ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


[Federal Register: May 19, 2005 (Volume 70, Number 96)]
[Rules and Regulations]               
[Page 28815-28818]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19my05-13]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice: PN-5084]
RIN 1400-AC01

 
Participation in the Exchange Visitor Program as Professor and 
Research Scholar

AGENCY: State Department.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: By this notice, the Department adopts as final with minor 
modification, the proposed rule published in the Federal Register on 
June 27, 2002. This rule amends the Department's Exchange Visitor 
Program regulations set forth at 22 CFR 62.20 by extending the duration 
of program participation for professors and research scholars from the 
current three years to five years. In addition, this rule implements a 
limitation on the eligibility of an extension for the professor and 
research scholar categories and implements a two-year bar for repeat 
participation to encourage and foster the purpose of the Mutual 
Educational and Cultural Exchange Act of 1961 (``Fulbright-Hays Act''). 
Additional minor modifications have been made throughout Sec. 62.20 for 
administrative purposes due to the implementation of the Student and 
Exchange Visitor Information System (SEVIS).

DATES: This rule becomes effective on the later of June 20, 2005, or 
the date upon which the Department of Homeland Security publishes a 
notice in the Federal Register announcing that it has completed the 
technical computer updates to its electronic Student and Exchange 
Visitor Information System (SEVIS) that are necessary to implement this 
rule.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Acting Director, 
Office of Exchange Coordination and Designation, U.S. Department of 
State, 301 Fourth Street, SW., Room 734, Washington, DC 20547; 
telephone 202-203-5029; fax 202-203-5087; e-mail: Jexchanges@state.gov.

[[Page 28816]]


SUPPLEMENTARY INFORMATION: The Department published a proposed rule, 
Public Notice 4054 at 67 FR 43264, June 27, 2002, with a request for 
comments in the Federal Register regarding the authorized length of 
program duration for professors and research scholars. The rule 
proposed to lengthen the maximum program duration of this category from 
three years to five years.
    The Department is implementing the change in maximum program 
duration and modifying the current regulations in order to develop a 
very simple, easy to administer, and user-friendly rule. In light of 
the favorable comments received, this rule is adopted to allow a five-
year duration of program participation beginning with the participant's 
program begin date or initial program begin date (for continuing 
exchange visitors) identified in SEVIS and ending five years later. The 
five-year period of participation is calculated in calendar years from 
the participant's program begin date documented in SEVIS at the time 
the SEVIS record is validated. The Department assumes an exchange 
participant will actively pursue research or teaching opportunities for 
the entire five-year period. Generally, a participant in good standing 
with his or her program sponsor may depart and reenter the United 
States an unlimited number of times during the five calendar years. 
Thus, holiday visits, emergencies, consultations, attendance at 
professional meetings, and the like will not be prohibited or 
compromised.
    It is extremely important to note, however, that the five-year 
period is not, as suggested in some comments, an aggregate of five 
years. The Department considered this approach and found it unworkable. 
Instead, this will be a calendar year, five-year period afforded to a 
participant on a ``use or lose'' basis which commences with the program 
begin date identified in SEVIS. For example, a research scholar who 
comes to an institution for two years and returns to his or her home 
institution for nine months will be eligible, as a program matter, to 
return to the same U.S. institution--or transfer to another--for an 
additional two years and three months. If the participant does not 
return to the United States until three months later, he or she has two 
years remaining on his or her program.
    Comments indicated some confusion regarding the long-standing ``12-
month bar'' rule set forth at Sec. 62.20(d)(ii). The 12-month bar 
applies to any non-immigrant and accompanying spouse or dependent who 
has held F or J non-immigrant visa status within the twelve-month 
period immediately preceding the commencement of a professor or 
research scholar program. The 12-month bar remains in effect under this 
rule. If eligible for professor or research scholar category, the 
exchange participant is eligible for a five-year period of time for 
program participation under this category.
    The accompanying spouse and dependents are also subject to the 12-
month bar. While some J-2 spouses have made some sacrifices in order to 
accompany the J-1 exchange visitor, such sacrifice is compensated for 
by employment opportunities in the United States--often in research. If 
the J-2 visa holder is not subjected to the 12-month bar, the 
underlying objective for imposing the bar is defeated in that the J-2 
visa holder could become a J-1 participant and the former J-1 
participant would be afforded J-2 derivative status.
    The Department proposed that participants afforded five years of 
program participation not be eligible to return to the United States as 
a repeat participant of the professor or research scholar category for 
a period of two years (24 months) immediately following completion of 
the five-year period. Almost all comments were in favor of the two-year 
bar for repeat participation of professors and research scholars. 
Individuals who have entered the United States under the auspices of 
the Exchange Visitor Program as a professor or research scholar, or who 
have acquired such status while in the United States, are not eligible 
for repeat participation as a professor or research scholar for a 
period of two years following the completion of the five-year period. 
For example, a professor who enters the United States on September 1, 
2005, may leave the United States and return several times within the 
five years until August 31, 2010. After August 31, 2010, this 
individual cannot return to the United States in the professor or 
research scholar category for two years (i.e., their program begin date 
as a professor or research scholar could not be earlier than September 
1, 2012). Sponsors are not to issue Forms DS-2019 to proposed 
participants who meet this restriction.
    However, if a participant completes a professor or research scholar 
exchange program at one institution for a period of less than five 
years, then remains outside the United States for a minimum period of 
two years, he or she is eligible to begin another five-year program. If 
the period of time outside the United States is less than two years, 
the participant is still considered to be within the five-year period 
of time from the initial program. If the participant completes a 
program at one institution, which is less than five years (e.g.; four 
years), the participant has the option to have the current program 
extended up to the maximum duration of five years, transfer to another 
institution for one additional year, or return home and fulfill the two 
year bar.
    This rule also permits the extension beyond five years for 
participants under the direct sponsorship of a Federally Funded 
National Research and Development Center (``FFNRDC'') or a U.S. Federal 
Laboratory. These sponsors will be identified in SEVIS with a separate 
program serial (G-7) in order to differentiate these programs from 
other sponsors designated to conduct exchange activities in the 
categories of research scholar and professor. A ``G-7'' program serial 
will be assigned to eligible programs as determined by the Department. 
Once fully implemented in SEVIS by the Department of Homeland Security, 
professors and research scholars currently in the United States who 
have begun their exchange activity, as identified by the program begin 
date in SEVIS, will be eligible for extensions of their program to the 
five year maximum. Until the Department of Homeland Security develops 
the system change requirements necessary to implement the new five-year 
duration, such extensions must be submitted to the Department via SEVIS 
as extensions beyond the maximum duration of participation.

