Ask Sophie: What do I need to know about getting a J-1 exchange visa?

Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I just found out that I’ve been selected as a trainee in the J-1 exchange program.

I’m currently in the U.S. on a B-1/B-2 visitor visa. The sponsoring company would like me to start in August. I heard it can take several months to change my status to a J-1. Is there a way to get a J-1 faster?

Is there anything I should know about the J-1, particularly if I later decide to stay in the U.S. once the J-1 program ends?

— Techie Trainee

Dear Techie,

Congratulations on being selected as a J-1 educational and cultural exchange trainee!

The purpose of the J-1 is to exchange knowledge between countries. Check out my podcast that provides an overview of the J-1 as well as the waiver process. The J-1 visa is intended for people from around the globe to work or study in the U.S. and then take their newly acquired knowledge and skills back to their home country.

The Trainee J-1 usually lasts 18 months. Some J-1 holders are required to return to their home country for at least two years once their J-1 status ends. The waiver process can be particularly tricky. I recommend you consult an immigration attorney before you begin your program to confirm if you are subject to the two-year foreign residency requirement. They can also help you with any J-1 change of status or waiver application as necessary.

Good news: USCIS (U.S. Citizenship and Immigration Services) just rolled out premium processing for J-1 changes of status, shortening the process for individuals currently inside the United States!

Keep in mind: non-immigrant intent

Most U.S. visas such as the B-1/B-2 for visitors, J-1 for exchange visitors, and F-1 for students require their holders to have non-immigrant intent: it’s your job to prove to the U.S. government that you plan to depart the United States at the end of your program. Evidence of immigrant intent — your intention to live permanently in the U.S. by obtaining a green card — is cause for immigration officials to deny your visa. Other factors, like having a significant other who is a U.S. citizen or stating that you are planning to work in the U.S. long-term, could also be interpreted as evidence of your immigrant intent.

For the J-1, you will need to demonstrate to immigration officials that you intend to eventually return to your home country by maintaining a residence in your country or showing you have ties to your country of residence. The reason the State Department administers this program is to promote the flow of knowledge around the world. (Remember, before the internet, we generally had to physically travel to share knowledge, information, and network with people in other countries!)

How to get a J-1

After you enroll in a program, it will issue you a Form DS-2019, which is the Certificate of Eligibility for Exchange Visitor (J-1) Status. Recently, most people have been applying for new J-1 visas at the consulate and receive a multiple-entry visa. The duration is based on whatever reciprocity agreements the State Department has in place with the government of your country of citizenship.

However, some people already in the U.S. would prefer not to travel or obtain a visa, and instead simply change their status to J-1 while staying inside the United States. To change your status from a B-1/B-2 visitor visa to a J-1 visa in the U.S., USCIS would require not only the DS-2019 but also Form I-539, as well as other associated documents. If approved, your status would be changed and you should participate in the program, but you would not receive a visa foil for travel in your passport through this process.

New: J-1 premium processing

Until recently, changing your status while in the United States from B-1/B-2 visitor status to J-1 was typically not recommended due to the significant processing times for Form I-539, the application to change status. Depending on the service center, the USCIS is taking anywhere from 5 to 13 months to process the I-539 change of status application to a J-1.

But recently, there has been a change: Premium processing is now available for J-1 changes of status!

Last month, the USCIS began accepting premium processing for filing an I-539 to change status to a J-1 visa or J-2 visa for J-1 dependents, or to an F-1, F-2, M-1, and M-2 student and dependent visas. For a $1,750 fee, your attorney can add Form I-907 to your application to request the premium processing service, which means the USCIS will make a decision on your case or issue a request for evidence within 30 calendar days.

Once the USCIS approves your change of status to a J-1 visa, begin your exchange trainee program at its start date.

Home residency requirement

Many people obtain J-1s that are strapped with an additional requirement: to return to their home country for at least two years at the end of their program before they are allowed to return to the U.S. on certain visas or with a green card. This requirement is referred to as 212(e), the relevant section of U.S. immigration law.

If you’re subject to the home residency requirement, you should generally see it on your DS-2019 form, and it might also be in your visa foil in your passport. These documents would indicate that you, the bearer of the visa or status, are “subject” to 212(e).

If your DS-2019 and your visa have conflicting information about 212(e) (“Subject”/“Not Subject”), ask your immigration lawyer for help.

Even though the J-1 requires nonimmigrant intent, people who are subject to 212(e) might later wish to stay in the U.S. for a variety of reasons. However, there are limited options to try this, so to begin with, think carefully about pursuing your J-1 program.

If you one day decide to apply for a 212(e) waiver, work with an attorney. There’s no limit on how early you can file for a waiver from the J-1 two-year foreign residency requirement, which is a good thing since it can take a year or more to get a decision on your waiver application, depending on the reason. For more details, check out my previous column.

Under the law, J-1 visa holders and their J-2 visa spouses and children can qualify for a waiver from the J-1 two-year foreign residency requirement based on any of the following reasons:

1. Your home country does not object to you and your family remaining in the U.S. or becoming legal permanent residents of the U.S.
2. You are working on a project for or in the interest of a U.S. government agency and your departure would be detrimental.
3. You have at least one spouse or child who is either a U.S. citizen or a legal permanent resident and would face exceptional hardship if you had to leave.
4. You received graduate medical training or education and a state public health agency has offered you a full-time job at an underserved healthcare facility.
5. You fear persecution based on race, religion or political opinion in your home country.

Not all reasons are good enough to get every waiver approved. For example, Fulbright Scholars have a very challenging time obtaining any 212(e) waiver category, as that program’s participants are held to a very high standard.

Life after a J-1

The O-1A is one of the visas that is available even to people subject to 212(e). If you are subject to 212(e), haven’t been able to get a waiver or it might take too long, and you’ve realized you might need to or want to stay in the U.S. longer, one option is to look at building up your portfolio of accomplishments for the O-1A during your J-1 program with volunteer activities or activities that are related to your training program. You could also consider traveling back and forth while on O-1A and using sabbaticals in your home country to slowly fulfill the 212(e) two-year residency requirement.

If you move back to your country to fulfill the two-year residency requirement, you can later start another visa application or even your green card process from your home country. Neither the EB-1A nor the EB-2 NIW petitions require an employer to sponsor you or even a job offer, so you can apply for either of them on your own. Check out this previous Ask Sophie column in which I provide more detail about these green card options.

Enjoy your training and learning about life in the States!

— Sophie

Have a question for Sophie? Ask it here. We reserve the right to edit your submission for clarity and/or space.

Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!