This resource shows how DHS regulations at 8 CFR 214.2(j) would change if the proposed rule to eliminate duration of status published at 85 FR 60526 (September 25, 2020) were finalized as proposed. See NAFSA's page for additional information on the proposed rule.
- Text unchanged
- Text added
Section 214.2(j) would be amended by:
- Revising the paragraph (j) subject heading, and paragraphs (j)(1)(ii) [period of admission], (iv) [extensions of stay], (v) [J-2 employment], (vi) [H-1B cap-gap provision], (vii) [status and employment while extension pending], and (viii) [use of SEVIS]; and
- Adding paragraphs (j)(1)(ix) [renumbered paragraph to house address reporting] and (j)(6) [date-specific admission limits] and (7) [severability]
8 CFR 214.2(j)
aliens visitors --
(1) General --
(i) Eligibility for admission. A nonimmigrant exchange visitor and his or her accompanying spouse and minor children may be admitted into the United States in J-1 and J-2 classifications under section 101(a)(15)(J) of the Act, if the exchange visitor and his or her accompanying spouse and children each presents a SEVIS Form DS-2019 issued in his or her own name by a program approved by the Department of State for participation by J-1 exchange visitors. Prior to August 1, 2003, if exigent circumstances are demonstrated, the Service will allow the dependent of an exchange visitor possessing a SEVIS Form DS-2019 to enter the United States using a copy of the exchange visitor's SEVIS Form DS-2019. However, where the exchange visitor presents a properly completed Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status, which was issued to the J-1 exchange visitor by a program approved by the Department of State for participation by exchange visitors and which remains valid for the admission of the exchange visitor, the accompanying spouse and children may be admitted on the basis of the J-1's non-SEVIS Form DS-2019.
(ii) Admission period and period of stay.
An exchange alien, and J-2 spouse and children, may be admitted for a period up to 30 days before the report date or start of the approved program listed on Form DS-2019. The initial admission of an exchange visitor, spouse and children may not exceed the period specified on Form DS-2019, plus a period of 30 days for the purposes of travel or for the period designated by the Commissioner as provided in paragraph (j)(1)(vi) of this section. Regulations of the Department of State published at 22 CFR part 62 give general limitations on the stay of the various classes of exchange visitors. A spouse or child may not be admitted for longer than the principal exchange visitor.
(A) J-1 exchange visitor. A J-1 exchange visitor may be admitted for the duration of the exchange visitor program, as stated by the program end date noted on Form DS-2019, or successor form, not to exceed a period of 4 years, unless subject to paragraph (j)(6) of this section. If paragraph (j)(6) of this section applies, the admission period will be governed by the limitations of paragraph (j)(6) of this section.
(B) J-2 accompanying spouse and dependent. The authorized period of initial admission for J-2 dependents is subject to the same requirements as the J-1 exchange visitor and may not exceed the period of authorized admission of the principal J-1 exchange visitor.
(C) Period of stay. A J-1 exchange visitor and J-2 spouse and children may be admitted for a period up to 30 days before the report date or start of the approved program listed on Form DS-2019, or successor form, plus a period of 30 days at the end of the program for the purposes of departure, as provided by this paragraph (j)(1)(ii)(C), or to otherwise maintain status.
(iii) Readmission. An exchange alien may be readmitted to the United States for the remainder of the time authorized on Form I-94, without presenting Form IAP-66, if the alien is returning from a visit solely to foreign contiguous territory or adjacent islands after an absence of less than 30 days and if the original Form I-94 is presented. All other exchange aliens must present a valid Form IAP-66. An original Form IAP-66 or copy three (the pink copy) of a previously issued form presented by an exchange alien returning from a temporary absence shall be retained by the exchange alien for re-entries during the balance of the alien's stay.
s of Stay. If an exchange alien requires an extension beyond the initial admission period, the alien shall apply by submitting a new Form DS-2019 which indicates the date to which the alien's program is extended. The extension may not exceed the period specified on Form DS-2019, plus a period of 30 days for the purpose of travel. Extensions of stay for the alien's spouse and children require, as an attachment to Form DS-2019, Form I-94 for each dependent, and a list containing the names of the applicants, dates and places of birth, passport numbers, issuing countries, and expiration dates. An accompanying spouse or child may not be granted an extension of stay for longer than the principal exchange alien. A future program end date as indicated on the Form DS-2019, or successor form, standing alone, does not allow aliens with J status to remain in the United States in lawful status. If a sponsor issues a Form DS-2019 or successor form extending an alien's program end date for any reason, or the alien requires an additional admission period to complete his or her program, the alien must apply to USCIS for an extension of stay.
