[Federal Register: August 11, 2010 (Volume 75, Number 154)]
[Rules and Regulations]
[Page 48555-48562]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au10-7]
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DEPARTMENT OF STATE
22 CFR Part 62
RIN 1400-AC15
[Public Notice: 7114]
Exchange Visitor Program--Trainees and Interns
AGENCY: United States Department of State.
ACTION: Final rule.
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SUMMARY: On June 19, 2007, the Department published an interim final
rule amending its regulations regarding Trainees and Interns to, among
other things, eliminate the distinction between ``non-specialty
occupations'' and ``specialty occupations,'' establish a new internship
program, and modify the selection criteria for participation in a
training program.
This document confirms the Interim Final Rule as final and amends
the requirements to permit the use of telephone interviews to screen
potential participants for eligibility, to remove the requirement that
sponsors secure a Dun & Bradstreet report profiling companies with whom
a participant will be placed and also amends this provision to provide
clarification regarding the verification of Worker's Compensation
coverage for participants and use of an Employer Identification Number
to ascertain that a third-party host organization providing training is
a viable entity, and to clarify that trainees and interns may repeat
training and internship programs under certain conditions.
DATES: Effective September 10, 2010 this document confirms as final
with changes, the interim final rule (E7-11703) published on June 19,
2007 (72 FR 33669).
FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant
Secretary for Private Sector Exchange, U.S. Department of State, SA-5,
2200 C Street, NW., 5th Floor, Washington, DC 20522-0505; or e-mail at
JExchanges@state.gov.
SUPPLEMENTARY INFORMATION: The Department published a Notice of
Proposed Rulemaking (NPRM) on April 7, 2006 (71 FR 17768), followed by
the Interim Final Rule on June 19, 2007. Having thoroughly reviewed the
comments received, the Department has determined that it will, and
hereby does, adopt the Interim Final Rule with minor amendments to four
regulatory provisions to provide greater specificity regarding the
selection, screening, placement and monitoring of trainee and intern
participants.
Analysis of Comments
The Interim Final Rule addressed almost 1,600 comments received in
response to the NPRM. Subsequently, the Department received a total of
120 comments involving multiple provisions of the Interim Final Rule.
Of this total, 79 responses were identical form letters encouraged
through a writing campaign directed by a third party organization that
opposed the exclusion of trainees or interns from the field of
veterinary sciences. As explained in both the proposed and interim
final rules, the Department, as a matter of long established policy
does not support use of the J-1 visa for clinical patient care
including veterinary medicine. The sole exception to this policy are
foreign medical graduates entering the United States for the purpose of
graduate medical education of training. The activities undertaken by
Foreign Medical Graduates (FMG) are specifically authorized by statute
(The Mutual Educational and Cultural Exchange Act, as amended by the
Health Care Professions Act, Pub. L. 94-484). The remaining 41
responses were from Exchange Visitor Program sponsors and the general
public. The commenting parties addressed the following issues:
One comment was received recommending that the trainee and intern
categories be separated into two distinct categories and one comment
proposed a moratorium on all training programs. These two comments are
beyond the scope of the Interim Rule in that such action was not
proposed, nor is it current practice.
Six comments were received regarding Sec. 62.22(b)(1), all of
which were opposed to the requirement that internships must be related
to the students' fields of study; these comments recommended that the
Department eliminate this requirement. The Department has determined
that for participants to benefit from the Exchange Visitor Program, it
is essential that their training and internship programs be in their
fields of study, and that they are adequately advanced in their chosen
career fields to benefit from program participation. Otherwise, the
risk exists that persons participating in these internships could be
seen as a source of labor, rather than interns
[[Page 48556]]
gaining hands-on experience in their chosen career fields. This aspect
of this rulemaking is intended to correct potential deficiencies in
this exchange category identified by the United States Government
Accountability Office's (GAO) October 2005 report entitled, ``Stronger
Action Needed to Improve Oversight and Assess Risks of the Summer Work
and Travel and Trainee Categories of the Exchange Visitor Program.''
With respect to the importance of being adequately advanced in a career
field, as an example, the Department questions whether an undergraduate
with less than two semesters' credit in the field of education is
sufficiently advanced in his or her field to engage in a classroom-
based internship. Generally, it is common practice in the United States
higher education community to pursue such experience during one's
junior or senior year of study. Accordingly, the Department makes no
change to the current requirement that students participating in an
internship do so in their fields of study. Participants with
insufficient academic preparation have been viewed as potential
replacements for American workers rather than bona fide interns by the
Government Accountability Office, as the activity is, or cannot be
distinguished from ordinary work. Trainees and interns are therefore
necessarily excluded from participation until such time as they have
acquired sufficient education to justify this valuable experiential
learning opportunity designed to further an established career track
rather than to provide temporary employment to the non-immigrant alien.
