By Greg Siskind
For more than a half century, the US government has operated an exchange visitor visa program. The visa is called the J-1 and it is administered by the US Department of State. In earlier decades, it was managed by the US Information Agency which later was merged into the State Department. J-1 Exchange Visitor Visas are used for a variety of programs ranging from camp counselors and au pairs to international scholars and physicians. There are two programs of particular interest to human resource managers – the intern and the trainee programs.
The intern J-1 program is designed to allow college and university students or recent graduates to get hands-on experience in their occupational fields at US businesses and get exposure to American culture. Qualifying applicants can accept internships up to 12 months. The J-1 intern’s studies must have been outside the US and the studies must have taken place within the 12 months prior to the exchange program start date.
Interns are barred from working in unskilled or casual labor positions or positions involving childcare, elder care, or medical patient care or contact. Finally, interns cannot work in positions requiring 20% clerical or office support work. And the federal government monitors for compliance with this requirement much more closely than in the past.
As for the fields, interns are permitted to work, the following are approved by the State Department:
- Agriculture, Forestry and Fishing;
- Arts and Culture;
- Construction and Building Trades;
- Education, Social Sciences, Library Science, Counseling and Social Services;
- Health Related Occupations;
- Hospitality and Tourism;
- Information Media and Communications;
- Management, Business, Commerce and Finance;
- Public Administration and Law; and
- The Sciences, Engineering, Architecture, Mathematics and Industrial Occupations.
J-1 visa applicants are sponsored by exchange programs and placed at qualifying employers. Employers generally take the lead in identifying a J-1 program and the list of exchange programs sponsoring interns can be found at https://bit.ly/2T6tfEW. As of April 2019, there are 89 authorized programs. They all differ in the types of fields they’ll sponsor, the nationalities on which they focus, and they can differ on fees and processing speeds.
As for basic requirements applicable to all employers, here are some of the basics:
1. Employers complete a DS-7002 form that includes a training plan for the intern that outlines both the employment experience to be gained and the employer’s plans for providing cultural experiences;
2. Employers must comply with all government health and safety laws;
3. Have sufficient resources, plant, equipment and trained personnel available;
4. Provide continues supervision an mentoring by experienced staff; and
5. Ensure that interns obtain skills, knowledge, and competencies through structured activities such as classroom training, seminars, rotation through various departments, on-the-job training, attendance at conferences and similar learning experiences.
If you sponsor a J-1 intern, be aware that many interns will be subject to a requirement to return their home countries for a two-year period. This is usually based on the J-1’s field and nationality being listed on a Department of State Skills List. If this applies, the J-1 will be barred from switching to another non-immigrant category within the US, barred from obtaining an H-1B or L-1 visa at a consulate or getting a green card. Waivers are sometimes available with the most common route being based on getting a no objection letter from the home country government.
More experienced individuals can sometimes look at coming to the US as a J-1 trainee. The trainee category is available to individuals with university degrees or professional certificates from foreign post-secondary institutions and who have at least one year of foreign work experience in his or her professional field. Alternatively, the person can have five years of foreign work experience in their field. J-1 trainee programs can last up to 18 months.
The same restrictions on working noted above for interns (such as bars on unskilled or casual labor) apply to trainees as well. Trainees are also specifically barred from taking positions that are considered “ordinary employment” which are jobs normally filled by full-time or part-time employees. Training also cannot duplicate the trainee’s prior work experience or training.
The fields eligible for trainees are the same as listed above for interns. The list of eligible J-1 trainee sponsors can be found at https://bit.ly/2SfvNMG.
The requirements for J-1 trainee host employers are largely the same as for J-1 interns including ensuring the opportunity genuinely provides training and the J-1 is getting plenty of supervision. Also, the J-1 home residency requirement is an issue for trainees as well. Many employers that have had a positive experience with a J-1 trainee decide to pursue employing the J-1 once the internship or trainee periods is over. This is sometimes possible if the home residency requirement does not apply or has been waived and an appropriate work visa option is available. Often this is a challenge because of the limit on H-1B visa availability.
Siskind Susser, PC
Immigration Lawyers [email protected] www.visalaw.com