J-1 FAQs: Private Industry Interns and Trainees

  1. If I miss out on an H-1B, can I apply for a J-1 if I have already completed 1 year of OPT?
  2. Can I file a petition with USCIS to change status to J-1 or do I have to apply abroad?
  3. Must a J-1 intern or trainee be paid?
  4. What is the J-1 pilot program for certain countries?
  5. What visas can I qualify for if I am subject to the 2-year home residency requirement?
  6. If I came on a 6-month J-1 intern or trainee visa, can I extend the J-1 for the maximum period of time (12 months for J-1 intern and 18 months for trainee)?
  7. If I completed the full 12 months/18 months as a J-1 Intern/Trainee, can I come back on another J-1 intern or trainee visa?
  8. Under what circumstances can I change jobs and transfer the J-1 to another employer?

 

If I miss out on an H-1B, can I apply for a J-1 if I have already completed 1 year of OPT?

The 12 month Intern J-1 and the 18 month Trainee J-1 are potential options for students who may have missed out on an H-1B visa. However, both the Intern and Trainee J-1 visas require either post-secondary education or experience from abroad.

As a practical matter, most F-1 students usually do not qualify because their post-secondary education is usually obtained in the United States. For students who may have had some post-secondary education from abroad, most J-1 umbrella organizations will require the potential J-1 applicant to spend some time abroad before returning as a J-1 Intern or Trainee. The potential J-1 applicant must also be able to show that the J-1 will involve more advanced skills and training than the period of OPT.

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Can I file a petition with USCIS to change status to J-1 or do I have to apply abroad?

While J-1 applicants are eligible to file a change-of-status application, most J-1 sponsors are reluctant to issue DS-2019s if they know that the person will file a change of status application. As a practical matter, most J-1 applicants also prefer the relative ease and speed with which a J-1 can be obtained overseas, versus the 3-4 month adjudications period for I-539 applications.

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Must a J-1 intern or trainee be paid?

No, a J-1 Intern or Trainee does not generally have to be paid (as long as the company is still in compliance with labor laws), but the J-1 must show that s/he has a stipend or sufficient funds to support himself or herself during the stay in the United States.

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What is the J-1 pilot program for certain countries?

Australia, New Zealand, Ireland and South Korea have pilot programs that allow certain students (usually those who are currently enrolled or have graduated within the past year) to come to the United States for up to 12 months (Australia, New Zealand and Ireland) or 18 months (South Korea) to work and travel without having a job offer. Once in the United States, these J-1s have unrestricted employment authorization.

NOTE: The J-1 pilot program mentioned here is different to the Summer Work/Travel program that is typically limited to students during the summer break or a maximum of 4 months.

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What visas can I qualify for if I am subject to the 2-year home residency requirement?

Section 212(e) of the regulations only prohibit a J-1 who is subject to the two-year home residency requirement from obtaining an H or L visa, and from adjusting status to permanent residence unless the J-1 complies with the two-year requirement or obtains a waiver. However, J-1s who are subject to Section 212 (e) may apply for an F-1, E-1, E-2, E-3, O, P or TN visa. The J-1 would still be subject to the 212 (e) and must either comply with the requirement or obtain a waiver.

NOTE: In order to obtain another visa, the J-1 subject foreign national cannot change status in the U.S.  S/he must apply abroad at a consular post in his/her home country.

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If I came on a 6-month J-1 intern or trainee visa, can I extend the J-1 for the maximum period of time (12 months for J-1 intern and 18 months for trainee)?

Very generally, a J-1 intern or trainee may extend the J-1 up to the maximum period of time. So, if a J-1 only applies for a 6-month Intern visa, s/he could extend the J-1 up to the 12 month maximum period of time. Similarly, someone who only uses 12 months out of the 18 month Trainee J-1 visa, could extend the J-1 up to the full 18-month period.

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If I completed the full 12 months/18 months as a J-1 Intern/Trainee, can I come back on another J-1 intern or trainee visa?

No, virtually all of the J-1 umbrella organizations prohibit J-1’s from coming back for a “second” round or a “repeat” of J-1 interning or training immediately after completing the initial J-1. In some limited circumstances, if it involves more advanced skills or training, some may allow it, but will require the J-1 applicant to spend a significant period of time in his/her home country before a second J-1 is allowed.

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Under what circumstances can I change jobs and transfer the J-1 to another employer?

Most J-1 umbrella organizations permit a J-1 to change jobs and transfer the J-1 to another employer, but the J-1 is only eligible for the remainder of time left on the J-1. However, most J-1 umbrella organizations require some sort of “reasonable” explanation before allowing a J-1 to “change” jobs during the validity of the J-1. Some examples of acceptable reasons include, but are not limited to a termination or lay off, untenable working conditions, a company closure, failure on the part of the employer to pay the J-1 or where the J-1 is not learning any skills or training is not being provided.

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