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Selecting the Best J Visa Category and Selecting the Best J Visa Category and Exchange Program for Your ClientExchange Program for Your Client

Darra KleinDarra KleinDirector of Exchange Visitor ProgramsDirector of Exchange Visitor Programs

American Council on International Personnel (ACIP)American Council on International Personnel (ACIP)

Elizabeth QuinnElizabeth QuinnSenior AttorneySenior Attorney

Maggio & Maggio & KattarKattar, PC, PC

Lynn Lynn ShotwellShotwellExecutive DirectorExecutive Director

American Council on International Personnel (ACIP)American Council on International Personnel (ACIP)

Slide 2 Categories and PurposeCategories and Purpose

A few things to keep in mind with respect to the A few things to keep in mind with respect to the ““purposepurpose”” of the Jof the J--11

The JThe J--1 is known as the 1 is known as the ““exchange visitorexchange visitor”” visavisa ––

The purpose of the category is one of The purpose of the category is one of ““exchangeexchange”” –– education, cultural, education, cultural, and/or professional.and/or professional.

All JAll J--1s must be able to demonstrate an intention to return abroad at 1s must be able to demonstrate an intention to return abroad at the the end of the Jend of the J--1 exchange program 1 exchange program –– i.e., have sufficiently strong ties to i.e., have sufficiently strong ties to their home country.their home country.

With respect to With respect to ““trainees,trainees,”” the Fulbrightthe Fulbright--Hays Act and the Exchange Hays Act and the Exchange Visitor Program regulations were not meant to supply U.S. employVisitor Program regulations were not meant to supply U.S. employers ers with employees under the guise of being trainees. Rather, trainwith employees under the guise of being trainees. Rather, trainees are ees are entering the U.S. to be exposed to American techniques, methodolentering the U.S. to be exposed to American techniques, methodologies, ogies, & expertise, to gain a better understanding of American culture & expertise, to gain a better understanding of American culture and and society, and then return to home to share that learning. society, and then return to home to share that learning.

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Category: TraineeCategory: Trainee

Permitted activitiesPermitted activities: Structured on: Structured on--thethe--job training in skilled occupational job training in skilled occupational areasareasDurationDuration: 3 weeks minimum to 18 months maximum (some programs may : 3 weeks minimum to 18 months maximum (some programs may have shorter time limits)have shorter time limits)Time Frame: Time Frame: Program may begin and end at any time of yearProgram may begin and end at any time of yearSponsorshipSponsorship: Through J: Through J--1 umbrella sponsor or through in1 umbrella sponsor or through in--house programhouse programCandidate profile:Candidate profile:-- Foreign postForeign post--secondary degree or professional certificate + one year of secondary degree or professional certificate + one year of related work experience in field outside the United States, ORrelated work experience in field outside the United States, OR-- Five years of work experience outside the United States in the Five years of work experience outside the United States in the proposed of proposed of field of trainingfield of training-- Adequate level of English to participate in training programAdequate level of English to participate in training program-- Home ties to country of citizenshipHome ties to country of citizenship

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Trainee cont.Trainee cont.

Miscellaneous:Miscellaneous:

Requires tailored training plan outline specifying:Requires tailored training plan outline specifying:Timeframe of each training segment Timeframe of each training segment Type of training activity (onType of training activity (on--thethe--job, classroom, etc.) job, classroom, etc.) during each segmentduring each segmentLearning objectives for each segmentLearning objectives for each segmentSupervision during each segmentSupervision during each segment

Program evaluations Program evaluations –– required from participant at required from participant at midpoint and conclusion of program (programs of less than 3 midpoint and conclusion of program (programs of less than 3 months in length only require one evaluation at program months in length only require one evaluation at program conclusion)conclusion)

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Category: InternCategory: Intern

Permitted activitiesPermitted activities: Structured on: Structured on--thethe--job training in skilled occupational job training in skilled occupational areasareasDurationDuration: 3 weeks minimum to 12 months maximum (some programs may : 3 weeks minimum to 12 months maximum (some programs may have shorter time limits)have shorter time limits)Time Frame: Time Frame: Program may begin and end at any time of yearProgram may begin and end at any time of yearSponsorshipSponsorship: Through J: Through J--1 umbrella sponsor or through in1 umbrella sponsor or through in--house programhouse programCandidate profile:Candidate profile:-- Currently enrolled in and pursuing studies at a degreeCurrently enrolled in and pursuing studies at a degree-- or certificateor certificate--granting postgranting post--secondary academic institution outside the United States, ORsecondary academic institution outside the United States, OR-- Graduated from such an institution no more than 12 months prioGraduated from such an institution no more than 12 months prior to the r to the contemplated exchange visitor program start datecontemplated exchange visitor program start date-- Adequate level of English to participate in training programAdequate level of English to participate in training program-- Home ties to country of citizenshipHome ties to country of citizenship

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Intern cont.Intern cont.

