[Federal Register Volume 74, Number 182 (Tuesday, September 22, 2009)]
[Proposed Rules]
[Pages 48177-48190]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-22822]
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DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: 6767]
RIN 1400-AC36
Exchange Visitor Program--General Provisions
AGENCY: United States Department of State.
ACTION: Proposed rule with request for comment.
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SUMMARY: The Department of State is proposing to amend the General
Provisions (Subpart A) of the existing Exchange Visitor Program
regulations. This section of the regulations establishes the procedures
for designated Program sponsors and addresses overall Program
administration. It provides the overall context in which to interpret
all other provisions of the Exchange Visitor Program regulations. The
General Provisions have not been revised in whole in over 15 years,
despite modifications of many of the category-specific regulations and
changes in technology.
The proposed regulations encompass technical changes to the General
Provisions and address public diplomacy and foreign policy concerns,
including the Department's ability to monitor Program sponsors and to
ensure the safety and well-being of foreign nationals who come to the
United States as Program participants. The amendment of this section
incorporates changes made to the regulations since the last update in
1993. It ties all regulatory requirements together and consolidates the
requirements set forth in the SEVIS reporting requirements regulations
into the General Provisions.
Certain definitions have been added, made clearer or deleted. This
rule also proposes new requirements regarding applications for
designation and redesignation, a change in the required amount of
health insurance coverage, the identification of an Employer
Identification Number (EIN) and Dun & Bradstreet numbers by sponsors
and third party entities, the collection of employment authorization
information and validation of the SEVIS record on an exchange visitor's
accompanying spouse and dependents, criminal background checks on all
Responsible Officers and Alternate Responsible Officers, and the
implementation of management audits across all categories under the
Private Sector Programs Division of the Office of Designation. The
Student and Exchange Visitor Information System (SEVIS) currently in
place is being redesigned. The redesign, SEVIS II, has no immediate
impact on this proposed rule. Prior to the implementation of SEVIS II
the Department of Homeland Security will introduce any new requirements
or procedures to the public through a proposed rule with a comment
period.
DATES: The Department will accept comments from the public up to
November 23, 2009.
ADDRESSES: You may submit comments, identified by any of the following
methods:
Persons with access to the Internet may view this notice
and provide comments by going to the regulations.gov Web site at:
http://www.regulations.gov/index.cfm
Mail (paper, disk, or CD-ROM submissions): U.S. Department
of State, Office of Designation, SA-5, Floor 5, 2200 C Street, NW.,
Washington, DC 20522-0505.
E-mail: [email protected]. You must include the title
and RIN in the subject line of your message.
FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant
Secretary for Private Sector Exchanges, U.S. Department of State, SA-5,
Floor 5, 2200 C Street, NW., Washington, DC 20522-0505; (202) 632-9288;
or e-mail at [email protected].
SUPPLEMENTARY INFORMATION: The Department of State is proposing
modifications to Sec. 62.2 through Sec. 62.16 of the Code of Federal
Regulations, Title 22: Foreign Relations, Part 62--Exchange Visitor
Program (Subpart A--General Provisions). Subpart A governs the
designation of Program sponsors and addresses overall Program
administration. It provides the overall context in which all remaining
provisions of Part 62 are interpreted. Subpart A has remained largely
unchanged since 1993, when the predecessor agency with oversight of the
Exchange Visitor Program, the United States Information Agency (USIA),
substantially rewrote all of the regulations governing the Program.
(See 58 FR 15196, Mar. 19, 1993, as amended at 59 FR 34761, July 7,
1994, redesignated at 64 FR 54539, Oct. 7, 1999.) In the intervening 15
years, the Department of State modified regulations governing certain
categories of exchange visitors and added new categories. New
regulations governing the trainee category were published in 2007.
Specialty and non-specialty training were eliminated and new trainee
regulations implemented. A new category, Intern, was created. A
subcategory of the College/University Student program, Student Intern,
was also put in place for use by the academic community.
The amendment of this section incorporates changes to the
regulations since the last update in 1993, including the change in the
period of redesignation which, with the passage of the Enhanced Border
Security and Visa Entry Reform Act of 2002, Part (b)(1) (Section 502),
was changed from every five years to every two years. The updates are
important because they tie all regulatory requirements together,
ensuring that the regulations are clear and that all sponsors
understand and follow the same requirements in the administration of
their designated exchange visitor programs. SEVIS is being redesigned.
The redesign, SEVIS II, has no immediate impact on this proposed rule.
Prior to implementation of SEVIS II, the Department of Homeland
Security will introduce any new requirements or procedures to the
public through a proposed rule with a comment period.
To strengthen program oversight, the implementation of management
audits for all private sector program sponsors, as currently utilized
in the Au Pair
[[Page 48178]]
Program, are proposed. A management audit is a review of a sponsor's
internal controls. The audit identifies weaknesses in operating
procedures in the conduct of an organization's business and in meeting
regulatory requirements in the administration of their exchange visitor
program. The Department has employed an almost fully staffed Compliance
Office to monitor the extent to which the nearly 1,500 designated
sponsors comply with the Exchange Visitor Program regulations. Still it
lacks all the tools necessary to perform timely, statistically valid,
and repeatable assessments of the regulatory compliance of the sponsors
of the ``high risk'' categories of exchange, much less the entire
sponsor community. The high risk categories are the secondary school
student, au pair, camp counselor, summer work travel, intern, trainee
and teacher. They are of high risk because they involve placing young
adults in homes of strangers, placing young children in the care of
foreign nationals, or the category is at risk of being abused and used
as ordinary work or employment programs rather than the educational and
cultural exchange programs as intended.
Through these management audits, the Department will be able to
identify those sponsors who are not complying with the regulations.
Equally important, the results of these audits will provide a framework
that will facilitate the application of measured sanctions. That is,
with a better understanding of the range of non-compliance within a
given category, the Department can impose appropriate sanctions while
limiting the risk that it will be accused of being arbitrary or
capricious. Sponsors would be required to engage independent auditors
to perform these audits annually, reviewing internal operating
procedures of the sponsor and the files of a statistically valid
sampling of a sponsor's program participants. The estimated cost of
this new requirement to program sponsors is between $6,000 and $10,000.
The data collection required for management audit templates is within
the scope of existing data collections (see OMB 1405-0147, Form DS-
7000, Catalog of Information Collection Requirements under 22 CFR Part
62, the Exchange Visitor Program (SEVIS)).
This proposed rule also includes a new provision requiring that all
new applicants for sponsor designation undergo a site visit prior to
designation. Such site visits, to be conducted by the Department of
State or a third party on its behalf, will ensure an entity has the
facilities, staff and equipment necessary to conduct an exchange
program. On-site reviews of existing sponsors may occur at the
discretion of the Department. The applicants and/or sponsors will bear
the cost of these reviews. The site visits and on-site reviews are a
critical monitoring tool for ensuring data integrity and for ensuring
the health, safety and welfare of Exchange Visitor Program
participants. The cost will be determined by the required bi-annual
user fee study. The Department of State anticipates a fee similar to
that of the DHS site visit fee of $655, but will not commit to any
amount until the results of the user fee study have been analyzed.
The Department of State also proposes to require potential
Responsible Officers (``RO'') and Alternate Responsible Officers
(``ARO'') to undergo a criminal background check. This requirement is
reflective of the importance of the role of such individuals within
sponsor organizations and their rights of access to and manipulation of
data for a controlled federal government database. ROs and AROs are the
only individuals authorized to issue and sign Forms DS-2019, the
``Certificate of Eligibility for Exchange Visitor (J-1) Status.''
Foreign nationals wishing to participate in the Exchange Visitor
Program must obtain Forms DS-2019 in order to apply for a J-visa to
gain entry into the United States. Thus, it is of vital importance that
the individuals who have access to a secured federal government
database (SEVIS) be properly vetted. The Department of State introduced
a criminal background check requirement in 2005 for individuals hosting
secondary school student participants. Conducting annual criminal
background checks on ROs and AROs will help to strengthen and protect
the integrity of the Exchange Visitor Program and SEVIS. The costs
imposed by this requirement on sponsor organizations are estimated to
be minimal; $15 per RO and ARO which amounts to a maximum annual burden
of $165 if a sponsor has the maximum level of designated officials.
The Department of State will not require applicants or sponsors to
submit the results of the criminal background checks. Rather, the Chief
Executive Officer, President, or other similar official must submit a
certification that the organization's RO and AROs have undergone a
criminal background check as supporting documentation. The sponsor or
applicant must maintain these records and provide them to the
Department upon request. The proposed regulation does not set specific
requirements for the sponsors to follow with respect to report format,
screening company, or assessment of results. It does anticipate,
however, that a thorough criminal background check would provide
management decision makers with sufficient information to determine
whether ROs and AROs are citizens of the United States or lawful
permanent residents, whether any record of past criminal activity
should disqualify them from the positions, and whether there is
pertinent information regarding their suitability for the proposed
position such as credit-worthiness or whether they have a criminal
record that would prevent their appointment. These three areas of
review are essential in order to determine suitability to hold
positions that affect national security.
The Department of State requires that sponsors utilize the services
of a bona fide background screener. While the Department does not
sanction any particular screening organization, the only known
membership organization of bona fide background screeners is the
National Association of Professional Background Screeners (NAPBS).
