By Greg Siskind (gsiskind@visalaw.com)

The Department of State has proposed a regulation governing the administration of J-1 training programs. The proposed rule would eliminate the distinction between “specialty” and “non-specialty” occupations. According to DOS, the distinction is being dropped because the distinctions between these types of programs are “conceptually artificial and do not adequately describe the types of training that the Department desires to promote in the national interest.”

DOS now believes the amount of experience is more important that the type of training. Thus, trainees will now have to have a minimum of three years of prior related work experience in their fields before being eligible for the J-1 visa.

While lack of work experience will prevent one from coming as a trainee, the proposed regulation also creates a new twelve month internship program that will allow recent college and university graduates to come to the US to train in their fields. An intern must start their internship within 12 months of graduating from their educational program.

Trainees and interns will also now have to take the Test of English as a Foreign Language (TOEFL) and score a minimum of 550.

The Department of State is also concerned that training plans submitted with J-1 trainee petitions have not been effective and they do not adequately assist a DOS examiner in determining if training is real or the plan is just “boilerplate.” Consequently, the proposed rule also calls for the creation of a new Form DS-7002 Trainee/Internship Placement Plan for sponsors to complete for trainees and interns prior to the issuance of a DS-2019 form.

The proposed rule states that employers may not use training and internship programs to “displace American workers” but no specific guidance is give regarding what exactly this means.

A rather onerous new requirement is that a J-1’s sponsor must conduct an in-person interview with a potential trainee or intern in the applicant’s home country. Furthermore, exchange program sponsors will be required to visit in person the businesses and organizations where J-1 trainees and interns will be placed. And the organizations and businesses where trainees and interns will be placed must be in business for at least three years.

The proposed rules contain several new restrictions on the type of work in which trainees or interns may engage including

1. no work involving child care or elder care, any clinical or other kind of work involving patient care or contact (including work that would require trainees or interns to provide therapy, medication, or other clinical or medical care such as sports or physical therapy, psychological counseling, nursing, dentistry, social work, speech therapy, or early childhood education).
2. no work that would bring the exchange program or DOS into “notoriety or disrepute”
3. no engagement of staffing or employment agencies to recruit, screen, orient or place trainees or interns
4. no more than 20% clerical work and only if necessary for an assignment

Both trainees and interns will be subject to a requirement that they depart the US for two years before returning to the US for a repeat training opportunity.

Changes also would be made regarding flight training. On-the-job training time would be tied to full-time classroom study. One month of training will be allowed for every four months of classroom study. A maximum of 18 months will be permitted for training/study.

Finally, there are changes in the proposed rules that would affect agricultural, hospitality and tourism training programs. These programs would only be available for twelve months duration. The DOS justifies the change based on problems it has seen in these fields. Agricultural sponsors must also certify they meet all the requirements of the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.

Comments may be sent to the State Department through June 6, 2006.