By Stanley Mailman and Stephen Yale-Loehr**

Pointing to abuses in the existing system, the Department of State (DOS) has published a proposal to tighten the J-1 exchange visitor regulations on trainee visas. 71 Fed. Reg. 17,768 (Apr. 7, 2006) (proposed amendments to 22 C.F.R. §§ 62.2, 62.22). The abuses that prompted the proposal are familiar to immigration cognoscenti, if only grudgingly admitted in some corners. But the proposal has nevertheless kicked up a storm among individuals and organizations immediately involved in immigration issues - notably universities, lawyers, bar associations and organizations that provide training. Are they right in arguing that the proposed regulations are unnecessarily harsh and would spell the demise of the J-1 trainee visa, and that its loss would hinder diplomatic efforts to improve our image abroad at the very time Uncle Sam is looking his worst? Or do they object simply because the changes would make it harder to use the J-1 classification as a convenient slot for an intending immigrant until a more suitable visa becomes available, and because it would reduce business for J-1 program sponsors?

Other Trainee Visa Categories

The J-1 classification is one of several nonimmigrant (temporary) visa categories that permit noncitizens to train in the United States. For example, the H-3 trainee classification permits training essentially in any field except graduate medical training. But it requires approval of a formal petition to the USCIS (U.S. Citizenship and Immigration Services) and is so circumscribed by onerous conditions that it has gone into virtual disuse.

Also possible is a B-1 (business visitor) visa "in lieu of an H-3," provided the training situation meets the H-3 criteria and the applicant receives no salary from a U.S. source. But in recent years U.S. consuls have been loath to issue B-1 visas in such circumstances, except for brief entries.

The USCIS routinely grants up to one year of work authorization to students in the F-1 (academic), M-1 (non-academic), and J-1 (exchange visitor) categories, provided it is for practical training related to their course of study, usually at the end of the study program and with the recommendation of the school's student advisor. By definition, however, the training is only available to students in U.S. schools.

Other nonimmigrant visa classifications are hard to obtain, don't last long enough, or simply don't fit many pressing situations. This accounts in part for the relative popularity of the J-1. visa. The simplicity of obtaining a J-1 visa also weighs in its favor.

History and Purpose of the J-1 Exchange Visitor Program

Congress established the J-1 classification in 1948 to strengthen international relationships. Pub. L. No. 80-402, 62 Stat. 6 (1948). It seeks to do so by providing for a mutual exchange of persons between the United States and other countries to impart knowledge and skills. See generally Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 22.02 (rev. ed. 2006); Naomi Schorr & Stephen Yale-Loehr, The Odyssey of the J-2: Forty-Three Years of Trying Not to Go Home Again, 18 Georgetown Immigr. L.J. 221, 224-25 (2004). Under the J provisions, as modified by the Fulbright-Hays Act in 1961, over 275,000 exchange visitors annually take part in educational and cultural programs as students, scholars, trainees, teachers, professors, specialists, foreign medical graduates, international visitors, camp counselors, au pairs, and participants in summer student travel/work programs.

"The purpose of the [J Exchange Visitor] Program generally is to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences, and to encourage Americans to participate in educational and cultural programs in other countries." 22 C.F.R. § 62.1(b). Like many other nonimmigrants, J-1 visitors must have a residence abroad that they plan to retain. INA § 101(a)(15)(J), 8 U.S.C. § 1101(a)(15)(J). The law discourages use of the J-1 visa as a device to remain in the United States. In fact, the statute bars J visa recipients from lawful permanent residence, or H-1B or L nonimmigrant status, until they have returned home for two years, under any of three cases: (1) their J-1 visa was used to take graduate medical training; (2) their program was financed by the United States or their home country; or (3) their specialty under the program was designated as needed by their home country, subject to certain waiver provisions. See INA § 212(e), 8 U.S.C. § 1182(e). Most Western Europeans are unaffected by this provision because they finance their own stay and their country is not designated with any shortage specialties. Waivers of the two-year return residency requirement are possible, but sometimes not easy to get.