Further, and of particular concern to the Department is the past
practice of placing participants as counter help in quick service
restaurants or other counter service positions. The Department has
found that training and internship placement plans submitted for these
visitors are either questionable or in fact not adhered to by the third
party host organizations. The Department finds that counter help
positions are unskilled and casual labor. Placement of participants in
these positions are prohibited as they are not suitable placements for
interns and trainees and are seen as extended Summer Work Travel
programs, and may bring the Department and the Exchange Visitor Program
into notoriety and disrepute due to the potential displacement of
American workers.
Fifteen (15) comments were received regarding Sec. 62.22(d)(1).
This regulation requires sponsors to ensure that trainees and interns
have verifiable English language skills sufficient to function on a
day-to-day basis in a training or internship environment. English
language proficiency should, necessarily, be verified by a recognized
English language test, by signed documentation from an academic
institution or English language school, or through a measurable process
(i.e., an interview conducted by the sponsor in person, or by video
conference). All comments suggested that telephone interviews also be
permitted, as such telephonic interviewing is widely utilized in the
business environment and deemed both reliable and sufficient. Noting
that video conferencing is not as prevalent in some countries as in the
United States, the Department agrees that use of telephone interviews
is appropriate only if the availability of video conferencing is not
available. The Department anticipates that sponsors will pursue
diligently the video conferencing approach and will use telephone
interviews as a secondary or tertiary method of determining English
language proficiency. The text of Sec. 62.22(d)(1) has been amended
accordingly. The Department notes that many sponsors have already
adopted this practice. Regardless of how the interview is conducted,
sponsors' conclusions regarding English language proficiency must be
documented and such information maintained by the sponsor in either
documentary or electronic format for a three-year period following the
completion of the exchange visitor's exchange program as stipulated in
22 CFR 62.10(h).
Fourteen (14) comments were received regarding Sec. 62.22(d)(2),
all of which opposed an eligibility requirement that trainees possess a
degree or professional certificate from a foreign post-secondary
academic institution and at least one year of prior related work
experience in their occupational field acquired outside the United
States, or, in the alternative, five years of work experience outside
the United States in their occupational field. These comments
recommended that two years of work experience, rather than five, be
required. Two additional comments recommended that trainees should be
eligible to participate in a training program directly following
graduation rather than after obtaining a year of experience. The
Department takes administrative notice of the GAO October 2005 report
referenced above. This report highlighted the potential for the Trainee
Program to be misused as an employment program, suggesting that
negative experiences for exchange participants could undermine the
public diplomacy underpinnings of the program. The Department's
acceptance of these concerns prompted an overhaul of regulations
governing the Trainee category and the publication of the NPRM followed
by the Interim Final Rule that has been in effect since July 19, 2007.
The Interim Final Rule eliminated the ``non-specialty'' and
``specialty'' categorizations of training activities, establishing in
its place a ``trainee,'' ``intern'' and ``student intern'' category,
with participant eligibility requirements to ensure that the programs
in these categories operate as intended and are not abused. With the
benefit of two years of experience with these requirements, the
Department finds that the Interim Final Rule eligibility requirements
have addressed GAO concerns regarding program abuse; therefore, the
Department sees no need to modify these requirements.
Nine (9) comments were received regarding Sec. 62.22(f)(2)(vi),
which requires that training and internship program sponsors certify
that training and internship programs in the field of agriculture
conform with the requirements of the Fair Labor Standards Act, as
amended, and the Migrant and Seasonal Agricultural Worker Protection
Act, as amended. The Department finds that these comments offered no
compelling reason why agricultural training and internship programs
should not meet the statutory protections afforded all workers in the
United States. Thus, the Department has determined that this
requirement is necessary to ensure the appropriate protections and
treatment of foreign nationals, and makes no modification to these
requirements.
One comment was received regarding Sec. 62.22(g)(3)(i), the
screening and vetting of host organizations. This comment opposed the
collection of Dun & Bradstreet Identification Numbers. The requirement
of a Dun & Bradstreet number was proposed to help the Department ensure
the bona fides of a potential third party provider with whom sponsors
contract for exchange visitor program-related services, or with whom
they place program participants. The Department has examined further
this interim requirement for a Dun & Bradstreet number and has
determined that the potential financial and resource implications, to
be borne by designated sponsors outweigh the utility of the report for
oversight purposes. Accordingly, the Department has removed this
requirement in the final rule.