NAPBS has over 700 members (a list of which is located at http://www.NAPBS.com) all of whom are expected to adhere to the NAPBS code of
conduct governing background investigations and confidentiality. The
conduct of a criminal background check does not confirm an individual's
suitability to act as an RO or an ARO and is in no way a substitution
for the sponsor's judgment in making such decisions.
The rule proposes, as a requirement of designation, that the
minimum experience in international exchange for an organization or the
proposed Responsible Officer be increased from one to three years. Many
organizations/individuals with minimal experience have been applying
for designation. These individuals/organizations have typically worked
with designated sponsors in some capacity or have conducted short term
exchanges, but lack the full realm of experience in all aspects of
exchange activities, to include regulatory knowledge, critical to
administering a successful exchange program. The administration of
programs in some exchange visitor categories are more complex than
others (i.e., au pairs and secondary school students which require
locating and screening host families, schools, local and regional
coordinators, close monitoring, etc.). It is believed that the
requirement of three years experience is necessary to develop a strong
and stable environment for the conduct of the Exchange Visitor Program.
Applicants may demonstrate experience in international exchange by
providing resumes, and information on previous
[[Page 48179]]
exchange programs and visas used in the conduct of these activities.
The collection of the Employer Identification Number (EIN) and Date of
Issuance for each applicant is also being proposed. This requirement
ensures that the entity is registered for tax purposes and recognized
as a bona fide business.
In July 2007, the Department of State implemented an interim final
rule on Trainees and Interns that required sponsors to screen, vet and
enter into written agreements with third parties who assist them in
recruiting, selecting, screening, orienting, placing, training or
evaluating foreign nationals who participate in training and internship
programs (FR 33673, June 19, 2007). This requirement is relevant to
sponsors who rely upon ``host organizations'' to provide the actual
training or intern programs, such as a business, law firm, or hotel. It
also affects foreign agents who play a vital role in the selection of
potential exchange visitors. The trainee and intern regulations require
all third parties--foreign and domestic alike-- to provide Dun &
Bradstreet identification numbers. Similarly, this proposed rule
requires all applicants for sponsor designation to submit current Dun &
Bradstreet Business Information Reports on themselves. A current Dun
and Bradstreet Business Information Report is also required of all
sponsors with the submission of an application for redesignation.
Sponsors seeking redesignation will be required to submit a list of all
third parties with whom sponsors have executed written agreements to
act on their behalf as well as separate certifications that the
sponsors have obtained Dun & Bradstreet Business Information Reports on
all third parties with whom they conduct business. These reports
provide information on the business operations of an entity (e.g.,
financials, credit history, staffing, pending legal issues, etc.). The
requirement for these reports will help to ensure that sponsors are
working with and/or placing exchange visitors with viable third party
entities. The Department has negotiated with Dun and Bradstreet for a
reduced rate per report based on the number of designated sponsors and
third parties. Currently, the cost per report to Department of State
sponsor organizations is approximately $65.
This rule proposes to increase the current levels of health
insurance coverage a sponsor must require that its exchange visitor
(and spouse and dependents) maintain during the duration of their
exchange visitor program participation. The current minimum coverage
has been in place since 1993. The amounts of coverage required is
considered below current inflation and healthcare costs and does not
cover actual costs incurred today as reported by the sponsors. We are
updating the coverage to be consistent with today's amounts. Many
sponsors currently insure participants at a higher level of coverage
than that identified in the current regulations. To ensure coverage
levels remain consistent with recommended industry standards, the
Department will periodically issue guidance reflecting the mandatory
minimum levels of coverage. A sponsor must ensure that health insurance
is in place for each exchange visitor and his/her accompanying spouse
and dependents for the duration of their exchange visitor program as
reflected on the Form DS-2019 (Program begin and Program end date.)
Insurance regulations do not require ``portal to portal'' insurance
coverage of participants. Such coverage is highly desirable and
sponsors may, but are not required to, offer this coverage.
The Department of State proposes to collect information on the
employment of the accompanying spouse and dependents while in the
United States. As a security matter, information on the employment
entity and work location of the spouse and dependents is not collected
in SEVIS. Capturing this information in SEVIS will allow for better
monitoring and assist in mitigating risks involving these non-
immigrants.
Definitions used in the regulations have been added or modified to
clarify terms or reflect changes. New definitions in this proposed rule
clarify SEVIS functions or fields or reflect changes that have occurred
since 1993.
The term ``accredited educational institution'' has been changed to
``accredited academic institution''. In the proposed definition, the
Department of State clarifies that educational institutions that offer
primarily vocational or technical courses of study are not considered
academic. The addition of the ``technical'' distinction parallels the
Department of Education's replacement of regulations governing purely
``vocational'' studies with a new ``vocational/technical''
classification that acknowledges the new information technology
curricula that are neither vocational nor academic. Vocational programs
are not included under the Mutual Educational and Cultural Exchange Act
of 1961.
Three SEVIS-related definitions have been added to the proposed
regulations: ``actual and current U.S. address'', ``site of activity'',
and ``validation.'' The first two definitions are critical as they
relate to the physical location of the exchange visitor while in the
United States. Simply put, sponsors must maintain current and accurate
data in these SEVIS fields so that foreign nationals may be located at
the site of activity (location where the program will take place) or at
the actual and current U.S. address (residence). Maintaining this
information is a matter of national security. The SEVIS function of
validating a record is similarly important. When an exchange visitor
enters the United States and reports to his or her exchange program,
the sponsor must note this occurrence in SEVIS through the validation
process, thereby demonstrating that an exchange visitor and
accompanying spouse and dependents, if any, are currently present in
the United States and that the exchange visitor is participating in the
exchange visitor program identified on the Form DS-2019. For the
purpose of this rulemaking, the 30-day requirement for validation
remains unchanged and is consistent with current Department of Homeland
Security requirements. The Department is clarifying the regulations on
updating the SEVIS records upon the failure of an exchange visitor to
begin his/her exchange program.
The term ``Certificate of Good Standing'' has been added and, for
clarity, the definition for ``Citizen of the United States'' has been
split into two: one that pertains to individuals and another that
relates to legal entities.
This rule also reflects changes in technology, and it moves
requirements previously in Subpart F to Subpart A. The change from
paper numbered forms to the electronically generated Form DS-2019
requires two fundamental alterations to the regulations. First, any
requirements relating to the physical storage of unused forms are
obsolete. Second, matters of national security require that circulating
Forms DS-2019 (i.e., those not kept internally in a sponsor's files)
must be originals. All Forms DS-2019 must be generated through SEVIS.
The proposed regulations prohibit the use of scanned, copied, or
electronic versions of Forms DS-2019 except in response to a request
from the Department of State or the Department of Homeland Security or
for maintenance of complete exchange visitor records by sponsors. The
proposed rule also requires sponsors to request that potential program
participants return unused Forms DS-2019, and that such forms be
destroyed.
The proposed rule also clarifies those actions a sponsor must
undertake to update an exchange visitor's SEVIS record (or the record
of any accompanying spouse and dependents, if any) when the exchange
visitor's
[[Page 48180]]
program participation is ended early (e.g., concluded successfully or
terminated as a result of violation of program rules, regulations or
U.S. law). The Department of State is reducing from 21 to ten (10) days
the time a sponsor has following notification of an exchange visitor's
change of circumstance to update the exchange visitor's SEVIS record
(or the records of a spouse or dependents).
Finally, as a record-keeping and administrative oversight matter,
sponsors will be required to maintain current information in SEVIS on
its exchange visitor program, address, telephone numbers, facsimile
numbers, or e-mail addresses. All Department communication to sponsors
related to program oversight, policy, re-designation, etc., sent to ROs
and AROs are generated from information contained in SEVIS. The
Department will not recognize non-receipt of notification of a request
or other communication from the Department of State or from SEVIS as
grounds for appeal in cases where a sponsor does not respond to such
request or communication. Sponsors are required to ensure that their
spam filters do not block reception of SEVIS or Department of State
notices. The term ``in writing'' is expanded to include the option for
electronic signatures to support movement toward a paperless
environment.
Note: Current Sec. 62.17 remains unchanged.
Regulatory Analysis
Administrative Procedure Act
The Department of State has determined that this Proposed Rule
involves a foreign affairs function of the United States and is
consequently exempt from the procedures required by 5 U.S.C. 553
pursuant to 5 U.S.C. 553(a)(1). Nonetheless, because of its importance
to the public, the Department has elected to solicit comments during a
60-day comment period.
Small Business Regulatory Enforcement Fairness Act of 1996
The Proposed Rule has been found not to be a major rule within the
meaning of the Small Business Regulatory Enforcement Fairness Act of
1996.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Since this Proposed Rule is exempt from 5 U.S.C 553, and no other
law requires the Department of State to give notice of proposed
rulemaking, it is not subject to the Regulatory Flexibility Act (5
U.S.C. 601, et seq.) and Executive Order 13272, Sec. 3(b).
Executive Order 12866, as Amended
The Department of State does not consider this proposed rule to be
a ``significant regulatory action'' under Executive Order 12866, as
amended, Sec. 3(f), Regulatory Planning and Review. In addition, the
Department of State is exempt from Executive Order 12866 except to the
extent that it is promulgating regulations in conjunction with a
domestic agency that are significant regulatory actions. The Department
has nevertheless reviewed the proposed rule to ensure its consistency
with the regulatory philosophy and principles set forth in that
Executive Order.
