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< Back to current issue of Immigration Daily

[Federal Register: April 26, 2011 (Volume 76, Number 80)]
[Rules and Regulations]               
[Page 23177-23185]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ap11-3]                         

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

DEPARTMENT OF STATE

22 CFR Part 62

RIN 1400-AC79
[Public Notice 7427]

 
Exchange Visitor Program--Summer Work Travel

AGENCY: Department of State.

ACTION: Interim final rule with request for comment.

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

SUMMARY: The Department is amending current regulations governing the 
Summer Work Travel category of the Exchange Visitor Program. The 
amendments clarify existing policies and implement new procedures to 
ensure that the Summer Work Travel program continues to foster the 
objectives of the Mutual Educational and Cultural Exchange Act of 1961 
(Fulbright-Hays Act). These changes will enhance the integrity and 
programmatic effectiveness of Summer Work Travel exchanges.
    The Department has examined the potential risks and harms related 
to the Summer Work Travel program and believe that the current 
regulations do not sufficiently protect national security interests; 
the Department's reputation; and the health, safety, and welfare of 
Summer Work Travel program participants. Accordingly, and for reasons 
discussed more fully below, this rule modifies the Summer Work Travel 
regulations by establishing different employment placement requirements 
based on the aliens' countries of citizenship and by requiring sponsors 
to fully vet the job placements of all program participants. It also 
clarifies that only vetted U.S. host employers and vetted third party 
overseas agents or partners (i.e., foreign entities) with whom sponsors 
have contractual agreements may assist sponsors in the administration 
of the core functions of their exchange programs. Sponsor monitoring, 
reporting, and information dissemination requirements are also 
strengthened.

DATES: The interim final rule will become effective July 15, 2011. The 
Department will accept comments on the interim final rule from the 
public up June 27, 2011.

ADDRESSES: You may submit comments by any of the following methods:
     Online: Persons with access to the Internet may view this 
notice and provide comments by going to the regulations.gov Web site 
at: http://www.regulations.gov/index.cfm.
     Mail (paper, disk, or CD-ROM submissions): U.S. Department 
of State, Office of Designation, SA-5, Floor 5, 2200 C Street, NW., 
Washington, DC 20522-0505.
     E-mail: JExchanges@state.gov. You must include the RIN 
(1400-AC79) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant 
Secretary for Private Sector Exchange, U.S. Department of State, SA-5, 
Floor 5, 2200 C Street, NW., Washington, DC 20522-0505; fax (202) 632-
2701.

SUPPLEMENTARY INFORMATION: Summer Work Travel exchange programs have 
been a cornerstone of U.S. public diplomacy efforts for nearly 50 
years, providing an estimated two million foreign college and 
university students the opportunity to work and travel in the United 
States during their summer vacations. The popularity of this program 
arises from its participants' ability to enjoy true cultural exchange 
experiences by being able to underwrite the cost of their travel 
through temporary employment in the United States.
    Though popular, the program is not without problems. Inadequacies 
in U.S. sponsors' vetting and monitoring procedures contribute to 
potentially dangerous or unwelcomed situations for these participants. 
This past summer, the Department received a significantly increased 
number of complaints from foreign governments, program participants, 
their families, concerned American citizens, the media, law enforcement 
agencies, other federal and local agencies, and the Congress regarding 
fraudulent job offers, inappropriate jobs, job cancellations on 
arrival, insufficient number of work hours, and housing and 
transportation problems. Moreover, the Department of Homeland Security 
has reported an increase in incidents involving criminal conduct (e.g., 
money laundering, identity theft, prostitution) in several non-
immigrant visa categories. To minimize the riskJ-1 visa holders may 
become victims of these types of crimes (or actively involved in such 
conduct) the Department must immediately modify existing regulations. 
When the health, safety, and welfare of Exchange Visitor Program 
participants are at risk, the Exchange Visitor Program's usefulness as 
a public diplomacy tool is jeopardized.
    Of particular concern is the criminal nature of some of the 
complaints associated with aliens travelling to the United States under 
some non-immigrant visa categories. The Department has been advised by 
sister law enforcement agencies of numerous documented reports of 
aliens either knowingly engaging in or becoming hapless victims of and 
accessories to criminal activities, including money laundering, money 
mule schemes, and Medicare fraud. Further, the young age and limited 
sophistication of some Exchange Visitor Program participants underlie a 
potential vulnerability for trafficking initiatives and criminal 
schemes targeted at them.
    By preventing the deleterious effect that such unchecked risk can 
have on program participants, the interim final rule can have an 
immediate effect on the participants' cumulative positive opinions of 
the United States, thereby meeting the fundamental objective of the 
Exchange Visitor Program.
    To address the problems noted above, the Department has taken a 
number of steps to improve the integrity of the program. First, in 
early 2010, the