Miscellaneous:Miscellaneous:

Requires tailored training plan outline specifying:Requires tailored training plan outline specifying:Timeframe of each training segment Timeframe of each training segment Type of training activity (onType of training activity (on--thethe--job, classroom, etc.) job, classroom, etc.) during each segmentduring each segmentLearning objectives for each segmentLearning objectives for each segmentSupervision during each segmentSupervision during each segment

Program evaluations Program evaluations –– required from participant at required from participant at midpoint and conclusion of program (programs of less than 3 midpoint and conclusion of program (programs of less than 3 months in length only require one evaluation at program months in length only require one evaluation at program conclusion)conclusion)

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DSDS--7002 7002 -- Training/Internship Training/Internship Placement Plan (T/IPP)Placement Plan (T/IPP)

Replaces training plan outline Replaces training plan outline Available at:Available at:http://www.state.gov/documents/organization/8http://www.state.gov/documents/organization/84240.pdf4240.pdfMust be completed and signed by program Must be completed and signed by program sponsor, U.S. host employer, and trainee or intern sponsor, U.S. host employer, and trainee or intern candidate before DScandidate before DS--2019 can be issued2019 can be issuedMust be presented to consular officialMust be presented to consular officialRequired for each phase or rotationRequired for each phase or rotation

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Program EvaluationsProgram Evaluations

Sponsor required to collect program evaluations Sponsor required to collect program evaluations from participantsfrom participants

–– Programs of 6 months or less, final evaluation Programs of 6 months or less, final evaluation requiredrequired

–– Programs over 6 months or less, midpoint and final Programs over 6 months or less, midpoint and final evaluation requiredevaluation required

Sponsor must retain evaluations and program files for Sponsor must retain evaluations and program files for 3 years following completion of program3 years following completion of program

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Permitted Program LengthPermitted Program Length

Trainee Trainee –– 18 month maximum18 month maximumHospitality and Tourism programs 12 month Hospitality and Tourism programs 12 month maximummaximum

Must have at least 3 rotationsMust have at least 3 rotationsIf managerial level, 18 month maximum permittedIf managerial level, 18 month maximum permitted

Agricultural programs 12 months maximumAgricultural programs 12 months maximumIf final 6 months are classroom or studies, then 18 If final 6 months are classroom or studies, then 18 months permittedmonths permitted

Intern Intern -- 12 months maximum12 months maximum

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Repeat ProgramsRepeat Programs

TraineesTraineesPermitted after alien has resided outside of the U.S. for at Permitted after alien has resided outside of the U.S. for at least 2 years after prior training programleast 2 years after prior training programNew program must address the development of more New program must address the development of more advanced skills or a different field of expertise.advanced skills or a different field of expertise.An alien who has completed an intern program must reside An alien who has completed an intern program must reside outside of the US for 2 years after the intern program to be outside of the US for 2 years after the intern program to be considered for trainee sponsorshipconsidered for trainee sponsorship

Interns Interns Permitted so long as alien remains a student OR is within 12 Permitted so long as alien remains a student OR is within 12 months of graduationmonths of graduation

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Categories: Professor / Categories: Professor / Research Scholar (PRS) and Research Scholar (PRS) and ShortShort--Term Scholar (STS)Term Scholar (STS)

Permitted activitiesPermitted activities::Teaching/lectures, research, consultation, observation, Teaching/lectures, research, consultation, observation, and similar scholarly activities at/for the J sponsorand similar scholarly activities at/for the J sponsorSponsor has authority to authorize occasional lectures or Sponsor has authority to authorize occasional lectures or work at other sites. Example: teaching one semester work at other sites. Example: teaching one semester course at a neighboring university or giving a lecture at a course at a neighboring university or giving a lecture at a conferenceconference

DurationDuration::PRS=5 years or less. 2PRS=5 years or less. 2--year bar after 5 years of year bar after 5 years of participationparticipationSTS=6 months or lessSTS=6 months or less

