Federal Register, Volume 79 Issue 193 (Monday, October 6, 2014)

[Federal Register Volume 79, Number 193 (Monday, October 6, 2014)]
[Rules and Regulations]
[Pages 60293-60317]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-23510]



[[Page 60293]]

Vol. 79

Monday,

No. 193

October 6, 2014

Part III





Department of State





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22 CFR Part 62





Exchange Visitor Program--General Provisions; Final Rule

Federal Register / Vol. 79 , No. 193 / Monday, October 6, 2014 /
Rules and Regulations

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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice: 8893]
RIN 1400-AC36


Exchange Visitor Program--General Provisions

ACTION: Final rule with request for comment.

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AGENCY: Department of State.
SUMMARY: With this rulemaking, the Department of State is amending the
general rules covering the Exchange Visitor Program that govern the
designation of sponsors and the overall administration of the Program.
This final rule encompasses technical changes to the general provisions
and addresses public diplomacy and foreign policy concerns, including
the Department's ability to monitor sponsors to protect the health,
safety and welfare of foreign nationals who come to the United States
as exchange visitors. The Department previously published a proposed
rule, and, after analyzing the comments received, the Department is
promulgating this final rule with request for comment and soliciting
comments over a period of 60 days.

DATES: Effective Date: This rule is effective January 5, 2015.
Applicability date: The insurance amounts listed in 22 CFR
62.14(b)(1)-(4) and the provisions of 22 CFR 62.14(h) will be
applicable on May 15, 2015.
Comment date: The Department will accept written comments for up to
60 days until December 5, 2014.

ADDRESSES: You may submit comments identified by any of the following
methods:
Email: JExchanges@state.gov. You must include the RIN
(1400-AC36) in the subject line of your message.
Persons with access to the Internet may also view this
document and provide comments by going to the regulations.gov Web site
and searching for RIN (1400-AC36, docket number DOS-2014-0018), at:
http://www.regulations.gov/.
Mail (paper, disk, or CD-ROM submissions): U.S. Department of
State, Office of Policy and Program Support, SA-5, Floor 5, 2200 C
Street NW., Washington, DC 20522-0505.

FOR FURTHER INFORMATION CONTACT: Robin J. Lerner, Deputy Assistant
Secretary for Private Sector Exchange, U.S. Department of State, SA-5,
Floor 5, 2200 C Street NW., Washington, DC 20522; or email at
JExchanges@state.gov.

SUPPLEMENTARY INFORMATION:

Executive Summary

This first comprehensive modification to Subpart A of 22 CFR Part
62 since 1993 makes five significant changes, as well as minor,
technical changes intended to clarify the existing language.
Specifically, this final rule amends Subpart A to provide more specific
filing requirements for entities seeking to become designated sponsors
and for sponsors seeking to renew their designations, including
requiring proposed and current Responsible Officers and Alternate
Responsible Officers to undergo criminal background checks. The final
rule adopts a requirement that private sector sponsors submit
management reviews in a format and on a schedule determined by the
Department. It moves certain sections from Subpart F to Subpart A and
enhances provisions governing the Student and Exchange Visitor
Information System (SEVIS) database that sponsors use to track the
whereabouts of exchange visitors. It also removes Appendices A-D, which
have been replaced by information collections through Forms DS-3036,
DS-3037 and DS-3097. In recognition of the increase in health and
accident insurance costs since 1993, it also updates these
requirements. The final rule also adds, deletes, and modifies
definitions of terms used throughout the regulations. In addition, it
adds language to make explicit the discretion of the Assistant
Secretary for Educational and Cultural Affairs to waive or modify
provisions of 22 CFR Part 62 (the regulations governing the Exchange
Visitor Program), to the extent consistent with the authorities
described in 22 CFR 62.1(a) and other applicable law, with respect to
programs that are established pursuant to arrangements between the
United States and foreign governments. The Department must provide
notice concerning any such program for which provisions of Part 62 are
waived or modified. Finally, it makes technical modifications to the
text of the September 2009 proposed rule to ensure that the regulatory
text is clear and correct.
The Department published the proposed rule on September 22, 2009
(RIN 1400-AC36; see 74 FR 48177), soliciting comments on proposed
modifications to Subpart A. This final rule does not make certain
changes that the Department had proposed in the September 2009 proposed
rule. Specifically, it will not require applicants or current sponsors
to secure and submit Dun & Bradstreet reports on themselves; applicants
for sponsor designation will have site visits only at Department
discretion; and sponsors need not collect and report Employment
Authorization Document information for an accompanying spouse and
dependents in SEVIS.
Having thoroughly reviewed the nearly 700 comments received in
response to the proposed rule published in 2009 (see citation above),
the Department hereby adopts sections of the proposed rule and amends
or eliminates others in response to the comments submitted.
The next version of the SEVIS database, which has been in place
since 2003, will have no immediate impact on this final rule, since its
implementation date remains uncertain. The next version of SEVIS will
focus upon increased functionality, national security, and improved
usability. Prior to its implementation, the Department anticipates that
the Department of Homeland Security will introduce any new requirements
or procedures to the public through a proposed rule with a comment
period. The Department of State also will reexamine its regulations
prior to the implementation of any future system developments.

Analysis of Comments

The Department received 656 comments in response to the publication
of the proposed rule. Of these, 494 comments (or 75% of the total
comments received) were form letters or miscellaneous letters relating
to the Camp Counselor and Summer Work Travel categories of the Exchange
Visitor Program, as follows:
1. Form Letter--Camp Counselor and Camp Support 353
2. Form Letter--Summer Work Travel Employers 60
3. Form Letter--Former Summer Work Travel Participants 45
4. Miscellaneous Letters 36
The remaining 162 comments were general letters from sponsors,
support groups, third parties, and concerned individuals. Based on the
review of all comments, the Department has decided to adopt sections
62.2-62.16 of the proposed rule with modifications prompted by the
comments received. Section 62.17--Fees and Charges, remains unchanged.
Appendices A-D are removed to reflect changes in the regulations since
1993 and the implementation of information collections through Forms
DS-3036, DS-3037, and DS-3097.

Section 62.2 Definitions

The proposed rule contained 45 definitions; this final rule
contains 47.

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When adding definitions for the Department-controlled forms, the
Department had inadvertently excluded Form DS-3097 (Annual Report),
which it now includes. Similarly, the Department is also adding a
definition for the ``Office of Exchange Coordination and Compliance,''
the ``Office of Private Sector Exchange Administration,'' which,
combined with the ``Office of Designation,'' currently comprise the
Office of Private Sector Exchange. The Department also deletes the
redundant definition for ``trainee,'' which is already covered in
sections 62.4(c) and 62.22, and foreign medical graduate which is
covered in section 62.27.
A total of 26 parties filed comments about the Subpart A
definitions. Comments related to the three SEVIS-related definitions
that have been added to the regulations (i.e., ``actual and current
U.S. address,'' ``site of activity,'' and ``validation'') generally
reflected appreciation for these definitions and sought guidance and
information on the consequences of non-compliance. As with other
regulations in Part 62, non-compliance could subject a sponsor to
sanctions under 22 CFR 62.50(a). The first two definitions are critical
as they relate to the physical location of a nonimmigrant participating
in an exchange visitor program in the United States. Indeed, Title VI,
Section 641 of Public Law 104-208, requires sponsors to ensure that the
exchange visitor has arrived at his or her site of activity and to
maintain current and accurate data in these SEVIS fields so that
officials may locate nonimmigrants, if necessary, both during the day
(i.e., at their sites of activity) and at night (i.e., at their actual
and current U.S. addresses). Accordingly, correctly maintaining this
information is a matter of national security. The function of
validating a SEVIS record is also important, as it marks the beginning
and end of a sponsor's obligation to monitor and provide other services
(i.e., insurance coverage) to an exchange visitor and his or her
accompanying spouse and dependents. One commenting party sought
guidance and/or an explanation of the consequences of failing to
validate the SEVIS record of an accompanying spouse or dependents,
entering the United States on J-2 visas to accompany an exchange
visitor here on a J-1 visa. In response to this comment, and because
the validation of a primary J-1 visa holder's record automatically
validates the associated J-2 visa holders' records, the Department is
removing any reference to an accompanying spouse and dependents from
this definition.
The Department received a total of 18 comments regarding the change
of the term ``accredited educational institution'' to ``accredited
academic institution.'' The majority of comments questioned the need
for a change in terminology. The Department believes this change is
necessary to reflect more accurately recent trends in the use of the
term ``academic.'' In the proposed definition section (which also
affects the definition of ``student'' in section 62.4), the Department
clarifies that educational institutions that offer primarily vocational
or technical courses of study are not considered academic. Accordingly,
the Department substitutes the term ``academic'' for ``educational.''
One party commented about the confusion associated with the
definition of ``country of nationality or last legal permanent
residence,'' stating that the conjunction ``or'' used to link the two
alternatives takes precedence and the language does not define the
meaning of the term ``legal permanent residence.'' The program
regulations have always referred to these two terms in tandem. The
Department believes that the meaning of each phrase is clear and
concise, and therefore makes no changes to the definition. Three
commenting parties expressed concern that the terms(s) did not clearly
subject an accompanying spouse and dependents travelling to the United
States on J-2 visas to the two-year home country physical presence
requirement (i.e., section 212(e) of the Immigration and Nationality
Act) (INA)). Because the INA applies this requirement to ``person[s]
admitted under section 101(a)(15)(J) . . . or acquiring such status
after admission,'' it applies to J-2 visa holders as well, if the
exchange visitor they accompany or join is subject to the requirement
(See 22 CFR 41.62(c)(4)).
The Department received one comment regarding the proposed
definition of ``exchange visitor'' as it refers to foreign nationals
who are in the United States on J-1 visas. In particular, the
commenting party took issue with the language because, as written, it
does not include Canadian citizens who are allowed to participate on
the Exchange Visitor Program without obtaining a J-1 visa. Also, the
term does not include the accompanying spouse and dependents of an
exchange visitor. In reviewing the comment, the Department has decided
to modify the definition to clarify that the term also includes
participants in the program who are not required to obtain J-1 visas.
The Department, however, has purposefully excluded an exchange
visitor's accompanying immediate family (i.e., accompanying spouse and
dependents) from the definition because these regulations operate
primarily for the benefit, and based upon the actions, of the
individual participant in the Exchange Visitor Program. When necessary
(e.g., section 62.14 (insurance)), the regulations specify their
applicability to an exchange visitor's immediate family.
On a related matter, two parties commented that the title of the
Form DS-2019--A Certificate of Eligibility for Exchange Visitor (J-1)
Status excludes any reference to an accompanying spouse and dependents,
even though it is the form necessary for family members (since the
inception of SEVIS in 2003) to apply for J-2 visa status. The
Department agrees and will explore the opportunity of replacing ``(J-
1)'' with ``(J--Nonimmigrant)'' in the Form's title at the time of the
Form's scheduled revision cycle.
Two parties commented on the definition of ``foreign medical
graduate.'' They both appreciated the Department's decision to clarify
the definition and requested that the definition be revised to locate
the definition within section 62.27 (the only section of 22 CFR Part 62
that uses this term) and to clarify how it applies to non-clinical
exchange programs. The Department acknowledges that the definition of
this category of participation does not belong in section 62.2, and
will define it when section 62.27 is revised in the future.
The Department received one comment related to the definition of
the terms ``full course of study'' and ``prescribed course of study,''
suggesting that language in section 62.2 may be read to contain
substantive regulatory provisions that may be better located in the
relevant sections in Subpart B, rather than in the definitions section
of section 62.2. The Department has considered the recommendations and
makes no changes to these definitions, since it is of the view that
definitions that pertain only to an individual program category should
be included in sections of Subpart B that pertain to that individual
category.
The Department received one comment concerning the definitions for
the terms ``internship program'' and ``student internship program.''
Because of the confusion experienced in the exchange community about
the similarity of these two terms, it was suggested that the Department
further clarify these definitions by annotating the difference between
the two types of

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internship programs. The Department believes that the definitions of
these two terms (and the language in Subpart B associated with these
two categories) already provides ample clarity. Very simply, the
definition of a ``student internship program'' specifies that the
internship program must ``partially or fully fulfill a student's post-
secondary academic degree requirements.'' This does not mean, however,
that a current student could not participate in a regular internship
program in pursuit of meeting academic requirements. In some
situations, therefore, there would be no difference between the two
programs, except that the sponsor in one instance would be an academic
institution, and in the other, it would be a private business.
One comment was submitted suggesting that the term ``management
audit'' be defined. The Department agrees and adds a definition of
``management review,'' the Department's preferred term, to section
62.2.
Five parties commented on the definition of ``third party.'' Among
other things, commenting parties claim that the proposed language
disregarded the sub-agent network that a sponsor's foreign entities
(e.g., foreign partners or agents) may use as part of the recruiting
process. They added that the language is unclear about what entities
are and are not third parties, given the large number of contacts upon
which exchange programs rely. The Department recognizes that sponsors
contract with or otherwise engage third parties to provide ordinary
services in the support of their business operations (e.g., cleaning,
payroll processing, and utilities). The Department excludes these types
of generic service providers from the definition of ``third party'' and
includes only those that truly relate to the conduct of a sponsor's
exchange visitor program.
As the Department updates the regulations governing specific
categories of the Exchange Visitor Program (included in Subpart B), it
may articulate further restrictions. In the interim, the Department
clarifies, first, that it considers ``recruiting'' to be conduct of the
sponsor's exchange visitor program. It also considers the functions of
the local coordinators (or other similar field staff) to be conduct of
the sponsor's exchange visitor program. Ordinary services in support of
sponsors' business operations (cleaning, payroll processing, and
utilities) are not considered conduct. Should there be circumstances
that require additional clarification on a category-specific basis
prior to the incorporation of these concepts into Subpart B, the
Department will issue email guidance or guidance directives.
Accordingly, the Department revises the definition of ``third party''
to avoid the unintended consequences recognized by the commenting
parties.
The Department is updating the definitions to include language that
explains the purposes of Forms DS-2019, DS-3036, DS-3037, and DS-7002.
As discussed above, this final rule corrects the inadvertent exclusion
of ``Form DS-3097,'' the existing Annual Report form, from the proposed
rule. Similarly, the Department inadvertently excluded a definition for
the ``Office of Exchange Coordination and Compliance,'' a part of the
Office of Private Sector Exchange (formerly known as the Exchange
Visitor Program Services). In addition, the Office of Private Sector
Exchange has recently added the Office of Private Sector Exchange
Administration to its organization. The two new offices, in addition to
the existing Office of Designation, oversee the Exchange Visitor
Program. This final rule defines these new offices within the Office of
Private Sector Exchange.
Finally, in the NPRM, the definition for ``Citizen of the United
States (entity)'' with respect to nonprofit organizations included,
among other things, a requirement that the entity be ``qualified with
the Internal Revenue Service as a tax-exempt organization pursuant to
section 501(c)(3) of the Internal Revenue Code.'' In this rulemaking,
this language has been removed, with the result that a nonprofit
organization otherwise qualifying as a ``United States Person (legal
entity)'' need not be a tax-exempt organization to participate in the
Exchange Visitor Program. The Department realized that there might be
taxable nonprofit organizations that might wish to participate in one
of the Exchange Visitor Programs. Seeing no reason to retain this
barrier to participation, the Department determined there was good
cause to remove it in this rulemaking.

Section 62.3 Sponsor Eligibility

The proposed rule increased from one to three years the required
minimum experience in international exchange that an entity seeking
designation must show that it, or its proposed Responsible Officer,
has. Five parties commented on this proposed new minimum experience
requirement. One supported the increase in years of experience, three
opined that the new requirement was excessive and restrictive for new
programs, and one asked for clarification of whether the requirement
was intended for existing exchange visitor programs as well. Recently,
many entities staffed by individuals with minimal experience have
applied for designation. These entities and individuals typically have
worked with designated sponsors in some capacity or have conducted
short-term exchanges, but lack the full scope of experience in all
aspects of exchange activities, including the regulatory knowledge
critical to administering a successful exchange program. Some exchange
visitor categories involve more complex administration processes than
others (e.g., the au pair and secondary school student categories,
which require locating and screening host families and schools, hiring
and managing local and regional staff, and close monitoring of
placements). The Department believes that three years of experience is
the minimum necessary to develop a strong foundation for the conduct of
an exchange visitor program. Applicants may demonstrate their
experience in international exchange by providing staff resumes, as
well as information about the applicant entity's or individual's
experience and involvement with other cultural exchange programs. The
Department adopts the proposed regulatory change for entities applying
for designation. The Department will not require sponsors who have been
designated for fewer than three years to demonstrate now three years of
experience.
The proposed rule included a new provision requiring that an entity
applying for sponsor designation undergo a site visit as part of the
designation process. Such site visits, conducted by the Department of
State or a third party acting on its behalf, were intended to evaluate
whether an applicant had sufficient facilities, staff, and
infrastructure necessary to conduct a successful exchange visitor
program. Ten parties submitted comments on this proposal. Seven parties
supported these site visits and three parties opposed them. One of the
opposing parties specifically stated that the site visits were
unnecessary due to the potential costs. One party believed that site
visits should be required of current sponsors as part of the
redesignation process and in lieu of a management audit requirement.
Another party opined that the requirement was burdensome and
superfluous for longtime program sponsors and that site visits are too
costly and disruptive of daily work schedules. Finally, one party, in
response to the assertion that the cost of the site visits would be
determined ``by the required bi-annual user fee study,''

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stated that the designation and re-designation application fees were
sufficiently high to cover the cost of such site visits.
The Supplementary Information section of the proposed rule also
mentioned the on-site reviews of existing sponsors and that the
Department currently conducts on-site reviews at its discretion. In
response, parties commented that such a requirement would be both
burdensome and superfluous for a longtime sponsor.
Although the Department considers pre-designation site visits for
new applicants to be a useful means of evaluating the ability of
potential sponsors to run good exchange programs, as a matter of
priority the Department has elected not to require them at this time,
but to retain the discretion to conduct them. The Department will
continue its practice of conducting on-site reviews of current sponsors
as a part of monitoring and compliance of sponsors.

Section 62.4 Categories of Participant Eligibility

Five parties submitted comments concerning four categories of
participant eligibility, namely, Teacher, Research Scholar, Intern, and
Trainee. The Department has addressed the comment about evaluation of a
teacher's eligibility and experience in a separate rulemaking on
section 62.24, which was published May 2, 2013. (RIN 1400-AC60; see 78
FR 25669).
Three parties asked the Department to reinsert the term
``teaching'' into the description of a Research Scholar. The Department
agrees to correct this inadvertent exclusion.
One party opposed the addition of the term ``full-time'' to the
description of an Intern's enrollment, stating that the current
regulations do not stipulate this requirement and that adding ``full-
time'' to the category definition will complicate the process
unnecessarily. The Department disagrees with the commenter that the
proposed language will complicate the rules. The Department adopts the
proposed language, as it is a technical modification conforming to
language in this section with the specific regulations currently
governing the Trainee and Intern Program. See 22 CFR Sec. 62.22(b)(2).
In addition, one party commented on the definition of the Trainee
category, arguing that the definition of ``Trainee'' is inapplicable to
corporate program sponsors whose employees primarily administer the
training of the exchange visitor. In addition, the comment states, ``In
such cases, the foreign national need not satisfy any educational or
experience requirements to be classified as a J-1 Trainee. A corporate
program sponsor `primarily administers' training while its employee(s)
act as trainer(s) for a minimum of 95% of the exchange visitor's
training.'' In the Supplementary Information section of the Trainee and
Intern Final Rule (RIN 1400-AC15; see 72 FR 33669, June 19, 2007), the
Department explained that a foreign national may not participate in a
trainee or intern exchange visitor program until he or she has acquired
sufficient education or related work experience to benefit sufficiently
from the valuable experiential learning opportunity that training
programs and internships provide. The Department confirms the
definition on the basis that an exchange visitor must meet the
requisite education and work experience to be suitable for
participation in a training program. Therefore, sponsors must make sure
that the selection criteria for their exchange visitors indeed meet the
regulatory requirements.
The Department has amended the definition of a teacher to reflect
language in a proposed rule. (RIN 1400-AC60; see 78 FR 25669, dated May
2, 2013).

Section 62.5 Application Procedure

The Department received a total of 514 comments regarding the
proposed collection of Business Information Reports from Dun &
Bradstreet both for new applicants (proposed section 62.5(c)(6)) and
for sponsors seeking redesignation (proposed sections 62.7(c)(1) and
(2)). Only one commenting party supported this requirement, but, like
many other parties, was concerned about the cost. Some suggested that
this report requirement could cost several hundred dollars for a medium
to large sponsor and would represent a significant new expense for
every sponsor. Other parties noted that many camps have never
registered for a Dun & Bradstreet Number because the registration has
no business purpose. Accordingly, requiring camps to register and pay
for credit reports would be an undue burden on the camp community. The
Department reviewed the utility of the Dun & Bradstreet report for
oversight purposes, and determined that it is outweighed by the
potential financial and resource implications for applicants for
designation or currently-designated sponsors. Hence, the Department is
eliminating the Dun & Bradstreet report requirement.
The proposed rule identified as the appropriate individuals to sign
certain documents (e.g., the certifications required by Forms DS-3036,
as set forth in section 62.5(a)) a sponsor's ``Chief Executive Officer,
President, or equivalent.'' One party seeks clarification as to which
positions are considered ``equivalent'' in this respect. The Department
amends the rule to reflect that an executive with legal authority to
make commitments on behalf of the sponsor (as identified in the
organization's governing documents) be the signatory of such documents.
Section 62.5(c)(9) of the proposed rule requires a sponsor's Chief
Executive Officer, President, or equivalent to certify that the
proposed Responsible Officer and all proposed Alternate Responsible
Officers are United States persons (i.e., U.S. citizens or legal
permanent residents), and that the sponsor has obtained criminal
background reports on all such candidates and has determined their
suitability for these positions. Section 62.5(c)(9) requires that a
sponsor include in its complete application both SEVIS-generated
Citizenship Certifications for the proposed Responsible Officer and
proposed Alternate Officers as well as separate evidence (e.g., a copy
of a passport or birth certificate, or green card) that they are U.S.
citizens or legal permanent residents of the United States. One
commenting party supported the U.S. citizenship requirement; another
recommended that it apply only to new entities seeking designation; and
a third opined that the executive certification, SEVIS certification,
and separate evidence requirements were redundant. The Department
disagrees that the certifications are redundant. There is only one
certification of U.S. citizenship or legal permanent resident status
required. The executive certification is required on the SEVIS-
generated form to ensure that the criminal background check has been
completed on the proposed Responsible Officer and all proposed
Alternate Responsible Officers. Providing documented proof is already a
required practice and does not pose any additional burdens on the
sponsor. Therefore, the Department adopts the language of the proposed
rule.
With respect to the overall application process, one party
commented that the requirements for submission of applications for
designation and redesignation should be differentiated by program
types, since colleges and universities already have unique requirements
they must meet. Another party suggested that the required information
would place an unnecessary administrative burden on established, low-
risk entities. The

[[Page 60298]]

Department has found that the specific information it requests is
necessary to evaluate an applicant's initial or a sponsor's ongoing
qualifications to participate in the Exchange Visitor Program, without
regard to the program type or the entity's legal status. Accordingly,
and to ensure equal treatment of all applicants, the Department adopts
the language of the proposed rule.
A single party commented on the definitions of ``financed
directly'' and ``financed indirectly,'' as set forth in the proposed
rule, noting that current regulations do not require certain publicly
held companies to disclose the names, addresses, and citizenship or
legal permanent resident status of their Boards of Directors or the
percentage of stock/shares held in order to demonstrate the entity's
U.S. citizenship status. The Department determined that this comment
appears to have been directed to the application process requirements
and not the financial support associated with an exchange visitor. The
Department clarifies that the proposed rule already exempts publicly
held U.S. companies whose shares are traded on a U.S. stock exchange
from this requirement.
In addition, the Department deletes Appendices A and B to Part 62
in light of the collection of information through Form DS-3036
(Exchange Visitor Program Application) (OMB collection 1405-0147).

Section 62.6 Designation

The Department received three comments regarding sponsor
designation. Comments ranged from statements indicating that these
requirements should be applicable only to new entities seeking
designation to requests that the Department differentiate exchange
visitor program requirements by category, because colleges and
universities must meet other requirements in order to operate. Some
comments also argued that the information being requested would place
an unnecessary administrative burden on established, low-risk entities.
The Department respectfully disagrees and finds that the requested
documentation is necessary to complete a full review of all new
applications for designation on a consistent basis over all categories.
It would be tremendously complex to have the Designation requirements
be varied over the 15 categories of the exchange visitor program.
One party commented on the proposed flexibility of the Department
to redesignate a sponsor for one or two years, at its discretion,
opining that all sponsors should be redesignated for two years. Four
parties commented that the cycle should be set at the original five
years. Under section 502(b) of Public Law 107-173, enacted May 14,
2002, the Department of State is to conduct a periodic review of
sponsors of exchange visitors at least every two years. The
legislation, however, does not prohibit the Department from reviewing a
sponsor's qualifications more frequently. For example, experience has
demonstrated that there are a number of sponsors having technical
infractions that are of enough concern to cause the Department to
withhold a longer period of designation until that sponsor has
corrected these problems. The Department believes that it can work with
such sponsors to assist them in improving their program operations in
this area. The one-year redesignation informs a sponsor that it needs
to correct any issues identified, but also creates a time period after
which the Department will formally check the extent of the sponsor's
improvement and determine whether it indeed qualifies for a two-year
redesignation. Accordingly, the Department adopts the proposed one or
two year redesignation cycle in order to provide it with the tools
necessary to ensure that only qualified entities continue to operate as
designated sponsors.