[[Page 23178]]

Department assembled a working group of interested parties, which 
included representatives from the Department's Office of the Inspector 
General, the Bureaus of Consular Affairs and Diplomatic Security, and 
the Office to Monitor and Combat Trafficking in Persons. In October, we 
invited all Summer Work Travel program sponsors to meet with the 
Department to discuss the need for new regulations to strengthen the 
program. In November, we sought and reviewed comments from these 
sponsors on a number of anticipated regulatory changes and the possible 
need for a pilot program to strengthen requirements for aliens from 
certain countries who face greater risks when participating in the 
program. The Department also reviewed sponsor white papers and engaged 
the federal law enforcement community and our sister agencies in wide-
ranging discussions regarding a workable approach to addressing the 
identified problems.
    Also discussed with the sponsor community and sister agencies was 
the growing trend among sponsors of exchange visitor programs to 
outsource the core programmatic functions inherent in the 
administration of their programs (i.e., screening, selection, 
orientation, placement, monitoring, and the promotion of mutual 
understanding). To become designated sponsors, entities are required to 
demonstrate their experience in international exchange and their 
ability to provide the core programmatic functions. When they outsource 
these functions, the Department has no assurance that the third parties 
who perform these tasks are qualified to take on the required roles of 
the sponsors. When taken to the extreme, this results in the entities 
whose resources and experience the Department evaluated prior to 
designating them as program sponsors becoming mere purveyors of J-
visas, leaving the actual program administration to third parties over 
which the Department and sponsors have diminished degrees of control. 
Thus, one objective of this interim final rule is to redirect program 
administration back to sponsors by requiring them, among other things, 
to more closely scrutinize the reputations of the third parties with 
whom they do business (i.e., U.S. host employers and foreign entities) 
and independently vet and confirm all program participants' jobs. This 
clarification of the sponsors' responsibilities will facilitate the 
Department's monitoring of sponsor program activities and assist it in 
the future assessment of underlying causes of problems that may arise 
in the Summer Work Travel program.
    Based on information from the sources identified above and our own 
trend analysis, the Department has concluded that the risk to the 
participants' health, safety, and welfare and to U.S. public diplomacy 
and foreign affairs initiatives warrants immediate changes to the 
Summer Work Travel regulatory model. Accordingly, the Department is 
establishing a new Summer Work Travel framework that recognizes 
potential underlying risks associated historically with participant's 
countries of origin as well as implementing changes to general program 
administration that will strengthen the program.
    To this end the Department has adopted a pilot program for aliens 
from Belarus, Bulgaria, Moldova, Romania, Russia, and the Ukraine (the 
``Pilot Program Countries''), countries that, according to law 
enforcement agencies are known sources of the types of criminal 
activity that the Department wishes to avoid. The second step to 
safeguarding and strengthening the Summer Work Travel program is 
adoption of the pilot program concept(s) as the model for these amended 
Summer Work Travel Program regulations. Finally, the Department will 
closely monitor this exchange activity and intends to perform on-site 
reviews this year of the largest Summer Work Travel program sponsors 
(accounting for at least 75% of all aliens participating in this 
category of exchange) to assess category-wide regulatory compliance and 
to consult with sponsors about implementation of this interim final 
rule. Taken together, initial discussions with the sponsor community, 
sponsor comments in response to this interim final rule, the 
Department's assessment of the impact of the Pilot Program during the 
2011 summer, and feed-back from these on-site reviews, will inform the 
Department's overall assessment of the success of the new Summer Work 
Travel program framework and the need for any changes to this interim 
final rule.
    The Department adopts four major changes (and several minor 
changes) to the Summer Work Travel regulations in order to strengthen 
sponsors' oversight of both their program participants and the third 
parties who are allowed to assist them in the administration of the 
core functions of their programs. We believe that these changes will 
minimize the risk that program participants will be subjected to abuse 
or less than satisfactory program experiences. First, only aliens from 
countries that participate in the Visa Waiver Program can enter the 
country without pre-placed jobs (though if they do obtain pre-placed 
jobs, sponsors must vet such job offers as they would those of 
participants from all other countries). Second, sponsors are required 
to fully vet the third parties (i.e., U.S. host employers and foreign 
entities) whom they engage to assist in performing the core functions 
inherent with the program administration of the Exchange Visitor 
Program (i.e., screening, selection, orientation, placement, 
monitoring, and the promotion of mutual understanding). Third, sponsors 
are required to fully vet all job offers, regardless of whether they, 
the participants, or foreign entities arrange the placements and 
regardless of whether the offers are arranged prior to their departure 
to or following their arrival in the United States. Finally, sponsors 
will be required to contact active program participants on a monthly 
basis to monitor both their welfare and their whereabouts. A summary of 
these and other Summer Work Travel program modifications follows:

Pre-Placement

    Under the current regulations, no more than half of a sponsor's 
program participants may enter the United States without pre-arranged 
job placements. Because consular officials evaluate eligibility on a 
case-by-case basis, it was impossible for them to know whether sponsors 
were complying with this requirement. The interim final rule now links 
the pre-placement requirement directly to the underlying risk factor 
(i.e., country of origin). Thus, the interim final rule allows such 
officers to discern directly from applicants' paperwork whether they 
are required to be pre-placed.
    The new Summer Work Travel regulatory model reflects different risk 
assessments for aliens, depending on their countries of origin. The 
Department recognized that a country's participation in the Visa Waiver 
Program could provide a means of identifying program participants who 
would experience lower levels of risk while visiting the United States. 
Governments of participating Visa Waiver Program countries must meet 
specific security and other requirements, such as timely reporting of 
incidents and enhanced law enforcement and security-related data 
sharing with the United States. In addition, countries are designated 
for inclusion in the Visa Waiver Program only if the Secretary of the 
Department of Homeland Security, in consultation

[[Page 23179]]

with the Secretary of State, establishes that the designation will not 
compromise security and law enforcement interests of the United States, 
and that the country satisfies high U.S. border control and document 
security standards (see http://travel.state.gov/visa/temp/without/
without_1990.html#countries for a current list of these countries.) 
Accordingly, this interim final rule recognizes that there is less risk 
for aliens from Visa Waiver Program countries being brought to the 
United States under false pretenses or stranded here without jobs or 
resources if allowed to enter the United States without pre-arranged 
job placements. If, however, they do secure job placements prior to 
departure for the United States, sponsors must vet (i.e., confirm the 
terms, conditions, and viability of) those placements prior to their 
departure. Aliens from countries other than the Visa Waiver Program 
countries will be able to enter the United States only after they or 
their sponsors have secured firm job offers, and their sponsors have 
similarly vetted them.
    Although Public Law 105-277 specifically authorized Summer Work 
Travel program to operate ``without regard to pre-placement 
requirements,'' the Department has long required sponsors to find job 
placements for at least 50 percent (50%) of program participants before 
they departed their home countries. The interim final rule eliminates 
this arbitrary percentage and specifically and appropriately links the 
increased risk to the heightened regulatory requirements. Of the 
approximately 120,000 Summer Work Travel program participants entering 
the United States in 2010, however, 13 percent (13%) were from 29 of 
the 36 Visa Waiver Program countries. If such country-of-origin entry 
trends continue, implementation of the new approach will result in 
approximately 87% of all Summer Work Travel participants entering the 
United States with pre-arranged and vetted jobs. Accordingly, requiring 
participants from non-Visa Waiver Program countries (including 
participants from the Pilot Program Countries) to be pre-placed with a 
vetted job offer will help to ensure that most Summer Work Travel 
participants will not be stranded in the United States without jobs and 
resources or be engaged in inappropriate or problematic placements.