(A) Form. To request an extension of stay, an alien in J status must file an extension of stay application on the form and in the manner designated by USCIS, including submitting the valid Form DS-2019 or successor form, appearing for any biometrics collection required by 8 CFR 103.16, and remitting the appropriate fee.
(B) Timely filing. An application is considered timely filed if the receipt date is on or before the date the authorized admission period expires. USCIS must receive the extension of stay application before the expiration of the authorized period of admission, including the 30-day period of preparation for departure allowed after the completion of the program. If the extension application is received during the 30-day period provided in paragraph (j)(1)(ii)(C) of this section following the completion of the exchange visitor program, the alien in J-1 status may continue to participate in his or her exchange visitor program.
(C) Length of extensions. Extensions of stay may be granted for a period up to the length of the program, not to exceed 4 years, unless the J-1 exchange visitor is subject to paragraph (j)(6) of this section or otherwise restricted by regulations at 22 CFR part 62.
(D) Dependents. Dependent J-2 spouses and children seeking to accompany the J-1 exchange visitor during the additional period of admission must either be included on the primary applicant's request for extension or file their own extension of stay applications on the form designated by USCIS, including any biometrics required by 8 CFR 103.16. USCIS must receive the extension of stay applications before the expiration of the previously authorized period of admission, including the 30-day period following the completion of the program provided in paragraph (j)(1)(ii)(C) of this section, as indicated on the J-2 dependent's Form I-94, or successor form. J-2 dependents must demonstrate the qualifying relationship with the principal J-1 exchange visitor, be maintaining status, and not have engaged in any unauthorized employment. Extensions of stay for J-2 dependents may not exceed the authorized admission period of the principal J-1 exchange visitor.
(E) Denials. If an alien's extension of stay application is denied, and the alien's authorized admission period has expired, he or she and his or her dependents must immediately depart the United States.
(v) Employment of J-2 dependents. The spouse or minor children of a J-1 exchange visitor may only engage in employment if authorized by USCIS. The employment authorization is valid only if the J-1 is maintaining status. An application for employment authorization must be filed in the manner prescribed by USCIS, together with the required fee and any additional evidence required in the filing instructions. Income from the J-2 dependent's employment may be used to support the family's customary recreational and cultural activities and related travel, among other things. Employment will not be authorized if this income is needed to support the J-1 principal exchange visitor. If the requested period of employment authorization exceeds the current admission period, the J-2 dependent must file an extension of stay application, in addition to the application for employment authorization, in the manner designated by USCIS, with the required fee and in accordance with form instructions.
(A) The accompanying spouse and minor children of a J-1 exchange visitor may accept employment only with authorization by the Immigration and Naturalization Service. A request for employment authorization must be made on Form I-765, Application for Employment Authorization, with fee, as required by the Service, to the district director having jurisdiction over the J-1 exchange visitor's temporary residence in the United States. Income from the spouse's or dependent's employment may be used to support the family's customary recreational and cultural activities and related travel, among other things. Employment will not be authorized if this income is needed to support the J-1 principal alien. (B) J-2 employment may be authorized for the duration of the J-1 principal alien's authorized stay as indicated on Form I-94 or a period of four years, whichever is shorter. The employment authorization is valid only if the J-1 is maintaining status. Where a J-2 spouse or dependent child has filed a timely application for extension of stay, only upon approval of the request for extension of stay may he or she apply for a renewal of the employment authorization on a Form I-765 with the required fee.