J-1 Trainees: Current Procedures

A J-1 visa is relatively simple to obtain. For example, no prior approval is needed from the immigration agency or the Department of Labor. Of course, the applicant has to apply for the visa at a U.S. consular post. But she needs only to present to the consul a certificate of eligibility, Form DS-2019, from one of the educational- or cultural-program sponsors designated for that purpose by the Department of State, including those that sponsor training. Interestingly, the regulations don't restrict sponsorship of the designated programs to educational or cultural organizations. The sponsors can but don't have to be government or nonprofit agencies, and they needn't conduct the training programs themselves: they can issue the DS-2019 certificate for training with a third-party employer. For example, the Association for International Practical Training appears to be organized primarily to sponsor J-1 training programs run by third parties.

Organizations designated for the sponsorship of training programs include trade and professional associations, like chambers of commerce, and legal, educational and advocacy groups like the American Immigration Law Foundation, which is supported by the American Immigration Lawyers Association (AILA), and the American Council on International Personnel, which is sponsored by constituent corporations. These not-for-profit organizations issue certificates of eligibility, usually for training with business organizations; and they typically charge a processing fee, often between $1,000 and $2,000. Some limit issuance of the certificate only for training with member companies. DOS has also designated certain commercial and industrial corporations as sponsors of training programs that they conduct solely or primarily for their own employees. No matter their purpose or how they are organized, J program sponsors are subject to a host of requirements to assure that they are run by U.S. citizens or lawful permanent residents, are financially viable, use an appropriate selection system, provide the visitors with suitable pre-arrival information and orientation programs, and that they have adequate medical and accident insurance.

Proposed Changes to the J-1 Trainee Regulations

At issue in the current DOS proposal are the regulations that govern the designated J training programs, under which some 27,000 people enter the United States annually. Although DOS regards the J-1 training program as generally successful in carrying out the goals of the Fulbright-Hays Act, it sees abuses by both program sponsors and trainees. Relying on its own findings and those by the General Accountability Office (GAO), the DOS argues in support of its proposal: "[T]here have been occasions where some sponsors were misusing training programs (i.e., trainees were not receiving any training and were actually being used as 'employees,' and visitors were using J visas in lieu of H visas or as stepping stones for other longer-term non-immigrant or immigrant classifications that may have been unavailable at the time of application.)" 71 Fed. Reg. at 71,769.

The DOS perception may be accurate, perhaps even understated. Under the J-1 training regulations, program sponsors are supposed to issue the certificate of eligibility only to applicants who will be engaged in a structured training program. As indicated, use of the J-1 for ordinary employment purposes is strictly barred. Yet, it would not be surprising if manyJ-1 trainees receive little or no structured training, and indeed may even be crackerjacks at what they do. Companies ordinarily hire because they need a job done. And they usually provide training to those they expect to stay on the job. Why train someone for a career he will pursue with another employer abroad? As DOS sees it, too many J-1s are only in a trainee classification because their field is not professional and no other work visa fits, or because they are trained in a profession for which the H-1B classification is perfectly suitable but is numerically oversubscribed.

So what solution does the DOS have to these abuses? The proposed amendments would divide trainees into two classes:

1. the trainee: a foreign individual with at least three years of prior related work experience in his or her occupational field coming to participate "in a structured and guided work-based training program in [that] field;" and

2. the intern: a university-level graduate coming within 12 months after graduation "to participate in a structured and guided period of work-based learning related to the specific field in which he or she earned a degree." Interns would have to score at least 550 or the equivalent on the Test of English as a Foreign Language (TOEFL).

71 Fed. Reg. at 17,771. Additionally, the amendments would reduce the maximum duration of a training program from 18 months to 12 months. Id. at 17,770.

Under the amendments, program sponsors would bear several new and undoubtedly expensive burdens, including:

* personally interviewing the potential participants in their home countries;
* staying in touch with the participants during their stay;
* insuring that the individual training plans are followed; and
* conducting on-site visits to the third-party organizations (employers) that conduct the training programs.

