual understanding between the people of the United States and the people of other countries through educational and cultural exchanges." In practice, the programs provide a wide variety of opportunities for training, travel, research, education, and employment in the US, subject to the sponsorship of governmental and private organizations. Since its inception, the US has approved some 5,000 sponsored programs (not all of which are currently active) which have facilitated US admission for hundreds of thousands of exchange visitors in the professions and other walks of life. The key disadvantages to the exchange programs can be the duration of stay for some of the categories (brief) and the requirement that program participants return to their sponsoring country for two years after the program ends. This can constrain those with immigrant intent or who expect to seek employment as a non-immignant, but the requirement may be waived under certain conditions.

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Creation of Exchange Programs

Program sponsors operate under the supervision of the Department of State, which receives applications for certification, vets program purposes, grants authority, and oversees compliance. A complete analysis of State's Exchange Visitor Program is beyond the scope of this article, but details can be found at the Bureau of Educational and Cultural Affairs' web site http://exchanges.state.gov/education/jexchanges/.

A summary of the exchange programs is set out in this Table of Exchange Program Categories.

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Minimum Requirements

In addition to category specific requirements, participants must have been accepted by a recognized sponsor of an exchange program, have sufficient funds available for the duration of the stay, be proficient in English, and maintain medical insurance for themselves and their family.

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Procedure

Exchange program participants may apply for a J-1 visa for themselves and J-2 visa for spouse and minor children by submitting the visa application package to a US consulate, as well as a SEVIS Form DS-2019 (Certificate of Eligibility for Exchange Visitor), which has been provided by the plan sponsor. On application for admission, the exchange participant and dependents present their issued J visas and consulate-stamped DS-2019 to the immigration inspector at border/point of entry. The participant and family may be admitted up to thirty days prior to the commencement of the program and may stay up to thirty days after it ends, enabling the visitor to make preliminary and departure arrangements.

The J visa permits multiple reentries into the US during its period of validity. J category visitors may visit Canada and Mexico for up to thirty days and return on the basis of their I-94 arrival/departure card. They may travel to noncontiguous countries and obtain readmission on presenting an unexpired J visa and DS-2019.

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Extension

J visas will only be extended upon a showing by the program sponsor that exceptional or unusual circumstances require that additional time is necessary for the program participant to complete the program. If the J holder is eligible for adjustment to H-1b status but for the exhaustion of available visa numbers for the year, the beneficiary may remain in J status until the next fiscal year.

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Two Year Abroad Requirement

Under certain circumstances, exchange program participants are ineligible to adjust status to permanent residence, apply for an immigrant visa, or change to H or L non-immigrant status until they have resided two years abroad in their home country or country of last residence (residing in a third country would fail to comply). These circumstances include:

Where the individual's participation in the exchange program was financed in whole or in part by the US Government or the government of the participant's last residence;

In cases of trainees, where the trainee's field of expertise at the time of first admission is identified on the US Government's skills list as one which is "clearly required" by the trainee's country of nationaility; or

Where an exchange participant came to the US to acquire graduate medical training or education.

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Waiver of Two Year Requirement

There are a number of bases for waiver of the two year requirement, including:

Where the participant would be subject to persecution on return on account of race, religion or political opinion;

Where the participant's two years abroad would impose an exceptional hardship on a US citizen or lawful permanent resident, including economic, physical and emotional hardship, or hardship caused by loss of employment educational, or health opportunities;

If the participants home or sponsoring country poses no objection to her decision not to return home, unless the US Government financed a portion of the expense;

On motion of the US agency that sponsored or has some other interest in the program, concluding that waiver is in the public interest and that the two year bar would be clearly detrimental to the program;

Where a federal or state agency recommends that a foreign medical graduate be permitted to stay in the US in order to practice medicine in an area in which there is a shortage of physicians (where there is no objection from the funding home country).

Waiver of the two years abroad requirement can be a complex undertaking requiring the consent of several government agencies within the US and abroad, and is best undertaken with advice of counsel.

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