J1 Exchange Visitor Visa: who is it for, and what are the requirements, restrictions, and waivers?

The J1 Visa Program

The J1 visa program was created in 1961 by the Fulbright-Hays Act. The purpose of the program is diplomacy and fostering international relations.

This visa category is authorized for those who intend to participate in an approved program for teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training.

There are 15 categories of eligible participants who may teach, study, research, or receive training in the United States. These categories include physicians, researchers, au pairs, summer workers, and interns.

The Department of State is the government agency responsible for designating U.S. Sponsors to manage J1 programs (https://j1visa.state.gov/programs). The Hosts are the U.S. entities where the programs take place (school, camp, university, hospital, etc.) And the Participants are the J-1 exchange visitors.

Nonimmigrant Intent

Unlike the H1 and L1 visas, the J1 is not a dual intent visa. A J1 applicant must have nonimmigrant intent when applying for the visa. However, they only need to show present intent. The fact that the current plan is subject to change is not sufficient reason to refuse the visa. 9 FAM 402.5-6F.

J2 Visa for Family Members

J1 visa holders may bring their spouses and children to the U.S. One significant restriction is that J2 spouses may file for a work permit, but they cannot be the primary earners in the family. Their income needs to be incidental to the primary applicant's income. If the spouse has a high income, they might want to consider a separate visa.

Two-Year Home Residency Requirement

This restriction applies to programs funded by the U.S. government or the home country's government. It enforces the purpose of the J1 status, which is the "exchange" part of the program, i.e., intent to return to the home country. Physicians, for example, are subject to this requirement.

J1 holders subject to this restriction may not file for an H or L visa or apply for permanent residency (Green Card) before spending the two required years in their home country. Marriage to a U.S. spouse does not overcome this requirement. The J1 holder must comply with the condition or file for a waiver.

It is vital to document the compliance with the two years residency requirement. However, there is no deadline for complying with the condition.

Waivers of the Residency Requirement

There are four kinds of waivers for the residency requirement:

No objection waiver. The J1 holder will need to ask the government where they lived when their DS-2019 was granted to provide a no-objection letter. They will need to approach their home country's embassy and ask for it (it does not work for doctors).
Interested U.S. Government Agency (including Conrad 30 for physicians). A qualifying U.S. Government Agency can file this waiver.
Exceptional hardship to a U.S. citizen or a Permanent Resident spouse or child. The requestor must file an I-612 form with factual evidence demonstrating the hardship to the qualifying relative.
Fear of persecution. For this waiver, there is no need for a qualifying relative. It requires the requestor to show fear of prosecution in their home country. Processing time can be very long.

For further information and case-specific questions, please email us at: info@rsbilaw.com or leave a message at: (408) 758-2712.

*This article has been prepared for general information purposes only. The information presented is not legal advice, is not to be acted on as such, may not be current, and is subject to change without notice. Readers should contact their attorney to obtain advice concerning any particular legal matter.