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Professor / Research Scholar Professor / Research Scholar (PRS) and Short(PRS) and Short--Term Scholar Term Scholar

(STS) cont.(STS) cont.Duration Aberrations:Duration Aberrations: PRSPRS--anyany interruption of the interruption of the program at any time invokes the 2program at any time invokes the 2--year baryear barPRSPRS--STS interplay: 6/12STS interplay: 6/12--month and 2month and 2--year bars year bars apply to PRS, not STS. Consider options and risks apply to PRS, not STS. Consider options and risks of mingled useof mingled useTime Frame: Time Frame: Any starting or ending dates within Any starting or ending dates within the duration limitsthe duration limitsSponsorshipSponsorship: Usually an educational institution, : Usually an educational institution, but also private and government groups such as but also private and government groups such as Fulbright, NIH, or RotaryFulbright, NIH, or Rotary

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Professor / Research Scholar Professor / Research Scholar (PRS) and Short(PRS) and Short--Term Scholar Term Scholar

(STS) cont.(STS) cont.Candidate profile:Candidate profile:

Usually PhD or equivalent, but other qualifications may Usually PhD or equivalent, but other qualifications may suffice. Example: famous author teaching literaturesuffice. Example: famous author teaching literatureAdequate level of English to participate in training Adequate level of English to participate in training programprogramHome ties to country of citizenshipHome ties to country of citizenship

Miscellaneous:Miscellaneous:

Barred for 6/12 months if previously in EVP status other Barred for 6/12 months if previously in EVP status other than STS or </= 6 months in PRSthan STS or </= 6 months in PRSPhysicians cannot provide patient carePhysicians cannot provide patient care

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Category: Summer Work/TravelCategory: Summer Work/Travel

Permitted activitiesPermitted activities: Both skilled and unskilled. Positions are typically : Both skilled and unskilled. Positions are typically seasonal in nature (hourly positions in amusement parks, resortsseasonal in nature (hourly positions in amusement parks, resorts, beach) , but , beach) , but can also be careercan also be career--related / internshiprelated / internship--like in naturelike in natureDurationDuration: 4 months maximum : 4 months maximum –– participant must mparticipant must must be returning to an ust be returning to an educational institution abroad before next academic term resumeeducational institution abroad before next academic term resumes s (unless a graduating student)(unless a graduating student)Time Frame: Time Frame: Only during summer school break in candidateOnly during summer school break in candidate’’s home s home country (participants from Southern hemisphere can only come durcountry (participants from Southern hemisphere can only come during ing American winter)American winter)SponsorshipSponsorship: Through J: Through J--1 umbrella sponsor or through in1 umbrella sponsor or through in--house programhouse program

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Summer Work/Travel cont.Summer Work/Travel cont.

Candidate profile:Candidate profile:

Must be enrolled as a fullMust be enrolled as a full--time posttime post--secondarysecondary student at an accredited educational student at an accredited educational institution in his/her home countryinstitution in his/her home country at time of visa at time of visa applicationapplicationFinalFinal--year students may participate in SWT year students may participate in SWT program providing that they were in fullprogram providing that they were in full--time time student status at the time of visa applicationstudent status at the time of visa applicationMust have completed at least one year of studiesMust have completed at least one year of studiesMust be returning to home country at programMust be returning to home country at program’’s ends endAdequate level of English to participate in programAdequate level of English to participate in program

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Summer Work/Travel cont.Summer Work/Travel cont.

Miscellaneous:Miscellaneous:

Repeat participation in SWT program is permittedRepeat participation in SWT program is permittedSponsors no longer required to monitor the percentage of Sponsors no longer required to monitor the percentage of repeat participants in programrepeat participants in programVisa is portableVisa is portable

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General ProvisionsGeneral Provisions

Minimum insurance requirementsMinimum insurance requirements::

Medical insurance coverage Medical insurance coverage >> $$50,000 per accident or 50,000 per accident or illnessillnessDeductible per accident or illness cannot exceed $500Deductible per accident or illness cannot exceed $500

Expatriation of mortal remains Expatriation of mortal remains >> $7,500$7,500Medical evacuation Medical evacuation >> $$10,00010,000

Visa holder required to confirm arrival and U.S. address with spVisa holder required to confirm arrival and U.S. address with sponsor upon onsor upon arrivalarrivalVisa holder required to report change of address to sponsor immeVisa holder required to report change of address to sponsor immediatelydiately

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English Language ProficiencyEnglish Language Proficiency

Required standard Required standard –– ensureensure and document that trainees and and document that trainees and interns have verifiable English language skills sufficient to interns have verifiable English language skills sufficient to function on a dayfunction on a day--toto--day basis in their training environment.day basis in their training environment.

