[Federal Register: April 24, 1997 (Volume 62, Number 79)] [Rules and Regulations] [Page 19925-19927] From the Federal Register Online via GPO Access ----------------------------------------------------------------------- UNITED STATES INFORMATION AGENCY 22 CFR Part 514 Reinstatement of Exchange Visitors Unlawfully Present in the United States AGENCY: United States Information Agency. ACTION: Statement of agency policy. ----------------------------------------------------------------------- SUMMARY: Pending a formal rulemaking, this Statement of Agency Policy sets forth the circumstances under which the Agency will reinstate an exchange visitor (J Visa) who is unlawfully present in the United States. DATES: This statement of Agency policy is effective April 24, 1997. ADDRESS: United States Information Agency, Office of the General Counsel, 301 Fourth Street, SW, Room 700, Washington, DC 20547-0001. FOR FURTHER INFORMATION CONTACT: Exchange Visitor Program Office, United States Information Agency, 301 Fourth Street, S.W., Washington, DC 20547; telephone (202) 401-9810. SUPPLEMENTARY INFORMATION: Section 632 ("Elimination of Consulate Shopping for Visa Overstays") of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208) (IIRAIRA) amended Section 222 of the Immigration and Nationality Act by adding a new paragraph "(g)." That new paragraph, in pertinent part, provides that an alien who has been admitted on the basis of a nonimmigrant visa and "remained in the United States beyond the period of stay authorized by the Attorney General, such visa shall be void beginning after the conclusion of such period of stay." An alien who remained in the United States beyond the period of stay authorized by the Attorney General is ineligible for readmission to the United States on the previously issued nonimmigrant visa. The alien must have a new visa issued after the overstay violation from a consular office in the alien's country of nationality or, where extraordinary circumstances are found to exist, at a consular office outside the alien's country of nationality. The Immigration and Naturalization Service (INS) has provided interim guidelines with respect to the above-described section. Those guidelines construe the terms "beyond the period of stay authorized" to mean past the date entered for departure on a nonimmigrant's Form I- 94. For J visa nonimmigrants whose Form I-94 authorizes admission for "Duration of Status" (D/S), the ``period of stay authorized'' ends on the date of expiration of the 30 day grace period after the alien completes, concludes, ceases, interrupts, graduates from or otherwise terminates his or her course of study or exchange program. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 contains another provision which affects nonimmigrants who remain in the United States beyond the period of stay authorized. Section 301 of that Act deems an alien to be ``unlawfully present in the United States'' if the alien is present in the United States after the expiration of the period of stay authorized by the Attorney General. If the alien was unlawfully present in the United States for a period of 180 days but less than one year, voluntarily departed the United States prior to the commencement of removal proceedings, and again seeks admission to the United States, the alien is inadmissible for three years from the date of departure. If the alien was unlawfully present in the United States for one year or more, and again seeks admission, the alien is inadmissible for 10 years from the date of departure or removal from the United States. The effective date of Section 301 of IIRAIRA is April 1, 1997. Section 632 became effective on September 30, 1996. Because the above two sections of the Act may have serious repercussions for aliens who become "unlawfully present in the United States," depart the United States, and then subsequently seek readmission to the United States, it obviously behooves such aliens to timely depart the United States on or before the end of the authorized period of stay or apply to extend their status if regulations permit. The current Exchange Visitor Program regulations permit a Responsible Officer to extend an exchange visitor's participation in the program up to the limit of the permissible period of participation authorized for his or her specific program category. When this occurs, the Responsible Officer issues to the exchange visitor a duly authorized Form IAP-66 reflecting such extension and provides a notification copy of such form to the Agency. [22 CFR 514.43 (a) and (b).] Where the exchange visitor seeks an extension in excess of the period of time authorized for his or her specific category of participation, the Responsible Officer is required to notify USIA and seek prior written approval for such extension. [See 22 CFR 514.43(c) and 514.20(j)(2)(i).] While it is not the responsibility of the sponsor to ensure that the exchange visitor timely departs the U.S., the Exchange Visitor Program regulations do require that a sponsor monitor its participating exchange visitors [22 CFR 514.10(e).] Among other things, the sponsor shall ensure that the activity in which the exchange visitor is engaged is consistent with the category and activity listed on the exchange visitor's Form IAP-66 [22 CFR 514.10(e)(1)]. The sponsor is also required to monitor the progress and welfare of the exchange visitor to the extent appropriate for the category [22 CFR 514.10(e)(2)]. Finally, the sponsor shall require the exchange visitor to keep the sponsor apprised of his or her address and telephone number, and maintain such information [22 CFR 514.10(e)(3)]. The Agency believes that the monitoring requirements set forth in the existing Exchange Visitor Program regulations implicitly require the sponsor to monitor the exchange visitor's Form IAP-66 to ensure that such form accurately reflects the activities and the program dates of the exchange visitor and that the exchange visitor is advised of the limitations on his or her activities and authorized stay in the United States. (Existing regulations also explicitly require the sponsor to notify the Agency in writing when the exchange visitor has withdrawn from or completed a program thirty or more days prior to the ending date on his or her Form IAP-66 or when the exchange visitor has been terminated from his or her program [22 CFR 514.13(c)].) Moreover, IIRAIRA