Executive Order 12988
The Department of State has reviewed this proposed rule in light of
Sec. Sec. 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burden.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4, 109 Stat. 64, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may
result in an annual expenditure of $100 million or more by state,
local, or tribal governments, or by the private sector. This rule will
not result in any such expenditure, nor will it significantly or
uniquely affect small governments.
Executive Orders 12372 and 13132
This regulation will not have substantial direct effect on the
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Sec. 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. Executive
Order 12372, regarding intergovernmental consultation on federal
programs and activities, does not apply to this regulation.
Paperwork Reduction Act
The information collection requirements contained in this proposed
rulemaking (criminal background screening of Responsible Officers
(``ROs'') and Alternate Responsible Officers (``AROs'')) are pursuant
to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. Specifically OMB
Control Number 1405-0147, expiration date: 09/30/2010, applies: Form
DS-3037--Update of Information on Exchange Visitor Program Sponsor,
Form DS-7000--Catalog of Information Collection Requirements Under 22
CFR Part 62, the Exchange Visitor Program (SEVIS), as well as OMB
Control Number 1405-0119, expiration date 7/31/2011: DS-2019--
Certificate of Eligibility for Exchange Visitor (J-1) Status. No PRA
changes are required as a result of this regulation.
List of Subjects in 22 CFR Part 62
Cultural exchange programs, Reporting and recordkeeping
requirements.
Accordingly, 22 CFR Part 62 is proposed to be amended as follows:
PART 62--EXCHANGE VISITOR PROGRAM
1. The Authority citation for Part 62 continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, Sec. 2451 et seq.; Foreign Affairs Reform and
Restructuring Act of 1998, Public Law 105-277, Div. G, 112 Stat.
2681 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp.
p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; the
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)
of 1996, Public Law 104-208, Div. C, 110 Stat. 3009-546, as amended;
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT ACT), Public Law 107-56, Sec. 416, 115 Stat. 354; and the
Enhanced Border Security and Visa Entry Reform Act of 2002, Public
Law 107-173, 116 Stat. 543.
2. Sections 62.2 through 62.16 are revised to read as follows:
Sec. 62.2 Definitions.
The following definitions apply to this part:
Accompanying spouse and dependents. The alien spouse and minor
unmarried children of an exchange visitor who are accompanying or
following to join the exchange visitor and who seek to enter or have
entered the United States temporarily on a non-immigrant J-2 visa or
seeks to acquire or have acquired such status after admission. For the
purpose of these regulations, a minor is a person under the age of 21.
Accredited academic institution. Any publicly or privately operated
primary, secondary, or post-secondary institution in the United States
that offers primarily academic programs and is duly
[[Page 48181]]
accredited by the appropriate academic accrediting authority of the
state in which such institution is located; provided, however, that in
addition, all post-secondary institutions must also be accredited by a
nationally recognized accrediting agency or association as recognized
by the Secretary of Education. An institution that offers primarily
vocational or technical programs does not fall within the purview of an
academic institution for this purpose.
Act. The Mutual Educational and Cultural Exchange Act of 1961, as
amended.
Actual and current U.S. address. The physical, geographic location
at which an exchange visitor resides while participating in an exchange
program.
Alternate Responsible Officer (``ARO''). An employee or officer of
a designated sponsor who has been nominated by the sponsor, and
approved by the Department of State to assist the Responsible Officer
in carrying out the responsibilities outlined in Sec. 62.11. An ARO
must be a citizen of the United States or a lawful permanent resident
of the United States.
Certificate of Good Standing. A document issued by an official of
the Department of State in the state where the organization resides. A
Certificate of Good Standing confirms that a corporation, partnership
or other legal entity is in existence or authorized to transact
business. A Certificate of Good Standing is also known as a Certificate
of Authorization or a Certificate of Existence.
Citizen of the United States (entity).
(1) A general or limited partnership created or organized under the
laws of the United States, or of any state, the District of Columbia,
or any territory or outlying possessions of the United States, of which
a majority of the partners are citizens of the United States:
(i) Which has its principal place of business in the United States;
and
(ii) In instances where the partnership is additionally governed by
a Board, the majority of whose officers are citizens of the United
States; or
(2) A for-profit corporation, association, or other legal entity
created or organized under the laws of the United States, or of any
state, the District of Columbia, or a territory or outlying possessions
of the United States, whose principal place of business is located in
the United States, and
(i) Whose shares or voting interests are publicly traded on a U.S.
stock exchange; or
(ii) A majority of whose officers, a majority of whose
shareholders, and a majority of the members of its Board of Directors
are citizens of the United States and collectively hold a majority of
the shares or stock (i.e., the controlling interest); or
(3) A non-profit corporation, association, or other legal entity
created or organized under the laws of the United States, or any state,
the District of Columbia, or any territory or outlying possessions of
the United States; and
(i) Which is qualified with the Internal Revenue Service as a tax-
exempt organization pursuant to section 501(c)(3) of the Internal
Revenue Code; and
(ii) Whose principal place of business is located in the United
States; and
(iii) A majority of whose officers and a majority of whose members
of its Board of Directors, Board of Trustees or other like body vested
with its management are citizens of the United States; or
(4) An accredited college, university, or other post-secondary
academic institution in the United States created or organized under
the laws of the United States, or of any state, county, municipality,
or other political subdivision thereof, the District of Columbia, or of
any territory or outlying possession of the United States; or
(5) An agency of the United States, or of any state or local
government, the District of Columbia, or any territory or outlying
possession of the United States.
Citizen of the United States (individual). A person who:
(1) Is a citizen or national of the United States or any of its
territories or outlying possessions; or
(2) Has been lawfully admitted for permanent residence, within the
meaning of section 101(a)(20) of the Immigration and Nationality Act (8
U.S.C. 1101).
Clerical work. Routine administrative work generally performed in
an office or office-like setting, such as data entry, filing, typing,
mail sorting and distribution, and other general administrative or
support office tasks.
Consortium. A not-for-profit corporation, partnership, joint
venture or other association formed by two or more accredited academic
institutions for the purpose of sharing educational resources,
conducting research, and/or developing new programs to enrich or expand
the opportunities offered by its members. An academic institution in
the United States that participates in a consortium is not barred from
having separate exchange visitor program designations of its own.
Country of nationality or last legal permanent residence. The
country of which the exchange visitor is a national at the time status
as an exchange visitor was acquired or the last foreign country in
which the visitor had a legal permanent residence before acquiring
status as an exchange visitor.
Cross-cultural activity. An activity designed to promote exposure
and interchange between exchange visitors and Americans so as to
increase their understanding of each other's society, culture, and
institutions.
Department of State. The United States Department of State.
Designation. The written authorization given by the Department of
State to an exchange visitor program applicant to conduct an exchange
visitor program as a sponsor.
Employee. An individual who provides services or labor for an
employer for wages or other remuneration. A third party, as defined in
this section, or an independent contractor, as defined in 8 CFR
274a.1(j), is not an employee.
Exchange visitor. A foreign national who is in the United States
temporarily on a non-immigrant J-1 visa to participate in an exchange
visitor program. The term does not include the accompanying spouse and
dependents of the exchange visitor.
Exchange Visitor Program. The international exchange program
administered by the Department of State to implement the Act by means
of educational and cultural exchange programs. When ``exchange visitor
program'' is set forth in lower case, it refers to the individual
program of a sponsor that has been designated by the Department of
State.
Exchange visitor's government. The government of the exchange
visitor's country of nationality or last legal permanent residence.
Financed directly. Financed in whole or in part by the U.S.
Government or the exchange visitor's government with funds contributed
directly to the exchange visitor in connection with his or her
participation in an exchange visitor program.
Financed indirectly. (1) Financed by an international organization
with funds contributed by either the United States or the exchange
visitor's government for use in financing international educational and
cultural exchanges, or
(2) Financed by an organization or institution with funds made
available by either the United States or the exchange visitor's
government for the purpose of furthering international educational and
cultural exchange.
[[Page 48182]]
Foreign Medical Graduate. A foreign national that:
(1) Is a graduate of a school of medicine that is accredited by a
body or bodies approved for the purpose by the Secretary of Education
(regardless of whether such school of medicine is in the United States)
and entering the United States for the purpose of seeking to pursue
graduate medical education or training at accredited schools of
medicine or scientific institutions; or, for the purposes of
observation, consultation, teaching, or research; or,
(2) Has passed Parts I and II of the National Board of Medical
Examiners Examination (or an equivalent examination as determined by
the Secretary of Health and Human Services), has competency in oral and
written English, will be able to adapt to the educational and cultural
environment in which he or she will be receiving his/her education or
training, and has adequate prior education and training to participate
satisfactorily in the program for which he/she is coming to the United
States.
Form DS-2019. A Certificate of Eligibility for Exchange Visitor (J-
1) Status, a controlled document of the Department of State.
Form DS-3036. Exchange Visitor Program Application, a controlled
document of the Department of State.
Form DS-3037. Update of Information on a Sponsor's Exchange Visitor
Program. A controlled document of the Department of State.
