J Exchange Visitor Teachers

 

Introduction: Exchange Visitor Teachers

J Exchange VisitorCertain foreign teachers are eligible for nonimmigrant status as J exchange visitors to participate in exchange visitor teacher programs in the United States. The Department of State (DOS) regulations regarding exchange visitor teachers were overhauled on January 29, 2016. The new rules came into effect on February 29, 2016 [see 81 FR 4945, (Jan. 29, 2016)]. In this article, we will review the regulations for eligibility as a J exchange visitor teacher.

Statute for J Status

J exchange visitor status is authorized in section 101(a)(15)(J) of the Immigration and Nationality Act (INA). Under statute, a foreign teacher must meet the following requirements to qualify as a J exchange visitor teacher:

  • Have a residence in a foreign country which he or she has no intention of abandoning;
  • Be a bona fide teacher;
  • Be coming temporarily to the United States as a participant in a program designated by the Director of the United States Information Agency for the purpose of teaching.

Exchange Visitor Teacher Regulations

The statute is implemented through DOS regulations found in 22 C.F.R. 62.24.

Qualifying Exchange Visitors and Programs

22 C.F.R. 62.24(a) explains that the regulations govern “exchange visitors who teach full-time in accredited public and private U.S. primary and secondary schools (K-12), including pre-kindergarten language immersion programs offered as regular courses of study by accredited primary schools.” “Full time” is defined in 22 C.F.R. 62.24(c)(2) as at least 32 hours per week of teaching or teaching-related administrative activities. A language immersion program is defined in 22 C.F.R. 62.24(c)(6) as “[a] program that is a regular course of study offered by an accredited school … in a language not native to the majority of the student population, that occurs for at least fifty percent of the school day.”

A qualifying exchange program must “promote the interchange of U.S. and foreign teachers and enhance mutual understanding between the people of the United States and other countries.” 22 C.F.R. 62.24(b) gives the DOS the authority to designated bona fide exchange programs that satisfy these objectives.

22 C.F.R. 64.24(c)(4) requires the sponsor to place the exchange visitor teacher in a “host school” which meets the requirements found in 22 C.F.R. 62.24(a).

Foreign Teacher Eligibility Requirements

The requirements for foreign teachers are found in 22 C.F.R. 62.24(d).

First, under 22 C.F.R. 64.24(d)(1), a teacher must demonstrate to the satisfaction of a sponsor that he or she either (paraphrasing):

  • i. Meets the qualifications for teaching at the primary (including pre-kindergarten) or secondary levels in schools in his or her home country; is working as a teacher in his or her own country at the time of the application; and has at least two years of full-time teaching experience; or
  • ii. Is not working as a teacher in his or her own country at the time of the application, but otherwise meets the qualifications for teaching at the primary (including pre-kindergarten) or secondary levels in schools in the home country; has at least two years of full-time teaching experience within the past eight years; and, within 12 months of his or her application submission date for the program, has or will have completed an advanced degree (beyond a degree equivalent to a U.S. bachelor's degree) in education or in an academic subject matter that he or she intends to teach or that is directly related to his or her teaching subject field.

22 C.F.R. 64.24(d)(2) sets as a requirement that an exchange visitor teacher must possess, at a minimum, a degree equivalent to a U.S. bachelor's degree in either education or the academic subject field in which he or she intends to teach. However, note that under 22 C.F.R. 64.24(d)(1)(ii), if the otherwise qualified teacher is not working as a teacher in his or her own country at the time of the application, he or she will need to have completed an advanced degree rather than a baccalaureate degree or its foreign equivalent. Administrative precedent in the Matter of Shah, 17 I&N Dec. 244 (BIA 1977) [PDF version], held that a baccalaureate degree from a 3-year foreign program is not the equivalent to a U.S. baccalaureate degree in the EB3 context. A sponsor is well-advised to consult with an experienced immigration attorney for an evaluation of the evidence that should be submitted to establish that a foreign degree is the equivalent of a U.S. baccalaureate degree (or to an advanced degree in the case of 22 C.F.R. 64.24(d)(1)(ii)). Although the rules do not apply perfectly to J exchange visitors, please see our section on degree equivalency for EB3 professionals, which discusses similar issues in the EB3 context [see Degree Equivalency and EB3 Professionals].

22 C.F.R 64.24(d)(3) requires the exchange visitor teacher to satisfy the teaching eligibility standards of the U.S. state in which he or she will teach. Accordingly, it is not sufficient that the exchange visitor teacher is merely qualified to teach in his or her home country.