implicitly requires the exchange visitor to monitor his or her status. The Agency acknowledges that most program participants do not knowingly or willfully engage in practices that would jeopardize their status in the United States. However, the Agency is aware that on occasion, whether through circumstances beyond the control of the exchange visitor or through administrative oversight, inadvertence, or neglect on the part of a Responsible Officer or an exchange visitor, or both, the exchange visitor may become "unlawfully present in the United States." The Exchange Visitor Program regulations are silent with respect to the issue of whether a Responsible Officer is authorized to reinstate an exchange visitor who is in the United States "beyond the period of stay authorized by the Attorney General." After a careful review of Sections 301 and 632 of IIRIRA and working in consultation with the Immigration and Naturalization Service, the Agency has concluded that a Responsible Officer is not authorized to reinstate, nunc pro tunc, an exchange visitor once the exchange visitor is in the United States beyond the period of stay authorized by the Attorney General. Indeed, new section 222(g) of the Immigration and Nationality Act states "such visa shall be void beginning after the conclusion of such period of stay." However, the Agency, in consultation with the Immigration and Naturalization Service, has concluded that under the authority conferred on the Director of USIA pursuant to Section 101(a)(15)(J) of the Immigration and Nationality Act, as amended [8 U.S.C. 1101(a)(15)(J)], the Mutual Educational and Cultural Exchange Act of 1961, as amended (22 U.S.C. 2451, et seq.,) and Reorganization Plan No. 2 of 1977, the Agency does have the authority to reinstate to lawful status an exchange visitor who remains in the United States beyond the period of stay authorized by the Attorney General and who thereby has become "unlawfully present in the United States." As noted above, in the case of J visa immigrants whose Form I-94 authorized admission for Duration of Status, the period of stay authorized by the Attorney General ends on the date of expiration of the 30 day grace period after the exchange visitor completes, concludes, ceases, interrupts, graduates from or otherwise terminates his or her course of study or exchange program. The Agency is therefore promulgating this statement of policy as a preliminary and interim measure, which will be followed by the Agency until a formal rulemaking is published. During this interim period, it will be Agency policy that the Agency will consider reinstating to lawful status a J-1 exchange visitor who makes a request for reinstatement through his or her Responsible Officer. In such cases, the Responsible Officer is to direct a letter to the Exchange Visitor Program Services office explaining that the violation of status resulted from circumstances beyond the control of the exchange visitor or from administrative oversight, inadvertence, or neglect on the part of the Responsible Officer or the exchange visitor and that failure to receive reinstatement to lawful status would result in unwarranted hardship to the exchange visitor. The letter is to contain a declaration that the exchange visitor is pursuing the exchange program activity for which he or she was admitted to the United States. The request for reinstatement also is to include copies of all of the exchange visitor's Forms IAP-66 issued to date and a new complete Form IAP-66 which indicates the date to which reinstatement is sought (namely, the program end date.) If the Agency determines that reinstatement is warranted, Box 6 on the new Form IAP-66 will be stamped by the Agency to indicate that reinstatement has been granted, effective as of the date that the request for reinstatement was received by the Agency. The new Form IAP-66 (minus the yellow copy) will be returned to the Responsible Officer. If the Agency does not approve the request for reinstatement the time for which the application was under review will count toward unauthorized status. For purposes of Section 212(a)(9)(B) of the Immigration and Nationality Act (as amended by Section 301(b) of IIRAIRA), if the Agency approves the reinstatement, the calculation of the period of time specified in paragraph (B) will be tolled as of the date the request for reinstatement is received by the Agency. The Agency will deal expeditiously with all applications, and it is expected that most can be handled on a pro forma basis. There are certain issues that this statement of policy purposely does not address. For example, if an exchange visitor wilfully fails to maintain the health and accident insurance required under 22 CFR 514.14, that exchange visitor is in violation of the regulations and is subject to being terminated from the exchange visitor program. (22 CFR 514.14 (h) and (i)). An exchange visitor terminated from the exchange visitor program for wilfull failure to maintain health and accident insurance is not eligible for reinstatement. Nor are employment-related issues dealt with in this statement of policy. Any exchange visitor who engages in unauthorized employment is subject to termination by the sponsor. Existing regulations require the sponsor to ensure that the activity in which the exchange visitor is engaged is consistent with the category and activity listed on the exchange visitor's Form IAP-66 (22CFR 514.10(e)(1); 514.40.) An exchange visitor who is terminated from participation in his or her exchange program for unauthorized employment is not eligible for reinstatement. Thus, while an exchange visitor may be in violation of the Agency's regulations regarding insurance coverage or employment, such violations would not in and of themselves make the exchange visitor ``unlawfully present in the United States'' within the meaning of IIRIRA. Those violations shall be dealt with under the existing Exchange Visitor Program regulations, and if the exchange visitor is terminated from the exchange program for such violations, he or she is ineligible for reinstatement. The Agency anticipates that a Proposed Final Rule will be published in the Federal Register by July 1, 1997. Interested parties will have an opportunity to comment in writing on the proposed rule. Dated: April 18, 1997. Les Jin, General Counsel.
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