The American Immigration Lawyers Association (AILA) and the American Immigration Council (Council) have submitted comments opposing a proposed U.S. Department of State (DOS) rule that would change procedures governing the J-1 Exchange Visitor Program.
The comments respond to the Department of State’s 60-day notice of proposed information collection titled “Exchange Visitor Program – Termination of Program Participation, Extension of Program and Reinstatement to Valid Program Status.”
AILA, a voluntary bar association representing more than 18,000 immigration attorneys and law professors, regularly advises businesses, U.S. citizens, lawful permanent residents, and foreign nationals on immigration and nationality law.
The American Immigration Council is a nonprofit organization focused on increasing public understanding of immigration law and policy, advocating for the fair administration of immigration laws, and protecting the legal rights of noncitizens.
In their joint submission, AILA and the Council acknowledge the Department of State’s stated goals of promoting visitor welfare, program integrity, and national security. However, they argue that several provisions of the proposed rule could create harsh consequences for J-1 exchange visitors without providing adequate opportunities to correct mistakes, challenge termination decisions, or make reasonable arrangements to leave the United States.
Proposed Changes to J-1 Program Termination
Under the existing regulations at 22 C.F.R. § 62.40, termination of an exchange visitor’s participation is generally limited to specific circumstances. These include failure to pursue authorized exchange activities, inability to continue participation, violations of Exchange Visitor Program regulations or sponsor rules, failure to maintain required insurance coverage, and unauthorized employment.
The proposed rule would expand the grounds for termination.
Under the proposal, the Department of State could terminate an exchange visitor’s program participation for unauthorized employment or for falsifying or failing to provide a full and truthful response, information, or documentation during the exchange visitor application process or while participating in the program.
AILA and the Council raise concerns about the lack of clarity surrounding terms such as “material omission.” They argue that without a clear definition, the rule could create inconsistent decisions, particularly when distinguishing between fraud, minor omissions, harmless errors, or information that became available only after a visa was issued.
The proposed rule would also allow DOS to terminate a participant’s J-1 status immediately if the Department of State or Department of Homeland Security revokes or cancels the participant’s J-1 visa.
According to AILA and the Council, neither situation provides sufficient practical safeguards for participants to challenge the decision or make reasonable arrangements for departure.
30-Day Notice and 10-Day Response Period
For proposed terminations based on unauthorized employment, incomplete information, or statements that are not fully truthful, the proposed rule would provide the participant with 30 days’ notice of termination.
However, the participant would have only 10 calendar days to submit a statement opposing the termination.
AILA and the Council argue that this period is too short. A participant may need additional time to understand the allegations, gather supporting documentation, seek professional advice, or consult an immigration attorney.
They recommend extending the response period to at least 30 days.
Because submitting a statement contesting termination would toll the termination date, AILA and the Council contend that allowing additional response time would not necessarily delay the overall process. Instead, it would provide participants with a more meaningful opportunity to prepare their response.
Concerns About Available Defenses and Due Process
The proposed rule would also prevent participants from relying on hardship or other “equitable considerations” when opposing termination.
AILA and the Council recommend removing this restriction.
They argue that the proposed rule does not establish adequate protections for situations involving errors, changes in circumstances, or other relevant considerations. They also raise concerns about the absence of a clearly defined process for reviewing contested terminations.
Among the issues identified are the lack of:
- A hearing process
- A mechanism for testing adverse evidence
- Independent review
- A clearly defined standard of review
- A defined burden of proof
According to the organizations, establishing clearer procedures would provide greater transparency and procedural protection for J-1 exchange visitors facing termination.
Immediate Termination Following Visa Revocation
Another significant concern involves the proposed immediate termination of J-1 status when DOS or DHS revokes or cancels a participant’s J-1 visa.
AILA and the Council recommend that the Department of State provide affected participants with a 30-day grace period for departure.
They note that J-1 participants may have homes, personal belongings, vehicles, children attending school, or spouses working in the United States. Immediate termination without sufficient notice or a departure period could make it difficult for individuals to make practical arrangements to leave the country.
The organizations also argue that a reasonable grace period could allow participants to arrange their own departure rather than face potential detention or removal proceedings.
Notification of Visa Revocation or Cancellation
AILA and the Council also request greater clarity regarding how J-1 participants would be notified if their visas are revoked or cancelled.
They recommend that DOS:
- Clearly explain how affected participants will receive notice.
- Notify the relevant Exchange Visitor Program sponsors.
- Provide guidance to sponsors regarding SEVIS updates.
- Clarify sponsor responsibilities while a DOS investigation is pending.
The organizations note that visa revocations or cancellations are typically communicated to individuals by email and may not automatically be communicated to J-1 program sponsors.
Clear notification procedures, they argue, could help prevent confusion and conflicting information among participants, sponsors, DOS, and other agencies.
Proposed Changes to the Au Pair Extension Deadline
The proposed rule would also change the deadline for au pairs seeking to extend their J-1 program participation.
Under the existing framework, au pairs may submit an extension request within 30 days of their program end date.
The proposed rule would instead require an extension request to be submitted at least 90 days before the program end date. The proposal also does not provide an exception for late filings.
AILA and the Council argue that this change could force au pairs and host families to make extension decisions much earlier than necessary.
Decisions regarding an extension may depend on factors such as:
- Host-family needs
- Personal plans
- Future family arrangements
- Educational requirements
- Availability of a suitable placement
The organizations therefore recommend retaining the existing 30-day filing period or allowing late filings when there is good cause.
Educational Requirements and Extension Requests
AILA and the Council also identify a potential conflict between the proposed extension deadline and another requirement concerning educational completion.
The proposal would require verification that an au pair has completed the required educational requirements before submitting an extension request.
Because the proposed extension request would need to be filed 90 days before the program end date, the combined requirements could significantly reduce the time available for an au pair to complete required educational credits.
AILA and the Council recommend allowing au pairs to submit documentation showing that their educational requirements will be completed by the program completion date or before the extension becomes effective.
They argue that this approach would provide participants with a more practical opportunity to complete established educational programs while remaining compliant with program requirements.
AILA and Council Recommendations
In their comments, AILA and the American Immigration Council urge the Department of State to reconsider several provisions of the proposed rule.
Their recommendations include:
- Extend the termination response period from 10 days to at least 30 days.
- Remove restrictions on hardship and equitable considerations when participants contest termination.
- Establish clearer procedures for reviewing contested termination decisions.
- Provide a 30-day departure grace period following immediate termination based on visa revocation or cancellation.
- Clarify notification procedures for participants and program sponsors.
- Provide SEVIS guidance to Exchange Visitor Program sponsors.
- Retain the existing au pair extension filing period or allow late filings for good cause.
- Allow flexibility regarding educational requirements when an au pair can demonstrate that required credits will be completed within the permitted timeframe.
Conclusion
The proposed J-1 Exchange Visitor Program rule could make significant changes to termination procedures and extension requirements for exchange visitors, including au pairs.
AILA and the American Immigration Council argue that several provisions could create serious practical challenges for participants by providing limited opportunities to contest termination decisions, address errors, obtain assistance, or make arrangements for departure.
The organizations therefore urge the Department of State to revise the proposal to provide clearer procedures, reasonable response periods, appropriate departure timeframes, and greater flexibility for J-1 program participants and sponsors.
For J-1 exchange visitors, program sponsors, host families, and immigration professionals, understanding these proposed changes is important as the Department of State considers the comments and next steps for the rule.
Immigration Fleet Law Firm