Section 62.7 Redesignation

The Department received a total of 24 comments regarding various
aspects of the redesignation process (in addition to the 514 comments
opposed to the collection of Dun & Bradstreet numbers in connection
with designation and redesignation, discussed above). Four parties
recommended that the redesignation cycle be changed to a five-year
rather than two-year cycle. However, as noted above, there is a
statutory requirement for a minimum biannual review cycle of all
sponsors designated to conduct exchange visitor programs. For this
reason, the Department will adopt the language of the proposed rule.
Nine parties complained about the ``excessive'' amount of
documentation they must provide along with an application for
redesignation. In particular, post-secondary academic institutions
opined that providing the Department with information about their
Boards of Trustees was superfluous, as such institutions were already
subject to rigorous checks and other measures to ensure accountability.
Indeed, with respect to a sponsor's eligibility, the Department is
concerned not only that a sponsor have financial stability and
resources, but also that control of its exchange visitor program not be
ceded to people who do not meet the regulation's definition of a U.S.
person. Accordingly, it is incumbent upon sponsors--even large
universities--to report and update the citizenship or legal U.S.
permanent residence status of the members of their governing boards and
provide updated copies with an application for redesignation. The
Department believes that this documentation is necessary to ensure that
a sponsor seeking redesignation continues to meet all requirements of
designation (e.g., status as a U.S. person, financial viability). A
sponsor's circumstances may change over time, therefore making it
necessary for sponsors to provide complete and current information
during the redesignation process in order for the Department to make a
meaningful assessment of a sponsor's continued qualifications for
sponsorship. Although government agencies may not have all the
documentation specified in this section, they too are required to
submit all relevant documents. Accordingly, the Department adopts the
language in the proposed rule.
As discussed above, the Department received a total of 514 comments
regarding the proposal to collect a Dun & Bradstreet Report for both
new applicants and for current sponsors seeking redesignation. After
consideration, the Department has decided to eliminate this
requirement.
Two parties recommended that the following language be reinserted
into section 62.7: ``a sponsor seeking redesignation may continue to
operate its program(s) until such time as the Department of State
notifies it of a decision to amend or terminate its designation.'' The
Department inadvertently deleted this language and has therefore
reinserted it into this Final Rule.
Section 62.7(c)(2) of the proposed rule required that, as part of
the redesignation process, sponsors provide the Department with a list
of foreign and domestic third parties with whom they have written
agreements. Three parties opposed this requirement, arguing that it was
an excessive paperwork requirement. Keeping in mind the modification of
the definition of third party (which now requires sponsors to enter
into written agreements with entities that act on behalf of the sponsor
in the conduct of the sponsor's exchange visitor program), the
Department has decided to require all sponsors to maintain such lists,
which the Department may then request as part of the redesignation
process or as circumstances require. (Note that

[[Page 60299]]

sponsors in the Summer Work Travel category of the Exchange Visitor
Program must submit the names of all foreign entities to the Department
in accordance with 22 CFR 62.32(p)(2).)
Finally, the Department proposed requiring sponsors to confirm or
reconfirm the suitability of proposed or current Responsible Officers
and Alternate Responsible Officers, by requiring them to undergo
criminal background checks. One party objected to requiring current
Responsible Officers and Alternate Responsible Officers to repeat the
process. The Department will require designated sponsors to obtain
these reports every four years; sponsors that are redesignated for a
single year, however, will be required to repeat the process for their
next designation application.
The Department anticipates that thorough criminal background
reports will provide management decision makers with sufficient
information to determine whether candidates for Responsible Officer and
Alternate Responsible Officer positions--positions that work with a
national security computer system--have criminal records or other
blemishes on their pasts that may make them unsuitable for the proposed
positions. Furthermore, the criminal background check requirement
reflects the importance of such individuals in a sponsor's organization
and their right of access to, and ability to manipulate data within, a
controlled federal government database that tracks foreign nationals
participating in the Exchange Visitor Program. In addition, protection
of exchange visitor personal data is important to the health, safety,
and welfare of program participants. Responsible Officers and Alternate
Responsible Officers are the only individuals authorized to log onto
SEVIS, issue and sign a Form DS-2019, the ``Certificate of Eligibility
for Exchange Visitor (J-Nonimmigrant) Status,'' and otherwise update
the system with timely and accurate information. Thus, it is of vital
importance that all individuals with access to SEVIS be properly
vetted. The Department will not require an additional background check
for Responsible Officers and Alternate Responsible Officers who are
working for a federal or state government entity and have already
passed a government background check.
Nine out of 24 comments specifically addressed the paperwork,
including proof of criminal background checks, which must be submitted
as part of the redesignation application, deeming it excessive. Except
on an ad hoc basis, the Department of State has decided not to require
applicants or sponsors to submit the results of the criminal background
checks. Rather, the Chief Executive Officer, President, or equivalent
must submit a certification that the sponsor's Responsible Officer and
Alternate Responsible Officer(s) have undergone criminal background
checks within the last four years or when a new sponsor files a
designation application. The proposed regulation did not set specific
requirements for a sponsor to follow with respect to report format,
screening company, or assessment of criminal background check reports.
The Department does, however, require a sponsor to utilize the services
of a bona fide background screener. Although the Department does not
endorse any particular screener or screening organization, it
identifies, for sponsors' convenience, an organization that can help
identify potential background companies: The National Association of
Professional Background Screeners (NAPBS). NAPBS has more than 500
members (a list of which is located at www.NAPBS.com), all of which are
expected to adhere to the NAPBS code of conduct governing background
investigations and confidentiality.
The Department emphasizes that obtaining a criminal background
report does not in and of itself confirm an individual's suitability to
act as a Responsible Officer or an Alternate Responsible Officer. A
sponsor should consider the results of such a report, and other
factors, in making a reasoned judgment about an individual's fitness to
assume either of these two roles.

Section 62.8 General Program Requirements

Only one party commented on the general program requirements
section. Specifically, the commenting party proposed that the minimum
number of exchange visitors required for program designation be raised
from five, as currently specified in section 62.8(a) of the proposed
rule, to ten. The party also asked the Department to specify what
constitutes the ``good cause'' that would permit an applicant to run an
exchange program with fewer than five exchange visitors. The Department
established a minimum number of exchange visitors based on the smallest
program size it believes justifies the resources it must expend to
evaluate a sponsor's redesignation application and monitor its program
on an on-going basis. Increasing the minimum size would have no impact
on any parties except those small programs themselves, and could
potentially and unnecessarily remove niche sponsors from the program.
Accordingly, the Department will not increase the minimum number. With
respect to ``good cause,'' each situation is fact-specific, and, since
the Department wishes to maintain maximum discretion, the Department
has decided to delete the reference to ``good cause.'' With the
exception of the removal of ``good cause,'' the Department adopts the
current language of the proposed rule.

Section 62.9 General Obligations of Sponsors

The Department received a total of 56 comments regarding various
general program obligations of sponsors. Many of the comments related
to the appointment of Responsible Officers and Alternate Responsible
Officers.
One party commented on the payment bond requirement in section
62.9(e)(3), suggesting that the regulations should both provide
objective criteria regarding when and what kind of bond may be
required, and should exempt programs that have proven their financial
viability from the bond requirement. The Department notes that this
provision is not new. Although the Department has not required a
sponsor to secure a payment bond for many years, it recognizes that
there may be a number of circumstances in which it might be necessary
to do so. For example, the Department could have reason to believe that
a sponsor does not have either the resources to support an existing
exchange visitor population or the inclination to fulfill its
monitoring and support obligations. Unfortunately, such circumstances
might befall even a long-standing sponsor with an historical record of
financial viability and program support. To provide another example,
when the Department redesignates a sponsor for a single year, it may
wish to require that sponsor to obtain a bond that provides sufficient
funding to cover the cost of supporting the sponsor's current year
exchange visitors and/or transferring the next year's exchange visitors
to other sponsors. Were the sponsor's performance not to improve and
were the Department to initiate a suspension or other serious sanction
against the sponsor, a payment bond could help ensure that there would
be sufficient funding available to take care of potentially stranded
exchange visitors. The Department, therefore, must retain the
flexibility to require all sponsors to secure payment bonds at the
Department's discretion.
Three parties addressed the provision in section 62.9(f)(2) that
requires a sponsor to ensure that its employees, officers, agents,
independent

[[Page 60300]]

contractors, third parties, volunteers, or other individuals associated
with the administration of its exchange visitor program are adequately
qualified and trained and comply with the Exchange Visitor Program
regulations and immigration laws. One party stated that this regulation
should be expanded to include foreign nationals who work as ``agents or
representatives'' of sponsors. Although the Department believes that
this language is already sufficiently broad to include any party that a
sponsor engages to assist in its exchange visitor program oversight and
operations, it modifies the language to change ``other individuals'' to
any ``other individual or entity'' to avoid confusion about this broad
sponsor obligation to ensure the regulatory awareness and compliance of
entities it may engage to assist.
Two other parties opined that, in order to adequately train staff
and others on working in the SEVIS system, sponsors must be permitted
to employ more than ten Alternate Responsible Officers. It is not clear
why individuals must have access to SEVIS in order to be capable of
training others on Exchange Visitor Program regulations. Regardless, as
it has noted above, the Department will accept requests for additional
Alternate Responsible Officers on a case-by-case basis.
Eight parties opposed the proposed criminal background check
requirement for Responsible Officers and Alternate Responsible Officers
in proposed section 62.9(g)(1). Fifteen parties supported it, although
of those, thirteen parties recommended that the background checks not
be required annually and that Responsible Officers and Alternate
Responsible Officers of currently designated sponsors be
``grandfathered'' in. The Department considered this recommendation and
has decided that current Responsible Officers and Alternate Responsible
Officers will need to obtain a background check before their sponsor
organization is next redesignated after the promulgation of this final
rule and maintain background check paperwork on Responsible and
Alternate Responsible Officers that is no older than four years at any
time. New sponsors seeking designation by the Department must conduct
new background checks on their proposed Responsible Officers and
Alternate Responsible Officers. Thus, in accordance with section
62.5(c)(8)(iii) below, an entity seeking designation must obtain
criminal background reports on all proposed Responsible and Alternate
Responsible Officers, certify that it has done so, and maintain records
that are no older than four years at any time. In those few instances
where the Department is concerned about a sponsor's regulatory
inconsistencies related to their administration of the program and
redesignates it for a single year, such sponsor would be required to
obtain reports for that year.
One commenting party suggested that if a sponsor were merely
required to maintain records of these criminal background checks and
submit them to the Department only on request, it would undermine the
rationale for requesting these checks because they would not be turned
in. However, the Department intends for sponsors to use their own
judgment and internal standards to assess the suitability of
individuals for these jobs, based on whether a report revealed any
information about a candidate's past that would disqualify him or her
from assuming a position of trust and responsibility.
Nine out of ten parties commented that the proposed maximum of ten
Alternate Responsible Officers specified in section 62.9(g)(1) is not
large enough, and that larger sponsors with more exchange visitors
should be permitted to have more than ten Alternate Responsible
Officers. The Department will explore the idea of expanding the maximum
number of Alternate Responsible Officers for sponsor organizations that
request additional officers and demonstrate a need for them.
Two parties addressed the requirement in section 62.9(g)(2) that
Responsible Officers and Alternate Responsible Officers be employees of
the sponsors. One comment, from a Rotary organization, explained that
Rotary uses only volunteers, not employees, as Responsible Officers and
Alternate Responsible Officers. The other comment, from a large
corporation, raised the concern that company lawyers and paralegals
would no longer be permitted to serve as Alternate Responsible Officers
under the new rules. The Department has reviewed this comment and has
determined that it would prefer that Responsible Officers and Alternate
Responsible Officers be employees of the sponsor organization. However,
an applicant entity or a sponsor that wishes to nominate an individual
who is not an employee as an Alternate Responsible Officer may make a
request to the Department, which the Department may approve in its
discretion. One important factor that may qualify a volunteer as an
Alternate Responsible Officer might be that person's longstanding,
close, and continuing relationship with the sponsor organization.
Another factor might be that the volunteer works for a sponsor
organization that has a predominantly volunteer exchange model.
Ten parties commented on the requirement in section 62.9(g)(3) that
sponsors replace outgoing Responsible Officers and Alternate
Responsible Officers within ten calendar days, suggesting that this
requirement was unrealistic. Comments indicated, for example, that it
takes a long time to hire new staff, making it not feasible to speedily
replace personnel. The Department understands these concerns, but
maintains the requirement. The Department is not suggesting that the
sponsor organization hire a new employee in this timeframe, but that it
designate and provide documentation for an existing staff member to be
placed in the position on a temporary basis until a permanent
replacement is hired. Ten days is the amount of time that the
Department believes that a Responsible Officer/Alternate Responsible
Officer work could go uncompleted; after this time period, someone must
take on the Responsible Officer/Alternate Responsible Officer
monitoring workload at the sponsor organization. The Department wishes
to reiterate that a sponsor must have in place and maintain a
Responsible Officer and a minimum of one Alternate Responsible Officer
at all times. If the Responsible Officer leaves, the sponsor may wish
to designate an existing Alternate Responsible Officer to that position
on a temporary basis. If the only Alternate Responsible Officer leaves,
the sponsor should select another existing employee or officer to be an
Alternate Responsible Officer. The potential Responsible Officer/
Alternate Responsible Officer needs to undergo the criminal background
check and be trained in the system, unless it is a case of an Alternate
Responsible Officer becoming the Responsible Officer temporarily. In
either case, and regardless of the reason, when a Responsible Officer
or Alternate Responsible Officer departs the organization, the sponsor
must ensure that the departing person's access to SEVIS is terminated
as quickly as possible, but in no event later than ten calendar days
after departure. This action serves to limit unauthorized SEVIS access
by a person who is no longer involved with the administration of a
sponsor's exchange visitor program and, thereby, protects all involved
parties, as well as U.S. national security. The Department reminds
sponsors that they must make it their highest priority

[[Page 60301]]

to replace a departing Responsible Officer as quickly as possible as
this role is critical to the stewardship of the sponsor's exchange
visitor program.
In addition, the Department deletes the second sentence of section
62.9(a); the regulations governing the imposition of sanctions are set
forth in 22 CFR 62.50. The Department also deletes Appendix C to Part
62 in light of the collection of information through Form DS-3037
(Update of Information on a Sponsor's Exchange Visitor Program) (OMB
collection 1405-0147).