Job and Employee Vetting

    The interim final rule also requires sponsors to vet U.S. host 
employers by utilizing publicly available information to confirm that 
potential host employers are ongoing and viable business entities. 
Sponsors must obtain and verify host employers' Employer Identification 
Numbers and verify that host employers meet state-specific workers' 
compensation requirements. Sponsors and foreign entities acting on 
their behalf are also prohibited from paying or otherwise providing any 
incentives to host employers to induce them to provide placements for 
their participants. Further, the interim final rule requires sponsors 
to vet all foreign entities (i.e., overseas agents or partners) that 
assist them in fulfilling the core programmatic functions that may be 
conducted outside the United States (i.e., screening, selection, and 
orientation) and maintain current listings of such parties in a new 
``Foreign Entity Report.'' The information in this Report is provided 
to Consular Officials as a means to verify that the foreign entity is a 
bona fide partner/agent of a US sponsor. The contents of this report 
have been submitted for OMB approval as a collection and will be 
required upon approval. Until such approval is received, we encourage 
sponsors to submit this information voluntarily.
    To assist in the recruiting, screening, selection, and orientation 
of Summer Work Travel participants, sponsors can engage only those 
vetted foreign entities with whom they have executed written agreements 
that explain their relationships and identify their respective 
obligations and who are included in the Foreign Entity Report. These 
agreements must include annually updated price lists for the Summer 
Work Travel programs such third parties market on behalf of the 
sponsors and provisions confirming that they will not: (1) Outsource 
any of the core programmatic functions covered by the agreement (i.e., 
screening, selection, and orientation) to any other third party, 
including staffing or employment agencies; or (2) pay or otherwise 
provide any incentives to host employers to induce them to provide 
placements for the participants of the sponsors whose interests they 
represent. Sponsors must obtain proof that potential foreign entities 
are bona fide business entities that are appropriately licensed and/or 
registered to conduct business in the venue(s) where they operate. They 
must obtain notarized statements from recognized financial entities in 
such venues that demonstrate the business solvency of potential foreign 
entities. Such foreign entities must disclose to the sponsors any 
previous bankruptcy proceedings and any pending legal actions; they 
must obtain written references from three current business associates; 
and they must provide summaries of any previous experience with the 
Exchange Visitor Program. Further, all owners and officers of such 
foreign entities must be vetted by criminal background checks and 
provide sponsors with copies of the reports in both the original 
language and translated into English.
    Under the interim final rule, sponsors must vet all jobs (e.g., 
verify the terms and conditions of such employment and fully vet the 
identified U.S. host employers) for all participants before they can 
(in the case of participants from the non-Visa Waiver Program 
countries) enter the United States or (in the case of participants from 
Visa Waiver Program countries who do not have jobs upon entry) start 
work.
    Participants may obtain self-placed jobs, whereby they (through a 
foreign entity or other source) identify their own job placements. 
Alternatively, they may elect for direct-placed jobs, in which cases, 
sponsors have contracted with host employers and arranged the 
employment of Summer Work Travel participants for specified periods, 
number of hours, and at specified wages. For such direct-placed jobs, 
the Department recognizes that sponsors and participants enter into 
quasi or actual contracts regarding the terms of the placements. In 
such cases, the sponsors have assumed an affirmative obligation to 
arrange suitable employment for the participants under the terms 
specified in the agreements. We seek specific comment on this point.
    To ensure that Summer Work Travel participants do not work in 
unsafe or unseemly jobs, the Department has expanded the enumerated 
list of excluded positions program participants may not fill. Also, to 
ensure that sponsors maintain sufficient control to effectively 
administer their exchange programs, the interim final rule clarifies 
that sponsors may enlist the assistance of only host employers in 
fulfilling the core programmatic functions that are generally conducted 
within the United States (i.e., orientation and monitoring). Thus, 
sponsors may not engage third parties other than host employers--and 
host employers may not engage any third parties to assist in fulfilling 
these functions. The Department specifically requests comment on this 
matter.

Program Administration

    All participants must contact their sponsors upon arrival in the 
United States to inform their sponsors of their current U.S. addresses. 
Participants without pre-arranged employment may contact their sponsors 
for job search

[[Page 23180]]

