J-1 Visas for Interns and Trainees
The Department of State, rather than the Citizenship and Immigration Service (“USCIS"), administers the J-1 visa program. 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, which is 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 1-2 months (times subject to change) 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. Consular post where the visa application is made. Canadians are visa exempt and are 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 CBP 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 in 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 the 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 J-1 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 years of work experience in his or her occupational field outside the United States.
- Maximum duration remains 18 months except for certain field restrictions:
- Agriculture field has been limited to a 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.
Regulations Affecting Both Trainee And Intern Categories
- Trainee and Intern positions cannot displace a permanent or temporary American worker. The positions must be designed solely for the purpose of hosting an Intern or a Trainee.
- Regulations prohibit Training or Intern placements to unskilled or casual labor positions, in positions that require child care or elder care, or in any kind of position that involves patient care or contact – this includes animal contact as in the cases of Veterinary Sciences.
- Trainees and Interns cannot perform more than 20 percent of their on-the-job experience in clerical work.
- New form DS-7002 (Training/Internship Placement Plan) must be signed by participant, host company (company offering the training or internship) and sponsor organization. Faxed and digital signatures will be accepted, however, all three signatures must appear on the final form.
- Midterm and final evaluations are required at a minimum from both the participant and host company supervisor for all programs exceeding 6 months. For programs six months and less, a final evaluation is required. All evaluations must be signed by both the participant and their immediate host company supervisor.
Changes for Most Sponsoring Organizations
Sponsoring Organization must:
Conduct site visits to host company that: 1. Has not previously participated successfully in the sponsor’s programs and 2. Has fewer than 25 employees OR 3. Less than three million dollars in annual revenue.
Obtain the following information from all host companies:
- Dun and Bradstreet number,
- Employer Identification Number (EIN),
- Proof of Worker’s Compensation Insurance Policy, and
- Verification of participant’s English language skills by documenting interview.
As the J-1 visa is a nonimmigrant visa, applicants must demonstrate that they have a residence abroad which they do not intent 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 CBP 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 immigrate to the United States, but will depart the United States, when the training program is completed. In addition, nonimmigrant intent can generally be demonstrated by obtaining an offer of future employment, if possible, from a company in the foreign national’s home country abroad commencing after the U.S. training is completed.
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 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 the 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 emp loyer 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 the 18 month training program. This would provide a total savings of $9,180.00 for both Trainee 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. 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 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.