(vi) Extension of
duration of status J-1 stay and grant of employment authorization for aliens who are the beneficiaries of a cap-subject H-1B petition. The Commissioner USCIS may, by notice in the Federal Register, at any time she it determines that the H-1B numerical limitation as described in section 214(g)(1)(A) of the Act will likely be reached prior to the end of a current fiscal year, extend for such a period of time as the Commissioner deems deemed necessary to complete the adjudication of the H-1B application, the duration of status of any J-1 alien on behalf of whom an employer has timely filed an application for change of status to H-1B. The alien, in accordance with 8 CFR part 248, must not have violated the terms of his or her nonimmigrant stay and is not be subject to the 2-year foreign residence requirement at 212(e) of the Act. Any J-1 student whose duration of status has been extended shall be considered to be maintaining lawful nonimmigrant status for all purposes under the Act, provided that the alien does not violate the terms and conditions of his or her J nonimmigrant stay. An extension made under this paragraph also applies to the J-2 dependent aliens.
(vii) Pending extension of stay applications and employment authorization.
(A) An alien whose J-1 status, as indicated on Form I-94, has expired but who has timely filed an extension of stay application is authorized to continue engaging in activities consistent with pursuing the terms and conditions of the alien's program objectives and including authorized training beginning on the day after the admission period expires, for a period of up to 240 days as provided in 8 CFR 274a.12(b)(20). Such authorization may be subject to any conditions and limitations of the initial authorization.
(B) An Arrival-Departure Record (Form I-94 or successor form) is considered unexpired when combined with a USCIS receipt notice indicating receipt of a timely filed extension of stay application and a valid Form DS-2019, or successor form, indicating the duration of the program. An application is considered timely filed if the receipt notice for the application is on or before the date the admission period expires. Such extension may not exceed the earlier of 240 days, as provided in 8 CFR 274a.12(b)(20), or the date of denial of the alien's application for an extension of stay.
(C) An alien in J-2 status whose admission period has expired (as indicated on his or her Form I-94) may not engage in employment until USCIS approves his or her application for employment authorization.
(viii) Use of SEVIS.
At a date to be established by the Department of State, the The use of the Student and Exchange Visitor Information System (SEVIS) will become is mandatory for designated program sponsors. After that date, which will be announced by publication in the Federal Register, all All designated program sponsors must issue a begin issuance of the SEVIS Form DS-2019 to any exchange visitor requiring a reportable action (e.g., program extensions and requests for employment authorization), or for any aliens who must obtain a new nonimmigrant J visa. As of 2003, the records of all current or continuing exchange visitors must be entered in SEVIS.
viii ix) Current name and address. A J-1 exchange visitor must inform the Service USCIS and the responsible officer of the exchange visitor program of any legal changes to his or her name or of any change of address, within 10 calendar days of the change, in a manner prescribed by the program sponsor. A J-1 exchange visitor enrolled in a SEVIS program can satisfy the requirement in 8 CFR 265.1 of notifying the Service USCIS by providing a notice of a change of address within 10 calendar days to the responsible officer, who in turn shall enter the information in SEVIS within 21 days 10 business days* of notification by the exchange visitor. A J-1 exchange visitor enrolled at a non-SEVIS program must submit a change of address to the Service, as provided in 8 CFR 265.1, within 10 days of the change. Except in the case of an exchange visitor who cannot receive mail where he or she resides, the address provided by the exchange visitor must be the actual physical location where the exchange visitor resides rather than a mailing address. In cases where an exchange visitor provides the sponsor a mailing address that is different than his or her actual physical address, he or she is responsible to provide the sponsor his or her actual physical location of residence. the The exchange visitor program sponsor must maintain is responsible for maintaining a record of, and must provide upon request from the Service USCIS, the actual physical location where the exchange visitor resides.
* NAFSA note: Changing the RO reporting timeframe from 21 days to 10 business days is consistent with the final Supart A rule change effective January 5, 2015 that made the same change, where 22 CFR 62.10(d)(3) clarifies that the J-1 exchange visitor must inform the RO or ARO of address changes within "10 calendar days" of the change, and 22 CFR 62.10(d)(4) reduced the reporting window for ROs or AROs to update SEVIS from 21 days to "10 business days" from receiving the J-1 exchange visitor's address change notification from the J-1 exchange visitor.
(2) Special reporting requirement. Each exchange alien participating in a program of graduate medical education or training shall file Form I-644 (Supplementary Statement for Graduate Medical Trainees) annually with the Service attesting to the conditions as specified on the form. The exchange alien shall also submit Form I-644 as an attachment to a completed Form DS-2019 when applying for an extension of stay.
