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Monitoring Evolving Changes in the Department of State’s Administration of the J-1 Trainee and Intern Visa Programs

U.S. companies that offer appropriate internships or traineeships to junior-level foreign employees who come to the U.S. to gain on-the-job training often utilize J-1 exchange visitor visa programs for interns and trainees. This program is administered by the Bureau of Educational and Cultural Affairs (“BECA”) within the Department of State (DOS). There are several different categories of J-1 visas, but for each of the categories an underlying requirement in the law is that the exchange visitor be afforded opportunities to meet Americans and be exposed to the culture of the United States. Cultural exchange as a value underpins the J-1 visa and is a policy driver behind the existence of the visa.

Over the last few years, a number of specific incidents have occurred that have led DOS to question the good faith of employers that have utilized the J-1 visa category to host interns and trainees. Most recently, the spotlight was on Wyndham Bonnet Creek Resort, which allegedly placed J-1 interns in non-skilled jobs. While there have been documented abuses by host employers in various J-1 programs, DOS should not allow these isolated cases to overshadow the positive impact of the J-1 visa or to drive the direction of changes. The J-1 visa is increasingly important for American companies that wish to expand their networks abroad. Specifically, hosting an intern or trainee is a wonderful way for an American company to build future relationships later in foreign markets. The vast majority of J-1 interns and trainees return to work in their home countries after an exchange visit. These individuals become an important pool of talent for U.S. employers building opertions abroad. Former J-1 interns and trainees also make strong candidates for American companies that expand business globally. These are positive, long-term benefits of the J-1 visa.

Despite these positive aspects of the J-1 intern and trainee categories, in the next year we expect to see DOS focusing on tightening up the programs. We anticipate that host employers will need to provide their interns and trainees with even more cultural and educational exchange opportunities, and that host employers will also need to spell these opportunities out in their internship and trainee plans. J-1 sponsor organizations will also have more direct contact with the trainees and interns to help ensure compliance with J-1 program objectives. These are all reasonable changes, but DOS should explain them clearly to the public before they are implemented.

There is also speculation that BECA will be subjecting the Intern program to a high level of scrutiny, with the goal of making substantive changes to the program similar to those introduced in 2012 with the J-1 Summer Work Travel program. Any such systemic changes should be subject to normative rulemaking procedures under the Administrative Procedures Act. The J-1 Intern Program works well. While we do not know how BECA will prioritize policy objectives with the arrival of a new Secretary of State in early 2013, any changes to the program should be modulated and undertaken after BECA has reviewed comments from the public.

The J-1 trainee and intern categories provide very robust training opportunities for foreign workers and when structured thoughtfully these programs certainly should provide meaningful opportunities for cultural and educational exchange.  Hopefully U.S. employers will be able to continue to benefit from this useful cultural exchange visa category. In a global economy, it is to our advantage to have young people spend brief periods of time in the U.S. in the framework of legitimate cultural exchange. DOS should approach changes to these programs carefully and with transparency to the public.

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About this Author

Douglas Hauer, Corporate Immigration Attorney, Government Investigations, Mintz Levin Law

Doug is a Member in the firm's Corporate & Securities Practice and Immigration Practice. On the corporate side, he focuses on private offerings and related securities work. Doug serves as counsel to developers and businesses seeking capital through the EB-5 investor visa program. He also counsels lenders, private equity firms, and EB-5 Regional Centers on all aspects of EB-5 financing. In the immigration law space, Doug represents corporate, institutional, and individual clients in routine and complex immigration matters. He has in-depth...

Susan J. Cohen, Immigration Attorney, Mintz Levin Law Firm
Member and Chairperson of the Immigration Section

Susan is the founder and Chair of the firm’s Immigration Practice, which is composed of 10 attorneys and 15 immigration specialists and assistants who service the immigration needs both of Mintz Levin’s existing corporate and individual clients, and of new clients who choose the firm precisely for its knowledge in the field of immigration and nationality law. Mintz Levin also is committed to handling political asylum cases, most of which are taken on a pro bono basis.

Susan is actively involved in the American Immigration Lawyers Association (AILA) and has chaired and co-chaired a wide range of national AILA committees, including the National Planning Committee for AILA’s Annual Immigration Law Conference. She also serves on the review board for AILA periodicals. Susan serves as the ABA’s liaison to the Department of Labor on immigration-related issues. She is a frequent panelist at AILA, ABA, and other immigration-related conferences, and a contributor to AILA, ABA, and other immigration-related publications.

Susan was involved in contributing to the US Citizenship and Immigration Services (USCIS) regulations implementing the Immigration Act of 1990, the Department of Labor regulations implementing changes to the H-1B visa category as a result of the American Competitiveness and Workforce Improvement Act of 1998, and the Department of Labor PERM labor certification regulations issued in 2004.

Susan has won awards for her political asylum work from the Supreme Judicial Court of Massachusetts, the Political Asylum/Immigration Representation (PAIR) Project, the Massachusetts Lawyers Weekly, and Mintz Levin.

During law school, she served on the Cardozo Law Review.