A comment was received opposing site visits of host organizations
by sponsors. The Department takes this
[[Page 48557]]
opportunity to again draw attention to the sponsor's responsibility to
ensure that host organizations for trainees and interns possess and
maintain both the ability and resources to provide structured and
guided training or internship programs. Thus, site visits will be
required for host organizations that have not previously participated
successfully in the sponsor's training and internship programs if such
organizations have fewer than 25 employees or less than three million
dollars in annual revenue. The Department has determined that these
requirements are a reasonable methodology to ensure that foreign
nationals participating in these programs are being placed with
employers capable of providing the training or internship experience
that has been offered to the trainee or intern participant and
documented on the required Training/Internship Placement Plan (Form DS-
7002). This approach further helps to ensure that any training provider
is properly motivated to participate in an experiential learning public
diplomacy based activity and is not motivated by the desire for a
temporary worker to meet transient labor needs. In addition, this
requirement directly addresses GAO concerns. The Department makes no
change to this rule.
Six comments were received relating to activities that are excluded
from the training and internship programs as set forth at Sec.
62.22(j)(1). These comments requested clarification of the meaning of
``social work'' and ``medical social work'' and whether both activities
are excluded from training and internship programs. In addition, two
comments proposed allowing supervised clinical activities. With the
exception of the Alien Physician category, and as a matter of policy
and long-standing practice, the Department finds that clinical-based
activities fall outside the purview of the Exchange Visitor Program.
Given this policy, the rule prohibits training or internship programs
that involve ``clinical'' activities, i.e. those activities by
definition or actual practice that involve or require direct patient
contact. Thus, occupational fields as classified by the Department of
Education's Classification of Instructional Programs (CIP) codes that
fall under Public Administration and Social Service Professions (i.e.,
youth services) will be permitted while occupational fields that fall
under the Health Professions and Related Clinical Sciences
classification of the CIP codes (i.e., clinical/medical social work,
hairdressers, dental services, nursing, veterinary medicine and
services, etc.) are prohibited and no changes to the current interim
regulation are being made.
Two (2) comments were received regarding the duration of internship
program participation Sec. 62.22(k) and nine (9) comments were
received opposing the change in the program length of agriculture
training programs from 18 months to 12 months. All 11 comments
requested that the program length of training and internship programs
be set at 18 months duration, as previously allowed under the now
defunct ``non-specialty'' category for training programs. Mindful of
the expertise of the GAO, and desiring to address criticism raised in
no less than three GAO reports regarding the potential misuse of the
Exchange Visitor Program for work purposes, the Department has
determined that 12 months permits sufficient time to pursue a training
program in the field of agriculture. Before entering the United States
to participate in an agricultural training program, trainees must
already have either a degree or professional certificate from a foreign
post-secondary academic institution and at least one year of prior
related work experience in their occupational field acquired outside
the United States; or in the alternative, five years of work experience
in their occupational field outside the United States. Thus, this level
of expertise further supports the Department's view that 12 months
provides an appropriate length of program participation and the
Department makes no change to the rule.
Two comments were received opposing the provisions governing the
eligibility of intern and trainee participants and their potential
participation in additional internship and training programs, Sec.
62.22(n). These requirements were adopted to ensure that the objectives
of the Exchange Visitor Program are met (i.e., that participants
receive training that will advance their chosen career fields, that
interns complete their education and return to their home country with
enhanced skills, and that the Exchange Visitor Program is not utilized
for ordinary work purposes). To meet these policy objectives, the rule
at Sec. 62.22(n) is amended to clearly permit foreign nationals to
participate in additional internship programs as long as the
participant maintains full-time student status, (i.e., changes to a
higher educational level, or begins a new internship program within 12
months of graduation). The Department concludes that this clarification
augments the pool of potential participants and is desirable as a
matter of policy.
Fourteen (14) comments were received regarding the certifications
required on the Training/Internship Placement Plan (Form DS-7002). The
Department acknowledges concerns raised regarding sponsor obligations
to screen host organizations and has added a field to the Form DS-7002
that will collect the Employer Identification Number (EIN). The
Department has ascertained that each state has adopted differing
requirements for Workers' Compensation Insurance coverage. Accordingly,
Sec. 62.22(g) has been amended to require sponsors to verify the
existence of either a Workers' Compensation Insurance Policy,
equivalent coverage, or if applicable, evidence of state exemption from
the requirement of coverage.
The regulatory language governing the duration of a training or
internship program has been amended to clarify the inherent expectation
that sponsors administer their programs in accordance with their letter
of designation or most recent letter of redesignation. This language
will ensure that the trainee or intern is fully aware of the
expectations of their program identified in the outlined Training/
Internship Placement Plan (T/IPP). Twelve-month training programs in
the field of agriculture may not be extended to 18 months by adding six
months of classroom participation and studies at the end of the
original 12-month program duration. The six months of related classroom
participation and studies must have been part of the trainee's original
T/IPP.