(3) Alien in cancelled programs. When the approval of an exchange visitor program is withdrawn by the Director of the United States Information Agency, the district director shall send a notice of the withdrawal to each participant in the program and a copy of each such notice shall be sent to the program sponsor. If the exchange visitor is currently engaged in activities authorized by the cancelled program, the participant is authorized to remain in the United States to engage in those activities until expiration of the period of stay previously authorized. The district director shall notify participants in cancelled programs that permission to remain in the United States as an exchange visitor, or extension of stay may be obtained if the participant is accepted in another approved program and a Form DS-2019, executed by the new program sponsor, is submitted. In this case, a release from the sponsor of the cancelled program will not be required.
(4) Eligibility requirements for section 101(a)(15)(J) classification for aliens desiring to participate in programs under which they will receive graduate medical education or training --
(i) Requirements. Any alien coming to the United States as an exchange visitor to participate in a program under which the alien will receive graduate medical education or training, or any alien seeking to change nonimmigrant status to that of an exchange visitor on Form I-506 for that purpose, must have passed parts of I and II of the National Board of Medical Examiners Examination (or an equivalent examination as determined by the Secretary of Health and Human Services), and must be competent in oral and written English, and shall submit a completely executed and valid Form DS-2019.
(ii) Exemptions. From January 10, 1978 until December 31, 1983, any alien who has come to or seeks to come to the United States as an exchange visitor to participate in an accredited program of graduate medical education or training, or any alien who seeks to change nonimmigrant status for that purpose, may be admitted to participate in such program without regard to the requirements stated in subparagraphs (A) and (B)(ii)(I) of section 212(j)(1) of the Act if a substantial disruption in the health services provided by such program would result from not permitting the alien to participate in the program: Provided that the exemption will not increase the total number of aliens then participating in such programs to a level greater than that participating on January 10, 1978.
(5) Remittance of the fee. An alien who applies for J-1 nonimmigrant status in order to commence participation in a Department of State-designated exchange visitor program is required to pay the SEVIS fee to DHS, pursuant to 8 CFR 214.13, except as otherwise provided in that section.
(6) Limitations on length of admission. Subject to the discretion of the Secretary of Homeland Security, in consultation with the Secretary of State, a J-1 exchange visitor in the following categories may be admitted for a period of up to the length of the exchange visitor program as stated on the Form DS-2019 or up to 2 years, whichever is shorter, and may be eligible to apply for extensions of stay for additional periods of up to 2 years each, until the end date of the exchange visitor program. These categories of 2-year periods of admission are:
(i) Certain countries and U.S. national interest. Exchange visitors who were born in or are citizens of countries listed in the State Sponsor of Terrorism List or who are citizens of countries with a student and exchange visitor total overstay rate greater than ten percent according to the most recent DHS Entry/Exit Overstay report. DHS will publish a document in the Federal Register listing the countries or circumstances making aliens in J-1 status subject to the factors listed in this paragraph and such other factors that may serve the U.S. national interest. Changes to the list will be made by a new Federal Register document; or
(ii) E-Verify participation. The J exchange visitor is participating in an exchange visitor program whose sponsor is not enrolled in E-Verify, or if enrolled, is not a participant in good standing in E-Verify as determined by USCIS. A sponsor is a participant in good standing in the E-Verify program if it has enrolled in E-Verify with respect to all hiring sites in the United States at the time of the exchange visitor's admission in J-1 status or filing of an application for extension of or change to J-1 status with USCIS, is in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the J-1 exchange visitor is participating in an exchange visitor program at the organization.
(iii) Alien with a 4-year period of admission who becomes subject to a 2-year maximum period of admission. If an alien in J status was originally admitted for a 4-year period of admission, but a new Federal Register document is subsequently published according to paragraph (j)(6)(i) of this section that would subject the alien to the 2-year maximum period of admission, then the alien may remain in the United States for the remainder of the 4-year period. However, if the J-1 exchange visitor departs the United States or otherwise must apply for admission or extension of stay, that alien will become subject to the 2-year limitation.
(7) Severability. The provisions in this paragraph (j) are intended to be independent severable parts. In the event that any provision in this paragraph is not implemented, DHS intends that the remaining provisions be implemented as an independent rule.