Analysis of Comments

    The proposed rule was published for comment on June 27, 2002. The 
Department received twenty-six comments regarding this proposal, all of 
which endorsed the proposed change. There were not any comments that 
objected to the changes, however nine of the responses thought that the 
five-year period should be an aggregate period of time. The Department 
finds this method unworkable and not easily managed.
    Five of the comments required clarification on use of the 12-month 
bar. As stated in the supplementary information, the 12-month bar 
applies to any non-immigrant and accompanying spouse or dependent that 
has held F or J non-immigrant visa status within the twelve-month 
period immediately preceding the commencement of a professor or 
research scholar program. The 12-month bar remains in effect under this 
rule.

[[Page 28817]]

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as a final rule after it was 
published as a proposed rule on June 27, 2002.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory Act (5 
U.S.C. 601(b)), has reviewed this regulation and, by approving it, 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by 5 U.S.C. 804 for 
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.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. In addition, the Department is 
exempt from Executive Order 12866 except to the extent that it is 
promulgating regulations in conjunction with a domestic agency that are 
significant regulatory actions. The Department has nevertheless 
reviewed the regulation to ensure its consistency with the regulatory 
philosophy and principles set forth in that Executive Order.

Executive Order 12988

    The Department has reviewed this regulation in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Executive Order 13132

    This regulation will not have substantial direct effects 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. The 
regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this regulation.

Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects in 22 CFR Part 62

    Cultural exchange programs.


0
Accordingly, 22 CFR part 62 is amended as follows:

PART 62--EXCHANGE VISITOR PROGRAM

0
1. The authority citation for part 62 continues to read as follows:

    Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 
1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act 
of 1998, Public Law. 105-277, 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.

0
2. Section 62.20 is revised to read as follows:


Sec.  62.20  Professors and research scholars.

    (a) Introduction. These regulations govern Exchange Visitor Program 
participants in the categories of professor and research scholar, 
except:
    (1) Alien physicians in graduate medical education or training, who 
are governed by regulations set forth at Sec.  62.27; and
    (2) Short-term scholars, who are governed by regulations set forth 
at Sec.  62.21.
    (b) Purpose. The purpose of the Exchange Visitor Program, in part, 
is to foster the exchange of ideas between Americans and foreign 
nationals and to stimulate international collaborative teaching, 
lecturing and research efforts. The exchange of professors and research 
scholars promotes the exchange of ideas, research, mutual enrichment, 
and linkages between research and educational institutions in the 
United States and foreign countries. It does so by providing foreign 
professors and research scholars the opportunity to engage in research, 
teaching and lecturing with their American colleagues, to participate 
actively in cross-cultural activities with Americans, and ultimately to 
share with their countrymen their experiences and increased knowledge 
of the United States and their substantive fields.
    (c) Designation. The Department of State may, in its sole 
discretion, designate bona fide exchange visitor programs, which offer 
foreign nationals the opportunity to engage in research, teaching, 
lecturing, observing, or consulting at research institutions, corporate 
research facilities, museums, libraries, post-secondary accredited 
educational institutions, or similar types of institutions in the 
United States.
    (d) Visitor eligibility. An individual may be selected for 
participation in the Exchange Visitor Program as a professor or 
research scholar subject to the following conditions:
    (1) The participant must not be a candidate for a tenure track 
position;
    (2) The participant has not been physically present in the United 
States as a nonimmigrant pursuant to the provisions of 8 U.S.C. 
1101(a)(15)(F) or (J) for all or part of the twelve-month period 
immediately preceding the date of program commencement set forth on his 
or her Form DS-2019, unless:
    (i) The participant is transferring to the sponsor's program 
pursuant to provisions set forth in Sec.  62.42;
    (ii) The participant's presence in the United States was of less 
than six months duration; or
    (iii) The participant's presence in the United States was pursuant 
to a short-term scholar exchange activity as authorized by Sec.  62.21; 
and
    (3) The participant is not subject to the prohibition against 
repeat participation set forth at Sec.  62.20(i)(2).
    (e) Issuance of Form DS-2019. The Form DS-2019 must be issued only 
after the professor or research scholar has been accepted by the 
institution where he or she will participate in an exchange visitor 
program.
    (f) Location of the exchange. Professors or research scholars must 
conduct their exchange activity at the site(s) of activity identified 
in SEVIS, which may be either the location of the exchange visitor 
program sponsor or the site of a third party facilitating the exchange 
with permission of the Responsible Officer. An exchange visitor may 
also engage in activities at

