Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
RESOURCES FOR ATTORNEYS
The American Immigration Council’s strong association with the immigration law community means the International Exchange Center is both sensitive to attorney-client relations and uniquely suited to assist attorneys at every step of the J-1 process.
LINKS AND RESOURCES
- Video Tutorial: How to Write a J-1 Training Plan
- Tax Assistance for J-1 Participants
- Can an Internship Be Paid or Unpaid? (link: Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act)
- Comments on Proposed Regulatory Change to Sub-Part A General Provisions
- Comments on Proposed DS-7002
- The Role of the Attorney in the J-1 Visa Process
- What does 212(e) Really Mean?
- Understanding Subject Codes
- J-1 Practice Advisories
THE ROLE OF THE ATTORNEY IN THE J-1 VISA PROCESS
There are many players involved in the J-1 visa process. One of these players may be the attorney, but what role does the attorney have? Through this experience of handling many cases represented by attorneys, the International Exchange Center has found that there are three basic levels of involvement:
This is the least involved level. The Starter will help the host company assemble all of the application pages, supporting documents and fees. After they are sent to the sponsor the attorney is only marginally involved and the host company is the main contact for the program.
In addition to the responsibilities taken on by The Starter, The Supporter will also assist the J-1 applicant in preparing for, and understanding, their interview at the Consulate. The Supporter may also help the J-1 applicant in completing the DS-160 form.
The Finisher is directly involved in every step of the J-1 process from the application to the time the J-1 holder returns home. The Finisher will, in addition to assisting with the application and Consular process, help the host company and J-1 holder remain in compliance by making sure that everything the sponsor needs over the course of the program has been completed. This includes their Follow-Up Information report, the Mid-Stay and End-of-Stay Evaluations and any Travel Validations necessary.
In its most basic form, the role of the attorney in the J-1 process is to provide their client with sound legal advice that will allow the client to take full advantage of what the J-1 visa offers. The level of involvement of the attorney is based on what the host company and attorney feel is appropriate for their situation. The International Exchange Center is happy to work with attorneys at any point in the process. On our website we have created a list of resources specific to the attorney in order to help them help their clients in the best way possible.
WHAT DOES 212(e) REALLY MEAN?
The 212(e) rule, or, Two Year Home Country Physical Presence Requirement, requires some J visa holders to return to their home countries for two years at the end of their exchange visitor programs.
There are three ways that a J-1 visa holder could be subject to the 212(e) rule:
- Any amount of government funding (U.S. or the home country).
- Participating in a program that is listed on the “Skills List”.
- Receiving graduate medical education or training.
The “Skills List” is a list that delineates skills or knowledge that are deemed necessary for the development of an exchange visitor's home country. This list can be found on the Department of State’s website here.
If someone is subject to the 212(e) rule they are not barred completely from the U.S. for the two years. There are certain visa types that are not allowed during this period. According to the Code of Federal Regulations 22 62.2:
“Home-country physical presence requirement means the requirement that an exchange visitor [...] must reside and be physically present in the country of nationality or last legal permanent residence for an aggregate of at least two years following departure from the United States before the exchange visitor is eligible to apply for an immigrant visa or permanent residence, a nonimmigrant H visa as a temporary worker or trainee, or a nonimmigrant L visa as an intracompany transferee, or a nonimmigrant H or L visa as the spouse or minor child of a person who is a temporary worker or trainee or an intracompany transferee.”
Many other visa types are still permitted such as the B, F, M or J. If the visa holder does return to the U.S. during the two-year period it delays the fulfillment of the two year requirement. They will still need to be in their home country for two years before they can apply for one of the visas listed in CFR 22 62.2.
If the person is unable to return to their home country at the end of their J program there is a waiver process available. This process can take 4 months or longer. More information on the waiver process can be found on the Department of State’s website. Applying for a waiver while still in J status is strongly discouraged as it can jeopardize the non-immigrant intent of the J visa.
UNDERSTANDING SUBJECT CODES
Training and internship programs are categorized by descriptions found in the Code of Instructional Programs published by the U.S. Department of Education. Descriptions are organized by academic area and each description is assigned a subject code, a unique, six digit identifying number. J-1 sponsors must match the training or internship described on form DS-7002 to one of the subject codes. The code is used in SEVIS to identify the field of training and appears on form DS-2019.
Subject codes are important for two reasons. First, it is important to understand that J-1 sponsors are designated by the US Department of State to offer programs in specific occupational areas; most sponsors are not designated to sponsor all types of trainings/internships. Subject codes organize and describe occupations, indicating to sponsors what types of trainings or internships they are able to sponsor. The descriptions included with each subject code can also offer excellent guidance to those creating a training plan for new programs.
Second, some J-1 participants will be subject to the two-year home residency requirement, 212(e). These include all participants who have received government funds in support of all or part of their J-1 program, and participants who are identified as having skills in demand in the home country. These skills are negotiated by the US Department of State and foreign ministries around the world and are summarized on the Exchange Visitor Skills List. In determining who is subject to 212(e) under the skills list, the subject code on the DS-2019 is matched to the general occupational category headings contained in the skills list.
What happens if a training description does not match a subject code description? The J-1 sponsor will chose the closest subject code and then enter a comment into SEVIS modifying the subject description. This comment will be truncated on the DS-2019. We encourage participants and their attorneys to examine the DS-2019 closely before the visa appointment at the US Consulate. Understanding the subject code can both improve the chances of being granted the J-1 visa and avoid future misunderstandings on the issue of 212(e).