Section 62.10 Program Administration

Twenty-three parties commented on the proposed requirement in
section 62.10(a)(2) that exchange visitors be proficient in the English
language, ``as measured by an objective measurement.'' All but one of
these parties recommended maintaining the current language (i.e., ``The
exchange visitor possesses sufficient proficiency in the English
language to participate in his or her program.'') One party recommended
that the Department adopt the test set forth in the regulations for the
Trainee and Intern categories (Section 62.22(d)(1)). The Department
believes that not only is an exchange visitor's success in his or her
particular program dependent upon sufficient English language
capability, but good English communication skills are essential to
ensure the health, safety, and welfare of exchange visitors. Moreover,
the Department continues to find that too many exchange visitors lack
sufficient English proficiency to perform their jobs or complete their
academic programs; to navigate daily life in the United States; to read
and comprehend program materials; to understand fully their
responsibilities, rights, and protections; and to know how to obtain
assistance, if necessary. Accordingly the Department adopts a modified
version of the regulatory language governing the Trainee and Intern
categories as the program-wide standard for determining the English
language proficiency of exchange visitors. The Department reminds
sponsors to retain evidence of how they measured applicants' English
language proficiency so that it may be made available to the Department
upon request.
The proposed rule moved sections 62.70(b) and (c) to sections
62.10(d)(3) and (4) and required that sponsors report in SEVIS any
change in an exchange visitor's U.S. address, telephone number, email
address, or primary site of activity within ten business days of being
notified by the exchange visitor. Of the fifteen parties commenting on
this proposed requirement, the majority opined that ten days are not
sufficient time to update records, given the number of exchange
visitors in programs and the other responsibilities of the Responsible
Officer and Alternate Responsible Officers. Since the inception of
SEVIS, sponsors were required to update SEVIS records within 21 days.
Upon review of current SEVIS reporting requirements and the
Department's legislative mandate to ensure that sponsors maintain
SEVIS, the Department upholds the proposed language and requires
sponsors to report in SEVIS within ten business days of notification by
an exchange visitor of any change in address, telephone number or email
address.
Thirty parties opposed the proposed requirement in section
62.10(d)(5) that sponsors report the actual and current U.S. address
and email address for accompanying spouses and dependents. They argued
that such a requirement would be unduly burdensome, that the
information could be obtained from the Department of Homeland Security
(DHS), and that the requirement should be postponed until the next
version of SEVIS is operational, at which time exchange visitors can
enter this information directly into SEVIS themselves. Similarly, 31
parties objected to the proposed requirement in section 62.10(d)(6)
that sponsors report Employment Authorization Document (EAD)
information in SEVIS for accompanying spouses and dependents. They
argued that sponsors do not have this information, that this
information is not part of the employment authorization process, or
that, in any event, U.S. Customs and Border Protection should collect
this information. To be ``accompanying,'' spouses and dependents--with
few exceptions (e.g., dependents are in a boarding school)--should be
living with the exchange visitors. The Department finds that collection
of the accompanying spouse and dependents' email addresses is necessary
for emergency contact information and upholds this requirement. The
Department deletes proposed section 62.10(d)(6) regarding Employment
Authorization Documents from this final rule; however, the Department
will review the requirements of this proposed section at the time
another version of SEVIS is implemented.
In order to protect the health, safety, and welfare of exchange
visitors, language has been inserted into the regulation making it
unlawful for sponsors or their foreign entities to retaliate against
exchange visitors if they should make complaints about the program.

Section 62.11 Duties of Responsible Officers and Alternate Responsible
Officers

Proposed section 62.11(a) would require Responsible Officers and
Alternate Responsible Officers to be thoroughly familiar not only with
the Exchange Visitor Program regulations and Department codes required
for issuing Forms DS-2019, but also with ``all federal and state
regulations pertaining to the administration of its exchange visitor
program, including the Department of State's and Department of Homeland
Security's policies, manuals, instructions, guidance and SEVIS
operations relevant to the Exchange Visitor Program,'' as well as
federal, state and local laws pertaining to employment, including the
Fair Labor Standards Act, if the exchange category overseen has an
employment component. Five commenting parties encouraged the Department
to develop clear, up-to-date policy and interpretive guidance on all
relevant laws and regulations, and to make such guidance easily
available to program sponsors. In an attempt to capture relevant
Department guidance, regulations, and other information, the Department
launched a new Web site design last year, and all such information can
now be accessed under one section, at http://j1visa.state.gov/sponsors/current/regulations-compliance. Sponsors nonetheless may need to
research some federal, state, and local requirements that may impact
their exchange visitor programs.
One commenting party expressed concern about proposed section
62.11(d), which directs sponsors to ensure that their spam filters do
not block reception of SEVIS or communications from either the
Department of State or the Department of Homeland Security. The party
noted that it is not always possible to know if messages are being sent
in the first place and suggested that multiple messages be sent,
including a paper notice if there is no response from the sponsor. The
proposed regulation is consistent with the requirement set forth in 8
CFR 214.3(e)(1) that governs electronic notices sent to Student and
Exchange Visitor Program (SEVP) certified schools. Paper notices will
be sent at Departmental discretion in certain circumstances, such as
when sponsors have notified the Department that their electronic
systems will have outages within a specific timeframe. Therefore, the
Department adopts the language of the proposed rule.

[[Page 60302]]

Section 62.12 Control of Forms DS-2019

The proposal in section 62.12(b)(1)(i) stated that a sponsor must
verify that each prospective exchange visitor is eligible, qualified
and accepted into the sponsor's exchange visitor program. The
parenthetical language implies that the sponsor has secured a
placement, by obtaining a camp offer letter or a written secondary
student school acceptance, before issuing a Form DS-2019. A total of 25
parties, mostly from the secondary school student and camp counselor
communities, commented on this proposed change, only one of which
supported it. A majority of those commenting expressed concern that if
program pre-placement--e.g., a camp offer letter or a written secondary
student school acceptance--were required for all exchange visitors,
many exchange visitors would be unable to secure visas because the visa
process is so slow during high volume seasons. The secondary school
student regulations set forth under section 62.25, for example, permit
sponsors to place students up to August 31 each academic year. Due to
high volume of visas processed every summer, waiting until the end of
August when a school placement is confirmed does not permit ample time
for the visa to be processed and travel to the United States prior to
the first day of school.
The Department believes that there are many advantages to its
proposal. First, it would prevent sponsors from cancelling programs at
the last minute due to their inability to secure program placements
(and a prospective exchange visitor would know that there was no
guarantee of a program until he or she received a Form DS-2019). It
also would lessen the potential for applicants to obtain and use visas
without ever intending to participate in the Exchange Visitor Program.
Finally, it would require sponsors to secure placements earlier in the
season than they usually do, allowing more time for planning and
orientation than is now available.
Nevertheless, without further analysis, the Department cannot
assess whether posts would be able to timely grant all the necessary
visa interviews, in order to avoid unanticipated shrinkage in program
sizes. In light of this, the Department is eliminating the proposed
parenthetical language ``(e.g., has an offer letter from a camp, a
written acceptance from a secondary school)'' from section
62.12(b)(1)(i). The Department acknowledges that, in certain categories
sponsors are able to meet the regulations by accepting exchange
visitors into their program without securing final placement prior to
issuing a Form DS-2019. It is important to note that certain
categories, such as Summer Work Travel, secondary school students,
interns and trainees, have their own criteria regarding placements
within the specific program provisions set forth in Subpart B.
Four parties opposed the new language in section 62.12(d)(1)
regarding annual allotment of Forms DS-2019, arguing that a limited
annual allotment might result in a sponsor not having enough forms to
meet market demand. The Department notes that the process for
submitting an annual request for the Department for allotment of Forms
DS-2019 or the request for additional Forms DS-2019 (i.e., an
expansion) is no different than the process that has been in place
since the publication of the original 1993 regulations. The Department
started ``allocating'' Forms DS-2019 before the advent of SEVIS. The
transition to the electronic generation of such forms to be printed on
a sponsor's printer, however, does not eliminate the need for the
Department to determine how many forms a sponsor may have--and thus,
how many exchange visitors a sponsor may bring to the United States
each year. Indeed, the Department assesses each sponsor's financial and
staffing resources in an effort to ensure that a sponsor does not
sponsor more exchange visitors than it can adequately monitor and
support. The Department, therefore, will issue Forms DS-2019 to
sponsors based on the current need of the sponsor, how the Department
views program expansion as a policy issue, and any upcoming expressed
needs of sponsors in their implementation of the program.
The commenting parties noted that the program size expansion
request procedures in section 62.12(d)(2) are unclear and require
further clarification from the Department. The Department respectfully
disagrees. The language in the proposed regulations parallels the
language in section 2.4.2 of the User Manual for Exchange Visitor
Program Sponsor Users (RO/ARO) of SEVIS Version 6.10: Volume 1 Forms
DS-3036 and DS-3037. Sponsors have long been required to describe their
source of planned program growth, staff increases, training capacity,
current financial status, and provide other information on how they
will handle program growth (id. at p. 46). Accordingly, the Department
will adopt section 62.12(d) as proposed.
Thirteen commenting parties addressed the prohibition in section
62.12(e)(2) against forwarding, via fax or other electronic means,
copies or PDFs of signed or unsigned Forms DS-2019 to any unauthorized
party. The parties noted that, although they appreciate the importance
of keeping copies of government documents secure, the prohibition as
written in the proposed rule is too rigid. One party observed that the
proposed regulation does not clearly indicate if there are any
``authorized parties'' other than the Department of State and the
Department of Homeland Security and queried whether, for example, an
exchange visitor whose DS-2019 is stolen is an ``authorized party'' for
purposes of receiving a copy of his or her own scanned DS-2019. Another
commenter noted that because the original DS-2019 must be signed by the
sponsor in blue ink, a precaution that permits anyone viewing the DS-
2019 to distinguish readily an original from a photocopy, there is no
reason to restrict a sponsor's ability to transmit a fax or PDF to any
entity other than the Department of State or the Department of Homeland
Security. In light of current technologies that make it easy to create
counterfeit copies of documents, the Department does not wish for there
to be any electronic or paper replicas of Forms DS-2019 to be available
to anyone, hence, the only authorized parties are the Departments of
State and Homeland Security. It would be relatively simple to remove a
black signature from a copy of a Form DS-2019 and replace it with an
original blue ink signature. While sponsors are certainly authorized to
maintain copies of these forms for their internal files and may be
called on to provide such copies to a requesting Department, the only
other ``versions'' of Forms DS-2019 should be the original documents
maintained by the exchange visitors and their accompanying spouses and
dependents. Accordingly, the Department will adopt the proposed
regulation as drafted.
Three commenting parties opposed the requirement in section
62.12(e)(5) that a sponsor ask exchange visitor applicants to return
unused Forms DS-2019. Two of the parties pointed out that SEVIS makes
this requirement obsolete. The Department agrees--as long as sponsors
promptly change the status of the SEVIS records associated with the
unused Forms DS-2019 to ``invalid.'' Otherwise, individuals with
unscrupulous intentions could use a Form DS-2019 to obtain a visa to
illegally enter the United States. While the Department will withdraw
the requirement set forth in section 62.12(e)(5), it reminds sponsors
of the

[[Page 60303]]

critical importance of maintaining current and accurate SEVIS records.
In addition, the Department deletes section 62.12(b)(2)(iii); the
regulations governing the imposition of sanctions are set forth in 22
CFR 62.50.

