J-1 Waiver (Exchange Program Participants)

The J-1 visa, also known as the Exchange Visitor Visa, is a program that allows qualified foreign exchange visitors to work and/or study in the United States. The program was first invoked by the Mutual Educational and Cultural Exchange Act of 1961.

The Act was meant to establish a beneficial communication of ideas between United States citizens and those living outside the United States. The Department of State grants entry to visitors who wish to participate in teaching, instructing, studying, observing, conducting research, consulting, or graduate medical education in the United States.

J-1 Programs

The J-1 visa covers several different programs; the length of time that the J-1 visa holder is allowed to remain in the U.S. will vary, depending upon the basis for the J-1 visa. The programs include full-time students, short-term scholars, trainees, teachers, professors and research scholars, experts, physicians, certain international or government visitors, camp counselors, and au pairs. Most J-1 visa holders are given a 30-day grace period at the conclusion of their stay in J-1 status in the U.S.

The list of available programs is endless. There are categories such as professors, scholars, scientists, college students, secondary school students, medical graduates, international and government visitors, etc. A summer employment is another feasible option for participants. After the J-1 visa program is complete, the participant must return to their home country for two years and apply the newly learned skills.

Usually, the dependents of a non-immigrant visa holder are prohibited from engaging in employment. J-2s, however, are permitted to work with USCIS authorization, as long as they are not supporting the J-1. The J-2 files the Application for Employment Authorization (I-765) with the applicable Service Center, along with documentation demonstrating that the employment is not required to support J-1 (this is most easily proven with evidence of the salary paid to the J-1).

J-1 Sponsors

One of the things that make the J-1 visa different from other types of visas and green cards is the fact that the applicant must be sponsored by a private organization or government entity. The sponsor must be accredited by the State Department before the applicant can be recommended for a J-1 visa.  Once the applicant is duly sponsored, he or she must file all necessary documentation in order to get the J-1 visa application.

The J-1 can change program sponsors, but will not get any additional time. Usually, the program objective must be the same as that of the original program sponsor.

To view a complete list of J-1 visa sponsors in the United States, please click here.

J-1 Visa Requirements:

The qualifications for each program differ for each category, however, these are the common requirements to obtain the J-1 visa.
  • The participant must have a Certificate of Eligibility for Exchange Visitor (Form DS-2019) which is received from the program sponsor.
  • The participant must not have the intention of releasing his/her foreign residence.

Green Cards and J-1 Visas:

Green Cards are available to J-1 visa holders. The J-1 visa holder may apply through employment-based or family-based immigration. The applicant must first submit an immigrant petition (I-140) to the USCIS. Then, if the applicant is living in the U.S., submit an application for Adjustment of Status. If the applicant is living outside the U.S, they must apply for an Immigrant Visa through consular processing.

Foreign Residency Requirement

The Foreign Residency Requirement has several names such as the “Two-year Home Country Physical Presence Requirement” or the “Home Residence Requirement” but essentially they are all describing the same thing. According to the Immigration and Nationality Act, J-1 visa holders, who have completed their program, are required to reside in their home country for a minimum of two years.

In general, this two-year home residence requirement precludes a J visa holder from an H visa, an L visa, or permanent resident status (any immigration benefit) unless/until they have lived in their home country for two full years or a waiver is obtained.

A J-1 visa holder may obtain a waiver of the two-year home residence requirement; however, these waivers are not always easy to obtain. The waivers include the following:

  • No-objection Waiver;
  • Interest U.S. Government Agency Waiver;
  • Exceptional Hardship Waiver; and
  • Fear of Persecution Waiver. 

For more information on the J-1 visa process, contact one of our immigration attorneys to obtain a detailed analysis on whether you qualify for a J-1 visa or a J-1 waiver of the two-year home residence requirement.

Click here to learn more about the Two-year foreign residency requirement.

J-1 Trainee

In employment-based circumstances, the J-1 “trainee” category can be particularly useful. “Umbrella” agencies are able to act as sponsors for the J-1 applicant. An employer may contact the agency concerning a particular foreign national, and if the foreign national fits the program’s profile, the agency will be able to sponsor the J-1 applicant to obtain special training. During the training period, trainees are allowed to work for the employer and are to be paid by the employer for a period of 18 months while they are receiving training from the employer.

This works well for students from abroad who would like to engage in a summer internship. It can also be useful in certain circumstances where an E, H or L visa is not available to the foreign national. Care must be taken, however, to make sure that the foreign national will not be subject to the two-year home residence requirement.

J-1: Au Pairs

Under current regulations, an au pair can come from any country with which the U.S. has diplomatic relations. The J-1 is usually valid for 1 year; however, it can, under certain circumstances, be extended for an additional year. The au pair must be a secondary school graduate, between the ages of 18 and 26, and must be proficient in English.

References and background investigations are required. The applicant cannot work more than 45 hours per week, must be enrolled for at least 6 academic credits, and must be paid at least a minimum amount designated by the Government of the United States and as stated by the Immigration and Naturalization Act.

Furthermore, the regulations require that the applicant receives a two week paid vacation, at least one and a half days off per week, and at least one full weekend off each month. Additional requirements are put in place by the Immigration and Naturalization Act if the au pair will be responsible for infant care.

J-1 Waiver Denial

Was your J-1 visa waiver denied? Coupled with the J-1 denial you’ll also receive the reasons why your waiver was denied. Unfortunately, the Waiver Review Division, who’s responsible for reviewing these documents typically will not reconsider denied applications because they undergo such rigorous scrutiny.

For that reason, there is no way to formally appeal the WRD’s determination of a denial. All things considered, however, this does not mean that you can’t reapply under a different statutory base. If you find that no other base can properly apply to your case, then you’ll need to fulfill the two-year home country presence requirement.