Form DS-7002. Training/Internship Placement Plan (T/IPP). A
controlled document of the Department of State. This Form is for use in
connection with the Trainee, Intern and Student Intern categories only.
Full course of study. Full-time enrollment in an academic program
of classroom participation and study and/or doctoral thesis research at
an accredited academic institution as follows:
(1) Secondary school students must satisfy the attendance and
course requirements of the state in which the school they attend are
located; and
(2) College and university students must register for and complete
a full course of study, as defined by the accredited academic
institution in which the student is registered, unless exempted in
accordance with Sec. 62.23(e).
Graduate medical education or training. Participation in a program
in which a foreign medical graduate will receive graduate medical
education or training, which generally consists of a residency or
fellowship program involving health care services to patients, but does
not include programs involving observation, consultation, teaching or
research in which there is no or only incidental patient care. This
program may consist of a medical specialty, a directly related medical
subspecialty, or both.
Home-country physical presence requirement. The requirement that an
exchange visitor (J visa) who is within the purview of section 212(e)
of the Immigration and Nationality Act, as amended, and Public Law 94-
484 (substantially quoted in 22 CFR 41.63) must reside and be
physically present in the country of nationality or last legal
permanent residence for an aggregate of at least two years following
departure from the United States before the exchange visitor is
eligible to apply for an immigrant visa or permanent residence, a non-
immigrant H visa as a temporary worker or trainee, or a non-immigrant L
visa, as an intracompany transferee, or a non-immigrant H or L visa as
the spouse or minor child of a person who has been granted status in H
or L non-immigrant classification as a temporary worker or trainee or
an intracompany transferee. See section 101(a)(15)(H) or section
101(a)(15)(L) of the Immigration and Nationality Act, as amended.
Host organization. A third party in the United States that conducts
training and internship programs on behalf of a designated sponsor
pursuant to an executed written agreement between the two parties.
Internship program. A structured and guided work-based learning
program as set forth in an individualized T/IPP that reinforces an
intern's academic study; recognizes the need for work-based experience;
provides on-the-job exposure to American techniques, methodologies, and
technologies; and enhances the intern's knowledge of American culture
and society.
J visa. A non-immigrant visa issued pursuant to 8 U.S.C.
1101(a)(15)(J). A J-1 visa is issued to an exchange visitor. A J-2 visa
is issued to the exchange visitor's accompanying non-immigrant
immediate family, spouse and minor dependent children.
Office of Designation. The Department of State office to which the
Secretary of State delegated the authority to administer the Exchange
Visitor Program.
On-the-job training. An individual's observation of and
participation in given tasks demonstrated by experienced workers for
the purpose of acquiring competency in such tasks.
Prescribed course of study. A non-degree academic program with a
specific educational objective. Such course of study may include
intensive English language training, classroom instruction, research
projects, and/or academic training to the extent permitted in Sec.
62.23.
Reciprocity. The participation of a U.S. citizen in an educational
and cultural program in a foreign country in exchange for the
participation of a foreign national in the Exchange Visitor Program.
Where used herein, ``reciprocity'' will be interpreted broadly; unless
otherwise specified, reciprocity does not require a one-for-one
exchange or that exchange visitors be engaged in the same activity.
Responsible Officer (``RO''). An employee or officer of a
designated sponsor who has been nominated by the sponsor, and approved
by the Department of State to carry out the duties outlined in Sec.
62.11. An RO must be a citizen of the United States or a lawful
permanent resident of the United States.
Secretary of State. The Secretary of State or an employee of the
U.S. Department of State acting under a delegation of authority from
the Secretary of State.
SEVIS (Student and Exchange Visitor Information System). The
statutorily mandated system designed to collect information on non-
immigrant students (F and M visa), exchange visitors (J visa), and
their spouses and dependents (F-2, M-2, and J-2). SEVIS enables schools
and program sponsors to electronically transmit information and event
notifications, via the Internet, to the Department of Homeland Security
and the Department of State throughout a student's or exchange
visitor's stay in the United States.
Site of activity. The physical, geographic location(s) where an
exchange visitor participates in his or her exchange program. If a
program takes place at more than one location, the sponsor must list
all locations in SEVIS and indicate as ``primary'' the one at which the
exchange visitor is currently located.
Sponsor. A legal entity designated by the Secretary of State to
conduct an exchange visitor program.
Staffing/employment agency. A U.S. business that hires individuals
for the express purpose of supplying workers to other businesses.
Typically, the other businesses where workers are placed pay an hourly
fee per employee to the staffing/employment agency, of which the worker
receives a percentage.
Student internship program. A structured and guided work-based
learning program as set forth in an individualized Form DS-7002 that
fulfills a student's academic degree requirements, recognizes the need
for
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work-based experience, provides on-the-job exposure to American
techniques, methodologies, and technologies, and enhances a student
intern's knowledge of American culture and society.
Third party. A person or legal entity with whom a sponsor has
executed a written agreement for the person or entity to act on behalf
of the sponsor in the conduct of the sponsor's exchange visitor
program. A third party under contract with a sponsor may not
subcontract or delegate its Exchange Visitor Program obligations to
another party. Sponsors are required to take all reasonable steps to
ensure that third parties know and comply with all applicable
provisions of these regulations. The Department of State imputes to
sponsors all actions a third party takes in acting on their behalf.
Training program. A structured and guided work-based learning
program, as set forth in Form DS-7002, that develops new and advanced
skills in a trainee's occupational field through exposure to American
techniques, methodologies, and technologies; and enhances a trainee's
understanding of American culture and society.
Validation. The process by which a Responsible Officer or Alternate
Responsible Officer updates a SEVIS record of an exchange visitor (and
accompanying spouse and dependents, if any) to show that the
prospective exchange visitor (and accompanying spouse and dependents,
if any) entered the United States, reported to his or her sponsor, and
is participating in the exchange visitor program, at the site of
activity identified on the Form DS-2019.
Sec. 62.3 Sponsor eligibility.
(a) Entities eligible to apply for designation as a sponsor of an
exchange visitor program are the following:
(1) U.S. local, state and federal government agencies to include
the District of Columbia; and government agencies of any U.S.
territories and outlying possessions;
(2) International agencies or organizations of which the United
States is a member and that have an office in the United States; or
(3) Reputable organizations that are ``citizens of the United
States,'' as that term is defined in Sec. 62.2.
(b) To be eligible for designation as a sponsor, an entity is
required to:
(1) Demonstrate, to the Department of State's satisfaction, its
ability to comply and remain in continual compliance with all
applicable provisions of 22 CFR Part 62;
(2) Meet at all times its financial obligations and
responsibilities attendant to successful sponsorship of its exchange
visitor program;
(3) Demonstrate that the organization or its proposed RO has no
fewer than three years experience in international exchange; and
(4) Has successfully completed a site visit conducted by the
Department of State or its agent, the cost for which will be borne by
the applicant.
Sec. 62.4 Categories of participant eligibility.
Sponsors select foreign nationals to participate in exchange
visitor program(s) in the United States. Participation is limited to
foreign nationals who meet the following criteria for each of the
following categories:
(a) Student. A foreign national who is:
(1) Studying in the United States and:
(i) Pursuing a full course of study at a secondary accredited
academic institution;
(ii) Pursuing a full course of study leading to or culminating in
the award of a U.S. degree from a post-secondary accredited academic
institution; or
(iii) Engaged full-time in a prescribed course of study of up to 24
months (non-degree) duration conducted by:
(A) A post-secondary accredited academic institution; or
(B) An institute approved by or acceptable to the post-secondary
accredited academic institution, where the student is to be enrolled
upon completion of the non-degree program;
(2) Engaged in academic training as permitted in Sec. 62.23(f);
(3) Engaged in English language training at:
(i) A post-secondary accredited academic institution, or
(ii) An institute approved by or acceptable to the post-secondary
accredited academic institution where the college/university student is
to be enrolled upon completion of the language training; or
(4) Engaged full-time in a student internship program conducted by
a post-secondary accredited educational institution.
(b) Short-term scholar. A foreign national who is a professor,
research scholar, or person with similar education or accomplishments
who enters the United States on a short-term visit for the purpose of
lecturing, observing, consulting, training, or demonstrating special
skills at research institutions, museums, libraries, post-secondary
accredited academic institutions, or similar types of institutions.
(c) Trainee. A foreign national participating in a structured and
guided work-based training program in his or her specific occupational
field and who has either:
(1) A degree or professional certificate from a foreign post-
secondary academic institution and at least one year of prior related
work experience in his or her occupational field acquired outside the
United States; or
(2) Five years of work experience in his or her occupational field
acquired outside the United States. Training is limited to the
occupational category or categories for which a sponsor has obtained
designation.
(d) Teacher. A foreign national with a minimum of three years of
teaching experience for the purpose of teaching full-time in a primary
or secondary accredited academic institution.
(e) Professor. A foreign national whose primary purpose is
teaching, lecturing, observing, or consulting at post-secondary
accredited academic institutions, museums, libraries, or similar types
of institutions. A professor may also conduct research, unless
disallowed by the sponsor.
(f) Research scholar. A foreign national whose primary purpose is
conducting research, observing, or consulting in connection with a
research project at research institutions, corporate research
facilities, museums, libraries, post-secondary accredited academic
institutions, or similar types of institutions. A research scholar may
also lecture, unless disallowed by the sponsor.
