5-Year Rule Regarding Professors and Research Scholars

Professor And Research Scholar Category

In 2007, the Department of State (DOS) published a final rule in the Federal Register implementing a regulatory change that affects the “Professor and Research Scholar” (PRS) category of the J-1 Exchange Visitor Program (EVP). Like many other universities, Duke uses the PRS category for most of our international visiting faculty, research associates, and others engaged in teaching and research. These new regulations will have a significant effect on many Duke departments.

There is good news and bad news. In reading the descriptions below remember that the J-1 has many categories. The ones used most often at Duke are:

Professor and Research Scholar (PRS), the one to which the new regulation applies.
Short-term Scholar (STS) coming for scholarly activities but for a duration of 6 months or less, with no possibility of extension.
Student, both fully matriculated, enrolled students seeking Duke degrees and those in a prescribed or non-degree course of study.
Specialist who are not academic scholars in the strict sense, but share special knowledge and skills such as performing artists, persons with technical expertise on scientific equipment, others whose world experience gives them special knowledge or skills.

The Good News

The J-1 PRS category used to have a three (3)-year limit with possible extensions for a total of five years if we could show exceptional circumstances and if we paid a processing fee.

The J-1 PRS category now has a five (5)-year limit. No exceptional circumstances required. No special forms or requests to send to DOS. No fees to pay. It functions like the old 3-year limit in that you can request sponsorship for a month, a year, five years, whatever.

This longer time period also means that many departments can avoid the expensive and time-consuming conversion to H-1B for many of their researchers. Avoiding the H-1B is not only easier, but the J-1 allows multiple funding sources, and requires only a level of funding to meet minimum living expenses. Required living expenses at Duke are based upon the needs of a frugal graduate student, as determined annually by the Duke graduate school. The H-1B requires Duke to pay a “prevailing” or “actual” wage, even if the individual receives outside funding. We are not permitted to use alternate funding to offset the wage that Duke must pay.

We can almost hear the cheers and sighs of relief from departments!

The basic EVP rules remain in place, and it is good to review and understand those rules:

The department may sponsor a PRS for appropriate Duke activities performed at Duke or at other locations provided the department receives pre-approval from Visa Services. Example of alternate location: The department might think it useful for a PRS to teach a course at another school or consult in research elsewhere while based at Duke. The department must obtain Duke Visa Services (DVS) approval before those activities begin so that the DVS can notify the DOS before those activities begin.
The department may sponsor a PRS for intermittent research over a period of time. Example: A researcher will be doing collaborative work between her lab in the home country and a Duke lab doing similar research. She will spend a few weeks or months at Duke, then a few weeks or months at home, then back to Duke and back home again. This research project may last over several years with such intermittent travel. Assuming that items 3-6 below are in place constantly, the Duke J sponsorship could cover all of those years.
The department may sponsor PRSs only if they have appropriate, ongoing, consistent relationships with Duke. Usually a break of 30 days in the activity requires termination of the sponsorship, but there are case-by-case exceptions. Examples:
- Sponsorable: A visiting professor teaches for the academic year, but he spends the summer vacation (more than 30 days) outside the U.S. A usual school break is acceptable.
- Sponsorable: A scholar is conducting research that requires collecting data outside the U.S. for a few months (more than 30 days) at a research site. She then returns to Duke for several months or years to examine the data and work on the laboratory component of the research.
- Not Sponsorable: A scholar comes to do research. He brings his family, sets them up in a home in a good school district, then has an urgent need to return home for an indefinite (more than 30 days) period of time, leaving the family behind in the U.S. Or he plans to spend 1 day a month in the U.S. (thus attempting to circumvent the 30-day absence review) and the rest of his time in his usual job in the home country. He has used Duke and the department as a way of “immigrating” his family without actually engaging in meaningful work at or for Duke. This is an abuse of the Exchange Visitor Program of which Duke cannot be a part. Duke will need to terminate such a program, inform the scholar and his family that their J-1 and J-2 status has ended, and advise that they must leave the U.S. or risk deportation.
Exchange visitors must show adequate funds for themselves and their families for the duration of the program. Funding can come from any one or a combination of the following sources:
- Employment at Duke.
- Duke grants, fellowships, or scholarships.
- External grants, fellowships, or scholarships given directly to the PRS (examples: National Heart Foundation, Rotary International, National Foundation for Advancement of the Arts).
- Salaries, grants and so on from the home school, home employer, or home government.
- Grants, fellowships, or scholarships from international or binational agencies (examples: AMIDEAST, LASPAU).
- Personal or family funds of the exchange visitor.
Exchange visitors must carry the DOS required health, medical evacuation, and repatriation insurance for themselves and their families for the entire period of the J program sponsorship. Usually the Duke employee insurance meets the DOS requirement for health insurance but not for required medical evacuation and repatriation components. The PRS must carry a separate policy for those.
Anyone who has been in the U.S. previously in any J category other than “short term scholar” (STS) is barred from the PRS category for 6-12 months, depending on circumstances. Example: A J-1 student who has completed a 6-year PhD program and then has done 3 more years of J-1 academic training after the degree cannot switch to the PRS category. The student is barred from the PRS category for 12 months.