Section 62.13 Notification Requirements

The Department received a total of 18 comments regarding various
aspects of the notification requirements section. One party stated that
the wording of section 62.13(a)(1) mistakenly implies J-2 accompanying
spouses and dependents will need to be validated separately from the J-
1 exchange visitors they accompany or join, even though J-2s are
automatically validated in SEVIS when J-1s are validated. Under the
current SEVIS, a J-2's record is automatically changed from ``Initial''
to ``Active'' status upon the validation of the associated J-1 record.
Accordingly, the Department modifies the language of section
62.13(a)(1) to clarify that separate validation is not necessary.
Seven parties commented on the requirement proposed at section
62.13(a)(4) that sponsors track and report early departures of
accompanying spouses and dependents, stating that they had no system to
track them, and that ``this requirement goes beyond regulatory
requirements.'' The Department disagrees. There have been 30,000 J-2
visa holders that entered the United States on the Exchange Visitor
Program since the program's inception. Sponsors of exchange visitors
are equally responsible for tracking the whereabouts of accompanying
spouses and dependents to whom they also issued Forms DS-2019. One
commenting party, however, explains that there is no regulatory
requirement for the J-1 exchange visitor to report to the sponsor the
travel plans of his or her accompanying spouse and dependents. The
Department reminds sponsors that it is incumbent upon them to draft and
implement programmatic rules that allow them to satisfy the
requirements in Part 62. In other words, a sponsor can easily make it a
condition of bringing an accompanying spouse and dependents that the
exchange visitor must report if and when they depart the United States
prior to the exchange visitor. Accordingly, the Department retains the
proposed language for section 62.13(a)(4).
Four parties submitted comments about the requirement proposed in
section 62.13(b)(2) that a sponsor must update SEVIS to reflect any
change to an exchange visitor's site of activity. This is not a new
requirement: current section 62.70(a)(5) requires a sponsor to
``[u]tilize SEVIS to up-date information on any exchange visitor,
spouse, or dependent child for whom a SEVIS record has been created.''
The purpose of the new language in section 62.13(b)(2) is to ensure
that sponsors understand that an exchange visitor's site of activity is
included in the SEVIS information that they are required to update.
As ``site of activity'' is a newly defined term, the Department
understands that additional guidance is needed to inform sponsors how
to accommodate certain situations. One university expressed concern at
the burden of updating the (secondary) site of activity field for an
exchange visitor who goes to another site ``for a few days at most'' to
lecture or consult. Proposed regulations at section 62.13(b)(2) require
a sponsor to update an exchange visitor's site of activity within ten
days. Clearly, changes in activity locations that last only a few days
would not need to be captured in SEVIS. Keeping in mind that a purpose
of maintaining a current site of activity in SEVIS is to enable law
enforcement to locate exchange visitors, in the above example, it is
likely that someone at the professor's primary site of activity could
provide law enforcement with the professor's itinerary. However, if an
individual had both a permanent office and a lab site, it would be
appropriate to enter as the primary address, the one at which the
exchange visitor was primarily located, and to enter the other as
secondary. The collection of this data will remain in the final rule.
When a nonimmigrant enters the United States and reports to his or
her exchange visitor program sponsor, the sponsor must note this
occurrence in SEVIS through the validation process, thereby
demonstrating that the exchange visitor is currently present in the
United States and is participating in his or her exchange visitor
program identified on the Form DS-2019 used to enter the United States.
For the purpose of this rulemaking, the 30-day requirement for
validation remains unchanged, with the exception of those exchange
visitors participating in a program of which the maximum duration of
the program is less than 30 days. Section 62.8(b), regarding minimum
duration of program, requires a sponsor, other than a federal
government agency, to provide each exchange visitor, with the exception
of Short-term Scholar, with a minimum period of participation in the
United States of no less than three weeks. When an exchange program is
less than three weeks, the requirement to validate the SEVIS record
within 30 days of the Program Start Date does not work. Therefore, the
SEVIS record with a program duration of less than 30 days must be
validated before the Program End Date listed in SEVIS. Failure to
validate a nonimmigrant's SEVIS record (e.g., before the Program End
Date for program durations of less than 30 days or within 30 days of
the Program Start Date for programs with a program duration of 30 days
or greater) will result in the automatic change of the status of a
SEVIS record to ``Invalid'' (when no Port of Entry information is
contained on the SEVIS record) or ``No Show'' (when Port of Entry
information is present on the SEVIS record). A record in ``Invalid''
status indicates that a foreign national did not use the associated
Form DS-2019 to enter the United States. A record in ``No Show'' status
indicates that the nonimmigrant entered the country, but failed to
commence participation in the exchange visitor program for which he or
she entered the United States. It is important to recognize that a
SEVIS record in ``No Show'' status is a negative indicator that alerts
the proper authorities that the individual failed to comply with the
requirements of the Exchange Visitor Program regulations by entering
the United States with no intention of reporting to his or her sponsor.
Sponsors must use caution and timely validate SEVIS records or they
could change to ``No Show'' status and unintentionally create a
negative nonimmigrant history for the exchange visitor, thereby
impacting his or her application for visas in the future.
Sponsors should realize that Invalid and No Show records will
appear on the sponsor's Form DS-3097, Annual Report, and may be of
concern to the Department's Office of Designation when processing Form
DS-2019 allotment requests or applications for redesignation. Failure
to validate SEVIS records also may impact a sponsor's allotment of
available SEVIS records and the administrative actions that are
required (by both the sponsor officials and the Department of State
officials) to correct the SEVIS status of the records; and is evidence
of a sponsor's failure to comply with program regulations.
Three parties commented on proposed section 62.13(a)(3), which
provides that a sponsor must report in SEVIS any withdrawal from or
early completion of an exchange visitor's program. One party suggested
changing the functionality of SEVIS to allow a sponsor to enter a
retroactive date in the ``Complete Program More than 30 days Before
Program End Date'' field. The second party urged the Department to make
reference to the impending

[[Page 60304]]

paperless environment so that ``SEVIS can be programmed to implement
Exchange Visitor Program regulations, rather than expecting the
regulations to be amended later in response to SEVIS programming.'' The
third party, a sponsor in the research scholar category, suggested
omitting this provision from the Final Rule, arguing that sponsors
sometimes overestimate the amount of time a research project can take,
making it more sensible retroactively to change the program end date
rather than report that the program was completed early. The Department
has carefully considered these comments, and will adopt the language of
the proposed rule. The Department can anticipate neither the
implementation date nor the final characteristics of a SEVIS update.
Accordingly, it must adopt regulations that address the current state
of technology and issue guidance and/or new regulations after the
technologies change.
Current section 62.13(c)(8) requires sponsors to report the loss or
theft of Forms DS-2019 to the Department by telephone. Two commenting
parties asked the Department to reconsider this requirement and instead
permit sponsors to report this information via email or in SEVIS. The
Department agrees with this suggestion and, accordingly, will change
section 62.13(c)(8) to permit such information to be reported by
telephone or email.
Section 62.13(d), which has been changed to require sponsors to
inform the Department of any serious problem or controversy on or
before the next business day, inspired two comments. One party asked
the Department to keep the language ``promptly'' rather than change the
operative language to ``on or before the next business day.'' The
Department believes that ``promptly'' was too vague a standard to guide
sponsors in the event of a serious problem or controversy. Thus the
Department will adopt the wording ``on or before the next business
day.'' The other party asked that the Department more explicitly define
or provide examples of what might constitute a ``serious problem or
controversy.'' Examples of such instances are death or serious injury
of an exchange visitor, sexual abuse, or any other event that could
bring the Department or the Exchange Visitor Program into notoriety or
disrepute.
In addition, the Department deletes section 62.13(b)(1)(iii); the
regulations governing the imposition of sanctions are set forth in 22
CFR 62.50.

Section 62.14 Insurance Coverage

This rule increases by $50,000 the level of insurance coverage a
sponsor must require its exchange visitors (and accompanying spouses
and dependents) to maintain for the duration of their exchange visitor
program participation, as reflected on their Forms DS-2019 (i.e., from
the ``Program Begin Date'' through the ``Program End Date''). Many
sponsors already require insurance policies for their exchange visitors
at a higher level of coverage than the current regulations require.
Although the regulations do not require ``entry to exit'' insurance
coverage, the Department strongly encourages sponsors to offer this
highly desirable coverage.
The Department received a total of 47 comments regarding the
insurance provisions. Of those, 37 parties supported the increased
amounts, nine parties opposed the proposed changes, and two parties
neither agreed nor disagreed but made further inquiries about
acceptable ratings. The majority of the comments recognized the need
for an increase in the health insurance coverage amounts. However, some
commenters indicated that the amount of coverage of $200,000 per
accident or illness was too high and that $100,000 would be sufficient.
The Department has further reviewed insurance levels and
recommendations and agrees that $100,000 is an acceptable level of
coverage per accident or illness. The Department also has adopted, as
prompted by two of the comments, two additional insurance ratings: the
``A-'' rating by Fitch Ratings, Inc. and the ``A3'' rating by Moody's
Investor Services. Thirteen of the commenting parties asked the
Department to delay or provide a grace period for implementation of the
new insurance requirements in order to give sponsors time to enter into
new contracts with insurance carriers. The Department understands that
current contracts must be fulfilled and that it will take some time to
put new agreements in place. Therefore, the new insurance requirements
will go into effect on January 1, 2015. Three comments suggested
deletion of proposed section 62.14(j), which gives the Secretary of
State the authority to update new mandatory minimum levels of insurance
coverage. The comments argued that this power is too broad and that, in
any event, changes to minimum insurance coverage requirements should go
through the full regulatory review process. The Department agrees and
has deleted this provision from section 62.14.

Section 62.15 Reporting Requirements

Sponsors must submit annual reports to the Department, to be
generated through SEVIS. Such report must be filed on an academic (July
1-June 30), calendar (January 1-December 31), or fiscal (October 1-
September 30) year basis, as directed by the Department. The annual
report has recently been updated in SEVIS to reflect the changes made
on the Department's Form DS-3097 (Annual Report). The statistical
calculations for the number of exchange visitors each year is taken
directly from SEVIS records. Sponsors may input answers to the
narrative questions on Form DS-3097 in SEVIS; however, they must
continue to print the form, sign the certification, and mail it to the
Department until the implementation of the next version of SEVIS. In
addition, the Department deletes Appendix D to Part 62 in light of the
collection of information through Form DS-3097 (Annual Report Form)
(OMB collection 1405-0151).
The Department received 11 comments regarding section 62.15(e)(2)
of the proposed rule (now identified as section 62.15(a)(5)(ii) in this
rulemaking), eight of which opposed the stipulation that only the Chief
Financial Officer of an academic, medical, and private sector entity is
authorized to sign its annual report. The annual report form already
permits the Responsible Officer's signature; therefore, the Department
revises section 62.15(a)(5)(ii) to permit an institution's Chief
Executive Officer or Responsible Officer to sign the institution's
annual report.
To strengthen program oversight, proposed section 62.15(e)(3) (now
identified as section 62.15(b) in this rulemaking) requires management
reviews, currently utilized in the Au Pair category, for Private Sector
Program sponsors, which includes the categories of Trainees, Interns,
Teachers, Secondary School Students, Camp Counselors, Au Pairs, Alien
Physician, and Summer Work Travel. The Department received 59 comments
on the proposed management audit requirement, 23 of which were in favor
of the new requirement, 35 of which were opposed, and one of which
requested clarification on the cost and a list of recommended auditors.
Twenty-three comments recognized the value of a management audit yet
still raised concerns about the financial impact of such audits on
small entities, the financial impact on organizations that hold
designations in multiple categories of exchange, and the requirement
that audits be conducted annually.

[[Page 60305]]

A management review or audit, as it was previously referred to, is
a review of a sponsor's internal controls. The management review
identifies weaknesses in operating procedures in the conduct of an
organization's business and in meeting regulatory requirements in the
administration of its exchange visitor program or programs. Requiring a
management review would give the Office of Exchange Coordination and
Compliance an additional tool to assess the extent to which designated
private sector exchange sponsors comply with the Exchange Visitor
Program regulations. The Department will provide sponsors with a format
and schedule of the management review timeframe. The Department intends
to roll out the management reviews beginning with the secondary school
student category. Initial management reviews will be due four months
after the end of each category's annual cycle. Management reviews for
the other categories will be implemented on different schedules in
order to spread out the due dates over a two-year period. Sponsors that
administer exchange programs funded fully by federal, state, or local
governments (e.g., public school systems) are exempt from the
management review requirement. These exchange programs are audited
under other governmental requirements.
Sponsors are required to engage independent auditors to perform the
management reviews, including reviewing internal operating procedures
of the sponsor and the files of a statistically valid sampling of the
sponsor's exchange visitors.
Three commenting parties set forth general concerns about proposed
section 62.15(f) (now identified as section 62.15(a)(6) in this
rulemaking), which requires sponsors to report a numerical count, by
category, of all exchange visitors participating in the sponsor's
program for the reporting year. Specifically, the comments called into
question the accuracy of such data before any SEVIS revision were to go
into effect. The Department and SEVIS have addressed these concerns
since publication of the proposed rule. The new annual report form,
Form DS-3097, was implemented in SEVIS in April 2011.
Five commenting parties also opposed the characterization, in the
Supplementary Information section of the proposed rule, of certain
exchange visitor program categories as ``high risk.'' These parties
stated that, although the exchange community understands the special
vigilance required for certain programs where the majority of exchange
visitors are minors, the Department has publicly noted on several
occasions that the overall number of problematic incidents is low.
Using this language gives an inaccurate impression to the general
public, policymakers, and U.S. embassy staff who may not be familiar
with these programs. The Department agrees and eliminates from the
Final Rule language describing certain Exchange Visitor Program
categories as ``high risk.''

Section 62.16 Employment

As discussed above with respect to section 62.10, the Department
has eliminated the requirement that sponsors collect Employment
Authorization Document numbers for accompanying spouses and dependents.
Accordingly, section 62.16(c) has also been amended to remove all
reference to the collection of Employment Authorization Document
numbers. Further, the language has been updated to reference the
Department of Homeland Security and not the now defunct Immigration and
Naturalization Services (INS).
Note: Current section 62.17--Fees and Charges remains unchanged.

Regulatory Analysis

Administrative Procedure Act

The Department of State is of the opinion that the Exchange Visitor
Program is a foreign affairs function of the U.S. Government and that
rules implementing this function are exempt from sections 553
(Rulemaking) and 554 (Adjudications) of the Administrative Procedure
Act (APA). The U.S. Government, by policy and longstanding practice,
oversees foreign nationals who come to the United States as
participants in exchange visitor programs, either directly or through
private sector program sponsors or grantees. When problems occur, the
U.S. Government is often held accountable by foreign governments for
the treatment of their nationals, regardless of who is responsible for
the problems. The purpose of this final rule is to amend the general
administrative provisions for the Exchange Visitor Program, and
associated Appendices, in accordance with the Act and to take steps to
protect the health, safety and welfare of foreign nationals entering
the United States (often on programs funded by the U.S. Government) for
a finite period of time and with a view that they will return to their
countries of nationality upon completion of their programs. The
Department of State represents that failure to take steps to protect
the health, safety and welfare of these foreign nationals will have
direct and substantial adverse effects on the foreign affairs of the
United States. Although the Department is of the opinion that this rule
is exempt from the rulemaking provisions of the APA, the Department
previously published this rule as a notice of proposed rulemaking, with
a 60-day provision for public comment; and it is now publishing this
rule as a final rule with a 60-day provision for public comment. This
is without prejudice to its determination that the Exchange Visitor
Program is a foreign affairs function.

Small Business Regulatory Enforcement Fairness Act of 1996

This final rule is not a major rule as defined by 5 U.S.C. 804 for
the purposes of Congressional review of agency rulemaking under the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801-808). This rule will not result in an annual effect on the economy
of $100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.

Unfunded Mandates Reform Act of 1995

This final rule will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the private sector, of
$100 million 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.

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 Executive Order 13175 do not apply to
this rulemaking.