assistance and must contact their sponsors upon obtaining job offers. 
Only once the sponsors vet the job placement can the participant start 
to work.
    This interim final rule further clarifies that applicants must be 
bona fide students enrolled and participating full time at accredited 
post-secondary academic institutions located outside the United States 
at the time of application. Participants must have completed at least 
one semester (or the quarter or trimester equivalent) in order to 
qualify to participate. Final year students who apply for the Summer 
Work Travel program while still in school may participate in the Summer 
Work Travel program during the school's major academic break that 
follows their graduation. This rule also limits all students' program 
participation to the shorter of four months or the length of the long 
break between academic years at the schools they attend. Whether this 
break occurs during the winter or summer months in the United States or 
lasts two, three, or four months is determined in one of two ways. In 
most countries, consular officials have established country-wide 
program start and end dates that correspond with typical academic 
calendars. In other countries, the period of program duration may be 
tied to specific school calendars.
    The new regulations retain the long-standing requirement that 
sponsors interview potential participants and ensure that selected 
applicants have sufficient English language skills to travel in the 
United States and function successfully in their work environments. To 
make this determination, sponsors may either obtain English language 
test scores from recognized language skills tests administered by 
academic institutions or English language schools, or evaluate 
applicants' language skills during documented sponsor interviews. A new 
regulatory requirement has been added to document such interviews. The 
new regulations afford additional flexibility for meeting this 
requirement by allowing sponsors the option of video-conferencing 
applicant interviews, rather than conducting them only in person and 
ensures that the conduct of an interview has been documented. Although 
foreign entities may assist sponsors in this recruiting function, 
sponsors are responsible for the final selection of their program 
participants.
    The interim final rule also requires sponsors to provide the 
following orientation materials to all participants (in addition to the 
currently required information) prior to departing for the United 
States: (1) A copy of the Department's Summer Work Travel Participant 
Letter; (2) a copy of the Department's Summer Work Travel Brochure; (3) 
the telephone number for the Department's 24/7 toll-free help line; and 
(4) the telephone numbers for the sponsors' 24/7 immediate contact 
line. Sponsors are also required to inform participants of their 
obligations to report their U.S. addresses to their sponsors upon their 
arrival in the United States as well as any changes in their employment 
or residence throughout the duration of their programs. As a point of 
clarification of existing regulations, sponsors are obligated to end 
the exchange programs of participants who do not report their arrival 
within ten days following the program start date or who do not report 
changes in their U.S. addresses or sites of activity within ten days of 
such moves. Sponsors would generally learn that an unreported move had 
occurred when they attempt to make monthly contact and cannot reach the 
participants for ten days. In addition, sponsors continue to be 
required to inform pre-placed participants of the name and address of 
their employer, and to disclose any contractual obligations (e.g., the 
hourly wage, how many hours per week they will work, whether the host 
employer has arranged housing) related to their acceptance of such paid 
employment.
    The interim final rule retains the requirement that sponsors 
provide participants from Visa Waiver Countries who do not have pre-
arranged and vetted jobs prior to departing from their home countries 
with information that explains how to seek employment and secure 
lodging in the United States. Sponsors must also continue to provide 
rosters of bona fide job opportunities to such participants and 
undertake reasonable efforts to help them secure placements after their 
arrival. Sponsors are required to ensure that non-pre-placed 
participants have sufficient financial resources to support themselves 
while they are searching for employment. The interim final rule also 
retains the requirement that sponsors make reasonable efforts to secure 
job placements for these participants if they have not obtained 
employment within one week after arriving in the United States.

Monitoring

    The interim final rule expands the current obligations of sponsors 
to monitor their program participants. In addition to providing the 
currently required emergency assistance, sponsors must now make 
personal contact with each participant on a monthly basis. Sponsors 
must document such monthly contacts, which can be in-person, by 
telephone, or via e-mail. Such routine contact between sponsors and 
participants is required to ensure that participants are safe, the 
conditions of employment are being met, and participants are informing 
their sponsors of their current U.S. addresses.
    The interim final rule also adds a new section on host employer 
obligations. First, host employers are expected to provide program 
participants with the approximate number of hours of paid employment 
per week that they agreed to when the sponsors vetted the jobs. Second, 
they are required to pay participants for any overtime work, in 
accordance with state-specific and federal employment laws. Further, to 
assist sponsors in maintaining current and accurate SEVIS records, host 
employers must promptly notify sponsors when participants start their 
jobs. Host employers must also notify sponsors in case of any changes 
in employment conditions, any issues related to the welfare of the 
participants, or if the participants are not meeting their obligations 
to the host employers. Sponsors must ensure that participants are 
placed only with host employers that materially comply with all 
applicable federal, state, and local occupational health and safety 
laws; and adhere to Exchange Visitor Program regulations and sponsor 
program rules, as set forth at Sec.  62.9.
    Current regulations allow sponsors either to submit to the 
Department semi-annual placement reports or list the names and 
addresses of participants' pre-arranged host employers on Forms DS-
2019. The interim final rule requires all sponsors to submit semi-
annual placement reports according to a Department-provided format upon 
OMB approval of the collection. For all participants for whom pre-
placement is obtained (i.e., all participants from non-Visa Waiver 
Program countries and participants from Visa Waiver Program countries 
who are pre-placed), sponsors may not issue Forms DS-2019 unless they 
include the vetted host employers' names (i.e., business names), the 
work addresses (i.e., sites of activity), and the job title of the 
participants.
    The Department had intended to publish the interim final rule in 
time to be effective when the bulk of program participants entered the 
country for the summer 2011 season. Discussions with the industry, 
however, determined that sponsors would not be able to make major 
changes to their business operations (i.e., vet foreign entities, 
renegotiate contracts with them, and increase their capacity for 
securing jobs