Finally, the Department published a notice in the Federal Register
on July 11, 2008, (73 FR 40008) which announced the termination of
flight training from the Exchange Visitor Program as of June 1, 2010.
The section which governed flight training regulations has been removed
from the final rule. Current flight training sponsors continue to have
obligations to their exchange visitors pursuant to 22 CFR 62.63, and
they must fulfill their responsibilities to all exchange visitors who
are in the United States until the individual's exchange program is
completed.
Administrative Procedure Act
The Department originally published this rulemaking as a Proposed
Rule, with a 60-day comment period. 71 FR 17768 (April 7, 2006). The
Department received almost 1,600 comments in response to the NPRM, and
incorporating many of the comments received into an Interim Final Rule
and again solicited public comment (72 FR
[[Page 48558]]
33669 (June 19, 2007)). In response, the Department received and
analyzed 120 comments. Certain suggestions identified above are
incorporated in this Final Rule. The Department of State is of the
opinion that the Exchange Visitor Program is a foreign affairs function
of the United States Government and that regulations implementing this
function are exempt from the provisions of 5 U.S.C. 553. This
rulemaking process has been conducted without prejudice as to whether
it involves a foreign affairs function of the United States exempt from
the requirements of 5 U.S.C. 553 and without prejudice as to whether
the Department may invoke that exemption in other contexts.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by state, local, and
tribal governments, in the aggregate, or by the private sector, of $1
million or more in any year, and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995, 2
U.S.C. 1501-1504.
Small Business Regulatory Enforcement Fairness Act of 1996
This Final Rule has been found not to be a major rule within the
meaning of the Small Business Regulatory Enforcement Fairness Act of
1996. See 5 U.S.C. 804(2). This rule will not result in an annual
effect on the economy of $100 million or more; a major increase in
costs or prices for consumers, individual industries, federal, state,
or local government agencies, or geographic regions; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
Executive Orders 12372 and 13132
This rule will not have a substantial effect on the states, the
relationship between the national government and the states, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, it is determined that this Final Rule does not
have sufficient federalism implications to warrant application of the
consultation provisions of Executive Orders 12372 and 13132.
Regulatory Flexibility Act
In its promulgation of the Interim Final Rule at 72 FR at page
33673, the Department certified that the proposed changes to the
regulations were not expected to have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive Order
13272, section 3(b). As discussed above, the Department is of the
opinion that this Final Rule is exempt from the provisions of 5 U.S.C.
553, and no other law requires the Department of State to give notice
of proposed rulemaking, and accordingly this proposed rule is not
subject to the requirements of the Regulatory Flexibility Act. However,
the Department has examined the potential impact of this final rule on
small entities. Entities conducting student exchange programs are
classified under code number 6117.10 of the North American Industry
Classification System. Some 5,573 for profit and tax exempt entities
are listed as falling within this classification. Of this total number
of so-classified entities, 1,226 are designated by the Department of
State as sponsors of an exchange visitor program, designated as such to
further the public diplomacy mission of the Department and U.S.
Government through the conduct of exchange visitor programs. Of these
1,226 Department designated entities, 933 are academic institutions and
293 are for profit or tax exempt entities. Of the 293 for profit or tax
exempt entities designated by the Department, 131 have annual revenues
of less than $7 million thereby falling within the purview of the
Regulatory Flexibility Act. Of these 131 entities with revenues of less
than $7 million, 50 are either an internship or a training program.
Eight large, i.e. state universities are designated to conduct training
and or intern based exchange activities. No state, local or tribal
governments are designated training or intern sponsors. Although, as
stated above, the Department is of the opinion that the Exchange
Visitor Program is a foreign affairs function of the United States
Government and, as such, that this final rule is exempt from the
rulemaking provisions of Sec. 553 of the Administrative Procedure Act,
given the demonstrated lack of impact of this rule, discussed
immediately below to the small entities conducting student exchange
programs noted above, the Department has determined that this proposed
rule will not have a significant economic impact on a substantial
number of small entities.
The Department notes that these regulations have been in place
since June 2007 and that no entity designated to conduct training and
intern programs has identified an additional cost of compliance,
involving either money or manpower. The Department has been unable to
identify any such additional cost as well, thus the Department
certifies this Rule as not having a significant economic impact on its
designated sponsoring organizations.
The Department's certification concerning impact on small entities
is made without prejudice as to whether this rulemaking involves a
foreign affairs function of the United States exempt from the
Regulatory Flexibility Act, as the Department believes it is, and
without prejudice as to whether the Department may invoke that
exemption in any other context.
Executive Order 12866
The Department of State does not consider this rule to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. The Department is of the opinion
that the Exchange Visitor Program is a foreign affairs function of the
United States Government and that rules governing the conduct of this
function are exempt from the requirements of Executive Order 12866.
