The first step in attaining exchange visitor status is for the sponsoring organization or agency to formulate an exchange program and present it to the Department of State for approval. J-1 program sponsors include federal, state, or local government agencies like the Department of State, the Agency for International Development, and the State Department's Bureau of Educational and Cultural Affairs itself; international agencies and organizations; educational institutions such as schools, libraries, museums, and institutions devoted to scientific and technological research; educational consortia; hospitals and related institutions; non-profit associations, foundations, and institutes; business and industrial concerns; and host organizations to international conferences.
The application for program designation must satisfy the following general criteria:
- The program must be a bona fide educational and cultural exchange program, and the applicant should clearly define the specific purposes and objectives of the program;
- The program must provide for at least five exchange visitors per year;
- The program must provide cross-cultural activities for the exchange visitor;
- The program must be reciprocal whenever possible;
- All non-government sponsored programs must allow for a minimum stay in the United States for any exchange visitor, except short-term scholars, of three weeks;
- Applicants must provide information regarding the sponsoring organization's legal status, citizenship, accreditation, and licensure;
- Non-government applicants must show that they are financially stable and that they will be able to fulfill all of their financial duties related to the exchange visitor program, including the ability to provide return-trip airfare for exchange visitors to their home countries;
- Applicants must assure that the purpose of the program is not to fill staff vacancies and that the program will not adversely affect the U.S. labor market;
- Applicants must assure that every exchange visitor will be adequately covered with insurance while participating in the exchange program; and
- Applicants should provide full details regarding the selection, placement, orientation, evaluation, and supervision of the exchange visitors. If other organizations are involved, either in the United States or overseas, with the selection, placement or orientation, full details should be given about them.
To obtain a J-1 nonimmigrant visa the noncitizen must establish to the satisfaction of the consular officer that:
- the noncitizen has been accepted and intends to participate in an approved exchange visitor program;
- the noncitizen has, or has been assured of, sufficient funds;
- the noncitizen has adequate knowledge of English or, except for a noncitizen coming to participate in a graduate medical education or training program, has been accepted by the sponsoring organization with knowledge of deficiency in this respect; and
- the noncitizen meets the requirements of Immigration and Nationality Act (INA) § 212(j) if coming to participate in a graduate medical education or training program.
The types of exchange visitors encompassed by this program include but are not limited to: students, professors and research scholars, short-term scholars, trainees, specialists, foreign medical graduates, international and government visitors, teachers, camp counselors and au pairs.
A J-1 exchange visitor is admitted for ''D/S'' (duration of status), plus a period of 30 days for the purpose of travel. The duration of status depends upon the length of the program in which they are coming to participate.
Exchange visitors whose employment is incident to status with the program sponsor (e.g., professors and research scholars) need no special document to permit their employment, and may receive compensation from the program sponsor. Other exchange program categories allow exchange visitors to work part-time, with proper approval and provided that certain criteria are met. The spouse and minor children of an exchange visitor will be permitted to accept employment only if the income from such employment is to be used to support the family's customary recreational and cultural activities and related travel, among other things, but not if it is needed to support the J-1 principal.
A J exchange visitor does not have to apply for approval of an extension of stay. A responsible officer may grant an extension of stay up to the authorized limit for the specific exchange visitor category. Also, an exchange visitor is generally eligible to change from J-1 status to another nonimmigrant status. However, foreign medical graduates coming to the United States for graduate medical education or training may not change status to any nonimmigrant classification except, under very limited circumstances, to H-1B.
Under certain circumstances, individuals admitted to the U.S. in J-1 status are subject to a requirement to reside abroad for two years before they are eligible to obtain lawful permanent residency or to obtain an H or L visa. This “two-year home residency requirement” applies to the following three groups:
- those whose J-1 participation was financed either by the U.S. government or the government of the person’s country of nationality or last residence;
- those who participated in the J-1 program to obtain skills clearly required by the person's country of nationality or last residence; and
- foreign doctors coming for graduate medical education or training.
Exchange visitors subject to the two-year home country residence requirement may seek a waiver of that requirement in four situations:
- upon request of an interested government agency with evidence that the exchange visitor's departure would be clearly detrimental to a program or activity of official interest to an agency of the U.S. government;
- where it has been determined by the INS Commissioner that the exchange visitor's departure would impose exceptional hardship on their U.S. citizen or lawful resident alien spouse or child;
- upon a showing that the exchange visitor cannot return to their country of nationality or last residence because they would be subject to persecution on account of race, religion, or political opinion; or
- where the foreign country of the exchange vistior’s nationality or last residence has furnished the Department of State with a statement in writing that it has no objection to such waiver in the case of such exchange visitor.
A favorable recommendation by the Department of State is an indispensable prerequisite to the procurement of a waiver. The regulations state that upon receipt of a request for a waiver recommendation, the request will be referred to the Department of State's Waiver Review Division, which shall review the program, policy and foreign relations aspects of the case, make a recommendation, and forward it to the INS Commissioner. Upon receipt of the Department of State's recommendation the INS decides the waiver application on the basis of the documents submitted and any supplementary interviews and investigations deemed appropriate.
No action is taken to enforce the exchange visitor's departure while a formal application for a waiver is under consideration or when the Service is informed that a request for initiating the waiver process has been made to an interested government agency or to a foreign government, and is pending with such agency or government or with the Department of State.
Spouses and children of J-1 nonimmigrants are admitted in J-2 status. A J-2 may apply for work authorization on at the local INS office having jurisdiction over the J-1 principal's temporary place of residence in the United States. The purpose of the request for employment must not be to support the J-1. J-2 employment may be authorized for the duration of the J-1's stay or four years, whichever is shorter. Generally authorization is granted in cases where there is need to assist in the support of minor children or to enable the J-2 dependent to maintain a lifestyle comparable to that at home.