Regulatory Practice
Advisory: Implementation
of the 5-year J Professor/
Research Scholar Rule
Version: December 5, 2007
On May 19, 2005, DOS published a final rule to implement key changes to the Exchange
Visitor regulations affecting the J Professor and Research Scholar categories. Under the rule:
•
The maximum period of participation for J Professors and Research Scholars has
been raised from three years to five years. The five-year period is not an aggregate of
five years. It is a continuous five-year period given to a participant on a “use or lose”
basis.
•
A 2-year bar on repeat participation in the J Professor or Research Scholar
categories applies to those who complete their program participation.
These changes were effective on November 18, 2006, with the release of SEVIS 5.4.
Practice note
NAFSA’s compiled version of the rule shows how the new rule changes the current rule. That
resource also reproduces the entire text of the May 19, 2005 Federal Register notice.
Understanding how the rule will be implemented is a process. The understanding presented in
this advisory may change over time as the new SEVIS functionality is used, and as we
continue dialogue with the government. Visit NAFSA’s J Rule Update Page at
www.nafsa.org/Jrule for updates that occur after the date this advisory was prepared.
The rule’s effective date: November 18, 2006
The final J rule had stated that the effective date of the rule would be “the date upon which the
Department of Homeland Security publishes a notice in the Federal Register announcing that
it has completed the technical computer updates to its electronic Student and Exchange
Visitor Information System (SEVIS) that are necessary to implement this rule.” Under this
condition, releasing SEVIS 5.4 before the required notice could result in SEVIS 5.4
functionality being available for a rule that is not yet in effect, i.e., from the date that SEVIS
5.4 is released to the date that the notice is published. NAFSA brought this to DOS's and
DHS's attention.
To address this issue, on November 1, 2006, the Department of State (DOS) published a
notice in the Federal Register, stating that since DHS advised them that SEVIS 5.4 would be
Copyright © 2007: NAFSA. All rights reserved.
NAFSA Advisories do not constitute legal advice
1
Regulatory Practice Advisory: Implementation of the 5-year J Professor/Research Scholar Rule
implemented on November 3, the effective date of the 5-year J Professor/Research Scholar
rule would be November 4, 2006. Two issues, however, continued to cause confusion about
the effective date: 1) The notice was published by DOS, rather than by DHS, and it was
published as a separate notice, rather than as a correction or amendment to the final rule; and
2) SEVP notified SEVIS users that the actual date of SEVIS 5.4 implementation was
November 17, rather than November 3.
On January 11, 2007, DOS published a final rule in the Federal Register, that “supersedes the
Department’s document published November 1, 2006, and the language of the Department’s
Final Rule published May 19, 2005, as it regards the rule’s effective date.” The January 11,
2007 rule sets the effective date of the May 19, 2005 final rule at November 18, 2006, the
first day that SEVIS 5.4 was fully available.
By publishing this change as a final rule, rather than a simple notice, DOS has cured any
deficiencies of form regarding the effective date.
Since SEVIS 5.4 is now implemented, and DOS has revised the final rule effective date to be
in accord with the SEVIS 5.4 implementation date, the rule (both the 5-year eligibility and the
2-year bar provisions) should be considered to be in effect as of November 18, 2006.
Professors and Research Scholars who participated under the prior rule
Practice note
Participating at the time the rule became effective
The five-year eligibility provision and the two-year bar provision apply to Professors and
Research Scholars who entered the United States under the prior rule, and who continued to
participate in their exchange visitor program on the effective date of the new rule (November
18, 2006). That is to say, they can have their stay extended to five years (inclusive of the time
they’ve already spent) through the standard extension or transfer functions in SEVIS, but by
the same token, these exchange visitors are also subject to the two-year bar provision.
Practice note
Had already completed their program by the time the rule became effective
The two-year bar on repeat participation applies only to Professors and Research Scholars
who complete their programs on or after the effective date of the rule. Those who had already
completed a Professor or Research Scholar exchange visitor program before November 18,
2006 are subject only to the 12-month bar (if applicable), not the two-year bar rule.
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NAFSA Advisories do not constitute legal advice
Five-year program participation
Five-year maximum, three-week minimum
“A professor or research scholar may be authorized to participate in the Exchange Visitor
Program for the length of time necessary to complete his or her program, provided such time
does not exceed five years.”
22 C.F.R. § 62.20(i)(1)
"
Historical note
The rule in effect prior to November 18, 2006 provided for only 3.5 years of participation, with a $198
fee to extend beyond that, with no guarantee of approval.