Regulatory Flexibility Act/Executive Order 13272

Since this final 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, section 3(b). In its September 22,
2009 promulgation of the proposed rule, the

[[Page 60306]]

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).
Numbers of Small Businesses
The Department notes that the final rule will affect the operations
of the nearly 1,400 sponsors designated by the Department to conduct
exchange programs. These 1,400 sponsors bring into the United States
close to 300,000 new exchange visitors annually. The Department has not
conducted a study of how many of its sponsors are small businesses.
However, even if all of the 1,400 sponsors are stipulated to be small
businesses, the proposed changes to the regulations would not be
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).
Small Business Compliance Costs
The Department has not specifically studied the effect of this
regulation on small businesses. However, it estimates the cost of a
management review, whose parameters the Department may define, to be
around $10,000. There is a cost of around $3-5 per person for an
instant electronic-type of background check or $15 per person cost for
one where local documentation is reviewed electronically. These types
of checks meet the standard outlined in the regulation. Health
insurance should not cause an increase in sponsor costs, as most
sponsors are already requiring insurance at the level noted in the
rulemaking, if not higher. The vast majority of exchange visitors pay
for their own insurance and buy from a variety of vendors with
different costs that are affected by myriad factors.
The cost per small business is estimated at around $10,000 every
two years for the management review. The cost, on average, is $48-$180
every four years for background checks based on an average of three to
six ROs/AROs per sponsor.
The Office of Advocacy, Small Business Administration, submitted a
public comment letter on this rule. The Office was concerned with the
Department of State's use of the foreign affairs exemption, the use of
the Interim Final Rule format, and the lack of small business data to
justify this certification. After receiving and analyzing the
aforementioned 656 comments and after consultation with the affected
stakeholders, a number of changes were made to the proposed regulation.
The Department removed the requirement for sponsors to collect a Dun &
Bradstreet number on the organization and affiliated third parties,
which would have been a cost to sponsors of several hundred dollars
each. In addition, the expense of required pre-designation on-site
reviews to sponsors was removed, which also would have cost sponsors
several hundred dollars each.
After revising the proposed rule, the Department again reviewed the
regulations being promulgated in this Final Rule in order to determine
if they would potentially have a significant economic impact on any
other small entities using the J-visa. Other than those comments
received regarding management audits, no other commenters claimed that
there would be a potential significant economic impact on small
entities.
Accordingly, the Department has determined that the Final Rule is
not expected to have an economic impact on a substantial number of
small entities.

Executive Orders 12866 and 13563

The Department is of the opinion that the Exchange Visitor Program
is a foreign affairs function of the U.S. 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 the final rule to ensure its consistency with the regulatory
philosophy and principles set forth in those Executive Orders. The
following number of sponsors and participants will be affected by
regulatory changes (note that the total number of sponsors in the table
adds up to more than 1,400, since many sponsors cover more than one
category of exchange visitor):

------------------------------------------------------------------------
Number of
Category Number of participants
sponsors (CY 2013)
------------------------------------------------------------------------
Au Pair................................. 15 14,625
Camp Counselor.......................... 24 18,889
College and University Student.......... 816 45,738
Intern.................................. 77 21,879
Alien Physician......................... 1 2,331
Professor & Research Scholar............ 975 31,842
International Visitor................... 7 5,715
Government Visitor...................... 22 5,299
Secondary School Student................ 77 23,697
Short Term Scholar...................... 834 19,572
Specialist.............................. 412 801
Summer Work Travel...................... 46 86,518
Teacher................................. 54 1,176
Trainee................................. 85 9,111
-------------------------------
Total............................... .............. 287,193
------------------------------------------------------------------------

The Department acknowledges an increased paperwork burden on the
1,400 sponsors that participate in the exchange visitor program. The
reasons for these requirements were explained above, and will be
explained in detail when the respective information collections are
updated. However, to summarize, these requirements will enhance the
safety and security of the exchange visitor exchange visitors (some of
whom are vulnerable minors) and will support interagency national
security efforts by ensuring that reputable individuals have access to
SEVIS. The increased costs, as explained in the preamble above, will
involve the cost of criminal background checks for personnel assigned
to each of the sponsors, which we estimate to be less than $10 per
person, for an average

[[Page 60307]]

of three to six Responsible Officers and Alternate Responsible Officers
per sponsor, as well as costs associated with performing a management
review. The management reviews will be conducted by sponsors in each
category on a rolling basis, starting with sponsors in the secondary
school student category. The Department intends the cost of the review
to be around $10,000 per sponsor per review period.
The general provisions section (Subpart A) has not been amended
since March 19, 1993. Exchange programs conducted under the authorities
of the Exchange Visitor Program promote mutual understanding by
providing exchange visitors an understanding of and an appreciation for
the similarities and differences between their own culture and that of
the United States. Upon their return home, the exchange visitors enrich
their communities with their fresh perspectives of U.S. culture and
events. Although this is an intangible benefit, one that is not easily
quantified, the Department finds that the benefits of this rulemaking
outweigh its costs. The Department has reviewed this rulemaking in
light of Executive Order 13563, and finds that it is consistent with
the guidance therein.

Executive Order 12988

The Department of State 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 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 section 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 final
rule are pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35
and OMB Control Number 1405-0147, Form DS-7000, which requires
collection of additional information for the Exchange Visitor Program.
(See 78 F.R. 38429, June 26, 2013).

List of Subjects in 22 CFR Part 62

Cultural exchange programs, Reporting and recordkeeping
requirements.

Accordingly, 22 CFR Part 62 is amended as follows:

PART 62--EXCHANGE VISITOR PROGRAM

0
1. The authority citation for Part 62 is revised to read as follows:

Authority: 22 U.S.C. 2651a; 8 U.S.C. 1101(a)(15)(J), 1182,
1184, 1258; 22 U.S.C. 1431 et seq.; 22 U.S.C. 2451 et seq.; P.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; P.L. 104-208, Div. C, 110 Stat. 3009-546, as
amended; P.L. 107-56, sec. 416, 115 Stat. 354; and P.L. 107-173, 116
Stat. 543.

Subpart A--General Provisions

0
2. Sections 62.1 through 62.16 are revised to read as follows:
Sec.
62.1 Purpose.
62.2 Definitions.
62.3 Sponsor eligibility.
62.4 Categories of participant eligibility.
62.5 Designation application procedure.
62.6 Designation.
62.7 Redesignation.
62.8 General program requirements.
62.9 General obligations of sponsors.
62.10 Program administration.
62.11 Duties of Responsible Officers and Alternate Responsible
Officers.
62.12 Control of Forms DS-2019.
62.13 Notification requirements.
62.14 Insurance.
62.15 Reporting requirements.
62.16 Employment.

Sec. 62.1 Purpose.

(a) The regulations set forth in this part implement the Mutual
Educational and Cultural Exchange Act of 1961 (the ``Act''), as
amended, Public Law 87-256, 22 U.S.C. 2451, et seq. (1988). The purpose
of the Act is to increase mutual understanding between the people of
the United States and the people of other countries by means of
educational and cultural exchanges. Educational and cultural exchanges
assist the Department of State in furthering the foreign policy
objectives of the United States. These exchanges are defined by section
102 of the Act, 22 U.S.C. 2452, and section 101(a)(15)(J) of the
Immigration and Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(J).
(b) The Secretary of State of the Department of State facilitates
activities specified in the Act, in part, by designating public and
private entities to act as sponsors of the Exchange Visitor Program.
Sponsors may act independently or with the assistance of third parties.
The purpose of the Program is to provide foreign nationals with
opportunities to participate in educational and cultural programs in
the United States and return home to share their experiences, and to
encourage Americans to participate in educational and cultural programs
in other countries. Exchange visitors enter the United States on a J
visa. The regulations set forth in this subpart are applicable to all
sponsors.
(c) The Assistant Secretary for Educational and Cultural Affairs of
the Department of State may, in his or her sole discretion and to the
extent consistent with the authorities described in paragraph (a) of
this section and other applicable law, waive or modify any provision of
this Part with respect to programs that are established pursuant to
memoranda of understanding, letters of intent or similar arrangements
between the United States and foreign governments. When establishing
such a program, the Department will publish a notice in the Federal
Register describing the program and any resulting modifications to or
waivers of provisions of this Part. If such an arrangement will not
result in a waiver of or other modification to the provisions of this
Part, then the Department need not publish a notice.


Sec. 62.2 Definitions.

The following definitions apply to this part:
Academic institution. Any publicly or privately operated primary,
secondary, or post-secondary institution in the United States or abroad
that offers primarily academic programs. For the purpose of these
regulations, an institution that offers primarily vocational or
technical programs is not an academic institution unless the specific
program or programs in which the exchange visitor is to participate or
has participated has been determined by the U.S. Department of State on
an exceptional basis to be comparable to those offered in academic
institutions.
Accompanying spouse and dependents. The alien spouse and/or minor
unmarried child(ren), if any, 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 non-immigrant J-
2 visas or seek 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 years old.

[[Page 60308]]

Accredited academic institution. Any academic institution that is
duly accredited by the appropriate academic accrediting authority of
the U.S. jurisdiction in which such institution is located. In
addition, all post-secondary institutions also must be accredited by a
nationally recognized accrediting agency or association as recognized
by the Secretary of Education.
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 and accompanying spouse and dependents
reside while participating in an exchange program.
Alternate Responsible Officer. An employee or officer of a 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 Alternate Responsible
Officer must be a United States person.
Certificate of Good Standing. A document issued by a state
Secretary of State, Secretary of Commonwealth, or other official in the
state where the business entity is registered. 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.
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 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. Either
the country of which the exchange visitor is a national at the time
status as an exchange visitor is 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 mutual understanding of each other's society, culture,
and institutions.
Department of State. The U.S. Department of State.
Designation. The written authorization issued by the Department of
State to an exchange visitor program applicant to conduct an exchange
visitor program as a sponsor. The term includes the written
authorization issued to a current sponsor that applies to continue its
designation (i.e., redesignation).
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 has been selected by a
sponsor to participate in an exchange visitor program, and who is
seeking to enter or has entered the United States temporarily on a non-
immigrant J-1 visa or who has obtained J status in the United States
based on a Form DS-2019 issued by the sponsor. 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.
Form DS-2019, A Certificate of Eligibility for Exchange Visitor (J-
Nonimmigrant) Status. A controlled document of the Department of State
that a sponsor issues to a potential Exchange Visitor Program
participant (J-1) and his or her accompanying spouse and dependents (J-
2) as permitted by regulations. This form, together with other
necessary Department of State documents, permits the named foreign
national, if required, to schedule an interview at a U.S. embassy or
consulate to seek to obtain a J visa to enter the United States as an
Exchange Visitor Program participant or as an accompanying spouse and
dependent.
Form DS-3036, Exchange Visitor Program Application. A controlled
document of the Department of State that an organization uses to apply
to become a designated sponsor of the Exchange Visitor Program and that
a designated sponsor uses to request redesignation or amendment of an
existing exchange visitor program.
Form DS-3037, Update of Information on a Sponsor's Exchange Visitor
Program. A controlled document of the Department of State that a
sponsor uses to update information on its exchange visitor programs in
SEVIS.
Form DS-3097, Annual Report. A controlled document of the
Department of State in which a sponsor reports program activity and
evaluation on a yearly basis.
Form DS-7002, Training/Internship Placement Plan (T/IPP). A
controlled document of the Department of State used in connection only
with a Trainee or Intern under 22 CFR Sec. 62.22, or a Student Intern
under Sec. 62.23 respectively, to outline an exchange visitor's
program activities.
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 is
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 school 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, and any accompanying spouse and dependents, who are
within the purview of section 212(e) of the Immigration and Nationality
Act, as amended, or Public Law 94-484 (substantially quoted in 22 CFR
41.63), must reside and be physically present in

[[Page 60309]]

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 K visa as the
fianc[eacute](e) of a U.S. citizen, 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.
Host organization. A third party in the United States that conducts
training and/or 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 for an Intern as set forth in an individualized Training/
Internship Placement Plan (Form DS-7002) 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 spouse and dependents,
if qualified under Sec. 214b of the Immigration and Nationality Act,
as amended.
Management review. A program-specific management audit in a format
approved by the Department of State that is conducted by an independent
auditor who is not an employee or third party contractor of the
sponsor, to identify weaknesses in operating procedures in the conduct
of an organization's business and in meeting regulatory requirements in
the administration of a sponsor's exchange visitor program.
Office of Designation. The Department of State, Bureau of
Educational and Cultural Affairs office assigned to administer
designations of sponsors.
Office of Exchange Coordination and Compliance. The Department of
State, Bureau of Educational and Cultural Affairs office assigned to
oversee sponsor compliance with 22 CFR Part 62 and, as appropriate,
impose sanctions.
Office of Private Sector Exchange Administration. The Department of
State, Bureau of Educational and Cultural Affairs office assigned to
monitor administration of each sponsor's 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 or U.S. national
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. An employee or officer of a 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. A Responsible Officer
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 visas), exchange visitors (J visas), and
their spouses and dependents (F-2, M-2, and J-2 visas). SEVIS enables
schools and program sponsors to transmit information and event
notifications electronically, 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.
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 for a post-secondary student intern as set forth in an
individualized Training/Internship Placement Plan (Form DS-7002) that
partially or fully fulfills a student's post-secondary academic degree
requirements; recognizes the need for work-based experience; provides
on-the-job exposure to American techniques, methodologies, and
technologies; and enhances the 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 a sponsor in the conduct of the sponsor's exchange visitor program.
All entities that act on behalf of the sponsor in the conduct of the
sponsor's exchange visitor program must execute written agreements with
the sponsor that outline the full relationship between the entity and
the sponsor on all matters involving the administration of the exchange
visitor program. A sponsor's use of a third party does not relieve the
sponsor of its obligations to comply, and to ensure third party
compliance, with the provisions of this Part. Failure by any third
party to comply with the regulations set forth in this Part or with any
additional terms and conditions governing administration of the
Exchange Visitor Program that the Department of State may from time to
time impose will be imputed to the sponsor. Sponsors are required to
ensure that third parties know and comply with all applicable
provisions of these regulations.
Training program. A structured and guided work-based learning
program for a trainee as set forth in an individualized Training/
Internship Placement Plan (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.
United States person (individual). A person who is born within or
is a national of the United States or any of its territories or
outlying possessions. A U.S. person is a citizen or an individual who
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).
United States Person (legal entity).
(1) A general or limited partnership created or organized under the
laws of the United States, or of any state, the

[[Page 60310]]

District of Columbia, or any territory or outlying possession of the
United States, of which a majority of the partners are United States
persons:
(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 United States persons.
(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 possession
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 whose members of its Board of Directors
are United States persons and collectively hold a majority of the
shares or stock (i.e., the de jure 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 possession of
the United States; and
(i) Whose principal place of business is located in the United
States; and
(ii) 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 United States persons; 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.
Validation. The process by which a Responsible Officer or Alternate
Responsible Officer updates the SEVIS record of an exchange visitor to
show he or she has entered the United States, and that the exchange
visitor reported to his or her sponsor and is participating in the
exchange visitor program at the site of activity identified on his or
her Form DS-2019.