However, the Department has nevertheless reviewed this proposed
regulation to ensure its consistency with the regulatory philosophy and
principles set forth in that Executive Order.
Training and Internship exchange programs conducted under the
authorities of the Fulbright-Hays Act promote mutual understanding by
providing exchange visitors in their academic or occupational fields
through participation in structured and guided work-based training and
internship programs and to improve participants' knowledge of American
techniques, methodologies, and technology. Upon their return home,
these students and participants enrich their schools and communities
with different perspectives of U.S. culture and events, providing local
communities with new and diverse perspectives. Training and internship
exchanges also foster enduring relationships and lifelong friendships
which help build longstanding ties between the people of the United
States and other countries. Though the benefits of these exchanges to
the United States and its people cannot be monetized, the Department is
nonetheless of the opinion that these benefits outweigh the costs
associated with this final rule. The final rule does not impose any
additional costs, but does eliminate the cost associated with sponsor
staff researching and identifying Dun and Bradstreet numbers as
currently required by 22 CFR 62.22(g)(3)(i). The Department
[[Page 48559]]
calculates that the elimination of this requirement provides a net
savings to sponsors of $140,000 (7,000 staff hours x $20 per hour).
Executive Order 12988
The Department has reviewed this Final Rule in light of Sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Section 5 of Executive Order 13175 do
not apply to this rulemaking.
Paperwork Reduction Act
The information collection requirements contained in this
rulemaking (Form DS-7002) have been approved by the Office of
Management and Budget pursuant to the Paperwork Reduction Act, 44
U.S.C. Chapter 35, under OMB Control Number 1405-0170, expiration date:
07/31/2012.
List of Subjects in 22 CFR Part 62
Cultural exchange programs, Reporting and recordkeeping
requirements.
0
Accordingly, the interim final rule published on June 19, 2007 (72 FR
33669), amending 22 CFR part 62 confirmed as final with the following
changes:
PART 62--EXCHANGE VISITOR PROGRAM
0
1. The Authority citation for part 62 is revised to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, 2451 et seq.; Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. 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, Pub. L. 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) (Pub. L. 107-56), Section 416, 115 Stat. 354; and the
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L.
107-173; 116 Stat. 543.
0
2. Section 62.22 is revised to read as follows:
Sec. 62.22 Trainees and Interns.
(a) Introduction. These regulations govern Exchange Visitor
Programs under which foreign nationals with significant experience in
their occupational field have the opportunity to receive training in
the United States in such field. These regulations also establish a new
internship program under which foreign national students and recent
graduates of foreign post-secondary academic institutions have the
opportunity to receive training in the United States in their field of
academic study. These regulations include specific requirements to
ensure that both trainees and interns receive hands-on experience in
their specific fields of study/expertise and that they do not merely
participate in work programs. Regulations dealing with training
opportunities for certain foreign students who are studying at post-
secondary accredited educational institutions in the United States are
located at Sec. 62.23 (``College and University Students'').
Regulations governing alien physicians in graduate medical education or
training are located at Sec. 62.27 (``Alien Physicians'').
(b) Purpose. (1)(i) The primary objectives of the programs offered
under these regulations are to enhance the skills and expertise of
exchange visitors in their academic or occupational fields through
participation in structured and guided work-based training and
internship programs and to improve participants' knowledge of American
techniques, methodologies, and technology. Such training and internship
programs are also intended to increase participants' understanding of
American culture and society and to enhance Americans' knowledge of
foreign cultures and skills through an open interchange of ideas
between participants and their American associates. A key goal of the
Fulbright-Hays Act, which authorizes these programs, is that
participants will return to their home countries and share their
experiences with their countrymen.
(ii) Exchange Visitor Program training and internship programs must
not be used as substitutes for ordinary employment or work purposes;
nor may they be used under any circumstances to displace American
workers. The requirements in these regulations for trainees are
designed to distinguish between bona fide training, which is permitted,
and merely gaining additional work experience, which is not permitted.
The requirements in these regulations for interns are designed to
distinguish between a period of work-based learning in the intern's
academic field, which is permitted (and which requires a substantial
academic framework in the participant's field), and unskilled labor,
which is not.
(2) In addition, a specific objective of the new internship program
is to provide foreign nationals who are currently enrolled full-time
and pursuing studies at a degree- or certificate-granting post-
secondary academic institution or graduated from such an institution no
more than 12 months prior to their exchange visitor program begin date
a period of work-based learning to allow them to develop practical
skills that will enhance their future careers. Bridging the gap between
formal education and practical work experience and gaining substantive
cross-cultural experience are major goals in educational institutions
around the world. By providing training opportunities for current
foreign students and recent foreign graduates at formative stages of
their development, the U.S. Government will build partnerships, promote
mutual understanding, and develop networks for relationships that will
last through generations as these foreign nationals move into
leadership roles in a broad range of occupational fields in their own
societies. These results are closely tied to the goals, themes, and
spirit of the Fulbright-Hays Act.