22 C.F.R. 64.24(d)(4) requires that it be established that the exchange visitor teacher “is of good character.”

22 C.F.R. 64.24(d)(5) requires that the exchange visitor teacher agrees to come to the United States temporarily as a full-time teacher of record in an accredited primary or secondary school. If qualified, an exchanged-visitor teacher may teach a variety of subjects at schools for which J status was approved. However, at the pre-kindergarten level, an exchange visitor teacher may teach only in language immersion programs.

Exchange Visitor Teacher Verification Requirements for Sponsors

22 C.F.R. 62.10(a) requires exchange program sponsors to “establish and utilize a method to screen and select prospective exchange visitors to ensure that they are eligible for program participation.” For all exchange visitor programs, sponsors are required to provide clear information to exchange visitors about the details of the program and provide information to assist exchange visitors in maintaining status and working in the exchange program in the United States. Sponsors are also required to offer an orientation to exchange visitors.

In addition these general rules for exchange visitors, 22 C.F.R. 64.24(e) lists specific sponsor requirements for exchange visitor teachers (paraphrased):

  1. Verify the qualifications of each foreign teacher to ensure that he or she is qualified under 22 C.F.R. 64.24(d);
  2. Secure references from one colleague and one current or former supervisor of each foreign teacher, attesting to that teacher's good reputation, character, and teaching skills;
  3. Verify that each foreign teacher is sufficiently proficient in the English language to function in U.S. classrooms on a day-to-day basis (by the procedure found in 22 C.F.R. 62.10(a)(2)); and
  4. Verify that each foreign teacher who is eligible for the program has a letter from the head of a school in another country, preferably that teacher's home country, which states that school's willingness to work with exchange teachers on the cross-cultural activity component set forth in 22 C.F.R. 64.24(h)(1)(ii) [jump to section]. The foreign school with which the exchange visitor teacher plans to work must be at the same academic level as the proposed host school. The letter must be signed by the head of the foreign school or another individual in an appropriate position of authority to speak for the school within the foreign country's school system. The letter must be submitted with an English translation (with information about the translation) if it is not in English.

The procedure for verifying an exchange visitor teacher's English language proficiency is found in 22 C.F.R. 62.10(a)(2). The sponsor must verify English language proficiency through (1) a recognized English test, (2) signed documentation from an academic institution or English language school, or (3) a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.

Additional Sponsor Requirements

22 C.F.R. 64.24(f) requires sponsors to ensure that (paraphrased):

  1. Forms DS-2019 are not issued until exchange visitor teacher has received and accepted written offers of full-time teaching positions from host school(s);
  2. Program dates coincide with U.S. academic year cycle (must receive approval from DOS for exchange date and include these dates in the exchange visitor teacher's contract);
  3. Exchange visitor teachers comply with any applicable collective bargaining agreement;
  4. Exchange visitor teacher appointments to positions in host schools are temporary (even if the positions themselves are permanent) and do not lead to tenure; teachers must be employees of either the host or home school during their exchange;
  5. Exchange visitor teacher's positions must be subject to the same duties, responsibilities, hours, and compensation as similarly-situated U.S. teachers in the school district or host school; the exchange visitor teacher (unless he or she is on a program where DOS is the sponsor) must be employed by and under the direct supervision and guidance of the host school (and, where applicable, host school district); and
  6. A pre-kindergarten level exchange visitor teacher is assigned to teach full-time in an accredited host school (or in several schools within the hots school district, including at several academic levels, with prior permission from DOS). If an exchange visitor teacher is placed in a private school where there is no host school district, he or she must teach a full-time schedule of at least 32 hours in school(s) located no more than 25 miles from the main host school (sponsors are required to ensure reasonable and effective transportation). A pre-kindergarten exchange visitor teacher may only teach in a language immersion program offered as a regular course of study by an accredited primary school.

22 C.F.R. 64.24(g)(1) requires sponsors to provide the following information in recruitment in addition to generally applicable information found to 22 C.F.R. 62.10(b)-(c):

  • Sponsor fee;
  • Foreign or domestic third party or partner fee;
  • SEVIS fee;
  • Insurance costs;
  • Estimates for food, housing, and local transportation costs;
  • Expected work-related deductions; and
  • Information on other fees and charges related to participation in the exchange program.

22 C.F.R. 64.24(g)(2) requires the sponsor and/or host school to provide a foreign teacher with the following information before he or she signs any contracts:

  • Name, location, and brief description of the host school;
  • The terms and conditions of compensation (with deductions from gross salary);
  • Any provisions affecting the ability of the exchange visitor to be accompanied abroad by a spouse or dependents;
  • A summary of significant components of the program (including the cross-cultural activity component);
  • Specific information on fees and costs for which the exchange visitor teacher will be responsible for while on exchange;
  • Anticipated housing options;
  • Specific transportation options between the exchange visitor teacher's residence and the host school (with cost estimates);
  • Insurance costs for accident or illness coverage;
  • Repatriation of remains and medical evacuation;
  • Estimated personal expense money for initial costs the exchange visitor teacher may incur upon arrival prior to receiving his or her first paycheck;
  • Certification or licensure procedures and costs at host school;
  • Administrative fees;
  • Placement fees.