Authority cite
22 C.F.R. § 62.20(i)(1)
(1) General limitation. A professor or research scholar may be
authorized to participate in the Exchange Visitor Program for the
length of time necessary to complete his or her program, provided
such time does not exceed five years. The five-year period of permitted program participation is continuous and begins with the
initial program begin date documented in SEVIS or the date such
status was acquired via a petition submitted and approved by the
Department of Homeland Security (DHS) as documented in SEVIS and
ends five years from such date.
The minimum program duration for a Professor or Research Scholar continues to be three
weeks.
22 C.F.R. § 62.8(b)
How the 5-year period works
The five-year period is not an aggregate of five years. It is a continuous five-year period given
to a participant on a “use or lose” basis. The five-year period begins on the program begin
date identified in SEVIS at the time the SEVIS record is Validated.
Practice note
Unlike the 6 years of H-1B eligibility, which allows someone to aggregate 6 years of physical presence in
H-1B status over a period of more than 6 years, the J period of eligibility is a fixed eligibility window.
This establishes a fixed 5-year eligibility window, during which an alien can participate in
one or more programs.The maximum of 5 years is counted continuously during any
Copyright © 2007: NAFSA. All rights reserved.
NAFSA Advisories do not constitute legal advice
3
Regulatory Practice Advisory: Implementation of the 5-year J Professor/Research Scholar Rule
uninterrupted stay, regardless of how many programs the visitor participates in, or for how
long he or she actually participates in them.
AM cross-reference
The 5-year eligibility window can be “closed,” however, and the remaining time lost, if
the participant completes a program of less than five years, and his or her SEVIS
record status changes to Inactive. See “New conditions on participation as a
Professor or Research Scholar” on page 5.
Extensions and transfers within the 5-year window
Within the 5-year window of eligibility, transfers and extensions are handled using the
standard SEVIS functions for those benefits. Extensions and transfers must occur before the
program end date.
Practice note
No extensions beyond 5 years except for programs designated G-7
It is not possible to extend an exchange visitor Professor or Research Scholar’s participation
beyond five years, unless it is to participate in a program designated G-7 (a Federally Funded
National Research and Development Center (“FFNRDC”) or a U.S. Federal Laboratory).
Only G-7 sponsors themselves can request such extensions, for exchange visitors directly
sponsored by the G-7 sponsor, on the G-7 program’s DS-2019. No programs have yet been
designated as G-7.
22 C.F.R. § 62.20(i)(3)
Practice note
For example, a visitor who spends 3 years with program A as a professor would have 2 years of eligibility
as a Professor or Research Scholar with program B if he or she wished to transfer to program B, or to
extend participation with Program A.
Historical note
"
For Professors and Research Scholars, the new rule eliminated the 6-month RO/ARO discretionary
extension, DOS extensions beyond the maximum duration of participation, and DOS advance
authorization of programs up to six years.
Practice note
Extensions and transfers for exchange visitors who entered under prior rule
Professors and Research Scholars who began their participation under the prior rule and were
still participating in an exchange visitor program on the effective date (November 18, 2006)
can have their stay extended to five years (inclusive of the time they’ve already spent)
through the standard extension or transfer functions in SEVIS.
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NAFSA Advisories do not constitute legal advice
Practice note
G-7 transfer restrictions
DOS said in its SEVIS 5.4 training slide presentations that Professors and Research Scholars
can transfer into a G-7 program from a non-G-7 program (For example, a Research Scholar in
a program with a program serial of P-1 may transfer into a G-7 program), but not vice-versa;
i.e., an exchange visitor in a program that has a program serial of G-7 may only transfer to
another G-7 program. No regulation specifically establishes this restriction, though. DOS is
evidently basing the restriction on the fact that G-7 participants who have been granted an
extension beyond 5 years would not be eligible to transfer to a program limited to 5 years.
Since no G-7 programs have been designated yet, we do not know if SEVIS has been
programmed to prohibit such transfers.
New conditions on participation as a Professor or Research Scholar
Before the effective date of the rule, there were two special conditions on eligibility to
participate in the Exchange Visitor Program as a Professor or Research Scholar: 1) the bar on
tenure candidacy and 2) the 12-month bar after prior physical presence in any J classification.
Both of those conditions continue to exist unchanged under the new rule, but the rule has
added a third special condition: 3) a 2-year bar on repeat participation as a Professor or
Research Scholar after prior participation in one of those categories.
As of November 18, 2006, all three conditions need to be examined when determining
eligibility to participate as a Professor or Research Scholar.
When a new professor or research scholar visitor record is created in SEVIS RTI, a special
screen appears for the RO/ARO to confirm his or her understanding of these rules:

Resource 4-a SEVIS RTI Professor or Research Scholar rule confirmation screen
Copyright © 2007: NAFSA. All rights reserved.
