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My wife and I are both French citizens. I am currently doing a post-doc in USA on a J-1 visa, and she is staying with me on a J-2.

Next spring/summer, I would like to spend a few months in my home country for job interviews and vacation (while keeping my legal J-1 status). My wife would like to stay, in order to follow some university classes. (She has no official status as a student, but she attends them as a free auditor.) She would spend something between a week and a month in the U.S. without me.

We have not figured out the precise logistics yet; here are some possible scenarios:

  • I go to France alone for a couple of weeks, go back, and then we go to France together for three months.
  • I go to France alone; my wife joins me there a month later; we return together three months later.
  • I go to France alone; my wife joins me there a month later. While there, I learn that I get a job. I resign from my U.S. position, cancel my visa and neither of us returns to the U.S. in the fall.

Would any of these scenarios raise any issues with U.S. border authorities? (I have found conflicting information concerning the maximum duration of an unaccompanied J-2 stay - from "a few days" to "5 months".)

In the case this is not allowed, is it an option for my wife to do a hop to Canada the day before I leave and re-enter on a VWP? or would it be considered fraud?

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    @pnuts but the principal actually has no immigration status while outside the US. I suppose there's some administrative justification for allowing the dependant to stay in the US, but I don't know what it is. It's plain that requiring the dependant to leave would be ludicrous. – phoog Nov 12 '16 at 23:50
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    @pnuts thx; done and deleted comments for a tidy SE – Giorgio Nov 14 '16 at 2:23
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The short answer: it depends on the length of your (the J-1's) stay. If that is not longer than 30 days, you should not have any problem with the J-2 remaining in the country (see @Dorothy's answer).

If your stay is (intended to be) longer than 30 days, the J-2 cannot stay (see @Dorothy's answer), but one question is whether the J-2 can at least stay for the first 30 days of your longer-than-30-days absence. Considering that you usually have to complete a notice of absence, an out of country request or anything similar for stays longer than 30 days, I understand from the wording of the out of country request at University of Washington that the J-2 has to leave at the same time as the J-1:

We certify that:

  • [...]
  • J-2 dependents will depart the U.S. with the J-1 Exchange Visitor

Regarding your specific options:

I go to France alone for a couple of weeks, go back, and then we go to France together for three months.

This should be fine, as long as a couple of weeks is not longer than 30 days.

I go to France alone; my wife joins me there a month later; we return together three months later.

This will be a problem if your three-months stay is intended to be that long from its beginning. The J-2 has to leave with you, if my reasoning above is correct.

I go to France alone; my wife joins me there a month later. While there, I learn that I get a job. I resign from my U.S. position, cancel my visa and neither of us returns to the U.S. in the fall.

From an immigration point of view, this is no different from the previous option. The J-2 has to leave with you, and no one will care whether you ever come back or not. I see no problem with resigning from your position; however, I generally wonder whether a non-completed J-1 program might jeopardize future J-1 applications. You might need to figure that out with your sponsor, but it should not make any different whether you do this while in the US or not.

The one open question is what happens if you leave for an intended period of time not exceeding 30 days, and don't return as planned. It would not be credible for me to speculate what exactly happens, but I guess there can be no doubt that you need to inform your sponsor (compare the notice of absence: "I will inform ISSS and my department if my schedule changes."), and that the J-2 needs to leave as soon as your sponsor determines that your stays exceeds 30 days. I do not know whether that counts as overstaying on her part; nor whether that impacts your ability to return into the program if you fail to find a job in France.

Note that you are planning to "spend a few months in [your] home country for job interviews and vacation (while keeping [your] legal J-1 status)". This would involve convincing your sponsor that your absence is program-related (compare, again, this notice of absence). If you fail to do that, there is a possibility that they terminate your J-1 program, which means that you and the J-2 have to leave, maybe immediately, but certainly without a 30-day grace period (which you only get when you complete the program).

Disclaimers

  • This is not legal advice, obviously.