The Bad News

Under the new regulation, anyone who holds J-1 status in the PRS category for any period of time is subject to a 2-year bar before returning to the U.S. in J-1 status in the PRS category. Note that this 2-year bar relates only to those previously in and returning to PRS category.

Departments who plan to bring in PRSs should consider carefully the immediate and long-term goals of the department in determining whether to use the PRS category or the STS (6 months or less) category. Duke Visa Services will be happy to work with you to consider options

Please not that this 2-year bar applies to every PRS. It is not the same as the 2-year home country physical presence requirement, which applies to some exchange visitors and not to others.

No Crystal Ball, Divining Rod, or Magic Wand

Departments and foreign nationals must be prepared to live with “wrong” decisions that were “perfectly right” when they made them. We cannot see the future. Some decisions that you will make will have unforeseen and unpredictable consequences.

Scenarios

Some scenarios may be useful in understanding the new options and the new limitations.

These are all “example” scenarios. Even if your case looks like it fits into one of them, we will be happy to look at each case individually. Sometimes the details of a case reveal options that might not be obvious.

Scenario 1

A faculty member comes in as a PRS visiting professor on a 4-year term appointment, extends for one more year for a total of 5 years. The professor is not permitted to return in the PRS category for 2 years.

Scenario 2

A research associate comes in for one year to work on a grant-funded project. Work is successful. Department extends stay for another year. Grant funding is renewed. Department extends stay for another 3 years for a total of 5 years. J program must end. Researcher is not permitted to return in the PRS category for 2 years.

Scenario 3

A faculty member comes to teach one course for the spring semester. Completes the semester, stays for a few weeks in the summer, then ends his J program and goes home. He held PRS category status for about 5 months. He is subject to the 2-year bar and cannot come back in the PRS category until 2 years have passed. However, he could come back in the STS category for 6 months or less at any time. For example, he might come to teach the same course every spring for several years, provided each trip is for 6 months or less.

Scenario 4

A faculty member comes in the PRS category to teach for one academic year, and is in the U.S. for approximately 9 months. She returns home and teaches at her home university for a full academic year. The Duke department wants her to teach during the next year. She has been at home for 15 months. She is not permitted to return in the PRS category. The 2-year bar was invoked when she completed the academic year of 9 months and returned home. She is barred from PRS category status for 2 years, no less, before she can return in the PRS category. Depending on circumstances, she might be able to return as a STS, but only for a maximum duration of 6 months.

Scenario 5

A researcher comes to do collaborative work on a project for 3 months as a PRS then returns home. Everyone expects this will be a single event. His research at home and his Duke research have taken a new and very promising direction. He needs to come back to Duke for at least 2 to 3 years to be part of a newly-funded grant. He is not permitted to return in the PRS category for 2 years following the end of the original 3-month project. If he had come originally in the STS category, then the longer PRS category would now be open to him now.

Scenario 6

The department chooses the STS category for a researcher for a 4-month project. The researcher begins work with the lab. A month later the department gets a new grant for research that needs exactly the expertise demonstrated by the international scholar. They need to keep him for at least the next 3 to 4 years. The STS has a 6-month limit and is not extendable under any circumstances. The researcher will have to leave the U.S. and apply for a new J-1 visa stamp at an embassy or consulate abroad in order to return as a PRS. He may be away for two months or more getting the new visa stamp and so on. If only he had come as a PRS instead of a STS we simply could have extended his stay for up to 5 years.

Scenario 7

The department chooses the PRS for a researcher for a 4-month project. The researcher begins work with the lab. A week before he is scheduled to leave the department gets a new grant for research that needs exactly the expertise demonstrated by the international scholar. They need to keep him for at least the next 4 years. The department has already reported to the DVS that he will terminate in a week. The department makes a frantic call to the DVS. The DVS pulls the file from the federal termination report in the nick of time. The department’s international liaison works day and night to get the new web request with all of the new information in to the DVS before the end of the week. The DVS allows an override of the 60-day advance request. On the very last day everything is in place so that the DVS can enter an extension in the federal database. Whew! Everyone at Duke has been brilliant, heroic, foresightful, top of their game. However, if the grant approval had come in a week after he left. See Scenario 1.

Scenarios 8 and 9

Duke invites a visiting professor to teach for the spring semester, a period of 4 to 5 months. The visiting professor would like to do some personal research while she is here and asks if Duke can sponsor her for spring semester and through the end of August so that she can do research in her field. The department is happy to accommodate this request. The spring semester plus a few weeks might be 01 January through 31 May, is only 5 months, and is sponsorable as PRS or STS (6 months or less). Accommodating the professor’s personal wishes, a period of 8 months, requires use of the PRS category. She does the research for the summer and writes a brilliant paper. In the following February the professor gets an offer from another U.S school to teach the next fall and spring for a full academic year. If Duke and the professor previously agreed on the STS sponsorship for 6 months or less, she might not have had as much time to do her research and write her paper, but she could use the PRS to teach at the other school during the next academic year. If Duke and the professor previously agreed on the PRS for teaching and research for 8 months, which allowed more extensive research, and brought her to the attention of the other school, thus resulting in a teaching offer, then she is not eligible for the PRS category to teach at the other school until she has been off the PRS category for 2 full years. In hindsight each choice was either the perfect choice or the worst possible choice, depending on opportunities and desires of the moment.