Chapter 1 - Purpose and Background

A. Purpose

Congress created the J-1 nonimmigrant visa classification (category) for exchange visitors who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or receiving graduate medical education or training.^[1] Within the J-1 category, there are a number of different programs designed to promote educational and cultural exchanges between the United States and other countries around the world.^[2]

The U.S. Department of State (DOS) plays the primary role in administering the J-1 exchange visitor program, including the designation of public and private entities to act as designated exchange sponsors. Once the exchange visitor is in the United States, USCIS adjudicates change of status requests, extension of stay requests (for J exchange visitors not admitted for duration of status), waiver applications (when required), and employment authorization applications filed by their dependent family members who are in J-2 nonimmigrant status.^[3]

B. Background

1. Establishment of Exchange Visitor Program

Congress established the exchange visitor program in 1948 with the passage of the Information and Educational Exchange Act of 1948 (the Smith-Mundt Act).^[4] The Smith-Mundt Act provided for the interchange between the United States and other countries of “students, trainees, teachers, guest instructors, professors, and leaders in fields of specialized knowledge or skill.”^[5] At that time, those who entered the United States to participate in the exchange program were admitted as nonimmigrant visitors for business under the Immigration Act of 1924, as amended.^[6]

2. 2-year Foreign Residence Requirement and Waiver

In 1952, Congress passed the Immigration and Nationality Act (INA), which provided that all persons who come to the United States under an exchange visitor program would be subject to a 2-year foreign residence requirement before being eligible to either immigrate to the United States or obtain temporary worker (H nonimmigrant) status.^[7] These provisions helped address Congress’s concern that program participants were subverting the goals of the program by immigrating to the United States.

This provision, which became INA 212(e), applied to both J-1 exchange program participants and their J-2 dependent family members.^[8] The amendment also allowed waivers of the 2-year foreign residence requirement under limited circumstances. Since then, Congress has amended the INA multiple times to further specify the circumstances under which an exchange visitor may seek a waiver of the foreign residence requirement.^[9]

Congress further amended the INA in 1961 with the passage of the Mutual Educational and Cultural Exchange Act of 1961 (the Fulbright-Hayes Act). The Fulbright-Hayes Act allowed waivers under limited circumstances dealing with exceptional hardship.^[10]

In 1970, Congress amended the INA further so that the 2-year foreign residence requirement only applied to those exchange visitors who:

• Participated in programs financed in whole or in part by either their own government or the U.S. government; or

• Were engaged in a field of specialized knowledge or skill that the U.S. Information Agency designated as being a knowledge or skill that was needed in the exchange visitor’s country of nationality or last residence.

In 1970, Congress also created additional waivers of the 2-year foreign residence requirement based on a determination that the exchange visitor’s departure from the United States would impose exceptional hardship upon the exchange visitor’s U.S. citizen or lawful permanent resident spouse or child, a determination that the exchange visitor would be subject to persecution in the exchange visitor’s country of nationality or last residence, a finding that the exchange visitor’s admission to the United States would be in the public interest, or a “no objection” statement by the exchange visitors’ home country.^[11]

The Exchange Visitor Skills List was first published on April 25, 1972, and has been revised a number of times since then.^[12] A 1976 amendment to the statute (which took effect in January 1977) made any exchange visitor who seeks an immigrant visa, adjustment of status, or H or L nonimmigrant status after having received graduate medical education or training subject to the 2-year foreign residence requirement.^[13]

3. Conrad 30 Program

The Immigration and Nationality Technical Corrections Act of 1994 created a special program to waive the 2-year foreign residence requirement for J-1 foreign medical graduates. The waiver must be based on a request by a state department of public health, or its equivalent, who enter into a 3-year contract to practice medicine at a health care facility located in a medically underserved area designated by the Department of Health and Human Services (HHS designated shortage area). This program was initially commonly referred to as the Conrad 20 program and is now referred to as the Conrad 30 program.^[14]

4. Electronic System to Collect Information

In 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).^[15] IIRIRA required the legacy Immigration and Naturalization Service (INS) to collect current information from schools and exchange programs relating to nonimmigrant foreign students and exchange visitors during the course of their stay in the United States. IIRIRA authorized legacy INS to create an electronic system to collect information on F, M, and J nonimmigrants to address the problem of F, M, and J nonimmigrants who are out of status and remain in the United States without authorization.