[[Page 28818]]

other locations if such activities constitute occasional lectures or 
consultations permitted by paragraph (g) of this section. All such 
sites of activity must be entered into SEVIS while the exchange 
visitor's SEVIS record is in Initial or Active status.
    (g) Occasional lectures or consultations. Professors and research 
scholars may participate in occasional lectures and short-term 
consultations, if authorized to do so by his or her sponsor. Such 
lectures and consultations must be incidental to the exchange visitor's 
primary program activities. If wages or other remuneration are received 
by the exchange visitor for such activities, the exchange visitor must 
act as an independent contractor, as such term is defined in 8 CFR 
274a.1(j), and the following criteria and procedures must be satisfied:
    (1) Criteria. The occasional lectures or short-term consultations 
must:
    (i) Be directly related to the objectives of the exchange visitor's 
program;
    (ii) Be incidental to the exchange visitor's primary program 
activities;
    (iii) Not delay the completion date of the exchange visitor's 
program; and
    (iv) Be documented in SEVIS.
    (2) Procedures. (i) To obtain authorization to engage in occasional 
lectures or short-term consultations involving wages or other 
remuneration, the exchange visitor must present to the responsible 
officer:
    (A) A letter from the offeror setting forth the terms and 
conditions of the offer to lecture or consult, including the duration, 
number of hours, field or subject, amount of compensation, and 
description of such activity; and
    (B) A letter from the exchange visitor's department head or 
supervisor recommending such activity and explaining how the activity 
would enhance the exchange visitor's program.
    (ii) The responsible officer must review the letters required in 
paragraph (g)(2)(i) of this section and make a written determination 
whether such activity is warranted, will not interrupt the exchange 
visitor's original objective, and satisfies the criteria set forth in 
paragraph (g)(1) of this section.
    (h) Change of activity. At the discretion and approval of the 
responsible officer, professors may freely engage in research and 
research scholars may freely engage in teaching and lecturing. Because 
these activities are intertwined, such a change of activity is not 
considered a change of category necessitating formal approval by the 
Department of State and does not require the issuance of a new Form DS-
2019 to reflect a change in category. Such change in activity does not 
extend the exchange visitor's maximum duration of program 
participation.
    (i) Duration of participation. The permitted duration of program 
participation for a professor or research scholar is as follows:
    (1) General limitation. A professor or research scholar may be 
authorized to participate in the Exchange Visitor Program for the 
length of time necessary to complete his or her program, provided such 
time does not exceed five years. The five-year period of permitted 
program participation is continuous and begins with the initial program 
begin date documented in SEVIS or the date such status was acquired via 
a petition submitted and approved by the Department of Homeland 
Security (DHS) as documented in SEVIS and ends five years from such 
date.
    (2) Repeat participation. Exchange participants who have entered 
the United States under the Exchange Visitor Program as a professor or 
research scholar, or who have acquired such status while in the United 
States, and who have completed his or her program are not eligible for 
participation as a professor or research scholar for a period of two 
years following the end date of such program participation as 
identified in SEVIS.
    (3) Extensions. A responsible officer may not extend the period of 
program duration beyond the five-year period of maximum program 
duration authorized for professor and research scholar participants. 
The Department may, in its sole discretion, authorize an extension 
beyond the permitted five-year period, as submitted by a ``G-7'' 
program sponsor, upon successful demonstration of the following:
    (i) The participant for whom an extension is requested is engaged 
in a research project under the direct sponsorship of a Federally 
Funded National Research and Development Center (``FFNRDC'') or a U.S. 
Federal Laboratory;
    (ii) The FFNRDC or U.S. Federal Laboratory requesting the extension 
on behalf of the participant has determined, through peer review, that 
the participant's continued involvement in the project is beneficial to 
its successful conclusion; and
    (iii) The Secretary of the Department of Homeland Security has 
determined in his/her discretion that the extension may be approved;
    (iv) The extension request is for not more than five years.

    Dated: May 10, 2005.
Patricia S. Harrison,
Assistant Secretary, Bureau of Educational and Cultural Affairs, 
Department of State.
[FR Doc. 05-10020 Filed 5-18-05; 8:45 am]
BILLING CODE 4710-05-P




Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: