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Over the course of her career, Ms. Alice Yardum-Hunter has given many speeches and has published numerous articles to the lay and professional attorney reader alike. The writings and speeches published here and elsewhere are a sampling of her works.
These publications are made available for your personal edification, but are copyrighted and may be used or reprinted only with permission.
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Unwritten Rules of J-1 Exchange Visitor Training
2/14/2008
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by Alice M. Yardum-Hunter
Unwritten Rules of J-1 Exchange Visitor Training is an article about some of the J-1 rules that are most practical but not always covered in the literature. It does not include the basic requirements for the status. |
Unwritten Rules of J-1 Exchange Visitor Training
I. Business trainees
A. Finance, Operations Management trainees and other similar types of job can obtain 2-18 months for on the job training. They can learn English and technology jargon that goes with the industry they’re training in for reporting, monitoring contracts, assessing efficiency, etc. This isn’t taught in school. There is no substitute for hands on experience within a US company. For example, day to day conversations with other employees; mentors to report to and to navigate through are not available in the home country. The J-1 is the perfect vehicle for the trainee to share the U.S. with their home countries. In Europe, internships are normal, yet not in the U.S. Such traineeships are not “jobs.” There are a number of areas of training available, such as but not limited to accounting, management, finance and marketing.
B. Law – In Germany, lawyers are required to do apprenticeships. In some places, it is recommended before commencement of employ. In the U.S. such is not required, however, much can be gained to apprenticing upon conclusion of legal study and before the commencement of practice in full. An employer could be at a US law firm or private company with a legal department. Apprentice lawyers are not compelled to produce work product right away. One cannot experience the law without hands on training.
C. Architecture – When coming, for example, from the UK or Japan with some specialized expertise to share with U.S. counterparts and in exchange for U.S. knowledge and techniques, these trainees acquire knowledge and experience regarding design modeling U.S. style, local regulatory requirements, etc. In almost all cases, the individual has completed a degree, even a Masters, but they are fairly early on in their career, in the building stages of their careers.
II. Engineers, scientists
Training can match education with more specificity. For engineers and scientists, the trainee needs a more specific degree than in business. Such trainees should not repeat training they’ve already had. Such trainees gain a type of supervision and feedback, with cognizance of what they learn and where they’ll take that learning. In drafting such applications, be as specific as possible while not using incomprehensible language, as those reading application are not scientists. If you can understand it, so will the adjudicator. If you cannot, neither will the adjudicator.
III. Sponsors and Training Programs
J-1 Sponsors are not the employers at which trainees are placed. They are an independent organization sanctioned by the U.S.C.I.S. to issue the DS-2019 form, which is a prerequisite of the trainee prior to applying for the J-1 visa.
Each sponsoring organization has certain U.S. government parameters within which to work, guided by Citizenship and Immigration Service and Department of State regulations, as well as their own internal guidelines which differ from one organization to another. Not all training sponsors have training programs in all disciplines. The sponsoring organizations tend to specialize. Sponsoring program staff should be able to understand the training program.
Some organizations work directly with the attorney and client together, some with the client directly, or just with attorneys. Sponsoring organizations have to track
J-1s in the U.S., including how they progress through their program: newsletters, phone calls, visits are how contact is maintained. At the end of the program, summarization, wrapping up and going home should occur, but doesn’t always. .
Lawyer’s role is to articulate to potential employer what is required and to be expected from the process and the status.
IV. J-1 Compared to Other Categories
A. B-1 – Training is acceptable as long as there’s no hand’s on work. Entry adjudications are spotty, though. The J-1 doesn’t require a foreign employer as does the B-1. The B-1 cannot be paid in the U.S., whereas J-1 can. There is more certainty of getting into the U.S. on a J-1 than B-1. It is a more familiar category for training than the B-1. On the job training is acceptable for J-1s but not B-1s. There is a lot of flexibility to J-1 remuneration. J-1 visitors can stay for an extended time (18 months), with intent to depart at the end, whereas B-1 visitors typically cannot stay longer than a year, with maximum six month entry on U.S. arrival.
B. H-3 – There are two types of H-3s: for special education training in education of children with physical, mental or emotional disabilities; and for training in an employer in any field other than for physicians (with limited exception) or at purely industrial establishments. The H-3 is broader as to training disciplines than the J-1. The H-3 requires a Schedule of classes as part of the petition. Most training isn’t as classroom intensive. The J-1 does not require classroom training. A very limited amount of on the job training is permitted for H-3s. H-3s require CIS involvement via I-129 petition. Less time involved with
J-1 as CIS is not involved, however H-3s can be premium processed for quicker processing. H-3 changes of status may not be as subject to scrutiny of nonimmigrant intent at J-1s at consulates where ties to home country are necessary to prove. If training is available in the home country, then the H-3 isn’t possible. This is not required of J-1. The H-3 must benefit the U.S. company and prepare the alien for his employ abroad, the J-1 is just cultural exchange. H-3s are subject to certain limitations when there is a strike or labor dispute resulting in a work stoppage at the place of training.
V. Other Unwritten Rules
A. Change of status after entry is not a good idea from J-1. Depart the U.S. to maintain integrity of the program. This could have repercussions on the sponsoring organization as well as the consular officer who issued the J-1 visa. Statistics of such are maintained by Department of State and affect the career of the officer if they are frequent. Also, sponsoring organizations with an inordinate number of J-1s who do not depart run the risk of getting the certification to issue DS-2019s revoked.
B. “Work” is unacceptable for training. It smacks of productive employment, which is not permitted. H-3 productive employment must be incidental to the training. J-1s and H-3s are only about training, whether hands on or classroom. There is a distinction between hands on training and work or productive employment. The trainee should not be so productive as to be “working.”
C. Amendment to J-1 regulations make it more difficult to qualify for J-1 status than in the past, making the H-3 look more attractive.
D. When home ties are hard to prove, consular officer discretion is a greater influence to J-1 visa issuance.
E. Ethical considerations dictate that a J-1 or H-3, or any other visa classification not be used to merely overcome H-1B status unavailability.
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