USIA ISSUES NEW RULE ON REINSTATEMENT FOR J-1 EXCHANGE VISITORS

The United States Information Agency has issued a new rule outlining when a J-1 non-immigrant who has fallen out of valid program status may be reinstated, and the terms of the reinstatement.

This rule creates three categories of program violations. The first are minor or technical violations. These may be corrected by the Responsible Officer of the exchange program. The rule gives several examples of what will be considered minor or technical violations, such as inadvertent failure to renew Form IAP-66, and also gives factors to weigh in making the determination. Among these factors are whether the exchange visitor has failed to maintain program status for more than 120 days after the end date on the IAP-66, whether the exchange visitor has abandoned the original program objective, whether the exchange visitor has failed to maintain required insurance, and whether they engaged in unauthorized employment.

The second class of violations are substantive violations for which reinstatement is available. This class is itself divided into two sections. First are those in which the exchange visitor has been out of valid program status for less than 120 days. In this situation, reinstatement will be granted by USIA if the Responsible Officer demonstrates that the violation was the result of circumstances beyond the control of the exchange visitor or administrative oversight or neglect, OR if the refusal of reinstatement would result in unusual hardship. The second section is situations in which the exchange visitor is out of program status for more than 120 days. In this case, the Responsible Officer must demonstrate both that the violation was the result of circumstances beyond the control of the exchange visitor or administrative oversight or neglect, AND that the refusal of reinstatement would result in unusual hardship.

The third class of violations are those for which reinstatement will not be granted. There are six of these situations.

• the exchange visitor willfully fails to maintain required insurance,
• willful acceptance of unauthorized employment,
• the exchange visitor has been suspended from the program,
• the exchange visitor has failed to maintain program status for more than 270 days,
• the exchange visitor has received a waiver of the two-year home residency requirement, and
• failure to pay the CIPRIS fee.

When the exchange visitor is reinstated, the reinstatement is not retroactive – it is effective only from the date of reinstatement. The USIA believes that this will not create immigration issues, because of the INS’ treatment of unlawful presence of nonimmigrants who are admitted for duration of status. Under the 1996 Immigration Act, certain immigrants out of status for at least six months may be subject to reentry bars of up to 10 years. The INS, however, has taken the position that it will only start counting toward the six-month limit from the date on which the I-94 expires when it make a determination someone is out of status. J-1 visa holders have I-94s marked "Duration of Status," so it is unusual for them to become subject to the reentry bars. The USIA will revisit this issue if INS interpretations change.

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