Types of Verification permitted Types of Verification permitted --(1)(1) Signed documentation from an academic institution or English Signed documentation from an academic institution or English

language schoollanguage school(2)(2) An interview conducted by the sponsor or an overseas agent An interview conducted by the sponsor or an overseas agent

inin--person, by videoconference, or by web cameraperson, by videoconference, or by web camera(3)(3) Collection of candidateCollection of candidate’’s score on a recognized English s score on a recognized English

language test (TOEFL, TOEIC, etc.)language test (TOEFL, TOEIC, etc.)

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Process Flow for obtaining JProcess Flow for obtaining J--1 visa 1 visa and entry into the U.S.:and entry into the U.S.:

Sponsor issues DSSponsor issues DS--2019 Certificate of Eligibility to candidate2019 Certificate of Eligibility to candidateCandidate applies for visa at local U.S. Embassy / ConsulateCandidate applies for visa at local U.S. Embassy / Consulate

Canadians apply at U.S. port of entry or preCanadians apply at U.S. port of entry or pre--flight flight inspection facility in Canadainspection facility in Canada

Candidate enters U.S. and is given the notation of Candidate enters U.S. and is given the notation of ““Duration Duration of Statusof Status”” or or ““D/SD/S”” on Form Ion Form I--9494Visa holder reports arrival to visa sponsor, providing U.S. Visa holder reports arrival to visa sponsor, providing U.S. addressaddressSponsor confirms visa holderSponsor confirms visa holder’’s arrival and home address in s arrival and home address in SEVIS databaseSEVIS database

Slide 20 AttorneyAttorney’’s Role in Advising s Role in Advising

ClientsClients

Who is your client?Who is your client?Ethical considerations?Ethical considerations?Reviewing admissibility issues Reviewing admissibility issues –– 212(e), 214(b), 212(e), 214(b), criminal issues, etc.criminal issues, etc.

Attorney role visAttorney role vis--àà--vis the vis the ““sponsorsponsor”” and, if and, if applicable, the applicable, the ““hosthost”” organizationorganization

Slide 21 In House vs. Umbrella: a comparisonIn House vs. Umbrella: a comparison

Factor

In-House Umbrella Program

Designation Need to apply for and maintain designation.

Umbrella program responsibility.

Sponsor Obligations Apply Umbrella program responsibility

Minimum number of exchanges/year

5 5

Process to get DS-2019 Prepared in-house. Apply to umbrella program. Determining J-1 eligibility Must determine eligibility Provide info to umbrella

program which makes determination.

DS-2019 issuance timeframe

Immediate Varies from 3 days to 4 weeks depending on the program

DS-2019 issuance Prepare through SEVIS Umbrella program responsibility

Cost Designation – filing fee, legal fees, cost of gathering documentation Administration – staff support & training; report development; SEVIS compliance costs.

Application fee – Depends on program; $800 - $2,000 on average per J-1. Umbrella program absorbs administration costs.

Training.Internsjip Placement Plan (DS-7002)

Required Required

Insurance Provide or assure J-1 obtains through third party insurer

Provide or assure J-1 obtains through third party insurer

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Umbrella and Host organizationUmbrella and Host organization

Sponsors•Screen J applicants•Issue DS-2019s•Monitor program•Ensure regulatorycompliance

Host Organizations•Sign agreement with sponsor•Provide D&B #•Cover J under workers comp•May need to have “site visit”

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UmbrellasUmbrellas’’ Vetting & Screening of Vetting & Screening of U.S. Host EmployersU.S. Host Employers

Applies to ACIP and other Applies to ACIP and other ““umbrellaumbrella”” sponsorssponsorsScreening and Vetting Host Organizations Screening and Vetting Host Organizations -- sponsors sponsors must adequately screen all potential host organizations at must adequately screen all potential host organizations at which a trainee or intern will be placed by collecting the which a trainee or intern will be placed by collecting the following information:following information:

Dun & Bradstreet ID number (an academic Dun & Bradstreet ID number (an academic institution, government entity, or family farm)institution, government entity, or family farm)FEIN FEIN Telephone number, address, and professional Telephone number, address, and professional activities via advertising, brochures, website, activities via advertising, brochures, website, and/or feedback from prior participantsand/or feedback from prior participantsWorkmanWorkman’’s Compensation Insurance Policys Compensation Insurance Policy

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UmbrellasUmbrellas’’ Vetting & Screening of Vetting & Screening of U.S. Host Employers U.S. Host Employers (cont.)(cont.)