NAFSA Advisories do not constitute legal advice
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Regulatory Practice Advisory: Implementation of the 5-year J Professor/Research Scholar Rule
One additional restriction relates to eligibility to transfer programs: DOS said in its SEVIS
5.4 training slide presentations that Professors and Research Scholars can transfer into a G-7
program from a non-G-7 program, but not vice-versa. See the Practice Note on page 5.
Two-year bar on repeat participation as a Professor or Research Scholar
According to DOS, an individual who has participated in the Exchange Visitor Program as a
Professor or Research Scholar becomes subject to the new two-year bar on “repeat
participation” in those categories after completing or breaking the continuity of a five-year
period of eligibility. Under DOS’s interpretation, the two-year bar applies under two
circumstances:
1.
If the Professor or Research Scholar completes a full five years of program participation with one or more sponsors; or
2.
If, before the full five-year period is over, the Professor or Research Scholar “completes” his or her program. In this case, the continuity of the five-year period is broken, the five-year window is “closed,” the individual is not eligible to access the
remaining unused time, and the individual must wait for two years before beginning a
new program as a J Professor or Research Scholar.
Authority cite
22 C.F.R. § 62.20(i)(2)
(2) Repeat participation. Exchange participants who have entered
the United States under the Exchange Visitor Program as a professor
or research scholar, or who have acquired such status while in the
United States, and who have completed his or her program are not
eligible for participation as a professor or research scholar for a
period of two years following the end date of such program participation as identified in SEVIS.
Practice note
5-year period is “use or lose,” not an aggregate.
DOS stated in the notes that preceded the final rule in the Federal Register that, “the five-year
period is not... an aggregate of five years. The Department considered this approach and
found it unworkable. Instead, this will be a calendar year, five-year period afforded to a
participant on a ‘use or lose’ basis which commences with the program begin date identified
in SEVIS. For example, a research scholar who comes to an institution for two years and
returns to his or her home institution for nine months will be eligible, as a program matter, to
return to the same U.S. institution - or transfer to another - for an additional two years and
three months. If the participant does not return to the United States until three months later, he
or she has two years remaining on his or her program.” 70 Fed. Reg. 28815 (May 19, 2005).
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NAFSA Advisories do not constitute legal advice
When does the clock start ticking towards satisfying the 2-year bar on repeat
participation?
The 24-month bar on repeat participation applies to a J Professor or Research Scholar
participant who has “completed his or her program.” On May 24, 2007, DOS communicated
to NAFSA the following definitions of program completion:
“Completion of program activity is just that: If the exchange visitor is no longer actively participating in the Exchange Visitor
Program as a Professor or Research Scholar participant then their
program is completed.”
May 24, 2007 letter from Stanley Colvin, Director, Office of Exchange
Coordination and Designation, to NAFSA
“completion of program is defined as EVs who are no longer actively
participating in the activities of a Professor or Research
Scholar. The status of the SEVIS records for EVs who meet this definition should be listed as either “Inactive” or “Terminated” (as
appropriate). Countdown of the bars begins the day after the status
of the EV’s SEVIS record becomes “Inactive” or “Terminated.”
May 24, 2007 chart developed by DOS entitled “Twelve and Twenty-Four
Month Bars on Repeat Participation for J-1 Exchange Visitor Categories
of Research Scholar and Professor”
SEVIS record must be continuously maintained
In the current version of SEVIS, however, this DOS example works only if the SEVIS record
is continuously maintained over the course of the five-year period, including periods where
the exchange visitor is absent from the United States. Right now, the only way a SEVIS
record can be continuously maintained is to keep it in “Active” status. According to DOS, the
continuity of the five-year eligibility period is broken if the exchange visitor completes a
program before the five year limit has been reached, and where the SEVIS record status
changes to Inactive.
Practice note
No minimum participation trigger like in 12-month bar
Unlike the 12-month bar, the 2-year bar does not contain an exception for participation of less
than 6 months.
Practice note
SEVIS automatically sets the status of an exchange visitor’s record (and attached dependent records) to
Inactive on the day following the exchange visitor’s Program End Date. SEVIS also automatically sets
Copyright © 2007: NAFSA. All rights reserved.
NAFSA Advisories do not constitute legal advice
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Regulatory Practice Advisory: Implementation of the 5-year J Professor/Research Scholar Rule
records to Inactive on the day following the Effective Completion Date specified in an End Program
transaction.
An individual subject to the two-year bar on repeat participation is not eligible to begin a new
program as a Professor or Research Scholar for two years following the date his or her record
became Inactive.