Third-party employers would have to promise not to use participants to displace U.S. workers, among other reciprocal obligations. But note that under the present trainee regulations, the sponsor must have a written agreement with any third party that specifically recites its obligations to act in accordance with the regulations. Any failure to comply is imputed to the sponsor. And sponsors are already prohibited from placing trainees in positions that are filled or would be filled by employees. 22 C.F.R. § 62.22(d)(2)(ii).

Critique of the Proposed Changes

According to critics like NAFSA: Association of International Educators and AILA, the proposals would impose substantial hardships on program sponsors and exclude important categories of potential trainees and interns, without the corresponding benefit of eliminating or substantially reducing the abuses cited. Some of these criticisms make sense. Take the need to interview potential participants in their home countries. Participants come from all over the world. At the fees they currently charge, few if any of the umbrella program sponsors could afford to send representatives, say, to East Africa or Indonesia to interview potential participants or to hire responsible services in those areas to conduct home-country interviews. Large international companies, with their own facilities abroad, could handle this rule unfazed. Those that conduct their own training programs undoubtedly do such interviewing already. But for umbrella sponsors, the costs could be a major burden. So would the costs of inspecting all third-party employers on-site.

NAFSA's critique termed the DOS rule "essentially unusable as it would eliminate all current and future opportunities for foreign postsecondary students to participate in training and internship experiences in the United States," and reduce such opportunities abroad for U.S. students. See http://www.nafsa.org/_/Document/_/nafsa_s_comment_letter.pdf, at 1 (May 16, 2006) (last visited June 19, 2006). The NAFSA paper points out that today's students bridge the gap between formal education and practical work experience "throughout their academic experience - during the academic year, during the break between academic years, or immediately following the completion of their degree." Id. at 2.Lacking the degree required for internship under this rule, thousands of foreign students "would pursue internships in countries other than the United States - a real loss for U.S. diplomacy." Id.

As NAFSA also argues, the rule would exclude from both the internship and the training opportunities even university graduates. They would be barred from internships, as their degrees are more than 12 months old, and from training, as they lack the requisite three years of experience. And U.S. students and graduates would be denied equivalent work experiences abroad under programs that require or foster reciprocity. AILA agrees with essentially all of the NAFSA points and also argues that the required TOEFL score of 550 is excessive as a requirement for trainees or interns. AILA Comments on Proposed Exchange Visitor Regulations, http://www.aila.org/Content/default.aspx?docid=19632 (AILA InfoNet Doc. No. 06060869) (June 5, 2006) (last visited June 19, 2006).

Although DOS is justifiably concerned with the abuses it cites, its proposed rulemaking does not seem to be an appropriate antidote. The wide swath it cuts would destroy opportunities for precisely the kinds of visitors that the J-1 exchange visitor program was designed to attract. And the resulting regulations would not prevent abuses. Careless sponsors or unscrupulous sponsors would continue to take fees in unqualified situations, no matter how many potential visitors they interview overseas or on-site inspections they make stateside. Their fees would simply go up, and opportunities to visitors would diminish. As to large-company sponsors that conduct their own training, the demands of operational personnel for desirable candidates might nevertheless override the rules.

While no law or regulation will eliminate abuses, the DOS rule should aim with a sharper focus. We shouldn't be narrowing J-1 participation, especially, as the NAFSA letter concludes, "at a time when we need to be reaching out to build better relationships around the globe and to attract the best and brightest to bolster our competitive edge." NAFSA comment at 4.
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* This article originally appeared in the June 26, 2006 issue of the New York Law Journal. Copyright (c) 2006 New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

** Stanley Mailman and Stephen Yale-Loehr are co-authors of Immigration Law and Procedure, published by LexisNexis Matthew Bender. Mr. Mailman is of counsel to Satterlee Stephens Burke & Burke in New York City. Mr. Yale-Loehr is of counsel at Miller Mayer in Ithaca, N.Y., and teaches immigration and asylum law at Cornell Law School.