A GUIDE FOR NEW IMMIGRANTS IN AMERICA

Immigration Issues

 

 

J-1 Visas for Interns and Trainees

 


By David Fullmer, Attorney

While the J-1 visa is not a very well-known category, it should be considered in situations where it is not practical or possible to obtain an H-1B visa for a foreign hire and practical training is the primary conduct.  While the 18 month term is shorter than the 36 month term of the H-1B visa, the J-1 can be obtained relatively quickly and without a quota.  In order to obtain a J-1 visa for an employee, a company must either become designated by the Department of State as a J-1 visa program sponsor or initiate an application as a host company through an approved sponsor organization.

The first step is to find an appropriate sponsoring organization.  There are numerous organizations that are authorized by the Department of State to act as sponsors of J-1 training and intern programs.  These organizations review and approve the application and training program of a host company and issue a Form DS-2019, with a certificate of Eligibility for J-1 training.  Each sponsor has different requirements, filing fees and procedures, but all sponsor applications require that the host company submit a detailed  training program.  The training program must spell out the details and chronology of the training which will be accomplished.  Third party sponsors generally take about 1 month to review and approve J-1 applications and training programs. 

Once the application is approved, the sponsoring organization sends a Form DS-2019 to the Trainee or Intern abroad, who then submits the Form DS-2019 to the U.S. Consulate in his or her home country and obtains the J-1 Visa.  Processing times are generally from days to weeks, depending on the U.S. Consulate post where the visa application is made.  Canadians are visa exempt and thus not required to obtain the visa at a U.S. Consulate.  These visa exempt individuals merely submit Form DS-2019 and proof of nonimmigrant intent to the Immigration officer at the time of admission to the United States.

The U.S. Department of State regulations effective July 19, 2007 established a new J-1 Intern category and revised significantly the regulations governing the J-1 Trainee program.  The Trainee and Intern programs are designed to allow students and professionals to come to the United States to gain exposure to U.S. culture and receive training and exposure to U.S. business practices in their chosen field.  Upon completion of their programs, participants are expected to return to their home countries where they will be able to utilize their newly learned skills and knowledge to advance their careers, and to share their experience with their peers and others.

The Intern Category

The Intern category was created to allow a learning experience for current post-secondary students and recent graduates.  Both the Trainee and Intern programs must directly relate to the participant’s career field of study.  The Intern category applies to:

Foreign nationals who:

  • Are currently enrolled in and pursuing studies at a foreign degree or certificate granting post-secondary academic institution outside the United States, OR
  • Graduated from such an institution no more than 12 months prior to his or her exchange visitor program start date.
  • Maximum duration in any field is 12 months.

The Trainee Category

The Trainee must be a foreign national who has:

  • A degree or professional certificate from a foreign post-secondary academic institution outside the United States and at least one year of prior related work experience in his or her occupational field outside the United States, OR
  • Five year of experience in his or her occupational field outside the United States.
  • Maximum duration remains 18 months expect for certain field restrictions:
    • Agriculture field has been limited to training maximum of 12 months unless at least 6 months of the program is classroom participation and studies.
    • Hospitality field training programs also have been limited to a maximum of 12 months; all programs longer than six months must have at least three departmental relations.  However, management training in hospitality may have a maximum duration of 18 months if categorized under Management field. 

Nonimmigrant Intent

As the J-1 visa is a nonimmigrant visa, applicants must demonstrate that they have a residence abroad which they do not intend to abandon.  As is the case with F-1 student visa or the B-2 visitor visa, an applicant for a J-1 visa must show the U.S. Consulate or border Immigration Officer in the case of Canadian applicants, that he or she has strong enough family, economic and social ties to his or her own country to prove that he or she will not stay in the United States, but will depart the United States when the training program is completed.  As a practical matter, nonimmigrant intent can generally be demonstrated by obtaining an offer of future employment from a company in the foreign  national’s home country abroad commencing after the U.S. training is completed.

Benefits 

The spouse and single children (under 21) of a J-1 principal applicant may come to the United States on J-2 visas for the same period as the J-1 training program.  One benefit of the J-1 is that the spouse may obtain Employment Authorization through the USCIS (formerly INS) by submitting Form I-765.  However, a J-2 foreign national spouse may only use his or her income to support the family’s customary recreational and cultural activities and related travel, among other things.  The USCIS will not authorize employment for J-2 dependents if the income is needed to support the J-1 principal foreign national.

While the employment of J-1 principal is limited to the host company as set forth in the application made to through the third-party sponsor, the employment authorization offered to a J-2 dependent permits employment in the open market.

Another benefit of the J-1 visa is that J-1 Trainees and Interns are exempt from FICA tax withholdings.  In general, 7.65% of the earnings of U.S. employees and holders of other nonimmigrant visas is withheld from all earnings for Social Security and Medicare.  In addition, the employer pays another 7.65%, for a total of 15.3% of the employee’s total wages.  (Withholding drops to 1.45% from the employee and 1.45% paid by the employer after an employee has earned $90,000 in any given year.)  Therefore, if a Trainee or Intern is paid $40,000 per year, the employer and the trainee would each save $3,060.00 per year just because the Trainee or Intern are in the U.S. on a J-1 visa rather than an H-1B visa, or $4,590.00 over the life of 18 month training program.  This would provide a total savings of $9,180.00 for both Trainee/Intern and host company through the use of the J-1 visa. 

Something To Watch Out For:  The Two-Year Home Residence Requirement 

Nationals of certain countries who will be obtaining training in areas listed on the Department of State’s “skills list” are not allowed to change to any other nonimmigrant status in the U.S. or immigrate to the United States until they have returned to their home country – and not to any third country – for at least two years.  The skills list is organized  by country and contains several skill groups, each of which contain numerous categories  of skills.  Because of the difficulty of obtaining a waiver of the two-year home residence  requirement, it is important to check the “skills list” before applying for the Certificate of Eligibility.  Most European and Asian countries do not fall under the “skills list”.  The “skills list” is available through the U.S. Department of State each year.

 

Disclaimer:  Nothing on these pages should be taken as legal advise for any individual case or certain situation.  The information is general and should not be relied on upon for any specific situation.  For legal advice, please contact one of our attorneys.

All content is copyrighted by IVENER & FULLMER LLP 2008.  All rights reserved.  No portion of this article may be duplicated without permission.  Services relating to immigration and naturalization provided by Ivener & Fullmer LLP are provided by active members of the State Bar of California or by a person under the supervision of active members of the State Bar of California.

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