  • Adding to @Dorothy's answer, I have found this on the webpage of University of Minnesota:

Please Note: It is unclear how the status of a dependent visa holder is affected if the dependent remains in the U.S. when the principal visa holder is temporarily absent from the U.S. It is recommended that the J-2 not remain in the U.S., if the J-1 will be absent for more than 30 days.

So even people having educated opinions (such as those at that particular International Office) may not know the exact answer.

  • Thank you. I am wondering however, are there any official sources of information that apply? All the sources I have seen so far are written by "International Offices" of different universities, and they all contradict each other. To put it in other words: suppose the immigration officers decided that me (or my wife) did something wrong and deserve some sort of sanctions. Based on what text would they make such a decision? – Ilia Smilga Nov 17 '16 at 15:32
  • If there was anything specific to the J-visa program, I would expect to find it in the CFR Title 22 → Chapter I → Subchapter G → Part 62. Searching there for "30 days" does not reveal that much helpful stuff, though. – bers Nov 17 '16 at 15:48
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I realize this is not your program, but it is a US Federal Agency applying the J-1 visa regulations, and the explanations respond to your concerns:

Travel Outside the United States

J-1 visa holders and their J-2 dependents can travel independently of one another. However, a J-1 visa holder cannot leave J-2 dependents alone in the USA for more than 30 days. Doing so will result in both the J-1 principal and J-2 dependents being “out of status” and possible program termination. Exchange Visitors should consult with an IVP Program Specialist in the International Programs Office when requesting travel validation on their DS-2019 forms to make certain traveling outside the US without their dependents will not jeopardize their program status.

If the J-1/J-2 visa holder goes home for a vacation, contact the US Embassy/Consulate to request information on the process of acquiring a new stamp/visa in the new passport.

Dependents (J-2 Status)

The J-2 dependents are not required to travel and enter the US with the J-1 principal, but may follow at a later date. J-2 dependents must adhere to the same regulations regarding departure dates and grace periods as the J-1 principal. Also, should the J-1 principal be out of the US for more than 30 days at a time during the course of the program, the J-2 dependents cannot remain in the US without the J-1 principal.

Although family members usually enter as J-2 dependents, they are not required to do so. They may enter as tourists (B-2) or on another visa type if they qualify.

  • Nice find. This does not really answer whether the second of the OP's options is possible, if it is known that his stay will be longer than 30 days before he leaves. It sounds as if it is not possible (that is, the J-2 has to leave with the J-1 when the J-1 leaves for a known absence of more than 30 days). – bers Nov 16 '16 at 2:16
  • It seems clear to me that the OP's first option works if a couple of weeks is not longer than 30 days. Now, the second option will not work if he tells his sponsor that he will leave for four months - the J-2 will have to leave with him. I was wondering what will happen if the OP plans to leave for not longer than 30 days (as in option 1 - the J-2 can stay), but his stay turns out to be longer than 30 days (as in option 2 - the J-2 would have had to leave in the past) while he is away. – bers Nov 16 '16 at 2:38
  • Probably, the J-2 has to leave as soon as the J-1 lets the sponsor know his intentions to return only after more than 30 days. It might still be a path to make option 2 work. The question is whether doing so will jeopardize the return of J-1 and/or J-2 into the program. – bers Nov 16 '16 at 2:39
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    @bers in each case, it is his wife's J-2 status which concerns him, and in each scenario, she will remain in the US no longer than 30 days. She would also be able to re-enter as a visitor. The OP would have to manage and maintain his J-1 status, but that is not the question which OP has posed, and a post-doc J-1 is usually well-versed in status reqs. – Giorgio Nov 16 '16 at 3:13
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    @pnuts At University of Washington, the Out of Country Request form for absences longer than 30 days (available at ap.washington.edu/cms/wp-content/uploads/…) includes a certification that "* J-2 dependents will depart the U.S. with the J-1 Exchange Visitor." The condition to complete this form is that "the Exchange Visitor anticipates being outside the U.S. more than 30 days". I guess that rules out the OP's second option, unless he does not anticipate to be out of the country for that long a time. – bers Nov 16 '16 at 4:36

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