For example,
•
A Visiting Professor completes a 9-month program in the J-1 Professor category, with
program dates September 1, 2007 to June 1, 2008.
•
On June 2, 2008, her SEVIS record status changes from Active to Inactive.
•
Within her 30-day grace period, she returns to her home country.
•
Although she participated only for 9 months, she cannot access the 4 years and 3
months that she could have been eligible for, had her record been kept Active.
•
She must wait until June 2, 2010 before another 5-year window may be opened, i.e., a
program cannot issue a “begin a new program” DS-2019 as a Professor or Research
Scholar, unless the program start date is June 2, 2010 or after.
Procedures for keeping a record Active while activity takes place abroad
to DOS and DHS that SEVIS be programmed with a reactivation or
continue program function, which would allow an Inactive SEVIS record to be reopened to
allow the exchange visitor to return to the U.S. to continue participation in the Exchange
Visitor Program. DOS stated that instead “we are examining the possibility of providing an
“out of country” function in SEVIS. If implemented, a sponsor can update a participant’s
SEVIS record to reflect that an exchange visitor is actively participating in their exchange
program on a collaborative research project at his home institution or elsewhere outside of the
United States, retaining the Active status of the SEVIS record.”
NAFSA recommended
In the interim, DOS has recommended that programs may use the following work-around:
May 24, 2007 letter from Stanley Colvin, Director, Office of Exchange
Coordination and Designation, to NAFSA
Until this enhancement is available in SEVIS, the following
approach may be used to reflect the “out of country” status of a
current Professor or Research Scholar participant in active program status:
• Create a new “Site of Activity” entering the sponsor’s name and
U.S. (business) address.
• In the Site of Activity Remarks field, enter the following information:
- “Out of Country” -anyone viewing the SEVIS record will know that
the exchange visitor is still an active participant of the sponsor’s program but is actively pursuing their exchange visitor program activity outside of the United States.
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NAFSA Advisories do not constitute legal advice
- Name of the institution (Out of Country Location Name) in which
the exchange visitor will continue to pursue the program activity
for which he/she was admitted to the United States; and,
- The date range for which the exchange visitor is anticipated to
be outside the United States (Out of Country Begin Date and Out of
Country End Date).
• When the exchange visitor returns to the United States and the
sponsor, a new site of activity must be created.
• The Primary Site button should be clicked to reflect the site of
activity at which the exchange visitor is currently located. The
Primary Site of Activity will then print on the exchange visitor’s Form DS-2019.
Practice note
Maintenance of insurance while in Active status. The insurance requirement is contained in different
sections of the J regulations [22 C.F.R. § 62.14 and 22 C.F.R. § 62.40(a)(4)]. 22 C.F.R. § 62.14(a)
requires “each exchange visitor to have insurance in effect which covers the exchange visitor for sickness
and accident during the period of time that an exchange visitor participates in the sponsor's exchange
visitor program.” Since DOS considers an Active record to indicate continued program participation, they
would also say that the Professor or Research Scholar must maintain continuous insurance coverage
throughout the period of program participation indicated on Form DS-2019.
Dealing with records that were inadvertently changed to Inactive
If a record was inadvertently left to change to Inactive (e.g., there was a failure to extend the
program in a timely manner), the RO/ARO can use the Correct Minor or Technical Infraction
function to change the record back to Active status. This option is available for up to 120 days
after the record is changed to Inactive. After 120 days, only Reinstatement is available.
Reinstatement must be adjudicated by DOS. Reinstatement ceases to be available if it is more
than 270 days after the record is changed to Inactive. However, these functions were not
designed by DOS for routinely reactivating the record of a Research Scholar or Professor that
has already completed his or her program.
Applicability of the 24-month bar to J-2 dependents of J-1 Professors or Research
Scholars
Although the regulation states that the bar on repeat participation applies to “Exchange
participants who have entered the United States under the Exchange Visitor Program as a
professor or research scholar,” DOS has taken the position that the 24-month bar will also
apply to J-2 dependents of J-1 Professors or Research Scholars.
DOS asked for NAFSA’s input on this policy, and NAFSA argued that the regulatory wording
does not support that interpretation. However, on May 24, 2007, DOS informed NAFSA that
Copyright © 2007: NAFSA. All rights reserved.
NAFSA Advisories do not constitute legal advice
9
Regulatory Practice Advisory: Implementation of the 5-year J Professor/Research Scholar Rule
it continues to maintain that the 24-month bar also applies to J-2 dependents of a J-1 Research
Scholar or Professor. DOS has created a chart that expresses that position.
May 24, 2007 letter and chart from Office of Exchange Coordination and
Designation sent to NAFSA
Interface with the 12-month bar
The 12-month bar provision was unchanged by the final rule, and continues to be in effect.