Sec. 62.3 Sponsor eligibility.

(a) The following types of entities are eligible to apply for
designation as a sponsor of an exchange visitor program:
(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 United States Persons.
(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 this part;
(2) Meet at all times its financial obligations and
responsibilities attendant to successful sponsorship of its exchange
visitor program; and
(3) Demonstrate that the organization or its proposed Responsible
Officer has no fewer than three years' experience in international
exchange.


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 or 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 academic 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 for 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 (in an occupational category for which a sponsor has obtained
designation) who has either:
(1) A degree or professional certificate from a foreign
ministerially-recognized 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.
(d) Teacher. A foreign national with the equivalent of a U.S.
Bachelor's degree in either education or the subject matter (or related
subjects) he or she intends to teach and a minimum of the equivalent of
two years of post-degree full-time teaching experience, who is employed
as a teacher at the time of application for the program, 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 also may conduct research where authorized
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 also
may teach or lecture where authorized 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

[[Page 60311]]

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 comes 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 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
the purpose of residing with an American host family and participating
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, who at the time of application is
enrolled in and actively pursuing a degree or a full-time course of
study at a foreign ministerially-recognized post-secondary academic
institution and whose purpose is work and travel in the United States
for up to four months during his or her break between academic years.
(7) Intern. A foreign national participating in a structured and
guided work-based internship program in his or her specific academic
field and who either:
(i) Is currently enrolled full-time in and actively pursuing
studies at a foreign ministerially-recognized 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 Form DS-
2019.


Sec. 62.5 Designation 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. 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 other executive with legal
authority to make commitments on behalf of the sponsor (as identified
in the organization's governing documents);
(2) Required supporting documentation and certifications as set
forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable
application fee through pay.gov as set forth in Sec. 62.17.
(b) A complete application must set forth, in detail, the
applicant's proposed exchange program activity and must demonstrate, to
the Department of State's satisfaction, the applicant's ability to
comply and remain in continual compliance with all the provisions of
this part, and, in particular, to meet the sponsor eligibility
requirements set forth in Sec. 62.3 and the general obligations of
sponsors set forth in Sec. 62.9.
(c) An application must be accompanied by the following supporting
documentation and certifications, as relevant:
(1) Evidence of sponsor eligibility as set forth in Sec. 62.3(a),
including evidence of legal status (e.g., charter, proof of
incorporation, by laws, partnership agreement);
(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 Responsible Officer;
(3) Evidence of the applicant's ability to meet at all times its
financial obligations and responsibilities attendant to successful
sponsorship of its exchange visitor program, and evidence that it can
comply with Sec. 62.9(e) and provide any supplemental or explanatory
financial information the Department of State may request. In addition:
(i) An established entity must present a current audit report with
audit notes prepared by an independent certified public accounting
firm.
(ii) A newly formed entity must present a compilation (i.e., 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
entity has been capitalized with sufficient funds to cover general
operating expenses and costs associated with an exchange program.
(4) A current Certificate of Good Standing (see Sec. 62.2);
(5) An Employer Identification Number (EIN), which specifies the
date of issuance;
(6) Evidence of current accreditation if the applicant is a
secondary or post-secondary academic institution;
(7) Evidence of current licensure, if required by local, state, or
federal law, to carry out the activity for which the applicant is
seeking designation;
(8) A statement signed by the Chief Executive Officer, President,
or other executive with legal authority to make commitments on behalf
of the sponsor (as identified in the organization's governing
documents), certifying that:
(i) The applicant is a United States Person as defined in Sec.
62.2;
(ii) The proposed Responsible Officer and all proposed Alternate
Responsible Officers are United States citizens or lawful permanent
residents of the United States;
(iii) The sponsor has completed a criminal background check on the
potential Responsible Officer and all Alternate Responsible Officers,
and has determined their suitability for these positions; the criminal
background checks must be no older than four years at any time for re-
designated sponsors and must be newly conducted as part of the
designation application for new sponsors and the redesignation
application for sponsors designated for only one year; and
(iv) The Responsible Officer will be provided sufficient staff and
resources to fulfill his or her duties and obligations on behalf of the
applicant;
(9) A completed SEVIS-generated Citizenship Certification for the
proposed Responsible Officer and all proposed Alternate Responsible
Officer(s) along with evidence that they are citizens of the United
States or lawful permanent residents (e.g., copy of passport, birth
certificate, green card); and
(10) Such additional information or documentation that the
Department of State may deem necessary to evaluate the application. In
addition, the Department may decide, in its

[[Page 60312]]

discretion, to conduct a pre-designation site visit of a first-time
applicant.


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.
(b) Initial designations are effective for one or two years at the
sole discretion of the Department of State.
(c) 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.
(d) The Department of State may, in its sole discretion, require a
sponsor to secure a payment bond in favor of the Department of State
guaranteeing the sponsor's obligations hereunder.
(e) Designations are not transferable or assignable.


Sec. 62.7 Redesignation.

(a) Sponsors 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.
(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 other executive with legal authority to
make commitments on behalf of the sponsor (as identified in the
organization's governing documents);
(2) Required supporting documentation and certifications as set
forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable
application 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 copy of the most recent year-end financial statements;
(2) A copy of the most recent letter of accreditation if the
sponsor is a secondary or post-secondary academic institution;
(3) A list of the names, addresses and citizenship or legal
permanent resident status 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;
(4) For a non-profit organization, a signed copy of the sponsor's
most recent Form 990 filed with the Internal Revenue Service;
(5) A statement signed by the Chief Executive Officer, President,
or other executive with legal authority to make commitments on behalf
of the sponsor (as identified in the organization's governing
documents) certifying that the sponsor has completed timely criminal
background checks since the date of the last designation or
redesignation letter on the Responsible Officer and all Alternate
Responsible Officers and has determined their suitability for these
positions; and
(6) 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. A sponsor seeking re-
designation may continue to operate its program(s) until such time as
the Department of State notifies it of a decision to approve, amend or
terminate its designation.


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 year), as stated in its letter of designation or redesignation.
The Department of State may, in its sole discretion, 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,
sponsors must make a good faith effort to develop and implement, to the
fullest extent possible, reciprocal exchanges of persons.
(d) Cross-cultural activities. In addition to category specific
requirements, sponsors must:
(1) Offer or make available to exchange visitors and the
accompanying spouses 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. Sponsors will be responsible
for determining the appropriate types and numbers of such cross-
cultural programs, unless otherwise specified by the Department. 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. Sponsors are
required to adhere to all regulations set forth in this part.
(b) Legal status. A sponsor must maintain the legal status it had
when it was designated. 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. Sponsors must:
(1) Provide accurate, complete, and timely information, to the
extent lawfully permitted, to the Department of State and the
Department of Homeland Security regarding their exchange visitor
program(s), exchange visitors, and accompanying spouses and dependents
(if any);
(2) Provide accurate information to the public when advertising
their exchange visitor program(s) or responding to public inquiries;
(3) Provide accurate program information and materials to
prospective exchange visitors, host organizations, and host employers,
if applicable, at the time of recruitment and before exchange visitors
enter into agreements and/or pay non-refundable fees. This information
must clearly explain program activities and terms and conditions of
program, including the terms and conditions of any employment
activities (job duties, number of work hours, wages and compensation,
and any typical deductions for housing and

[[Page 60313]]

transportation), have itemized list of all fees charged to the exchange
visitor (i.e., fees paid to the sponsor or a third party, including the
host employer), insurance costs, other typical costs, conditions, and
restrictions of the exchange visitor program(s), and the type,
duration, nature and importance of the cultural components of the
program. Program recruitment information and materials also must make
clear to prospective exchange visitors in the exchange categories with
a work component that their stipend or wages might not cover all of
their expenses and that they should bring additional personal funds.
(4) Not use the program number(s) assigned by the Department of
State at the time of designation on any advertising materials or
publications, 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) Sponsors must maintain the
financial capability to meet at all times their financial obligations
and responsibilities attendant to successful sponsorship of their
exchange visitor program.
(2) The Department of State may require non-government sponsors to
provide evidence satisfactory to the Department of State that funds
necessary to fulfill all obligations and responsibilities attendant to
sponsorship of their exchange visitor programs are readily available
and in the sponsor's control, including such supplementary or
explanatory financial information as the Department of State may deem
appropriate, such as, for example, audited financial statements.
(3) The Department of State may require a non-government sponsor to
secure payment bonds in favor of the Department of State guaranteeing
all financial obligations arising from its exchange visitor program
when the Department has reasonable doubt about the sponsor's ability to
meet its program and other financial obligations.
(f) Staffing and support services. Sponsors must ensure that:
(1) Adequate staffing and sufficient support services are provided
to administer their exchange visitor program; and
(2) Their employees, officers, agents, third parties, volunteers or
other individuals or entities associated with the administration of
their exchange visitor program are adequately qualified, appropriately
trained, and comply with the Exchange Visitor Program regulations and
immigration laws pertaining to the administration of their exchange
visitor program(s).
(g) Appointment of Responsible Officers and Alternate Responsible
Officers. (1) Sponsors must appoint and maintain a Responsible Officer
and between one and ten Alternate Responsible Officers to assist the
Responsible Officer in performing the duties set forth in Sec. 62.11.
Upon written sponsor request, the Department of State may, in its sole
discretion, permit a sponsor to appoint more than ten Alternate
Responsible Officers. A sponsor redesignated for two years must ensure
that the proposed Responsible Officer and Alternate Responsible
Officer(s) have undergone a criminal background check within the past
four years to determine their suitability for these positions.
Responsible Officers and Alternate Responsible Officers must be U.S.
persons.
(2) Responsible Officers and Alternate Responsible Officers must be
employees or officers of the 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 Alternate Responsible Officer.
(3) In the event of the departure of a Responsible Officer or
Alternate Responsible Officer, the sponsor must file a request in SEVIS
for the approval of a replacement and forward the required
documentation to the Department of State within ten calendar days from
the date of the Responsible Officer's or Alternate Responsible
Officer's departure.
(4) Requests to replace the Responsible Officer or add an Alternate
Responsible Officer must be submitted in SEVIS, and a signed Form DS-
3037 must be either mailed or emailed to the Department of State with
the required completed Citizenship Certification, along with
certification that the individual has undergone a criminal background
check conducted at the time of such Certification.
(5) The Department of State reserves the right to deny the
appointment of a Responsible Officer or an Alternate Responsible
Officer.


Sec. 62.10 Program administration.