(c) Designation. (1) The Department may, in its sole discretion,
designate as sponsors those entities it deems to meet the eligibility
requirements set forth in Subpart A of 22 CFR part 62 and to have the
organizational capacity successfully to administer and facilitate
training and internship programs.
(2) Sponsors must provide training and internship programs only in
the occupational category or categories for which the Department has
designated them as sponsors. The Department may designate training and
internship programs in any of the following occupational categories:
(i) Agriculture, Forestry, and Fishing;
(ii) Arts and Culture;
(iii) Construction and Building Trades;
(iv) Education, Social Sciences, Library Science, Counseling and
Social Services;
(v) Health Related Occupations;
(vi) Hospitality and Tourism;
(vii) Information Media and Communications;
(viii) Management, Business, Commerce and Finance;
(ix) Public Administration and Law; and
[[Page 48560]]
(x) The Sciences, Engineering, Architecture, Mathematics, and
Industrial Occupations.
(d) Selection criteria. (1) In addition to satisfying the general
requirements set forth in Sec. 62.10(a), sponsors must ensure that
trainees and interns have verifiable English language skills sufficient
to function on a day-to-day basis in their training environment.
Sponsors must verify an applicant's English language proficiency
through a recognized English language test, by signed documentation
from an academic institution or English language school, or through a
documented interview conducted by the sponsor either in-person or by
videoconferencing, or by telephone if videoconferencing is not a viable
option.
(2) Sponsors of training programs must verify that all potential
trainees are foreign nationals who have either a degree or professional
certificate from a foreign post-secondary academic institution and at
least one year of prior related work experience in their occupational
field acquired outside the United States or five years of work
experience in their occupational field acquired outside the United
States.
(3) Sponsors of internship programs must verify that all potential
interns are foreign nationals who are currently enrolled full-time and
pursuing studies in their advanced chosen career field at a degree- or
certificate-granting post-secondary academic institution outside the
United States or graduated from such an institution no more than 12
months prior to their exchange visitor program begin date.
(e) Issuance of Forms DS-2019. In addition to the requirements set
forth in Subpart A, sponsors must ensure that:
(1) They do not issue Forms DS-2019 to potential participants in
training and internship programs until they secure placements for
trainees or interns and complete and secure requisite signatures on
Form DS-7002, Training/Internship Placement Plan (T/IPP);
(2) Trainees and interns have sufficient finances to support
themselves for their entire stay in the United States, including
housing and living expenses; and
(3) The training and internship programs expose participants to
American techniques, methodologies, and technology and expand upon the
participants' existing knowledge and skills. Programs must not
duplicate the participants' prior work experience or training received
elsewhere.
(f) Obligations of training and internship program sponsors. (1)
Sponsors designated by the Department to administer training and
internship programs must:
(i) Ensure that trainees and interns are appropriately selected,
placed, oriented, supervised, and evaluated;
(ii) Be available to trainees and interns (and host organizations,
as appropriate) to assist as facilitators, counselors, and information
resources;
(iii) Ensure that training and internship programs provide a
balance between the trainees' and interns' learning opportunities and
their contributions to the organizations in which they are placed;
(iv) Ensure that the training and internship programs are full-time
(minimum of 32 hours a week); and
(v) Ensure that any host organizations and third parties involved
in the recruitment, selection, screening, placement, orientation,
evaluation for, or the provision of training and internship programs
are sufficiently educated on the goals, objectives, and regulations of
the Exchange Visitor Program and adhere to all regulations set forth in
this Part as well as all additional terms and conditions governing
Exchange Visitor Program administration that the Department may from
time to time impose.
(2) Sponsors must certify that they or any host organization acting
on the sponsor's behalf:
(i) Have sufficient resources, plant, equipment, and trained
personnel available to provide the specified training and internship
program;
(ii) Provide continuous on-site supervision and mentoring of
trainees and interns by experienced and knowledgeable staff;
(iii) Ensure that trainees and interns obtain skills, knowledge,
and competencies through structured and guided activities such as
classroom training, seminars, rotation through several departments, on-
the-job training, attendance at conferences, and similar learning
activities, as appropriate in specific circumstances;
(iv) Conduct periodic evaluations of trainees and interns, as set
forth in Sec. 62.22(l);
(v) Do not displace full- or part-time or temporary or permanent
American workers or serve to fill a labor need and ensure that the
positions that trainees and interns fill exist primarily to assist
trainees and interns in achieving the objectives of their participation
in training and internship programs; and
(vi) Certify that training and internship programs in the field of
agriculture meet all the requirements of the Fair Labor Standards Act,
as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal
Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et
seq.).
