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U.S. State Department issues Final J-1 Regulations

As most are aware, the U.S. State Department issued changes to existing regulations governing the J-1 Intern/Trainee program on June 19, 2007. The State Department recently issued its Final Rule amending its regulations regarding Trainees and Interns which finalizes most of the text of the 2007 Interim Final Rule as well as amends certain requirements initially introduced at that time. This Final Rule will be effective on September 10, 2010 and will slightly affect the way applications submitted to the DOS-designated J-1 Sponsoring Organizations are processed and adjudicated.

Upon review of the more than 1,600 comments received in response to the DOS initial posting of its interim rule, DOS has incorporated the following amendments in its final rule:

One of the fundamental changes implemented by virtue of the 2007 interim rule was the creation of two separate and distinct classifications for Exchange Visitors training in the United States – Interns and Trainees. Pursuant to DOS, an intern is eligible for 12 months of training in the United States in a field related to his/her field of study and is eligible for such training if he/she is applying for intern classification during the course of his/her related baccalaureate level study abroad or during the one year period after completion of his/her baccalaureate degree. A trainee is eligible for J-1 classification for a period of 18 months if, at the time of application, he/she possesses a bachelor’s degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience outside the Untied States, or, in the alternative, five years of work experience outside the U.S. in his/her occupational field.

In response to comments received opposing the requirement that internships must be related to a student’s field of study, DOS has determined that for participants to benefit from the Exchange Visitor Program, it is essential that their training and internship programs be in their fields of study and that they are adequately advanced in their chosen career fields to benefit from program participation.

While DOS has along required that Sponsors (such as the IACC) ensure that trainees and interns have verifiable English language skills sufficient to function on a day-to-day basis in a training or internship environment, the 2007 interim rule introduced the requirement that English language proficiency should, necessarily, be verified by a recognized English language test, by signed documentation from an academic institution or English language school or through a measurable process (i.e., an interview conducted by the sponsor in person, or by video conference).

All comments received by DOS suggested that telephone interviews should also be permitted. Noting that video conferencing is not as prevalent in some countries as in the United States, the Department agreed that use of telephone is appropriate only if the availability of video conferencing is not available.

Another feature of the Exchange Visitor Program addressed in its final rule regarded the 2007 requirement that Sponsors collect Dun & Bradstreet Identification Numbers from each host employer.

In response to comments collected, the State Department has removed this requirement from its final rule.

As Sponsors have long been responsible for ensuring that host employers possess and maintain both the ability and resources to provide structured and guided training or internship programs, DOS’ interim 2007 rule imposed upon Sponsors the requirement that site visits be conducted to prospective host employer office locations that have not previously participated successfully in the sponsor’s training and internship programs if such organizations employ fewer than 25 employees or less than three million dollars in annual revenue.

Upon receipt of comments opposing site visits, the Department reiterated that these requirements are a reasonable methodology to ensure that foreign nationals participating in J1 programs are being placed with employers capable of providing the training or internship experience as reported in Training/Internship Placement Plans filed with prospective J1 Sponsor organizations.

In 2007, DOS indicated that foreigners who have already participated in training/internship programs are now eligible to participate in additional training/internship programs under certain conditions.

DOS confirmed that for both trainees and interns, additional training and internship programs must address the development of more advanced skills or a different field of expertise. Interns may participate in additional internship programs as long as they maintain student status or begin a new internship program within 12 months of graduation. Trainees are eligible for additional training programs after a period of at least two years of residence outside the United States following their initial training program. Participants who have successfully completed internship programs and no longer meet the selection criteria for internship programs may participate in a training program after a two-year period of residency outside the United States following their internship program. As long as participants meet the selection criteria and fulfill these conditions, there is no limit to the number of times an individual may participate in a training and internship program.

Finally, the State Department reiterated the requirement that Sponsors verify that host employers’ maintain workers compensation insurance policies, but amended the rule to provide that for those employers that may be exempt from Workers’ Compensation, evidence of state exemption from the requirement for coverage may be provided.

The Final Rule represents a new fundamental approach to J1 training in the United States. Pursuant to the new rule, foreign students graduating from U.S. institutions of higher learning may no longer participate in J1 programs in the U.S. given the DOS requirement that the applicant be pursuing his/her studies at or has graduated from a foreign institution. Therefore, in order to participate in a J-1 training or intern program in the United States, applicants should be pursing studies or have graduated from a foreign institution of higher learning or, in the alternative, possess five years of employment experience. In either case, the applicant’s education or qualifying employment must be in a field related to the applicant’s proposed field of training.