After September 11, 2001, Congress updated the legislation to mandate the use of an electronic system to collect information on all F, M, and J nonimmigrants. To meet this mandate, DHS and DOS deployed the Student and Exchange Visitor Information System (SEVIS), a web-based information system that tracks and monitors F, M, and J nonimmigrants and their dependents throughout the duration of approved participation within the U.S. education system or designated exchange visitor program.^[16]

IIRIRA also imposed new terms and conditions on INA 212(e) waivers granted to foreign medical graduates that are based on a request by an interested U.S. government agency (federal program). The terms and conditions are the same as those applied to waivers requested by a state department of public health.^[17]

 5. Adding Air Flight, Language, and Vocational Schools

In 2001, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act) became law and added air flight schools, language training schools, and vocational schools to the schools that must comply with SEVIS requirements. It also authorized $36.8 million for SEVIS implementation.^[18]

The Enhanced Border Security and Visa Entry Reform Act (EBSVER) amended Section 641 of IIRIRA by requiring additional features to be incorporated into SEVIS.^[19] In 2006, DOS determined that it did not have the expertise and resources to fully monitor its J-1 exchange visitor flight training programs and ensure their compliance with program requirements. Consequently, DOS announced that it would no longer designate any new J-1 visa flight training programs, nor would it permit currently designated flight training programs to expand.^[20]

C. Legal Authorities

• INA 101(a)(15)(J) – Definition of J nonimmigrant

• INA 212(e) – Educational visitor status; foreign residence requirement; waiver

• INA 212(j)(1) – Limitation on immigration of foreign medical graduates

• INA 214(l) – Restrictions on waiver of the foreign residence requirement

• INA 248 – Change of nonimmigrant classification

• 8 CFR 212.7(c) – Waiver of inadmissibility grounds, documentary requirements

• 8 CFR 214.2(j) – Exchange aliens

• 8 CFR 248.2 – Change of nonimmigrant classifications, ineligible classes

• 22 CFR 62, Subpart B – Specific program provisions

Footnotes

[^ 1] See INA 212(e).

[^ 2] See Chapter 2, J Exchange Visitor Eligibility, Section A, Programs [2 USCIS-PM D.2(A)].

[^ 3] Spouse and unmarried child(ren) under the age of 21 of J-1 exchange visitors who accompany or join the J-1 in the United States are eligible for a J-2 nonimmigrant visa as a dependent family member.

[^ 4] See the Information and Educational Exchange Act of 1948, Pub. L. 80-402 (January 27, 1948).

[^ 5] See Section 201 of Pub. L. 80-402, 62 Stat. 6, 7 (January 27, 1948).

[^ 6] See the Immigration Act of 1924, Pub. L. 68–139 (May 26, 1924).

[^ 7] See Immigration and Nationality Act of 1952, Pub. L. 82–414 (PDF) (June 27, 1952). Currently, if the J-1 nonimmigrant’s training is in a field that is on the Exchange Visitor Skills List for the J-1 nonimmigrant’s country of nationality or last legal residence, the J-1 nonimmigrant may be subject to the 2-year residence requirement. See 9 FAM 402.5-6(L)(1), Subject to INA 212(e).

[^ 8] See INA 212(e).

[^ 9] For more information on the J-1 foreign residence requirement, see Chapter 4, Waiver of the Foreign Residence Requirement [2 USCIS-PM D.4].

[^ 10] See Mutual Educational and Cultural Exchange Act of 1961, Pub. L. 87-256 (PDF) (September 21, 1961).

[^ 11] See INA Amendments, Pub. L. 91-225 (PDF), 84 Stat. 116, 117, amending INA 212(e) (April 7, 1970).

[^ 12] DOS periodically updates the Exchange Visitor Skills List. It was last updated in 2009. See 74 FR 20108 (PDF) (Apr. 30, 2009).

[^ 13] See Health Professions Educational Assistance Act of 1976, Pub. L. 94-484 (PDF) (October 12, 1976).

[^ 14] See Section 220 of the Immigration and Nationality Technical Corrections Act of 1994, Pub. L. 103-416 (PDF), 108 Stat. 4305, 4319 (October 25, 1994).

[^ 15] See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C, Title III of Pub. L. 104-208 (PDF) (September 30, 1996).

[^ 16] See the Immigration and Customs Enforcement’s Student Exchange Visitor Information System webpage for an overview of the creation of SEVIS.

[^ 17] The terms and conditions imposed on INA 212(e) waivers under the federal and state programs are specified in INA 214(l).

[^ 18] See Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. 107-56 (PDF) (October 26, 2001).

[^ 19] See Section 501 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173 (PDF), 116 Stat. 543, 560 (May 14, 2002). See 67 FR 76256 (PDF) (Dec. 11, 2002).

[^ 20] See Vision 100 – Century of Aviation Reauthorization Act, Pub. L. 108-176 (PDF) (December 12, 2003). See 71 FR 3913 (PDF) (Jan. 24, 2006) (statement of policy), 71 FR 17768 (PDF) (Apr. 7, 2006) (proposed rule), and 72 FR 33669 (PDF) (Jun. 19, 2007) (interim final rule).