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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 operations 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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Douglas Hauer is a Mintz attorney and noted authority on the EB-5 investor visa program, which gives developers a path for securing capital for real estate, hospitality, and infrastructure projects. He's an essential resource for companies looking for financing from offshore sources.