So, I reside in Washington DC. Recently, my blogging career here with Biocareers has been as productive as the representatives sent by other parts of the country to work in my hometown. To reacquaint myself with the readers of the blog, our law firm works extensively with postdocs, scientists, and researchers on immigration matters. So, today, I’m going to write about those pesky J-Visas that many of you come across.
Little known fact about Washington DC. Any of you who have been here may have noticed that the streets downtown are lettered (the city is also divided into quadrants) A, B, C etc, you get the picture. There is however, no J Street. No J St NW, NE, SW, SE. Nada. The reason for this is not entirely clear. Some blame the designer of the city Pierre L’Enfant for having a dislike to the first Chief Justice of the Supreme Court, John Jay, thus omitting the letter from the design of the city. Another (slightly more believable explanation) is that during the 18th century the letters I and J were essentially indistinguishable and therefore J St was omitted for simple reasons of misidentification. Another possibility (introduced by me for purposes of this blog) is that it returned home to fulfill its two year home residence requirement and never returned (that’s a really bad joke that mostly immigration attorneys, foreign scientists on J-1 Visas, and certain Department of State employees will get). What position you wish to take on this is up to you, but remember to never let the truth get in the way of a good story.
So anyway, about those J’s. The J-1 visa is an Exchange Visitor Program, which is primarily administered by the US Department of State in conjunction with designated institutions and organizations who are approved as program sponsors. The J-1 program has many different guises. Summer students, au pairs, interns can all use the J-1. A significant number of individuals, however, utilize the J-1 for purposes of scientific research under the J-1 Research Scholar category.
For postdocs and other researchers who are foreign nationals pursuing research in the United States, the J-1 is front and center. Other visas are applicable for purposes of employment (notably Optional Practical Training and H-1B), but the J-1 is heavily used by Universities and other research institutions. As noted in the footnote below from the US State Department, the primary purpose of the J-1 for a foreign national under the Research Scholar category is, unsurprisingly, research. The program will be sponsored by the University or research institution, and the individual will be issued a DS-2019 which will indicate the parameters of what they are eligible to do while here.
An important issue in regards to the J-1 Visa is the 212(e) Two Year Home Residence Requirement, which certain J-1 Visa holders are subject to. This means that the exchange visitor must return home to their home residence for a two year period prior to being eligible to change status in the US or obtain certain types of non-immigrant (including H-1B) or an immigrant visa. An individual can be subject to the 212(e) requirement if they are on the Exchange Visitor Skills List, have received Government Funding as part of their program, or participated in a Graduate Medical Education or Training Program.
It is important to fully understand the terms of your J-1 Visa as well as any issues related to the Two Year Home Residence Requirement. This can include requesting an Advisory Opinion from the US State Department to confirm that the individual’s DS-2019 Form and/or Visa stamp correctly reflects their status in the context of the 212(e) requirement. There are occasions whereby the DS-2019 and/or the visa is incorrectly annotated at the Consulate and indicates that a person is subject to 212(e) when they are not (and vice versa).
If certain circumstances are met, an individual can apply to have the two year home residence requirement waived. This is commonly known as a J-Waiver.
No-Objection Waiver: In this instance, the applicant will request that their home country government issue a No Objection Statement through its embassy in Washington, DC directly to the Waiver Review Division to indicate that they do not object to you not returning to your home country. Depending on the circumstances of your J-1 Program, you may also require a letter from your Program Sponsor to facilitate successful processing of this application.
Interested Government Agency Waiver: In limited circumstances, a Federal Government Agency may act as an interested party to request a Waiver on an individual’s behalf where it is determined that the individual’s work is in the interest of that agency, and that their departure from the United States would be detrimental to the project/program.
State Health Agency Waiver: An individual who obtained a J-1 Visa for purposes of participating in a Graduate Medical Education or Training Program can apply for a waiver based on the request of a designated State Public Health Department or its equivalent.
Exceptional Hardship Waiver: To qualify for this J-1 waiver, the individual must be in a position to show Exceptional Hardship to a U.S. citizen (or lawful permanent resident) spouse or child.
Persecution Waiver: An application for a waiver can be pursued if the individual can establish that by returning to their home country, they have a well founded fear of persecution.
Depending on your circumstances, the ability to obtain a waiver may be somewhat straightforward, quite time consuming and extensive, highly restrictive, or next to impossible. There is also the possibility of fulfilling the two year home residence requirement – to do so, you must generally return for a two year period to your country of citizenship or last permanent residence as noted on your DS2019.
In reviewing your possibilities, I would suggest that you educate yourself as to your specific circumstances and the parameters of your situation (see http://biocareers.com/bio-careers-blog/preparation-and-knowledge-key). Some individuals utilize and embrace the J-1 and are more than happy with how it allows them to proceed with their research and career. Others are a little more reticent, due to the issues surrounding the 212(e) issue. It is important to note that if you have an outstanding two year home residence requirement, you can still obtain an O-1 Visa (a highly restrictive standard), although a change of status from j-1 is not permitted.
So, while the J-1 Visa can be seen as a troublesome process to navigate, you do have options. So how does an individual determine what their options are? At Leavy, Frank & Delaney, LLC (www.leavyfrank.com) we work extensively with individuals who are in the United States on J-1 visas (both with and without the 212(e) issue). If you are on a J-1, or have the possibility of obtaining a J-1, especially for Research Scholars you should understand the procedures that surround this visa, how this affects you, and what you can do about it.
Contact me through LinkedIn at http://www.linkedin.com/pub/brendan-delaney/14/581/23b