(g) Specialist. A foreign national who is an expert in a field of
specialized knowledge or skills who enters the United States for the
purpose of observing, consulting, or demonstrating special knowledge or
skills.
(h) Other person of similar description. A foreign national of
description similar to those set forth in paragraphs (a) through (g) of
this section coming to the United States as a participant in an
exchange visitor program designated by the Department of State under
this category, for the purpose of teaching, instructing or lecturing,
studying, observing, conducting research, consulting, demonstrating
special skills, or receiving training. The programs designated by the
Department of State in this category consist of:
(1) Alien physician. A foreign national who is a graduate of a
school of medicine who is coming to the United States under a program
in which he or she will receive graduate medical education or training
conducted by accredited U.S. schools of medicine or scientific
institutions.
(2) International visitor. A foreign national who is a recognized
or
[[Page 48184]]
potential leader, selected by the Department of State for the purpose
of consulting, observing, conducting research, training, or
demonstrating special skills in the United States.
(3) Government visitor. A foreign national who is an influential or
distinguished person, selected by a U.S. federal, state, or local
government agency for the purpose of consulting, observing, training,
or demonstrating special skills in the United States.
(4) Camp counselor. A foreign national selected to be a counselor
in a summer camp in the United States (e.g., during the U.S. summer
months).
(5) Au pair. A foreign national who comes to the United States for
a period of one year for the purpose of residing with an American host
family and participate directly in their home life, while providing
limited childcare services, and fulfilling an educational requirement.
(6) Summer Work and Travel. A foreign national who is a bona fide
foreign post-secondary student currently enrolled in and actively
pursuing a degree or a full-time course of study at a foreign
accredited post-secondary academic institution whose purpose is work
and travel in the United States for up to four months during his or her
summer vacation.
(7) Intern. A foreign national participating in a structured and
guided work-based internship program in his or her specific academic
field and who is either:
(i) Currently enrolled full-time in and actively pursuing studies
at a degree- or certificate-granting post-secondary academic
institution outside the United States; or
(ii) Graduated from such an institution no more than 12 months
prior to the exchange visitor program begin date reflected on the Form
DS-2019.
Sec. 62.5 Application procedure.
(a) An entity meeting the eligibility requirements set forth in
Sec. 62.3 may apply to the Department of State for designation as an
Exchange Visitor Program sponsor. Designation will not be considered if
an applicant cannot meet the eligibility requirements set forth in
Sec. 62.3. An applicant must first complete and submit Form DS-3036 in
SEVIS. The complete application must consist of:
(1) A completed copy of Form DS-3036 signed by the applicant's
Chief Executive Officer, President, or equivalent;
(2) Required supporting documentation and certifications as set
forth herein; and
(3) Confirmation of payment of the required fee through pay.gov as
set forth in Sec. 62.17.
(b) The complete application must set forth, in detail, the
applicant's proposed exchange program activity and must demonstrate, to
the Department of State's sole satisfaction, the applicant's ability to
meet the designation requirements set forth in Sec. 62.3 and the
sponsor obligations set forth in Sec. 62.9.
(c) Applications must be accompanied by the following supporting
documents:
(1) Evidence of legal status of the applicant as a U.S.
corporation, partnership, or other legal entity (e.g., charter, proof
of incorporation, partnership agreement, as applicable) as set forth in
Sec. 62.3(a);
(2) Evidence of experience in operating a successful business,
including a minimum of three years of experience in international
exchange by the organization or by the proposed RO;
(3) Evidence of the applicant's financial viability as set forth in
Sec. 62.9(e) and any supplemental or explanatory financial information
the Department of State may request.
(i) An established organization must present a current audit report
with audit notes prepared by an independent certified public accounting
firm.
(ii) A newly formed organization must present a compilation (a
balance sheet, statement of cash flows and all disclosures, revenues,
expenditures, and notes to financial statements) prepared by an
independent certified public accounting firm demonstrating that the
organization has been capitalized with sufficient funds to cover
general operating expenses and costs associated with an exchange;
(iii) The Department of State may, in its sole discretion,
condition its approval of the acceptance of full financial
responsibility by the non-governmental sponsor by requiring such
sponsor to secure a payment bond in favor of the Department
guaranteeing the sponsor's obligations hereunder.
(4) A current Certificate of Good Standing or Certificate of
Existence;
(5) Employer Identification Number (EIN) and Date of Issuance;
(6) A current Business Information Report on the applicant
organization from Dun & Bradstreet;
(7) Evidence of current accreditation if the applicant is a
secondary or post-secondary academic institution;
(8) Evidence of current licensure, if required by local, state, or
federal law, to carry out the activity for which it is seeking
designation;
(9) A statement signed by the Chief Executive Officer, President,
or equivalent certifying that:
(i) The applicant is a citizen of the United States as defined in
Sec. 62.2;
(ii) The proposed RO and all proposed ARO(s) are United States
citizens or lawful permanent residents of the United States;
(iii) The sponsor has completed a criminal background check on the
potential RO and all ARO(s) and has determined their suitability for
these positions; and
(iv) The RO will be provided sufficient staff and resources to
fulfill his or her duties and obligations on behalf of the applicant.
(10) Evidence that the proposed RO and ARO(s) are citizens of the
United States or lawful permanent residents of the United States (e.g.,
copy of passport, birth certificate);
(11) A completed SEVIS generated Citizenship Certification for the
proposed RO and all proposed ARO(s); and
(12) Such additional information or documentation that the
Department of State may deem necessary to evaluate the application.
Sec. 62.6 Designation.
(a) Upon its favorable determination that an applicant meets all
statutory and regulatory requirements, the Department of State may, in
its sole discretion, designate the applicant as an Exchange Visitor
Program sponsor. Initial designations are effective for one or two
years at the sole discretion of the Department. The initial designation
period for a newly formed organization will be limited to one year.
(b) Designation will confer upon a sponsor the authority to engage
in one or more activities specified in Sec. 62.4. A sponsor may engage
only in the activity or activities specifically authorized in its
written letter of designation.
(c) Designations are not transferable or assignable.
Sec. 62.7 Redesignation.
(a) A sponsor must file for redesignation no more than six months
and no fewer than three months before the designation expiration date
as set forth in the sponsor's letter of designation or its most recent
letter of redesignation. Failure to apply for redesignation according
to this schedule is cause for termination pursuant to Sec. 62.60(g).
(b) A sponsor seeking redesignation as an Exchange Visitor Program
sponsor must first complete and submit Form DS-3036 in SEVIS. The
complete application must consist of:
(1) A completed copy of Form DS-3036, signed by the sponsor's Chief
Financial Officer, President or equivalent;
[[Page 48185]]
(2) Required supporting documentation and certifications as set
forth herein; and
(3) Confirmation of payment of the required non-refundable fee
through pay.gov as set forth in Sec. 62.17.
(c) The complete application must include the following supporting
documentation and certifications:
(1) A current Business Information Report from Dun & Bradstreet on
the sponsor;
(2) A list of all third parties (foreign and domestic) with whom
the sponsor has executed a written agreement for the person or entity
to act on behalf of the sponsor in the conduct of the sponsor's
exchange visitor program and, if requested by the Department of State,
a separate certification that the sponsor has obtained a Dun &
Bradstreet Business Information Report for each third party. The list
should include the name of the third party organization, address of the
third party organization, purpose for agreement, and contact
information;
(3) A copy of the most recent year-end financial statements;
(4) A copy of the most recent letter of accreditation if the
sponsor is a secondary or post-secondary academic institution;
(5) A list of the names, addresses and citizenship of the current
members of its Board of Directors or the Board of Trustees or other
like body, vested with the management of the organization or
partnership, and/or the percentage of stocks/shares held, as
applicable;
(6) For a non-profit organization, a signed copy of the sponsor's
most recent Form 990 filed with the Internal Revenue Service;
(7) Such additional information or documentation that the
Department of State may request;
(8) A statement signed by the Chief Executive Officer, President,
or equivalent certifying that the sponsor has completed a criminal
background check on the RO and all AROs and has determined their
suitability for these positions; and
(9) Such additional information or documentation that the
Department of State may deem necessary to evaluate the application.
(d) Upon its favorable determination that a sponsor meets all
statutory and regulatory requirements, the Department of State may, in
its sole discretion, redesignate the organization as an Exchange
Visitor Program sponsor for one or two years.
Sec. 62.8 General program requirements.
(a) Size of program. A sponsor, other than a federal government
agency, must have no fewer than five actively participating exchange
visitors during the annual reporting cycle (e.g., academic, calendar or
fiscal) as stated in its letter of designation or redesignation. The
Department of State may, in its sole discretion and for good cause
shown, waive this requirement.
(b) Minimum duration of program. A sponsor, other than a federal
government agency, must provide each exchange visitor, except those
sponsored in the short-term scholar category, with a minimum period of
participation in the United States of no less than three weeks.
(c) Reciprocity. In conducting its exchange visitor program, a
sponsor must make a good faith effort to develop and implement, to the
fullest extent possible, a reciprocal exchange of persons.