Sponsors are responsible for the effective administration of their
exchange visitor program(s). These responsibilities include:
(a) Selection of exchange visitors. Sponsors 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 determined by an objective measurement of English
language proficiency, successfully to participate in his or her program
and to function on a day-to-day basis. A sponsor 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.
(b) Pre-arrival information. At the pre-arrival stage, sponsors
must provide exchange visitors clear information and materials on, but
not limited to, the following topics: Program activities, cultural
goals and components of the program, employment information and terms
and conditions of employment (including employer name and address,
position duration, job duties, number of work hours, wages, other
compensation and benefits, deductions from wages, including those taken
for housing and transportation), insurance costs, and other conditions
and restrictions of their exchange visitor. In addition, sponsors must
provide clear information and materials on:
(1) The purpose of the Exchange Visitor Program;
(2) The home-country physical presence requirement;
(3) Travel to and entry into the United States (e.g., procedures to
be followed by exchange visitors and accompanying spouses and
dependents in paying SEVIS fees and obtaining visas for entry to the
United States, including the information and documentation needed for
the interview; travel arrangements to the United States, and what to
expect at the port of entry, including the necessity of having and
presenting travel documents at the port of entry);
(4) Housing, including specific information on what housing is
provided by the program or otherwise available and the expected cost to
the exchange visitor;
(5) An itemized list of all fees to be paid by a potential exchange
visitor (i.e.,

[[Page 60314]]

fees paid to the sponsor or a third party);
(6) Description and amount of 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 description, costs, and 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; employee rights and laws,
including workman's compensation; and how to remain in lawful non-
immigrant status.
(c) Orientation. A sponsor must offer and record participation in
an appropriate orientation for all exchange visitors. Sponsors are
encouraged to provide orientation for the exchange visitor's
accompanying spouse and dependents, 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 such as information on the length and
location of the program; a summary of the significant components of the
program; information on any payment (i.e., stipend or wage) an exchange
visitor will receive; and deductions from wages, including for housing
and transportation;
(5) Sponsor rules that exchange visitors are required to follow
while participating in their exchange visitor program;
(6) Name and address of the sponsor and the name, email address,
and telephone number of the Responsible Officer and Alternate
Responsible Officer(s);
(7) The Office of Designation's address, telephone number,
facsimile number, Web site and email address, and a copy of the
Exchange Visitor Program brochure or other Department of State
materials as appropriate or required;
(8) Wilberforce Pamphlet on the Rights and Protections for
Temporary Workers; and
(9) The requirement that an exchange visitor must report to the
sponsor or sponsor designee within ten calendar days any changes in his
or her telephone number, email address, actual and current U.S. address
(i.e., physical residence), and site of activity (if the exchange
visitor is permitted to make such change without prior sponsor
authorization).
(d) Monitoring of exchange visitors. Exchange visitors'
participation in their exchange program must be monitored by employees
of the sponsor. Monitoring activities must not include any retaliation
or discrimination against exchange visitors who make adverse comments
related to the program. No sponsor or employee of a sponsor may
threaten program termination, remove from the program, ban from the
program, adversely annotate an exchange visitor's SEVIS record, or
otherwise retaliate against an exchange visitor solely because he/she
has filed a complaint; instituted or caused to be instituted any
proceeding; testified or is about to testify; consulted with an
advocacy organization, community organization, legal assistance program
or attorney about a grievance or other work-related legal matter; or
exercised or asserted on behalf of himself/herself any right or
protection. Sponsors must:
(1) Ensure that the activities in which exchange visitors are
engaged are consistent with the category and activity listed on their
Forms DS-2019;
(2) Monitor the physical location (site of activity), and the
progress and welfare of exchange visitors to the extent appropriate for
the category;
(3) Require that exchange visitors report to the sponsor within ten
calendar days any changes in their telephone numbers, email addresses,
actual and current U.S. addresses (i.e., physical residence), and
site(s) of activity (if the exchange visitor is permitted to make such
change without prior sponsor authorization);
(4) Report in SEVIS within ten business days of notification by an
exchange visitor any change in the exchange visitor's actual and
current U.S. address, telephone number, email address, and/or primary
site of activity; and
(5) Report the email address for each accompanying spouse and
dependent.
(e) Requests by the Department of State. Sponsors must, to the
extent lawfully permitted, furnish the Department of State within the
Department-requested timeframe all information, reports, documents,
books, files, and other records or information requested by the
Department of State on all matters related to their exchange visitor
program. Sponsors must include sponsor's program number on all
responses.
(f) Inquiries and investigations. Sponsors 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. Sponsors must retain all records related
to their exchange visitor program and exchange visitors (to include
accompanying spouse and dependents, if any) for a minimum of three
years following the completion of each exchange visitor program.


Sec. 62.11 Duties of Responsible Officers and Alternate Responsible
Officers.

Responsible Officers must train and supervise Alternate Responsible
Officers and ensure that these officials are in compliance with the
Exchange Visitor Program regulations. Responsible Officers and
Alternate Responsible Officers must:
(a) Be thoroughly familiar with the Exchange Visitor Program
regulations, relevant immigration laws, and all federal and state
regulations and laws pertaining to the administration of their exchange
visitor program(s), including the Department of State's and the
Department of Homeland Security's policies, manuals, instructions, and
guidance on SEVIS and all other operations relevant to the Exchange
Visitor Program; if Responsible Officers and Alternate Responsible
Officers work with programs with an employment component, they also
must have a detailed knowledge of federal, state, and local laws
pertaining to employment, including the Fair Labor Standards Act;
(b) Monitor 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

[[Page 60315]]

correspondence submitted to the Department of State and to the
Department of Homeland Security;
(d) Monitor to ensure that that sponsor spam filters do not block
receipt 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. Sponsors must:
(1) Grant access only to Responsible Officers and Alternate
Responsible Officers and ensure that they have access to and use SEVIS
to update required information;
(2) Ensure that Responsible Officers and Alternate Responsible
Officers input into SEVIS accurate, current, and updated information in
accordance with these regulations; 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 and authorized by the
Department of State;
(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 into the United States 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 requested in SEVIS
and authorized 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, a change in the primary site of activity or a change in 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, sponsors must
verify that each prospective exchange visitor:
(i) Is eligible and qualified for, and accepted into, the program
in which he or she will participate;
(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) Sponsors must ensure that:
(i) Only Responsible Officers or Alternate Responsible Officers who
are physically present in the United States or in a U.S. territory may
print and sign Forms DS-2019; and
(ii) Only the Responsible Officer or the Alternate Responsible
Officer, 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.
(c) Distribution of Forms DS-2019. Sponsors 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, or third parties in the administration of its
exchange visitor program.
(d) Allotment requests. (1) Annual Form DS-2019 allotment. Sponsors
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 their letter
of designation or redesignation. Sponsors should allow up to four weeks
for the processing of allotment requests. The Department of State 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,
noted programmatic successes, current financial information, additional
overseas affiliates, additional third party entities, explanations of
how the sponsor will accommodate the anticipated program growth, and
any other information requested by the Department. 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 Responsible Officer and/or Alternate
Responsible Officer prior to determining the number of Forms DS-2019 to
issue to a sponsor.
(e) Safeguards and controls. (1) Responsible Officers and Alternate
Responsible Officers must secure their SEVIS logon Identification
Numbers (IDs) and passwords at all times (i.e., not share IDs and
passwords with any other person or permit access to and use of SEVIS by
any other person).
(2) Sponsors, their 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, sponsors must forward such copies and/or PDFs to the
Department of State or the Department of Homeland Security upon
request.
(3) Sponsors must use the reprint function in SEVIS in the event
the exchange visitor's Form DS-2019 has been lost or stolen.
(4) Sponsors must destroy any damaged and/or 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).


Sec. 62.13 Notification requirements.

(a) Valid program status of exchange visitor. Sponsors must notify
the Department of State via SEVIS of the following:
(1) Validation of program participation. Sponsors must promptly
validate an exchange visitor's participation in their program. This
will change the status of the exchange visitor's SEVIS record from
``Initial'' to ``Active.'' SEVIS records with program durations (e.g.,
the period between the ``Program Begin Date'' and ``Program End Date'')
of 30 days or more 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. As part of the validation
process, sponsors may amend the program begin 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''. Accompanying spouses and dependents' SEVIS records are
automatically validated upon validation of the exchange visitors' SEVIS
records.
(2) Failure of an exchange visitor to begin program. Sponsors 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

[[Page 60316]]

visitor's SEVIS record from ``Initial'' to ``No Show.''
(3) End of an exchange visitor's program. Sponsors 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. Sponsors 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. Sponsors must report
in SEVIS if accompanying spouses and/or dependents depart from the
United States prior to the exchange visitors' departure dates.
(5) Termination of an exchange visitor's program. Sponsors must
promptly report in SEVIS the involuntary termination of an exchange
visitor's program. Sponsors 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 his or her accompanying 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. Sponsors 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. Sponsors must
ensure that the actual and current U.S. addresses of an exchange
visitor are reported in SEVIS:
(i) Sponsors 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); and
(ii) If a U.S. mailing address is reported to SEVIS, sponsors must
also maintain records in SEVIS of actual and current U.S. addresses
(e.g., dormitory, building and room number) for such exchange visitors.
(2) Change in site of activity. Sponsors must report in SEVIS any
change to an exchange visitor's site of activity by entering the new
site within ten business days of notification of such a change where
sponsor rules or regulations permit such a change. Sponsors must
promptly enter any change in the site of activity in those instances
where the sponsor is responsible for the placement. Sponsors 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. Sponsors must report within
ten business days in SEVIS or directly to the Department of State, if
appropriate, any material changes to their exchange visitor program as
follows:
(1) Change of business and/or mailing address, telephone number,
facsimile number, or email address;
(2) Change in the composition of the sponsor organization that
affects its status as a United States Person as defined in Sec. 62.2,
which includes a new Employment Identification Number (EIN);
(3) Change of Responsible Officer or Alternate Responsible Officer;
(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 or email of the
SEVIS identification numbers of such Forms DS-2019 that have been lost
or stolen;
(9) A decision by the sponsor to voluntarily cancel (withdraw) its
exchange visitor program designation; or
(10) 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. Sponsors must inform the
Department of State on or before the next business day by telephone
(confirmed promptly in writing by facsimile or email) of any
investigations of an exchange visitor's site of activity or serious
problem or controversy that could be expected to bring the Department
of State, the Exchange Visitor Program, or the sponsor's exchange
visitor program into notoriety or disrepute, including any potential
litigation related to a sponsor's exchange visitor program, in which
the sponsor or an exchange visitor may be a named party.


Sec. 62.14 Insurance.

(a) Sponsors must require that all exchange visitors 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. In addition, sponsors must require that
accompanying spouses and dependents of exchange visitors have insurance
for sickness and accidents. Sponsors must inform all exchange visitors
that they, and any accompanying spouse and dependent(s), also may be
subject to the requirements of the Affordable Care Act.
(b) The period of required coverage is the actual duration of the
exchange visitor's participation in the sponsor's exchange visitor
program as recorded in SEVIS in the ``Program Begin Date,'' and as
applicable, the ``Program End Date,'' ``Effective Program End Date,''
or ``Effective Date of Termination'' fields. Sponsors are not
authorized to charge fees to their sponsored exchange visitors for the
provision of insurance coverage beyond any demonstrable and justifiable
staff time. Sponsors are not required to, but may, offer supplemental
``entry to exit'' coverage (i.e., coverage from the time the exchange
visitor departs his or her home country until he or she returns). If
the sponsor provides health insurance, or arranges for health insurance
to be offered the exchange visitor, via payroll deduction at the host
organization, the exchange visitor must voluntarily authorize this
action in writing and also be given the opportunity to make other
arrangements to obtain insurance. These authorizations must be kept on
file by the sponsor. Minimum coverage must provide:
(1) Medical benefits of at least $100,000 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; and
(4) Deductibles not to exceed $500 per accident or illness.
(c) 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;

[[Page 60317]]

(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.
(d) 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; a McGraw Hill Financial/Standard & Poor's
Claims-paying Ability rating of ``A-'' or above; a Weiss Research, Inc.
rating of ``B+'' or above; a Fitch Ratings, Inc. rating of ``A-'' or
above; a Moody's Investor Services rating of ``A3'' 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.
(e) 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.
(f) 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.
(g) 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 of State
guaranteeing the sponsor's obligations hereunder.
(h) Accompanying spouses and dependents are required to be covered
by insurance in the amounts set forth in paragraph (b) of this section.
Sponsors must inform exchange visitors of this requirement, in writing,
in advance of the exchange visitor's arrival in the United States.
(i) Exchange visitors who willfully fail to maintain the insurance
coverage set forth above while a participant in an exchange visitor
program or who make 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 an exchange visitor.
(j) Sponsors must terminate an exchange visitor's participation in
their program if the sponsor determines that the exchange visitor or
any accompanying spouse or dependent willfully fails to remain in
compliance with this section.


Sec. 62.15 Reporting requirements.

(a) Sponsors must submit annual reports to the Department of State
that are generated through SEVIS on Form DS-3097. Such reports must be
filed on an academic, calendar, or fiscal year basis, as directed by
the Department of State in the sponsor's letter of designation or
redesignation, and must contain the following:
(1) Program report and evaluation. A summary of the activities in
which exchange visitors were engaged, including an evaluation of
program effectiveness, program difficulties, and number of staff used
in the administration of the exchange visitor program;
(2) Reciprocity. A description of the nature and extent of
reciprocity occurring in the sponsor's exchange visitor program during
the reporting year;
(3) Cross-cultural activities. A description of the cross-cultural
activities the sponsor provided for its exchange visitors during the
reporting year;
(4) Proof of insurance. Certification of compliance with insurance
coverage requirements set forth in Sec. 62.14;
(5) Certification. The following certification:
``I certify that the information in this report is complete and
correct to the best of my knowledge and belief; and, that the above
named program sponsor has complied with all health and accident
insurance requirements for exchange visitors and their accompanying
spouses and dependents (22 CFR 62.14).''
(i) For exchange visitor programs classified as ``Government
Programs,'' this certification will be signed by the Responsible
Officer.
(ii) For exchange visitor programs classified as P-1 or P-2
``Academic Programs'' this certification will be signed by the
institution's Chief Executive Officer or Responsible Officer.
(iii) For exchange visitor programs classified as P-3 and P-4
``Private Sector Programs,'' this certification will be signed by the
organization's Chief Executive Officer or Responsible Officer.
(6) Program participation. A numerical count of all exchange
visitors participating in the sponsor's program for the reporting year
(i.e., by category, form usage, active status at one point during the
annual cycle, and by other status).
(b) Sponsors of P-3 and P-4 ``Private Sector'' programs must file a
program specific management review (in a format and on a schedule
approved by the Department of State).


Sec. 62.16 Employment.

(a) An exchange visitor may receive compensation from the sponsor
or the sponsor's appropriate designee, such as the host organization,
when employment 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 the accompanying spouse and
dependents of an exchange visitor is governed by Department of Homeland
Security regulations.

Subpart F--[Removed and Reserved]


0
3. Subpart F, consisting of Sec. Sec. 62.70 through 62.79, is removed
and reserved.

Appendices A, B, C and D to Part 62 [Removed and Reserved]

0
4. Appendices A, B, C and D to Part 62 are removed and reserved.

Dated: September 25, 2014.
Robin J. Lerner,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of
Educational and Cultural Affairs.
[FR Doc. 2014-23510 Filed 10-3-14; 8:45 am]
BILLING CODE 4710-05-P