Rachel Browning’s Legal Blog

       Secretary of State Condoleezza Rice and Foreign Minister Yu Myung-hwan of the Republic of Korea recently signed a Memorandum of Understanding on a new exchange visitor program called WEST (Work, English Study, and Travel). The WEST program will allow up to 5,000 qualifying university students and recent university graduates from the Republic of Korea to enter the United States for a period of 18 months on a J-1 exchange visitor visas that will allow them to study English, participate in internships, and travel. Participants will devote at least 450 classroom hours to structured English language training and coursework focusing on American business practices and business procedures, U.S. corporate culture, and general office management issues. The program will be coordinated by the private sector under the auspices of the United States Department of State’s Bureau of Education and Cultural Affairs and will begin in 2009. The Government of the Republic of Korea intends to establish an eighteen-month Working Holiday Program (WHP) under which participants from the United States can pursue work, study, and travel opportunities in Korea in much the same way Korean students will be pursuing in the U.S.

       The WEST program seeks to provide students from the United States and the Republic of Korea with a unique opportunity to develop foreign language skills while gaining professional experience in the international work place. This program will enable the American and Korean people to share their values while increasing their international understanding. Authority for the Exchange Visitor Program derives from the Mutual Educational and Cultural Exchange Act of 1961, also known as the Fulbright-Hays Act, the original purpose of which was to increase mutual understanding between the people of the United States and the people of other countries through educational and cultural exchanges.

The J Visa – Exchange Visitors

       The Immigration and Nationality Act (INA) provides the exchange visitor (J) nonimmigrant visa category for persons who are approved to participate in exchange visitor programs in the United States. This means that before you can apply at an American Embassy or Consulate for a J visa you must apply, meet the requirements, and be accepted for one of the Exchange Visitor Program categories through a designated sponsoring organization. If you are accepted as a participant in an exchange program, the sponsor will provide you with information and documents necessary to apply for the J visa to enter the United States. Further information regarding these programs can be found on the Department of State website.  In addition, the INA is very specific about applicants meeting certain requirements in order to qualify for the exchange visitor (J) visa, which the consular officer will ultimately determine. Applicants must demonstrate that they properly meet the requirements to be issued an exchange visitor visa, including the following:
• That they plan to remain in the U.S. for a temporary, specific, limited period;
• Evidence of sufficient funds to cover expenses in the United States;
• Evidence of compelling social and economic ties abroad; and other binding ties which will insure their return abroad at the end of the visit.

In other words, the applicant must demonstrate to the consular officer that they do not have immigrant intent, and that they will return to their country of origin upon the completion of the exchange program.

Two-Year Foreign Residency Requirement

     Unlike other temporary visas – F-1, H-1B, L-1, and E – many J visa holders must meet a 2-year home residency requirement upon the completion of their U.S. program, before returning to the U.S. and/or pursuing permanent residency. An exchange visitor is subject to this requirement if the following conditions exist:
• The program in which the exchange visitor was participating was financed in whole or in part directly or indirectly by the United States government or the government of the exchange visitor’s nationality or last residence;
• The exchange visitor is a national or resident of a country designated as requiring the services of persons engaged in the field of specialized knowledge or skills in which the exchange visitor was engaged for the duration of their program; or
• The exchange visitor entered the United States to receive graduate medical education or training.
If the exchange visitor is subject to the two-year foreign residency requirement, he or she cannot change his or status to that of H, L, K, or immigrant lawful permanent resident (LPR) until he or she has returned to his/her home country for at least two-years or received a waiver of that requirement. Such waivers can be obtained under five separate bases: No Objection Statement, Exceptional Hardship or Persecution, Conrad Program, or Interested Government Agency. More information on these waivers can be found here.

       The immigration attorneys at Smith & Garg, P.C. can also provide you with additional information about the J Visa and waivers of the 2-year home residency requirement, and other temporary and permanent visas to the U.S. Contact us for further information.