(d) Cross-cultural activities. A sponsor must:
(1) Offer or make available to exchange visitors and the
accompanying spouse and dependents, if any, a variety of appropriate
cross-cultural activities. The extent and type of the cross-cultural
activities will be determined by the needs and interests of the
particular category of exchange visitor. A sponsor will be responsible
for determining the appropriate type and number of such cross-cultural
programs. The Department of State encourages sponsors to give their
exchange visitors the broadest exposure to American society, culture
and institutions; and
(2) Encourage exchange visitors to participate voluntarily in
activities that are for the purpose of sharing the language, culture,
or history of their home country with Americans, provided such
activities do not delay the completion of the exchange visitors'
program.
Sec. 62.9 General obligations of sponsors.
(a) Adherence to Department of State regulations. A sponsor is
required to adhere to all regulations set forth in this Part. A sponsor
who willfully or negligently fails to comply will be subject to the
sanctions set forth in Sec. 62.50 or termination as set forth in Sec.
62.60.
(b) Legal status. A sponsor must maintain legal status or its
designation will terminate pursuant to Sec. 62.60(e). A sponsor's
change in legal status (e.g., from partnership to corporation, non-
profit to for-profit) requires the submission of a new application for
designation of the successor legal entity within 45 days of the change
in legal status.
(c) Accreditation and licensure. A sponsor must remain in
compliance with all local, state, and federal laws, and professional
requirements necessary to carry out the activities for which it is
designated, including accreditation and licensure, if applicable.
(d) Representations and disclosures. A sponsor must:
(1) Provide accurate and complete information, to the extent
lawfully permitted, to the Department of State and the Department of
Homeland Security regarding its exchange visitor program, exchange
visitors, and accompanying spouse and dependents (if any);
(2) Provide accurate information to the public when advertising its
exchange visitor program(s) or responding to public inquiries;
(3) Provide informational materials to prospective exchange
visitors, and host families, if applicable, that clearly explain the
activities, costs, conditions, and restrictions of its exchange visitor
program(s);
(4) Not use the program number(s) assigned by the Department of
State at time of designation on any advertising materials or
publications intended for general circulation, including sponsor Web
sites; and
(5) Not represent that its exchange visitor program is endorsed,
sponsored, or supported by the Department of State or the U.S.
Government, except for U.S. Government sponsors or exchange visitor
programs financed directly by the U.S. Government to promote
international educational exchanges. A sponsor may, however, represent
that it is designated by the Department of State as a sponsor of an
exchange visitor program.
(e) Financial responsibility. (1) A sponsor must maintain the
financial capability to meet at all times its financial obligations and
responsibilities attendant to successful sponsorship of its exchange
visitor program.
(2) The Department of State may require a non-government sponsor to
provide evidence satisfactory to the Department that funds necessary to
fulfill all obligations and responsibilities attendant to sponsorship
of its exchange visitor program are readily available and in the
sponsor's control, including such supplementary or explanatory
financial information as the Department may deem appropriate.
(3) The Department of State may require a non-government sponsor to
secure a payment bond in favor of the Department guaranteeing all
financial obligations arising from the sponsorship its exchange visitor
program.
[[Page 48186]]
(f) Staffing and support services. A sponsor must ensure that:
(1) Adequate staffing and sufficient support services are provided
to administer its exchange visitor program; and
(2) Its employees, officers, agents, independent contractors, third
parties, volunteers or other individuals associated with the
administration of its exchange visitor program are adequately
qualified, appropriately trained, and comply with the Exchange Visitor
Program regulations and immigration laws pertaining to the
administration of its exchange visitor program(s).
(g) Appointment of Responsible Officers and Alternate Responsible
Officers. (1) A sponsor must appoint a RO and a minimum of one (1) or a
maximum of ten (10) AROs to assist the RO in performing the duties set
forth at Sec. 62.11. A sponsor must ensure that the potential RO and
AROs have undergone a criminal background check to determine their
suitability for these positions. ROs and AROs must be citizens or
lawful permanent residents of the United States.
(2) ROs and AROs must be employees or officers of the designated
sponsor. Upon written sponsor request, the Department of State may, in
its sole discretion, authorize the appointment of an individual who is
not an employee or officer to serve as an ARO.
(3) In the event of the departure of a RO or ARO, the sponsor must
file a request for the approval of a replacement in SEVIS and forward
the required documentation to the Department of State within ten (10)
calendar days from the date of the RO's or ARO's departure.
(4) Requests to replace the RO or add an ARO must be submitted in
SEVIS and a signed Form DS-3037 mailed to the Department of State with
the required completed Citizenship Certification, along with
certification that the individual has undergone a criminal background
check.
(5) The Department of State reserves the right, in its sole
discretion, to deny the appointment of an RO or ARO.
Sec. 62.10 Program administration.
A sponsor is responsible for the effective administration of its
exchange visitor program(s). These responsibilities include:
(a) Selection of exchange visitors. A sponsor must establish and
utilize a method to screen and select prospective exchange visitors to
ensure that they are eligible for program participation, and that:
(1) The program is suitable to the exchange visitor's background,
needs, and experience; and
(2) The exchange visitor possesses sufficient proficiency in the
English language as measured by an objective measurement of English
language proficiency to participate successfully in his or her exchange
visitor program.
(b) Pre-arrival information. A sponsor must provide exchange
visitors with pre-arrival materials including, but not limited to,
information on:
(1) The purpose of the Exchange Visitor Program;
(2) The home-country physical presence requirement (e.g., section
212(e) of the Immigration and Nationality Act, as amended, 8 U.S.C.
1182, set forth substantially at 22 CFR 41.63);
(3) Travel and entry into the United States (e.g., procedures to be
followed by exchange visitors and accompanying spouse and dependents,
if any, in obtaining a visa for entry to the United States, paying the
SEVIS fee, procedures for obtaining a visa including the information/
documentation needed for the interview; travel arrangements to the
United States, what to expect at the port of entry, including the
necessity of having and presenting their travel documents at the port
of entry);
(4) Housing;
(5) A breakdown of all fees to be paid by potential exchange
visitors (i.e., paid to the sponsor or a third party);
(6) Other costs that the exchange visitor will likely incur (e.g.,
insurance, living expenses, transportation expenses) while in the
United States;
(7) Health care and insurance requirements for exchange visitors
and their accompanying spouse and dependents, as applicable;
(8) Arrival notification requirements; e.g., procedures that
exchange visitors, spouses and dependents are to follow upon entry into
the United States in reporting their arrival to the sponsor and
reporting to the location of their program; and
(9) Other information that will assist exchange visitors to prepare
for their stay in the United States (e.g., how and when to apply for a
social security number, if applicable; how to apply for a driver's
license; how to open a bank account; how to remain in lawful non-
immigrant status).
(c) Orientation. A sponsor must offer an appropriate orientation
for all exchange visitors. Sponsors are encouraged to provide
orientation for the exchange visitor's immediate family, especially for
those exchange visitors who are expected to be in the United States for
more than one year. Orientation must include, but is not limited to,
information concerning:
(1) Life and customs in the United States;
(2) Local community resources (e.g., public transportation, medical
centers, schools, libraries, recreation centers, and banks), to the
fullest extent possible;
(3) Available healthcare, emergency assistance, and health
insurance coverage;
(4) A description of the exchange visitor program in which the
exchange visitor is participating (e.g., information on the length and
location of the program, a summary of the significant components of the
program, and any stipend (payment or wage) an exchange visitor will
receive);
(5) Sponsor rules that the exchange visitors are required to follow
while participating in their exchange visitor program;
(6) Name and address of the sponsor and the name, e-mail address
and telephone number of the RO and ARO(s);
(7) The Department of State's Office of Designation's address,
telephone number, facsimile number, Web site and e-mail address, and a
copy of the Exchange Visitor Program brochure or other Department
materials as appropriate or required; and
(8) The requirement that an exchange visitor must promptly report
to the sponsor or sponsor designee any changes in his or her telephone
number, e-mail address, actual and current U.S. address, and site of
activity (if permitted to change without sponsor authorization).
(d) Monitoring of exchange visitors. A sponsor must monitor,
through its employees, officers, agents, or third parties, the exchange
visitor's participation in its exchange visitor program(s). A sponsor
must:
(1) Ensure that the activity in which the exchange visitor is
engaged is consistent with the category and activity listed on the
exchange visitor's Form DS-2019;
(2) Monitor the physical location (site of activity), and the
progress and welfare of the exchange visitor to the extent appropriate
for the category;
(3) Require that exchange visitors report to the sponsor within ten
(10) calendar days, any changes in their telephone numbers, e-mail
addresses, actual and current U.S. addresses (e.g., physical
residence), and site(s) of activity address (if permitted to change
without sponsor authorization);
(4) Report in SEVIS within ten (10) calendar days of notification
by an exchange visitor any change in the
[[Page 48187]]
exchange visitor's actual and current U.S. address, telephone number,
e-mail addresses, and/or primary site of activity (if the exchange
visitor is permitted) to make such change without prior sponsor
authorization;
(5) Report the actual and current U.S. address and e-mail address
for each accompanying spouse and dependents.
(6) Report Employment Authorization Document (EAD) information in
SEVIS for the accompanying spouse and each dependent, if applicable, by
entering the EAD number, validation and expiration dates as issued by
the Department of Homeland Security.
(e) Requests by the Department of State. A sponsor must, to the
extent lawfully permitted, furnish the Department within a reasonable
time all information, reports, documents, books, files, and other
records or information requested by the Department on all matters
related to its exchange visitor program. All submissions relative to a
request must contain the sponsor's program number.
