J-1 Visa Exchange Visitor

The Exchange Visitor (J) non-immigrant visa category is for individuals approved to participate in work-based and study-based exchange visitor programs. The J–1 visa is authorized for nonimmigrant exchange visitors for a temporary stay. The J–2 visa is for the spouse and dependents of the J–1 visa holder.

In the Mutual Educational and Cultural Exchange Act of 1961, Congress authorized the State Department “to provide, by grant, contract, or otherwise, for ... educational exchanges ... by financing visits and interchanges between the United States and other countries of students, trainees, teachers, instructors, and professors.” 22 U.S.C. § 2452(a)(1).

The State Department, in turn, created the Exchange Visitor Program “to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences.” 22 C.F.R. § 62.1(b).

To qualify for Exchange Visitor Visa status, a person must be:

An alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or another person of similar description, who is coming temporarily to the United States as a participant in a program ... for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training.

8 U.S.C. § 1101(a)(15)(J).

Attorney for the Exchange Visitor Visa in The Woodlands, TX

Contact Luis F. Hess to learn more about temporary non-immigrant visa petitions, including the J-1 Visa. Luis F. Hess, PLLC is located in Shenandoah, in The Woodlands, TX. He represents clients throughout Montgomery County and Harris County, TX.

The exchange visitor visa program provides cultural and educational exchange opportunities in the United States through several programs overseen by the U.S. State Department including summer work travel, interns, high school and university student exchanges, and physician exchanges.

Applying for a visa can be time-consuming and confusing. Call attorney Luis F. Hess to find out more about immigration law for businesses and temporary students and workers in Conroe, Shenandoah, The Woodlands, Spring, Houston, and the surrounding areas.

Call (281) 205-8540 today.

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Overview of Exchange Visitor Visas in Conroe, TX

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Residency Requirement for the Exchange Visitor Visa Holder

Under 8 U.S.C. § 1182(e), no exchange visitor “shall be eligible to apply for an immigrant visa, for permanent residence, or for a non-immigrant visa” without residing and being physically present in her home country for at least two years after leaving the United States.

In other words, aliens admitted as J-1 nonimmigrant exchange visitors must return to and reside in their home country for two years at the completion of their exchange program. To satisfy the foreign residence requirement a visitor on a J-1 Visa must leave before being eligible to apply for an immigrant visa or permanent residence.

The residency requirement “may” be waived in three cases:

  • exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien);
  • the alien cannot return to the required country because he or she would be subject to persecution on account of race, religion or political opinion; or
  • the alien's foreign country or last residence has furnished a statement in writing that it has no objection to such waiver in the case of such alien.

Under 22 C.F.R. § 41.63(d) (1)-(2), the one component of a no objection waiver application is that the State Department can “request the views of each of the exchange visitor's sponsors,” and its Waiver Review Division (“WRD”) “shall review the program, policy, and foreign relations aspects of the case.” WRD's recommendation is ordinarily adopted as the State Department's.

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The Au Pair Program

Under the Au Pair program, foreign nationals between the ages of 18 and 26 are permitted to travel to the United States and reside for no more than one year with an American host family, where they help care for the family's children and complete coursework at a local college or university.

Au Pairs may provide no more than 10 hours of childcare each day and no more than 45 hours of childcare in a given week. Id. § 62.31(j)(2). They “[a]re compensated at a weekly rate based upon 45 hours of childcare services a week and paid in conformance with the requirements of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 as interpreted and implemented by the United States Department of Labor.” The Au Pairs must also receive at least one and a half days off each week and one full weekend off each month. 

Under 11 U.S.C. § 514(j), designated sponsors oversee the Au Pair Programs and provide support to the Au Pairs and host families. “Sponsors shall require that Au Pair participants ... [a]re compensated at a weekly rate based upon 45 hours per week and paid in conformance with the requirements of the [FLSA] as interpreted and implemented by the United States Department of Labor.” 

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History of the Au Pair Program

The history of the "Au Pair Program" can be traced back to the Fulbright-Hays Act, enacted by Congress in 1961, which created the J-Visa Exchange Visitor Program. The Fulbright-Hays Act anticipated that some J-visa programs would include an employment component. The "Au Pair" program was begun in 1988. In 1994, Congress continued the Au Pair Program but directed the United States Information Agency (USIA) to promulgate regulations governing the program.

In 1996, Congress passed legislation to amend the FLSA to increase the federal minimum wage incrementally over the next year, Minimum Wage Increase Act of 1996. The USIA amended its regulations with respect to compensation rates “to ensure that there is no future confusion regarding the payment of minimum wage.” 62 Fed. Reg. 34,633.

Under the regulations, “[s]ponsors shall require that au pair participants ... [a]re ... paid in conformance with the requirements of the [FLSA] as interpreted and implemented by the United States Department of Labor.” Exchange Visitor Program.  In October of 1997, Congress permanently authorize the Au Pair Program. Act of Oct. 1., 1997, Pub. L. No. 105-48, 111 Stat. 1165 (1997).

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Alien Physician for the Clinical or Nonclinical Exchange Program

Regulations implementing the Mutual Educational and Cultural Exchange Act of 1961, 22 U.S.C. § 2451–2464 (1988), control the issuance of J-1 visa. It also defines the categories of participant eligibility in an exchange visitor program underlying the issuance of a J–1 visa. See 22 C.F.R. secs. 62.1, 62.2, 62.4 (2010).

The term “alien physician” is defined as a category of participant eligibility in which foreign medical school graduates may enter the United States to participate in either a clinical exchange program or a nonclinical exchange program. A clinical exchange program is a program for alien physicians pursuing graduate medical education or training, and, inter alia, requires that an alien physician provide a statement from the Government of his home country that:

  1. there is a need in that country for qualified medical practitioners in the alien physician's chosen specialty; and
  2. the alien physician has in writing agreed to return to the home country upon completion of the training and intends to practice medicine in the chosen specialty.

A nonclinical exchange program is a program in which an alien physician enters the United States for the predominant purposes of observation, consultation, teaching, or research, wherein patient care if any, is incidental and under direct supervision. 

This article was last updated on Friday, January 26, 2018.