Patrick Taurel, Legal Fellow at the American...
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.
Please note that all applications are now filed electronically; we no longer use paper applications.
Begin an application by clicking the green "Apply Now for Our J1 Program" button on the right.
LINKS AND RESOURCES
Ideas Across Borders
How to Write a J-1 Training Plan: Video Tutorial
The Role of the Attorney in the J-1 Visa Process
What does 212(e) Really Mean?
Understanding Subject Codes
Should an Internship Be Paid or Unpaid?
Tax Assistance for J-1 Participants
Comments on Proposed Regulatory Change to Sub-Part A General Provisions
Comments on Proposed DS-7002
• Understanding the Final Rule for J-1 Trainee and Intern Programs
• Top 25 Things Every Practitioner Should Know About International Students and Scholars
• What is the Australia/United States of America Work and Holiday Visa?
THE ROLE OF THE ATTORNEY IN THE J-1 VISA PROCESS
What role does the attorney have in the J-1 Visa process? 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.Through the experience of handling many cases represented by attorneys, the International Exchange Center has found that there are three basic levels of involvement:
The Starter: This is the least involved level. The Starter helps the host company assemble the application materials, supporting documents and program fees and check that required members of the applicant's case file (applicant, lawyer, supervisor and host organization representative) are listed as Member Owners. After the completed application is sent to the sponsor, the attorney is only marginally involved. The host company is the main contact for the program.
The Supporter: In addition to the Starter's role, the Supporter will assist the J-1 applicant prepare for the interview at the U.S. Consulate. The Supporter may also help the J-1 applicant complete the DS-160 form.
The Finisher: The Finisher is directly involved in every step of the J-1 process, from thestart of the J-1 application to the time the J-1 returns home. In addition to the above, the Finisher will help the host company and J-1 holder remain in compliance by making sure that all requisite tasks are completed. This includes submission of the Post Arrival Follow-up Information form, the Mid-point and Final Evaluations and any Travel Validations.
The International Exchange Center is happy to work with attorneys at any point in the process. Please visit the resource section of this website to utilize the resources created for attorneys navigating the J-1 process.
WHAT DOES 212(e) REALLY MEAN?
The 212(e) rule, also referred to as the 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. The Department of State posts a “Skills List” that delineates the skills or knowledge deemed necessary for the development of an exchange visitor's home country and thus requires the J visa holder to return home. This list can be found here.
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
If someone is subject to the 212(e) rule, this does not mean that s/he can not enter the U.S. during this two year time frame. 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.”
Other visa types are permitted -- such as the B, F, M or J. If the visa holder does return to the U.S. during the two-year period, such as returning on another J-1, this delays the fulfillment of the two year requirement. The applicant will still need to be in the home country for two(2) years before applying 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 the J program, there is a waiver process which 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 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, 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 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).
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