(f) Inquiries and investigations. A sponsor must cooperate with any
inquiry or investigation that may be undertaken by the Department of
State or the Department of Homeland Security.
(g) Retention of records. A sponsor must retain all records related
to its exchange visitor program and its participants (to include
accompanying spouse and dependents, if any) for a minimum of three
years following the completion of each participant's exchange visitor
program.
Sec. 62.11 Duties of Responsible Officers and Alternate Responsible
Officers.
The RO must train and supervise AROs and ensure that these
officials are in compliance with the Exchange Visitor Program
regulations. ROs and AROs must:
(a) Be thoroughly familiar with the Exchange Visitor Program
regulations, relevant immigration laws and all federal and state
regulations pertaining to the administration of its exchange visitor
program(s), including the Department of State's and the Department of
Homeland Security's policies, manuals, instructions, guidance and SEVIS
operations relevant to the Exchange Visitor Program;
(b) Ensure that the exchange visitor obtains sufficient advice and
assistance to facilitate the successful completion of his or her
exchange visitor program;
(c) Conduct all official communications relating to their sponsor's
exchange visitor program with the Department of State and the
Department of Homeland Security. A sponsor must include its exchange
visitor program number on all correspondence submitted to the
Department of State and to the Department of Homeland Security;
(d) Ensure that sponsor spam filters do not block reception of
SEVIS or Department of State and Department of Homeland Security
notices; and
(e) Control and issue Forms DS-2019 as set forth in Sec. 62.12.
Sec. 62.12 Control of Forms DS-2019.
(a) Issuance of Forms DS-2019. A sponsor must:
(1) Ensure that only the RO and AROs have access to SEVIS;
(2) Ensure that information input into SEVIS is accurate, current,
and updated pursuant to regulations herein; and
(3) Issue Forms DS-2019 only for the following authorized purposes:
(i) To facilitate the initial entry of the exchange visitor and
accompanying spouse and dependents, if any, into the United States;
(ii) To extend the duration of participation of an exchange
visitor, when permitted by the regulations;
(iii) To facilitate program transfers, when permitted by the
regulations and/or authorized in writing by the Department of State;
(iv) To replace lost, stolen, or damaged Forms DS-2019;
(v) To facilitate the re-entry of an exchange visitor and
accompanying spouse and dependents, if any, who travel outside the
United States during the exchange visitor's program;
(vi) To facilitate a change of category, when permitted by the
Department of State;
(vii) To update information when significant changes take place in
regard to the exchange visitor's program (e.g., a substantial change in
funding or a change in the primary site of activity or actual and
current U.S. address);
(viii) To facilitate the correction of a minor or technical
infraction; or
(ix) To facilitate a ``reinstatement'' or a ``reinstatement update
SEVIS status'' when permitted by the Department of State.
(b) Verification. (1) Prior to issuing Forms DS-2019, a sponsor
must verify that each prospective exchange visitor:
(i) Is eligible, qualified, and accepted for the program in which
he or she will participate (e.g., has an offer letter from a camp, a
written acceptance from a secondary school);
(ii) Possesses adequate financial resources to participate in and
complete his or her exchange visitor program; and
(iii) Possesses adequate financial resources to support an
accompanying spouse and dependents, if any.
(2) The sponsor must ensure that:
(i) Only the RO or ARO who is physically present in the United
States or in a U.S. territory may print and sign Forms DS-2019; and
(ii) Only the RO or ARO whose name is printed on the Form DS-2019,
is permitted to sign the document. The Form DS-2019 must be signed in
blue ink to denote that it is the original document.
(iii) Sponsors for whom the RO or AROs have been found to have
violated the requirements of this section will be subject to sanctions
as set forth in Sec. 62.50(a)(2).
(c) Distribution of Forms DS-2019. The sponsor must ensure that
completed Forms DS-2019 are distributed directly to the exchange
visitor and accompanying spouse and dependents, if any, (or to an
individual designated by the exchange visitor) only via the sponsor's
employees, officers, agents, independent contractors, third parties,
volunteers, or other individuals acting on behalf of the sponsor in the
administration of its exchange visitor program.
(d) Allotment requests. (1) Annual Form DS-2019 allotment. A
sponsor must submit an electronic request via SEVIS to the Department
of State for an annual allotment of Forms DS-2019 based on the annual
reporting cycle (e.g., academic, calendar or fiscal year) stated in its
letter of designation or redesignation. A sponsor should allow up to
four weeks for the processing of the allotment request. The Department
has the sole discretion to determine the number of Forms DS-2019 to be
issued to a sponsor.
(2) Expansion of Program. A request for program expansion must
include information such as, but not limited to, the source of program
growth, staff increases, confirmation of adequately trained employees,
current financial information, additional overseas affiliates, and
explanations of how the sponsor will accommodate the anticipated
program growth. The Department of State will take into consideration
the current size of a sponsor's program and the projected expansion of
the program in the coming 12 months and may consult with the RO and/or
ARO prior to determining the number of Forms DS-2019 to issue to a
sponsor.
(e) Safeguards and controls. (1) ROs and AROs must secure their
SEVIS logon Identification Numbers (IDs) and passwords at all times
(i.e., not share IDs and passwords with any other person). Sponsors
whose ROs or AROs have been found to have willfully or negligently
violated the requirements of this section
[[Page 48188]]
will be subject to sanctions as set forth in Sec. 62.50(a).
(2) A sponsor, its employees, officers, agents, or other third
parties acting on behalf of the sponsor, may not forward to any
unauthorized party (via facsimile or other electronic means) copies or
Portable Document Formats (PDFs) of signed or unsigned Forms DS-2019.
However, a sponsor must forward such copies and/or PDFs to the
Department of State or the Department of Homeland Security upon
request.
(3) A sponsor must use the reprint function in SEVIS in the event
the exchange visitor's Form DS-2019 has been lost or stolen.
(4) Destroy damaged and unusable Form DS-2019 on the sponsor's
premises after making a record of such forms (e.g., forms with errors
or forms damaged by a printer).
(5) Request exchange visitors and prospective exchange visitors to
return any unused Form DS-2019 sent to them.
Sec. 62.13 Notification requirements.
(a) Valid program status of exchange visitor. A sponsor must notify
the Department of State via SEVIS of the following:
(1) Validation of program participation. A sponsor must promptly
validate an exchange visitor's participation in his or her program and
accompanying spouse and dependents, if any. This will change the status
of the exchange visitor's SEVIS record from ``Initial'' to ``Active.''
SEVIS records with program durations of 30 days or more (e.g., the
period between the ``Program Begin Date'' to ``Program End Date'') must
be validated within 30 days following the ``Program Begin Date''
identified in SEVIS. SEVIS records with program durations that are less
than 30 days must be validated prior to the ``Program End Date''
reflected in SEVIS. Prior to validation, a sponsor may amend the
program start date and must update the SEVIS record to reflect the
actual and current U.S. address and site of activity in SEVIS. The
status of SEVIS records that are not validated according to this
schedule will automatically change to ``Invalid'' or ``No Show''.
(2) Failure of exchange visitor to begin program. A sponsor must
report in SEVIS, no later than 30 calendar days after the ``Program
Begin Date'' listed in SEVIS, the failure of an exchange visitor to
report to his or her sponsor upon entry in the United States (i.e.,
failure of exchange visitor to begin an exchange visitor program as
scheduled). This will change the status of the exchange visitor's SEVIS
record from ``Initial'' to ``No Show''.
(3) End of exchange visitor's program. A sponsor must report in
SEVIS any withdrawal from or early completion of an exchange visitor's
program that occurs prior to the ``Program End Date'' listed in SEVIS
on the exchange visitor's Form DS-2019. The sponsor must not alter the
``Program End Date'' field, but should enter the date of program
completion in the ``Effective Date of Completion'' field. This will
change the status of the exchange visitor's SEVIS record from
``Active'' to ``Inactive.'' Such notification in SEVIS ends a sponsor's
programmatic obligations to the exchange visitor and/or his or her
accompanying spouse and dependents.
(4) Accompanying spouse and dependent records. A sponsor must
report in SEVIS if an accompanying spouse and/or dependents depart from
the United States prior to the exchange visitor's departure date.
(5) Termination of an exchange visitor's program. A sponsor must
promptly report in SEVIS the involuntary termination of an exchange
visitor's program. The sponsor must not alter the ``Program End Date''
field, but should enter the date of program termination in the
``Effective Date of Termination'' field. This will change the status of
the SEVIS record from ``Active'' to ``Terminated''. Such notification
in SEVIS ends a sponsor's programmatic obligation to the exchange
visitor and spouse and dependents, if any, and prevents the sponsor
from thereafter extending the exchange visitor's duration of
participation, transferring the exchange visitor to another program, or
changing the exchange visitor's category. Sponsors must not terminate
the program of an exchange visitor who voluntarily ends his or her
program.
