J-1 Visa for Teachers

The J-1 visa is a non-immigrant visa with many different categories that each have their own set of benefits and restrictions. They range from academic categories — such as student, scholar, professor, and teacher — to exchange-based work experiences such as trainees and interns, au pair, camp counselor, and the summer work/travel program. Many primary and secondary exchange teachers are in the United States pursuant to the J-1 visa program.

The Two-Year Home Residency Requirement

Entering the U.S. in J-1 status may make you subject to the two-year home residency requirement (sometimes referred as 212(e)). One becomes subject to the two-year home residency requirement in three ways:

• Government financing: If the J-1 exchange program was funded directly or indirectly by the home government or the U.S. government for the purposes of exchange;
• Skills List: If the skills that the J-1 exchange visitor is coming to engage in are in a field which the exchange visitor's government has requested be included on the State Department’s Exchange Visitor skills list;
• Medical education or training: The J-1 exchange visitor came to the U.S. to receive clinical graduate medical education or training.

When the DS-2019 is created, the sponsor must enter certain information into the form which will guide the Department of State in making their determination of whether the J-1 visa holder will be subject to the two-year home residency requirement. The first is the funding information. If the sponsor accurately indicated U.S. government or home government funding, then the international individual is most likely subject to the two-year home residency requirement due to funding.

The second piece of information entered by the sponsor is the Subject/Field code, which gives information on the field in which the J-1 visa holder participates. If this code appears on the skills list for the individual's country, then it is likely that the Department of State will determine he or she is subject to the two-year home residency requirement.

Sometimes the determination whether an individual is subject to the two-year home residency requirement is made in error: the sponsor misunderstood the source of the funding or entered the wrong Subject/Field code; or, the Department of State made an error in its initial determination. If the decision was truly an error, the J-1 visa holder can apply for an advisory opinion from the U.S. Department of State.

If the two-year home residency requirement applies, it prevents someone subject to that the requirement from changing visa statuses within the United States, from applying for an H or L non-immigrant visa, or from applying for permanent residence or an immigrant visa — unless the waiver is fulfilled either: by returning to your home country of nationality or permanent residence for an aggregate period of two years; or by obtaining a waiver of that requirement from the U.S. Department of State.

Waiver of Two-Year Home Residence Requirement

The two-year home residence requirement can be waived on the following bases, with different procedures to follow based on the type of waiver being sought:

• Statement of no objection from the exchange visitor's home country: This is the most common way to obtain a waiver of the requirement, particularly if one is subject due to the Skills List or home government financing.
• Request by an interested U.S. government agency: Those working under U.S. Federal Agency funding, or in work seen as in the public interest by the agency, may seek a waiver through an interested U.S. government agency. Not all government agencies will support a waiver request, and those that do often have rigorous application procedures. To be successful an applicant must demonstrate he or she works in an area of high priority and significance and that he or she is needed as an integral part of the program.
• Exceptional hardship to the U.S. citizen or permanent resident spouse or child of the exchange visitor: These applications are reviewed and approved by USCIS before being approved by the Department of State. To be successful the applicant must demonstrate hardship to the U.S. citizen or permanent resident spouse or child both if they remain in the U.S. without the J-1 exchange visitor and if they returned with the J-1 exchange visitor to the home country. The simple matter of the family being separated for two years as being a hardship is generally not sufficient, as USCIS and courts have compared that length of time to those military members that are separated from families during long or multiple tours of duty.
• Fear of persecution on account of race, religion, or political opinion: These applications are reviewed and approved by USCIS before being approved by the Department of State. The applicant must demonstrate that he or she “would be” persecuted on account of race, religion or political opinion, and provide substantial documentation to support this claim.

The Department of State website provides additional information on waivers of the two-year home residency requirement.

U.S. Immigration Assistance for Teachers

Read more here about U.S. immigration options for teachers. If you are a teacher or employer in need of assistance with immigration issues, we welcome you to contact Sivaraman Immigration Law to request a consultation.