EXCHANGE VISITOR PROGRAMS
LIAISON & ADVOCACY COMMITTEE

Robert D. Aronson, CO-CHAIR
Aronson & Ingber, P.A.
1221 Nicollet Mall, Suite 506
Minneapolis, MN 55403
tel: (612) 339-0517
fax: (612) 349-6059

Amy M. Nice, CO-CHAIR
Dickstein, Shapiro, Morin & Oshinsky; LLP
2101 L Street, N.W.
Washington, D.C. 20037
tel: (202) 828-2275
fax: (202) 887-0689

September 13, 1999

BY HAND DELIVERY

Lorie J. Nierenberg, Esq.
Office of the General Counsel
United States Information Agency
301 Fourth Street, S.W.
Room 700
Washington, D.C. 20547-0001

RE: Interim final rule with request for comments
Reinstatement of Exchange Visitors Who Fail to Maintain Valid Program Status, 64 Federal Register 156 (August 13, 1999)

Dear Ms. Nierenberg:

The following are the comments of the American Immigration Lawyers Association in response to the above-described interim final rule. The American Immigration Lawyers Association (AILA) is a bar association of almost 6,000 attorneys and law professors practicing and teaching in the field of immigration and nationality law. AILA’s mission includes the advancement of the law pertaining to immigration and naturalization, the promotion of reforms and the facilitation of justice in the field. Its members represent the entire spectrum of temporary visitors and immigrants, and the U.S. citizens, families, and employers who sponsor them for temporary and permanent residence in this country.

AILA’s members are well acquainted with the J-1 exchange visitor program, having significant experience representing foreign nationals who either previously or presently hold J-1 or J-2 status. In addition, some AILA members have experience working with and/or representing designated J-1 programs which are responsible for sponsoring J-1 visitors for temporary stays in this country. AILA is thus uniquely qualified to comment on the interim rule issued by the Agency.

As an initial matter, AILA appreciates the openness with which the Agency has approached its rulemaking responsibility in this instance. AILA has had an opportunity to discuss its general and specific concerns on the reinstatement issue, and considers this process a valuable step in the Agency’s understanding of the issues from the points of view of its many external stakeholders.

We commend the Agency for recognizing the utility and legal soundness of allowing minor and technical infractions to be corrected status quo ante by Responsible Officers. We believe that this will afford many J-1 visitors relief from unintentional and possibly severe results under the immigration statute, and will also provide ease of administration for the designated J-1 programs responsible for monitoring the course of each J-1s stay in this country.

We cannot give an unqualified endorsement, however, to the Agency’s interim rule. We feel there are three important issues that merit either clarification or change when the rule is finalized.

Role of USIA and INS. USIA has always taken the position that it, and not the INS, is solely responsible for identifying and confirming when an individual is maintaining J program status. Exchange Visitor Program Services, soon to be part of the Department of State, has, thus, played an important role based on its own expertise concerning the unique nature of J-1 participants in protecting the rights of J-1 visa holders under U.S. immigration law. In the preamble to the interim rule, USIA appears to abdicate the exercise of this authority by agreeing to act consistently with a possible future change of policy at the INS. Given the extremely slow course of rulemaking at the INS and the unknown fate of the text of the possible new rule on F-1 students, we were quite surprised that USIA changed its position concerning the nunc pro tunc validity of reinstatements based solely on a possible change of policy at the INS.

We believe that USIA should advocate its positions with its sister agency such that USIA, and in the future the State Department, is the principal agency responsible for determining the contours of J-1 status. There is an already existing parallel in the relationship between the State Department and the Immigration and Naturalization Service: with E-2 treaty investor status it is the State Department that reserves the right to finally determine an individual’s eligibility for E-2 status. When new E-2 regulations were required, both INS and State worked together to issue consistent and similar rules, but the State Department did not find the need to abdicate its role and authority concerning the specifics of E-2 status, an area in which it has developed significant expertise.

The current practice of the INS with respect to F-1s and other nonimmigrants is to grant nunc pro tunc extensions of nonimmigrant status; this should be the current state of the J-1 reinstatement policy and practice at USIA.

No Correction by Responsible Officer of Minor Infraction if Waiver has been Recommended. We object to USIA’s proposal that Responsible Officers be barred from correcting an exchange visitor’s minor or technical infraction by returning the exchange visitor to the status quo ante solely because the J-1 has received a waiver recommendation from the Agency. While not recognizing "dual intent," the Agency has previously and on repeated occasions reiterated that an individual who has received a waiver recommendation is permitted to complete his/her existing J-1 program. It is nonsense that an individual who satisfies the criteria outlined in the interim rule for minor or technical infractions would not be able to document valid J-1 status, solely because a waiver has been recommended.

The Agency has already determined that a J-1 is entitled to complete a J-1 program even where a waiver has been granted. The J-1 visitor should be entitled to complete the J-1 program with evidence of his valid status.

No Reinstatement by USIA if Waiver has been Recommended. AILA still believes strongly that the concept of "dual intent" merits further consideration by the Agency. Nevertheless, while we respect the Agency’s authority and discretion to continue to reject the concept of "dual intent" for J-1 visitors, we are puzzled as to why there is an absolute bar, where reinstatement is never to be considered, for individuals who have had a waiver recommended.

As the Agency is aware, there are discrepancies in the field as to whether IAP-66 forms are issued in one year increments or in program increments. At an institution issuing IAP-66 forms in three year increments for researchers, for example, there is no problem for a researcher to complete his/her three year research program even if a waiver is requested and granted. At an institution issuing IAP-66 forms in one year increments, however, a researcher requesting a waiver may have difficulty completing his/her program since the Agency refuses to recognize "dual intent." The Agency’s bar to reinstatement accentuates this discrepancy in a much more fundamental way: not only is program completion not recognized for waiver recipients, but there is no discretion at the Agency to consider special circumstances and reinstate an individual’s status where unusual hardship would ensue and/or the cause of the lapse of status was completely inadvertent.

In other words, there is no room for error if you happen to be an individual who has requested and received a waiver recommendation from the Agency. We believe the Agency can eliminate the bar to reinstatement based solely on waiver recommendation and not create any additional rights or opportunities for J-1 exchange visitors. The Agency is not recognizing "dual intent" by allowing itself to have the authority to consider reinstatement requests for J-1 participants who happen to be the beneficiary of a positive waiver recommendation.

We are pleased to have the opportunity to provide comments and hope that our views are useful to the Agency in formulating its final rule.

Respectfully submitted,

AMERICAN IMMIGRATION LAWYERS ASSOCIATION

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Committee on Exchange Visitor Programs
BY: Robert D. Aronson, Co-Chair
Alan S. Musgrave, Committee Member
Amy M. Nice, Committee Co-Chair