(3) Sponsors or any third parties acting on their behalf must
complete thorough screening of potential trainees or interns, including
a documented interview conducted by the sponsor either in-person or by
videoconferencing, or by telephone if videoconferencing is not a viable
option.
(4) Sponsors must retain all documents referred to in Sec.
62.22(f) for at least three years following the completion of all
training and internship programs. Documents and any requisite
signatures may be retained in either hard copy or electronic format.
(g) Use of third parties. (1) Sponsors use of third parties.
Sponsors may engage third parties (including, but not limited to host
organizations, partners, local businesses, governmental entities,
academic institutions, and other foreign or domestic agents) to assist
them in the conduct of their designated training and internship
programs. Such third parties must have an executed written agreement
with the sponsor to act on behalf of the sponsor in the conduct of the
sponsor's program. This agreement must outline the obligations and full
relationship between the sponsor and third party on all matters
involving the administration of their exchange visitor program. A
sponsor's use of a third party does not relieve the sponsor of its
obligations to comply with and to ensure third party compliance with
Exchange Visitor Program regulations. Any failure by any third party to
comply with the regulations set forth in this Part or with any
additional terms and conditions governing Exchange Visitor Program
administration that the Department may from time to time impose will be
imputed to the sponsors engaging such third party.
(2) Screening and vetting third parties operating outside the
United States. Sponsors must ascertain that third parties operating
outside the United States are legitimate entities within the context of
their home country environment. For third parties that operate as
businesses, sponsors must obtain relevant home country documentation,
such as a business registration or certification. Such home country
documentation must include an English Language translation for any
business registration or certification documents submitted in a foreign
language. Written agreements between sponsors and third parties
operating outside the United States must include annually updated price
lists for training and internship programs offered by each third party,
and must indicate that such
[[Page 48561]]
overseas third parties are sufficiently trained in all aspects of the
programs they represent, including the regulations set forth in this
Part.
(3) Screening and vetting host organizations. Sponsors must
adequately screen all potential host organizations at which a trainee
or intern will be placed by obtaining the following information:
(i) Employer Identification Number (EIN) used for tax purposes;
(ii) Third party verification of telephone number, address, and
professional activities, e.g., via advertising, brochures, Web site,
and/or feedback from prior participants; and
(iii) Verification of Worker's Compensation Insurance Policy or
equivalent in each state or, if applicable, evidence of state exemption
from requirement of coverage.
(4) Site visits of host organizations. Sponsors must conduct site
visits of host organizations that have not previously participated
successfully in the sponsor's training and internship programs and that
have fewer than 25 employees or less than three million dollars in
annual revenue. Placements at academic institutions or at federal,
state, or local government offices are specifically excluded from this
requirement. The purpose of the site visits is for the sponsors to
ensure that host organizations possess and maintain the ability and
resources to provide structured and guided work-based learning
experiences according to individualized T/IPPs and that host
organizations understand and meet their obligations set forth in this
Part.
(h) Host organization obligations. Sponsors must ensure that:
(1) Host organizations sign a completed Form DS-7002 to verify that
all placements are appropriate and consistent with the objectives of
the trainees or interns as outlined in their program applications and
as set forth in their T/IPPs. All parties involved in internship
programs should recognize that interns are seeking entry-level training
and experience. Accordingly, all placements must be tailored to the
skills and experience level of the individual intern;
(2) Host organizations notify sponsors promptly of any concerns
about, changes in, or deviations from T/IPPs during training and
internship programs and contact sponsors immediately in the event of
any emergency involving trainees or interns;
(3) Host organizations abide by all federal, state, and local
occupational health and safety laws; and
(4) Host organizations abide by all program rules and regulations
set forth by the sponsors, including the completion of all mandatory
program evaluations.
(i) Training/internship placement plan (Form DS-7002). (1) Sponsors
must fully complete and obtain all requisite signatures on a Form DS-
7002 for each trainee or intern before issuing a Form DS-2019. Sponsors
must provide each signatory an executed copy of the Form DS-7002. Upon
request, trainees and interns must present their fully executed Form
DS-7002 to Consular Officials during their visa interview.
(2) To further distinguish between bona fide training for trainees
or work-based learning for interns, which are permitted, and unskilled
or casual labor positions which are not, all T/IPPs must:
(i) State the specific goals and objectives of the training and
internship program (for each phase or component, if applicable);
(ii) Detail the knowledge, skills, or techniques to be imparted to
the trainee or intern (for each phase or component, if applicable); and
(iii) Describe the methods of performance evaluation and the
supervision for each phase or component, if applicable.