Site Visits of Host Organizations Site Visits of Host Organizations ––-- Conduct site visits of host organizations that have Conduct site visits of host organizations that have

not previously participated successfully in the not previously participated successfully in the sponsorsponsor’’s training and internship programs s training and internship programs

-- Not required if host has 25 or more employees or Not required if host has 25 or more employees or $3 million+ annual revenue$3 million+ annual revenue

-- Not required for placements at academic Not required for placements at academic institutions or at federal, state, or local institutions or at federal, state, or local government officesgovernment offices

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UmbrellasUmbrellas’’ Third Party Relationships Third Party Relationships

Sponsors required to put in place written contracts Sponsors required to put in place written contracts with third party entities that assist with:with third party entities that assist with:SelectionSelectionScreeningScreeningOrientationOrientationTrainingTraining

of candidates.of candidates.

““UmbrellaUmbrella”” sponsors sponsors –– must establish written must establish written contracts with U.S. host employers, as well.contracts with U.S. host employers, as well.

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““InIn--househouse”” program considerationsprogram considerations

To be eligible as a sponsor, entity must be:To be eligible as a sponsor, entity must be:U.S. local, state or federal government U.S. local, state or federal government agency, oragency, orAn international agency or organization of An international agency or organization of which the U.S. is a member and which has a which the U.S. is a member and which has a U.S. office, or U.S. office, or A reputable organization which is a A reputable organization which is a ““citizen citizen or the United Statesor the United States””

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““InIn--househouse”” program considerationsprogram considerations

As in any As in any ““outsourcingoutsourcing”” analysis, the analysis, the organization must consider the administrative organization must consider the administrative costs/burdens versus the money to be saved costs/burdens versus the money to be saved and efficiency to be gained by taking the and efficiency to be gained by taking the program program ““in housein house””..

An inAn in--house program may increase efficiency house program may increase efficiency and lower overall costs.and lower overall costs.

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““InIn--househouse”” program considerationsprogram considerations

Consider the obligationsConsider the obligations::-- Time and effort required to submit an application to the DOS, inTime and effort required to submit an application to the DOS, including cluding

attorney involvementattorney involvement-- Review criteria and process at: Review criteria and process at:

http://exchanges.state.gov/jexchanges/sevis.htmlhttp://exchanges.state.gov/jexchanges/sevis.html-- Develop a training plan, screen and selection of candidates, etcDevelop a training plan, screen and selection of candidates, etc..-- Designate and train an RO and ARO to administer the program.Designate and train an RO and ARO to administer the program.-- Submit annual reports, seek redesignationSubmit annual reports, seek redesignation

Assess the benefits:Assess the benefits:-- Cost savingsCost savings-- Increased efficiencyIncreased efficiency-- Faster processingFaster processing

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How To Choose A SponsorHow To Choose A Sponsor

The DOS maintains a listing of all current sponsors The DOS maintains a listing of all current sponsors --http://eca.state.gov/jexchanges/index.cfm?fuseactionhttp://eca.state.gov/jexchanges/index.cfm?fuseaction=record.list&cat=16=record.list&cat=16Inquire with colleagues and/or similar companies on Inquire with colleagues and/or similar companies on their experiences with certain program sponsorstheir experiences with certain program sponsorsAssess costs and timing and any particular limitationsAssess costs and timing and any particular limitationsReport any problems to the DOS Compliance Unit Report any problems to the DOS Compliance Unit

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Late Breaking ItemsLate Breaking Items

SEVIS II development processSEVIS II development processThe new Skills List (2009) The new Skills List (2009) --http://www.travel.state.gov/visa/temp/types/thttp://www.travel.state.gov/visa/temp/types/types_4514.htmlypes_4514.html --Regulatory changesRegulatory changesIncreased scrutinyIncreased scrutiny

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Questions?Questions?