The general proposition of the 12-month bar is that an alien is not eligible to begin an
exchange program as a Professor or Research Scholar based on a DS-2019 issued “to begin a
new program” if he or she was physically present in any J status (including J-2 status) for “all
or part of” the “twelve month period immediately preceding the date of program
commencement set forth on his or her Form DS-2019.” This general rule is then modified by
three exceptions:
22 C.F.R. § 62.20(d)(2)
(A) J-1 transfers. The 12-month bar is not applicable to those who will begin a program by
transferring to a new program sponsor under the transfer procedures of 22 C.F.R. § 62.42;
(B) Presence in J status of less than 6 months. An alien whose prior physical presence in J
status was of less than six months duration is exempt from the 12-month bar (but see
discussion below).
(C) Presence in J status as a Short-Term Scholar. No time spent as a Short-Term Scholar
under 22 C.F.R. § 62.21 is counted as physical presence that triggers the bar.
Practice note
The 12-month bar and the 2-year bar are two separate conditions, each of which have to be met by
a prospective Professor or Research Scholar. For example, J-1 transfer and Short-Term Scholar
participation by definition will not trigger either the 12-month or the two-year bar. Presence for less than six
months in any other J status, including as a J Professor or Research Scholar, will shield the exchange
visitor from the 12-month bar but will not shield him or her from the two-year bar.
The exceptions to the 12-month bar are very important exceptions that make shorter-term
exchanges workable without becoming subject to the 12-month bar, but remember, these are
exceptions to applicability of the 12-month bar, not exceptions to applicability of the 2-year
bar. Attention should be given to exception B. Although someone who participates as a
Professor or Research Scholar in a program of 6 months or less continues to be exempt from
the 12-month bar, there is no 6-month participation trigger when it comes to the 2-year bar.
That is to say, since an individual can become subject to the 2-year bar even if his or her
participation as a Professor or Research Scholar is less than 6 months, it may be irrelevant
that he or she is exempt from the 12-month bar.
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NAFSA Advisories do not constitute legal advice
Interface with the 212(e) 2-year home residence requirement
Practice note
The two-year bar on repeat participation is not a home-residence requirement
The 2-year bar on repeat participation does not require the individual to reside in his or her
home country as does INA 212(e), nor does it require the person even to be out of the United
States. It requires only that the person not be in J Professor or Research Scholar status for two
years before becoming eligible for another 5-year period of program eligibility in J Professor
or Research Scholar status.
Options and discussion
Exchange program sponsors should inform their campus or institutional constituents about
these rules, and consider options for working within the system as outlined above. Program
sponsors can also assess how the implementation of this rule might impact their institutional
business processes. For example:
•
What are the implications of a sponsor maintaining a SEVIS record in Active status if
that individual is not currently in the United States participating in their program?
- Particularly challenging will be planning for a program where actual activity in
the United States will be intermittent over a longer period of time.
- Sponsor will also have to be mindful of their record-keeping and longitudinal statistics kept on exchange participation.
- Adequate insurance coverage will likely be required as long as a record is kept in
Active status.
•
Choosing to invite a visitor in the Short Term Scholar category rather than the
Professor or Research Scholar categories may require making the expected duration
of program participation more firm in advance of the exchange.
•
What is the best way to educate inviting departments and prospective and current
exchange visitors about the new requirements?
•
The J participation history of prospective new exchange visitors will have to be
assessed under the new rules. For example, before the rule went into effect a program
sponsor had to assess prior J participation history over the 12-month period preceding
the proposed program begin date. That assessment will now have to be done over the
2-year period preceding the proposed begin date.
•
Is the Professor or Research Scholar category the best vehicle for the proposed
activity? Are there other categories within the program’s designation, such as
Specialist or Short Term Scholar that might work better for the proposed activity?
•
Is the Exchange Visitor Program itself the best vehicle for the proposed activity? Are
there other non-J categories that might work better?
Copyright © 2007: NAFSA. All rights reserved.
NAFSA Advisories do not constitute legal advice
11
Regulatory Practice Advisory: Implementation of the 5-year J Professor/Research Scholar Rule
•
Does your program have data that can be analyzed to assess the scope of the new
rule’s impact?
- For example, a report on actual program durations over the last two years could
help identify institutional patterns of Exchange Visitor Program usage that could
lead to alternative strategies....e.g., if a particular department consistently invites
visitors for 7-9 months, could that department restructure its program to be a firm
6 months, so that the Short Term Scholar category could be used to achieve program goals?
12
NAFSA Advisories do not constitute legal advice