The host school is required to pay the exchange visitor teacher directly unless he or she is paid directly through government funding, from his or her host school, or between the home school and host school in a shared cost arrangement.

It is important to note that the requirements in 22 C.F.R. 64.24(g) are not suggestions, but mandated by the regulations. It is important for sponsors to provide exchange visitor teachers with all of the requisite information in order to ensure eventual eligibility for J visas for the exchange visitor teachers.

Cross-Cultural Activity Component

An exchange visitor teacher program is required to have a “cross cultural activity” component. The requirements specific to exchange visitor teachers are set forth in 22 C.F.R. 64.24(h) (paraphrased):

  1. During each academic year of program participation, sponsors must require each exchange visitor teacher to complete at least one cross-cultural activity from each of the following two categories:
    • i. An activity for the teacher's classroom, larger host school or host school district population, or the community at large designed to give an overview of the history, traditions, heritage, culture, economy, educational system, and/or other attributes of his or her home country. Sponsors of exchange teachers placed at international schools must require their exchange teachers to conduct at least one cross-cultural activity per academic year outside the host school in nearby schools or communities where international opportunities may be more limited than those found in their host school; and
    • ii. An activity that involves U.S. student dialogue with schools or students in another country, preferably the exchange teacher's home school, through the virtual exchange or other means, in order to supplement the goals of the in-person exchange.

The term “virtual exchange” is defined in 22 C.F.R. 62.24(c)(7) as “[a] technology-enabled, sustained, people-to-people cross-cultural educational program that may supplement the goals of an in-person exchange and integrates global knowledge, cultural awareness, and/or foreign language into the classroom or other setting.”

22 C.F.R. 64.24(h)(2) requires sponsors to collect annual reports from their exchange visitor teachers detailing the cross-cultural component of their exchange program. The report must contain the following:

  • i. Date(s) of each activity;
  • ii. Location of each activity;
  • iii. Audience for and participants in each activity;
  • iv. General overview of each activity, including the topic; and
  • v. Estimated impact of each activity.

The cross-cultural component is a key point of the exchange visitor teacher program in that it distinguishes J exchange visitor status from other employment-based nonimmigrant visa categories such as H1B.

Duration of J Status and Extensions

22 C.F.R. 64.24(i) requires exchange visitor teachers to participate in exchange visitor programs only at the accredited primary or secondary schools listed on their Forms DS-2019 or location(s) where such schools are involved in official school activities.

22 C.F.R. 64.24(j) allows for exchange visitor teachers to participate in the exchange program for the length of time necessary to complete the program for up to three years. In order to continue participating in an exchange program beyond three years, the sponsor must request and have approved an extension of the exchange for either one or two years.

22 C.F.R. 64.24(k)(1) allows sponsors to request extensions of only one or two years. Extensions may not be requested for fractions of academic years. 22 C.F.R. 64.24(k)(2) sets forth the required information that must accompany an extension request (paraphrased):

  • i. A letter of reference on official letterhead written by the host school or host school district administrator responsible for overseeing the exchange visitor teacher that describes the teacher's performance and how the school has benefitted from the exchange visitor teacher's presence;
  • ii. A document describing the cross-cultural component if these activities are not already detailed in the exchange teacher's annual reports.

22 C.F.R. 64.24(k)(3) requires an extension request to be submitted to DOS no later than three months before the beginning of the desired extension period. If a sponsor obtains a one-year extension for an exchange visitor teacher, the sponsor will be able to seek a subsequent one-year extension by following the same procedure. However, no extension will be granted after two years.

22 C.F.R. 64.24(l) allows foreign teachers to participate in a subsequent exchange program after having completed the two-year foreign residency requirement after completing an exchange visitor teacher program.

Conclusion: Exchange Visitor Teachers

A bona fide exchange program recognized by DOS may sponsor foreign teachers for J1 visas to participate in the exchange. Such exchange programs allow for foreign teachers to work in the United States in capacities described in the regulations for up to three years (with possible extensions for up to five years). It is important to remember that the exchange component is necessary for J1 classification. A foreign teacher who seeks to teach in the United States should consult with an experienced immigration attorney for an assessment of the best nonimmigrant or immigrant option given his or her experience and objectives.