(b) Change of circumstance of an exchange visitor. A sponsor must
promptly notify the Department of State via SEVIS of any of the
following circumstances:
(1) Change in the actual and current U.S. address. A sponsor must
ensure that the actual and current U.S. addresses of an exchange
visitor are reported in SEVIS:
(i) A sponsor must update the actual and current U.S. address
information in SEVIS for an exchange visitor within 10 days of being
notified by an exchange visitor of a change in address. A sponsor who
is responsible for the placement or housing of such exchange visitors
must promptly update a change in the actual and current U.S. address in
SEVIS;
(ii) A sponsor must report the U.S. mailing address (i.e., provide
a P.O. Box number) in SEVIS in those limited cases where mail cannot be
delivered to the exchange visitor's actual and current U.S. address
(e.g., the exchange visitor resides in a campus setting);
(iii) If a U.S. mailing address is reported to SEVIS, a sponsor
must also maintain records in SEVIS of actual and current U.S.
addresses (e.g., dormitory, building and room number) for such exchange
visitors; and
(iv) Failure to update the actual and current U.S. addresses of
their exchange visitors as required, may be grounds for revocation of a
sponsor's exchange visitor program designation, as set forth in Sec.
62.50(a).
(2) Change in site of activity. A sponsor must report in SEVIS any
change to an exchange visitor's site of activity by entering the new
site within ten (10) calendar days of notification of such a change
where sponsor rules or regulations permit such a change. A sponsor must
promptly enter any change in the site of activity in those instances
where the sponsor is responsible for the placement. A sponsor must
identify the ``primary'' site of activity of an exchange visitor if
multiple sites of activity are reported in SEVIS.
(c) Change in sponsor's circumstance. A sponsor must report within
ten (10) days in SEVIS or directly to the Department of State, if
appropriate, any material changes to its exchange visitor program as
follows:
(1) Change of business and/or mailing address, telephone number,
facsimile number, or e-mail address;
(2) Change in the composition of the sponsor organization that
affects its U.S. citizenship status as defined in Sec. 62.2 which
includes a new Employment Identification Number (EIN);
(3) Change of RO or ARO;
(4) Major change of ownership or control of the sponsor's
organization as defined in Sec. 62.60(e);
(5) Change of the sponsor's principal place of business to a
location outside the United States;
(6) Change in financial circumstances that may render the sponsor
unable to comply with its obligations as set forth in Sec. 62.9(e);
(7) Loss of licensure or accreditation;
(8) Loss or theft of Forms DS-2019, in which case a sponsor must
notify the Department of State promptly by telephone (confirmed
promptly in writing by facsimile or e-mail) of the SEVIS identification
numbers of such Forms DS-2019 that have been lost or stolen;
(9) Any litigation related to a sponsor's exchange visitor program,
in which the sponsor or an exchange visitor is a named party;
[[Page 48189]]
(10) A decision by the sponsor to voluntarily cancel (withdraw) its
exchange visitor program designation; or,
(11) Any other material facts or events that may have an impact on
the sponsor's ability to properly administer or conduct its exchange
visitor program.
(d) Serious problem or controversy. A sponsor must inform the
Department of State on or before the next business day by telephone
(confirmed promptly in writing by facsimile or e-mail) of any serious
problem or controversy which could be expected to bring the Department,
the Exchange Visitor Program or the sponsor's exchange visitor program
into notoriety or disrepute.
Sec. 62.14 Insurance.
(a) A sponsor must require that all exchange visitors and their
accompanying spouse and dependents have insurance in effect that covers
the exchange visitors for sickness or accidents during the period of
time that they participate in the sponsor's exchange visitor program. A
sponsor may offer insurance, but is not required, to ensure that
exchange visitors have ``entry to exit'' coverage. The period of
required coverage is the actual duration of the exchange visitor's
participation in the sponsor's exchange visitor program. Minimum
coverage must provide:
(1) Medical benefits of at least $200,000 per accident or illness;
(2) Repatriation of remains in the amount of $25,000;
(3) Expenses associated with the medical evacuation of exchange
visitors to his or her home country in the amount of $50,000;
(4) Deductibles not to exceed $500 per accident or illness; and
(b) Insurance policies secured to fulfill the requirements of this
section:
(1) May require a waiting period for pre-existing conditions that
is reasonable as determined by current industry standards;
(2) May include provisions for co-insurance under the terms of
which the exchange visitor may be required to pay up to 25% of the
covered benefits per accident or illness; and
(3) Must not unreasonably exclude coverage for perils inherent to
the activities of the exchange program in which the exchange visitor
participates.
(c) Any policy, plan, or contract secured to fill the above
requirements must, at a minimum, be:
(1) Underwritten by an insurance corporation having an A.M. Best
rating of ``A-'' or above; an Insurance Solvency International, Ltd.
(ISI) rating of ``A-i'' or above; a Standard & Poor's Claims-paying
Ability rating of ``A-'' or above, a Weiss Research, Inc. rating of B+
or above, or such other rating as the Department of State may from time
to time specify; or
(2) Backed by the full faith and credit of the government of the
exchange visitor's home country; or
(3) Part of a health benefits program offered on a group basis to
employees or enrolled students by a designated sponsor; or
(4) Offered through or underwritten by a federally qualified Health
Maintenance Organization or eligible Competitive Medical Plan as
determined by the Centers for Medicare and Medicaid Services of the
U.S. Department of Health and Human Services.
(d) Federal, state or local government agencies; state colleges and
universities; and public community colleges may, if permitted by law,
self-insure any or all of the above-required insurance coverage.
(e) At the request of a non-governmental sponsor of an exchange
visitor program, and upon a showing that such sponsor has funds readily
available and under its control sufficient to meet the requirements of
this section, the Department of State may permit the sponsor to self-
insure or to accept full financial responsibility for such
requirements.
(f) The Department of State may, in its sole discretion, condition
its approval of self-insurance or the acceptance of full financial
responsibility by the non-governmental sponsor by requiring such
sponsor to secure a payment bond in favor of the Department
guaranteeing the sponsor's obligations hereunder.
(g) An accompanying spouse and/or dependent is required to be
covered by insurance in the amounts set forth in paragraph (a) of this
section. A sponsor must inform exchange visitors of this requirement,
in writing, in advance of the exchange visitor's arrival in the United
States.
(h) An exchange visitor who willfully fails to maintain the
insurance coverage set forth above while a participant in an exchange
visitor program or who makes material misrepresentations to the sponsor
concerning such coverage will be deemed to be in violation of these
regulations and will be subject to termination as a participant.
(i) A sponsor must terminate an exchange visitor's participation in
its program if the sponsor determines that the exchange visitor or any
accompanying spouse or dependent willfully fails to remain in
compliance with this section.
(j) To ensure coverage levels remain consistent with industry
standards, the Secretary may, at any time it is determined that the
minimum levels of coverage descried in Sec. 62.14 are not sufficient,
update minimum levels of coverage in guidance documents.
Sec. 62.15 Reporting requirements.
Sponsors must submit an annual report to the Department of State
which is to be generated through SEVIS. Such report must be filed on an
academic, calendar or fiscal year basis, as directed the Department of
State, and must contain the following:
(a) Program report and evaluation. A brief summary of the
activities in which exchange visitors were engaged, including an
evaluation of program effectiveness;
(b) Reciprocity. A description of the nature and extent of
reciprocity occurring in the sponsor's exchange visitor program during
the reporting year;
(c) Cross-cultural activities. A summary of the cross-cultural
activities provided for its exchange visitors during the reporting
year;
(d) Proof of insurance. Certification of compliance with insurance
coverage requirements set forth in Sec. 62.14.
(e) Certification. All annual reports must include the following
certification:
I have reviewed this report of my organization's operation of a
Department of State designated exchange visitor program and hereby
certify that adequate staff and resources are devoted to the
administration and oversight of this program and that internal
controls adequate to ensure regulatory compliance are in place.
(1) For exchange visitor programs classified as ``Government
Programs,'' this certification will be signed by the RO.
(2) For exchange visitor programs classified as P-1 or P-2
``Academic Programs,'' this certification will be signed by the
institution's Chief Financial Officer.
(3) For exchange visitor programs classified as P-3 and P-4
``Private Sector Programs,'' this certification will be signed by the
organization's Chief Financial Officer. In addition to the Annual
Report required above, all P-3 and P-4 ``Private Sector'' programs must
file a program specific management audit (in a format approved by the
Department of State).
(f) Program participation. A numerical count, by category, of all
exchange visitors participating in the sponsor's program for the
reporting year (active status).
[[Page 48190]]
Sec. 62.16 Employment.
(a) An exchange visitor may receive compensation from the sponsor
or the sponsor's appropriate designee for employment when such
activities are part of the exchange visitor's program.
(b) An exchange visitor who engages in unauthorized employment
shall be deemed to be in violation of his or her program status and is
subject to termination as a participant in an exchange visitor program.
(c) The acceptance of employment by an accompanying spouse or
dependent of an exchange visitor is governed by Department of Homeland
Security regulations. An exchange visitor must report to his or her
sponsor the Employment Authorization Document (EAD) number and the
validation and expiration dates of the authorized period of employment
for any accompanying spouse and each dependant. As required by Sec.
62.10(d)(6), sponsors must report accompanying spouse and dependant EAD
information in SEVIS.
Dated: September 16, 2009.
Stanley S. Colvin,
Deputy Assistant Secretary for Private Sector Exchanges, Bureau of
Educational and Cultural Affairs, Department of State.
[FR Doc. E9-22822 Filed 9-21-09; 8:45 am]
BILLING CODE 4710-05-P