special immigration considerations
J Scholars and University departments should be aware of certain immigration considerations before they come to Western New England University.
24 month bar
This policy became effective on November 18, 2006 and states that any scholar in the Professor or Research Scholar category that completes their program CANNOT return in those same categories for a period of 2 years.
*This policy is separate from the 2 year home residency requirement.
The maximum period of time for the J Professor and Research Scholar is 5 years but the 24-month bar is in effect regardless of how long the J Scholar’s program was. For example, a Research Scholar here for 6 months is still bared from returning for 24 months. To take advantage of the full five years of the J Professor or Research Scholar category, a scholar would need to have an appointment of five continuous years to keep his/her SEVIS record active.
The J-1 program end date can be found in section 3 of Form DS-2019. The J-1 category can be found in section 4.
J-2 dependents are also subject to the 24-Month Bar.
212e Home Residency Requirement
More frequently referred to as the ‘2-Year Home Rule,’ this affects only J-1 Research Scholars and Professors. Exchange Visitors in these categories must return to their last legal country of residence for two years or obtain a waiver of this requirement before they are eligible for H-1B, L-1, or Permanent Residence Categories.
How Does a Scholar Know if they are subject?
There are two places:
- DS-2019: lower left-hand corner. The Consulate Area should have marked this area to indicate if the exchange visitor was subject or not.
- Visa Stamp: the bottom of the visa stamp usually indicates ‘Bearer is subject to 212(e). Two Year Residency Rule does Apply’
*If it states the scholar is subject, but the scholar believes this is incorrect, please contact ISSS to assist in submitting a request for an advisory opinion from the U.S. Department of State.
Why are Scholars subject?
Scholars are generally subject if they receive government funding or if their home country and research area are listed on the U.S. Department of State’s Exchange Visitor Skills List.
J-2 Dependents are also subject to this ban. Neither a J-1 nor J-2 is eligible for H-1B, L, K, or Permanent Resident categories until the two year foreign residence requirement is fulfilled or waived. J-2s are also ineligible to change their status to F category until the two year requirement has been met by the J-1.
J Exchange Visitors in the Short-Term Scholar, Specialist (not available at Western New England University), or Student are not subject to the 24-month Bar.
J-2 dependent employment and study
The spouse and minor children (under age 21) of the J-1 exchange visitor may be admitted into the U.S. in J-2 classification, if each dependent presents a SEVIS Form DS-2019 issued in his or her own name and a J-2 visa.
A J-2 spouse and child may not be admitted longer than the J-1. Once the program is complete, the J-2 enters into the 30 day grace period and may travel (but not work) within the U.S. Once the J-1 has completed the program and left the U.S, the J-2 must depart as well.
Immigration regulations require that all J-1 exchange visitors and their J-2 dependents be covered by health insurance while participating in the exchange visitor program.
Dependent children over age 21 are no longer eligible for J-2 status and will need to change to another status such as F-1 (for full time students) if they wish to stay in the U.S. J-2s should begin this process at least one year prior to turning 21 as the application process can be lengthy.
J-2 employment may be authorized by USCIS for the duration of the J-1’s program. Typically, approval is only granted for a 12 month period and must be renewed. Once employment is authorized, the J-2 may apply for a Social Security Number and is subject to federal and local income tax.
There are currently no restrictions for J-2 study in the U.S.
H-1B Employment-based Visa
The H 1B non-immigrant status permits temporary employment in "specialty occupations" defined as those requiring "theoretical and practical application of a body of highly specialized knowledge." A prospective H-1B employee must have professional skills and a university degree (at minimum, a Bachelor's degree) in the same or a related field as the job offered. See the table below for more information on eligibility requirements, maintaining H-1B status, and travel.
University departments wishing to provide employment in the H-1B category should work with the University's General Counsel. For tenure track appointments, an H-1B is typically more appropriate than a J-1.
B1/B2 visa and Visa Waiver Program
Under certain circumstances, a visitor may come to the University in B-1/B-2 status or under the Visa Waiver Program.
B-1 is the Visitor for Business status, and B-2 is the Visitor for Pleasure status. The Visa Waiver Program (VWP) allows a traveler to come to the U.S. without a visa and stay for up to 90 days. Individuals coming under the VWP will need to have a valid ESTA registration. Similar conditions apply to B status and to the VWP; visitors should carefully check the website of the consulate or embassy for information on both.
The B visa is used for visitors who will enter the U.S. for a short period of time, generally no more than 6 months. There are two categories: B-1 and B-2. B-1 status is for a visitor who plans to engage in business consultations, independent research, or other professional activities. It is the visa classification used most frequently for those attending professional conferences, conventions, or symposia. The B-2 classification is used for foreign nationals coming to the U.S. for tourism or for medical treatments. Each visiting foreign national is responsible for requesting entry in the classification appropriate to their planned activities.
In some cases, prospective visitors -- particularly at the scholar/professional level – are invited by the University to campus based on reasons for visiting and activities on campus that at first glance might seem appropriate for a B-1 or VWP visa: the visit is of short-duration, the visitor will not be paid, and the visitor will not have a formal appointment at the university. However, the Department of State has made clear that any visitor to a U.S. academic institution who engages in a collaborative activity or research, and whose activity will benefit the hosting institution should be sponsored for a J-1 visa, particularly if that activity/research will result in a future publication. The Department of State precludes such visitors from entering with a B-1 visa, which allows only for “independent” research, not collaboration.