The Department of Homeland Security (DHS) has published a proposed rule that will make it more difficult for individuals applying for admission in a J-1 exchange visitor or F-1 student visa category to complete their programs, apply for extensions, and even secure these opportunities in the first place.
Exchange visitors are approved non-immigrants that participate in work and study-based programs in the J visa category. F-1 students are citizens of another country that attend school full-time in the United States.
Under current law, foreign nationals applying for a J or F visa enter with a set “duration of status” that can last anywhere between a matter of weeks to multiple years, depending on the length of the program.
The proposed rule eliminates the previously set “duration of status” admissions for F and J categories. The rule limits the maximum amount of time to four years, and two years for individuals from certain countries—not long enough for some to complete their programs.
This would require many students and exchange visitors to apply for extensions of status—which are expensive and not guaranteed—to complete their program.
DHS’ rule is based on an oversimplified view of these programs—and of the J-1 visa program in particular. If the rule goes into effect, several changes will occur:
A CBP Officer Will Determine Duration of Status
A U.S. Customs and Border Protection (CBP) officer’s evaluation of an applicant’s program will dictate the duration of status. Currently, that decision is made by a consular officer during an applicant’s visa interview.
Several factors will go into this new evaluation. CBP officers will consider whether an applicant is a citizen of a country with student and exchange visitor visa overstay rate above 10%, and limit them to a maximum two-year period of stay. These restrictions would fall disproportionately on Africa and the Middle East.
Research has shown that the Department of Homeland Security’s measurement of visa overstays is severely flawed. As many as half of all students suspected to have overstayed are later revealed to have remained in the country legally.
Officers can also look into whether a school or program sponsor participates in the E-Verify system. DHS has also stated that it will consider whether a J-1 applicant’s country of birth or citizenship is on the State Sponsors of Terrorism list, regardless whether the applicant themselves is involved in such activities.
This new rule would limit international exchange visitors’ and students’ flexibility to remain in the United States if their present training or academic plans change.
J-1 and F-1 Visa Holders Cannot Guarantee Dates for Their Program
This proposed change to how and when “duration of status” would be determined would mean that applicants will have to wait until they receive a stamp from DHS to confirm the length of their programs. This can impact individuals’ plans, as it makes their programs less reliable.
The present practice for applicants is providing a breakdown of their program’s duration through a training plan form (DS-7002). This document is presented at the time of the applicant’s visa interview and highlights how long the program is set to last based on what is being taught.
Under the new rule, applicants would not be able to guarantee specific dates or the length for their program or education.
If the duration of stay is shorter than what’s needed to complete the required content for a training program, sponsoring host organizations could choose to terminate a program for a visitor or student before it begins.
Cutting programs short would limit the ability for applicants requesting training under an exchange visitor visa to acquire the necessary knowledge. The lengths of programs can vary even within visa categories. Programs like a J-1 physician compared to a J-1 intern would vary immensely in length.
CBP officers would not have the depth of knowledge and experience to understand how long each personalized training period should last.
Host Organizations May Reconsider Sponsoring Applicants
Even if a good faith effort is made by each CBP officer, the uncertainty of the program dates and limited flexibility could discourage host organizations from sponsoring these nonimmigrant applicants.
As a result of the rule, the exchange visitor visa category—created to strengthen and connect international engagement abroad—could be damaged for years to come. The ongoing restrictions that have suspended the entry of most nonimmigrant visas will only be part of the problem if this rule goes into effect.
The spirit of these nonimmigrant visa programs is to offer the international exchange of ideas, education, and culture. The programs offer opportunities for nonimmigrant applicants to learn, but also encourages Americans to experience different cultures and discover new ideas and ways to think about the world around them. This threatens to harm these visa opportunities.
FILED UNDER: exchange, Exchange Visitor, F-1
