- Overview of the Regulations
The J nonimmigrant visa program allows for sponsors to petition for individuals to come to the United States as part of their approved exchange programs. The statutes authorizing the J nonimmigrant visa program are mostly implemented through U.S. Department of State (DOS) regulations. In this article, we will examine 22 C.F.R. 62.10, which sets forth obligations for exchange program sponsors regarding the selection of J exchange visitors, pre-arrival information, orientation information, and the monitoring of exchange visitors. Please note that specific exchange programs generally have additional rules and requirements. To learn more about a specific exchange program, please see our website for more information.
The general regulations regarding the administration of J exchange programs are found in 22 C.F.R. 62.10. In the following sections, we will examine each provision of 22 C.F.R. 62.10. We have uploaded the current version of the regulations for your convenience [PDF version].
To start, 22 C.F.R. 62.10 places the responsibility for the effective administration of exchange visitor programs on the program sponsors.
22 C.F.R. 62.10(a) requires sponsors to establish and utilize a method to screen prospective exchange visitors. The screening must ensure that the prospective exchange visitors are eligible for participation in the specific program. Certain requirements may vary depending on the type of exchange program (e.g, compare exchange visitor teachers and au pairs). The screening must also ensure that:
- The specific exchange program is suitable to the prospective exchange visitor's background, needs, and experience; and
- The exchange visitor possesses sufficient proficiency in the English language to participate in the specific exchange program and function on a day-to-day basis.
Regarding 22 C.F.R. 62.10(a)(2), the sponsor must use an objective measurement of English language proficiency. It is important to note that what constitutes “sufficient” may vary slightly depending on the specific type of exchange program. The sponsor must verify English language proficiency in one of the three following ways:
- Through a recognized English language test;
- By signed documentation from an academic institution or an English language school;
- Through a documented interview conducted by the sponsor either in-person or through video conferencing, or by telephone if videoconferencing is unavailable.
Exchange program sponsors are required to provide exchange visitors with extensive information prior to the arrival of the exchange visitors in the United States. Under 22 C.F.R. 62.10(b), this information includes, but is not limited to, information on:
- Program activities;
- Cultural goals and components of the program;
- Employment information and terms and conditions of employment;
- Insurance costs; and
- Other conditions and restrictions of the program.
Furthermore, the regulation specifies that sponsors must provide the following specific information on (paraphrased):
- The purpose of the Exchange Visitor Program;
- The home-country physical presence requirement;
- Travel to and entry into the United States;
- Housing (including information on housing provided by the program and cost, if applicable);
- An itemized list of all fees to be paid by the potential exchange visitor;
- Description and amount of other costs that the exchange visitor would likely incur;
- Health care and insurance description, costs, and requirements for exchange visitors and accompanying spouse and dependents (as applicable);
- Arrival notification requirements; and
- Other information that will assist exchange visitors to prepare for their stay in the United States.
Regarding 22 C.F.R. 62.10(b)(9), this information may include, but is not limited to, information on (where applicable):
- When and how to apply for a social security number;
- How to apply for a driver's license;
- How to open a bank account;
- Employee rights and laws (including workman's compensation); and
- How to remain in lawful nonimmigrant status.
Under 22 C.F.R. 62.10(c), sponsors must offer and record participation in an orientation for all exchange visitors. The regulation encourages sponsors to provide orientations for an exchange visitor's accompanying spouse and/or child(ren), where applicable. The regulation requires that the orientation includes information on the following (paraphrased):
- Life and customs in the United States;
- Resources in the local community;
- Available healthcare, emergency assistance, and health insurance coverage;
- Detailed information on the exchange visitor program in which the exchange visitor is participating (including length, significant payments, wages, housing, and transportation, where applicable);
- Rules set by the sponsor that exchange visitors are required to follow;
- Name and address of the sponsor and name, address, and telephone number of the Responsible Officer and the Alternative Responsible Officer(s);
- The Office of Designation's address, telephone number, facsimile number, web site and email address, and a copy of the Exchange Visitor Program brochure or other DOS materials as appropriate or required;
- Wilberforce Pamphlet on the Rights and Protections for Temporary Workers [PDF version];
- Information on the requirement that the exchange visitor must report to the sponsor or the sponsor designee within ten calendar days regarding any changes to his or her telephone number, email address, actual or current U.S. address, and site of activity (where applicable).
It is important to note that the above list is non-exhaustive. Furthermore, specific types of exchange programs carry their own orientation requirements involving information additional to that required by 22 C.F.R. 62.10(c).
Sponsors are required to have employees monitor the participation of exchange visitors in their exchange program. The monitoring regulations are found at 22 C.F.R. 62.10(d).
The regulation makes clear that monitoring does not include the following:
- Retaliation; or
Sponsors may not threaten to terminate a program, remove an exchange visitor from the program, ban an exchange visitor from the program, adversely annotate an exchange visitor's Student and Exchange Visitor Information System (SEVIS) record, or otherwise retaliate against an exchange visitor solely on account of the exchange visitor having:
- Filed a complaint;
- Instituted or caused to be instituted any proceeding;
- Testified or is about to testify;
- Consulted with an advocacy organization, community organization, legal assistance program, or attorney about a grievance or other work-related legal matter; or
- Exercised or asserted on behalf of himself or herself any right or protection.
The regulation sets forth the obligations that sponsors have in monitoring (paraphrased):
- Must ensure that the activities that the exchange visitors are engaged in are consistent with the category and activity listed on the exchange visitors' Forms DS-2019;
- Monitor the site of activity and the progress of exchange visitors to the extent appropriate for the specific category;
- Require that exchange visitors report to the sponsor within ten calendar days any changes in their telephone numbers, email addresses, actual and current U.S. addresses, and site(s) of activity (if changes in site of activity are permitted without prior authorization);
- Report in SEVIS within ten business days any changes described in 22 C.F.R. 62.10(d)(3);
- Report the email address for each accompanying spouse and dependent (if applicable).
Under 22 C.F.R. 62.10(e), to the extent permitted under law, sponsors are required to provide the DOS with the following information in the timeframe specified by the DOS upon request:
- Files; and
- Other records or information requested by the DOS related to the sponsor's exchange visitor program.
Under 22 C.F.R. 62.10(f), sponsors are required to cooperate with any inquiry or investigation undertaken by either the DOS or the Department of Homeland Security (DHS).
Under 22 C.F.R. 62.10(g), sponsors must retain all records related to their exchange visitor program and exchange visitors (including accompanying spouses and dependents if applicable) for a minimum of three years following the completion of each exchange program.
In order to retain approval for a J exchange visitor program, a sponsor must carefully follow all of the DOS requirements. These include the requirements discussed in this article and all program-specific requirements. Furthermore, it is important for exchange visitors to understand the particulars of their programs, their immigration status, and, in general, their rights and responsibilities while in the United States in J nonimmigrant status. For further case-specific guidance, a sponsors and exchange visitors are well advised to consult with an experienced immigration attorney. Please see our website for more information on specific types of exchange programs.