(3) A T/IPP for trainees must be divided into specific and various
phases or components, and for each phase or component must:
(i) Describe the methodology of training and
(ii) Provide a chronology or syllabus.
(4) A T/IPP for interns must:
(i) Describe the role of the intern in the organization and, if
applicable, identify various departments or functional areas in which
the intern will work; and
(ii) Identify the specific tasks and activities the intern will
complete.
(j) Program exclusions. Sponsors designated by the Department to
administer training and internship programs must not:
(1) Place trainees or interns in unskilled or casual labor
positions, in positions that require or involve child care or elder
care; or in clinical or any other kind of work that involves patient
care or patient contact, including any work that would require trainees
or interns to provide therapy, medication, or other clinical or medical
care (e.g., sports or physical therapy, psychological counseling,
nursing, dentistry, veterinary medicine, social work, speech therapy,
early childhood education);
(2) Place trainees or interns in positions, occupations, or
businesses that could bring the Exchange Visitor Program or the
Department into notoriety or disrepute; or
(3) Engage or otherwise cooperate or contract with a Staffing/
Employment Agency to recruit, screen, orient, place, evaluate, or train
trainees or interns, or in any other way involve such agencies in an
Exchange Visitor Program training and internship program.
(4) Issue a T/IPP for any trainee or intern for which the duties
involve more than 20 per cent clerical work.
(5) Have less than three departmental or functional rotations for
``Hospitality and Tourism'' training and internship programs of six
months or longer.
(k) Duration. The duration of participation in a training and
internship program must be established before a sponsor issues a Form
DS-2019 and must not exceed the sponsor's authorized designation as set
forth in the sponsor's letter of designation or most recent letter of
redesignation. Except as noted below, the maximum duration of a
training program is 18 months, and the maximum duration of an
internship program is 12 months. For training programs in the field of
agriculture and in the occupational category of Hospitality and
Tourism, the maximum duration of program participation is 12 months. If
an original T/IPP specifies that at least six months of a program
includes related classroom participation and studies, training programs
in the field of agriculture may be designated for a total duration of
18 months. Program extensions are permitted within the maximum duration
as set forth in the letter of designation/redesignation provided that
the need for an extended training or internship program is documented
by the full completion and execution of a new Form DS-7002. 12-month
training programs in the field of agriculture may not be extended to 18
months by adding six months of classroom participation and studies at
the end of the original 12-month program duration. Per above, the six
months of related classroom participation and studies must have been
part of the trainee's original T/IPP.
(l) Evaluations. In order to ensure the quality of training and
internship programs, sponsors must develop procedures for evaluating
all trainees and interns. All required evaluations must be completed
prior to the conclusion of a training and internship program, and both
the trainees and interns and their immediate supervisors must sign the
evaluation forms. For programs exceeding six months' duration, at a
minimum, midpoint and concluding evaluations are required. For programs
of six months or less, at a minimum, concluding evaluations are
[[Page 48562]]
required. Sponsors must retain trainee and intern evaluations
(electronic or hard copy) for a period of at least three years
following the completion of each training and internship program.
(m) Issuance of certificate of eligibility for exchange visitor (J-
1) status. Sponsors must not deliver or cause to be delivered any
Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-
2019) to potential trainees or interns unless the individualized Form
DS-7002 required by Sec. 62.22(i) has been completed and signed by all
requisite parties.
(n) Additional training and internship program participation.
Foreign nationals who enter the United States under the Exchange
Visitor Program to participate in training and internship programs are
eligible to participate in additional training and internship programs
under certain conditions. For both trainees and interns, additional
training and internship programs must address the development of more
advanced skills or a different field of expertise. Interns may apply
for additional internship programs if they:
(1) Are currently enrolled full-time and pursuing studies at
degree- or certificate-granting post-secondary academic institutions
outside the United States; or,
(2) Have graduated from such institutions no more than 12 months
prior to the start of their proposed exchange visitor program. A new
internship is also permissible when a student has successfully
completed a recognized course of study (i.e., associate, bachelors,
masters, Ph.D., or their recognized equivalents) and has enrolled and
is pursuing studies at the next higher level of academic study.
Trainees are eligible for additional training programs after a period
of at least two years residency outside the United States following
completion of their training program. Participants who have
successfully completed internship programs and no longer meet the
selection criteria for an internship program may participate in a
training program if they have resided outside the United States or its
territories for at least two years. If participants meet these
selection criteria and fulfill these conditions, there will be no limit
to the number of times they may participate in a training and
internship program.
Dated: August 5, 2010.
Stanley S. Colvin,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of
Educational and Cultural Affairs, Department of State.
[FR Doc. 2010-19727 Filed 8-10-10; 8:45 am]
BILLING CODE 4710-05-P
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