[[Page 23181]]

prior to the aliens' arrival in the United States) in time to apply 
these aspects of the regulations to program participants entering the 
United States from countries other than the Pilot Program Countries. 
However, there are key monitoring and reporting components of the new 
regulations that can be implemented immediately. These monitoring 
provisions will apply to all Summer Work Travel participants who are in 
the United States on July 15, 2011, the date that sponsors recommended 
as the effective date of the interim final rule. There are no 
administrative barriers that should delay the implementation of these 
important safety-and security-related monitoring provisions. By 
maintaining monthly contacts with their participants, sponsors will 
take a more active role in tracking their geographical whereabouts and 
offering participants on-going support and assistance with any program-
related problems during the upcoming summer season. As sponsors often 
issue Forms DS-2019 as far as four months in advance of a program start 
date, the interim final rule affords sufficient lead time to allow 
sponsors issuing Forms DS-2019 after the effective date of this interim 
final rule (i.e., for participants entering the United States during 
the 2011-2012 ``winter season'' and thereafter) to follow the job 
placement, job vetting, and third party vetting requirements as well.
    Taken together, these regulatory modifications, enhancements, and 
changes are intended to create a new Summer Work Travel paradigm by 
addressing emerging problems and concerns. By developing better ways to 
ensure the health, safety, and welfare of its program participants, 
this interim final rule enhances the integrity of the Summer Work 
Travel program and continues to build global goodwill through this 
important public diplomacy initiative.

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 Sec.  553 (Rulemaking) 
and Sec.  554 (Adjudications) of the Administrative Procedure Act 
(APA). Pursuant to U.S. Government policy and longstanding practice, 
the Department of State has supervised either directly or through 
private sector program sponsors or grantee organizations, those foreign 
nationals who come to the United States as participants in exchange 
visitor programs. 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 interim final rule is to protect the health, safety and 
welfare of aliens 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 or last legal 
permanent residence upon completion of their programs. The Department 
of State represents that failure to protect the health, safety and 
welfare of these program participants will have direct and substantial 
adverse effects on the foreign affairs of the United States. Although 
the Department is of the opinion that this interim final rule is exempt 
from the rulemaking provisions of the APA, the Department is publishing 
this rule as an interim final rule, with a 60-day provision for public 
comment and without prejudice to its determination that the Exchange 
Visitor Program is a foreign affairs function. Moreover, and as 
discussed above, the Department has been engaged in a lengthy dialogue 
with the sponsors of Summer Work Travel exchanges, keeping them fully 
apprised of its vision for reshaping the Summer Work Travel program. 
The sponsor community, therefore, has had the opportunity to 
participate in and influence agency decision making at an early stage.
    In addition, under Section 553(b) of the Administrative Procedure 
Act (APA) (5 U.S.C. 551 et seq.) a general notice of proposed 
rulemaking is required unless an agency, for good cause, finds that 
notice and public comment thereon are impracticable, unnecessary, or 
contrary to the public interest. As discussed in the preamble to this 
rule, the Department has concluded that the national security, program 
administration and participant health, safety and welfare 
considerations would make public comment impracticable and contrary to 
the public interest. Further, the Department has determined that it 
would be impracticable and contrary to the public interest to delay 
putting the provisions in these interim final regulations in place 
until a full public notice and comment process was completed. For the 
foregoing reasons, the Department determines that good cause exists to 
implement this rule as an interim rule under the Administrative 
Procedure Act, 5 U.S.C. 553(b) and accordingly, adopts this rule on 
this basis.

Small Business Regulatory Enforcement Fairness Act of 1996

    This interim 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 interim final 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 interim 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 Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    Since this interim final rule is exempt from 5 U.S.C 553, and no 
other law requires the Department of State to give notice of such 
rulemaking, it is not subject to the Regulatory Flexibility Act (5 
U.S.C. 601, et seq.) and Executive Order 13272, Sec.  3(b). However, to 
better inform the public as to the costs and burdens of the Rule upon 
designated program sponsors, the Department notes that this Rule will 
affect the operations of 53 corporate, academic, and tax-exempt 
entities designated by the Department to conduct Summer Work Travel 
program activities. The Department calculates that these new 
requirements may require up to three additional hours of work per 
placement and therefore with 120,000 placements, that 360,000 
additional hours of work will be required by program sponsors. At an 
estimated cost of $20 per hour, the Department projects that these

[[Page 23182]]

enhanced selection, screening, vetting, placement, monitoring and 
evaluation requirements represent an aggregate cost of $7.2 million to 
the collective Summer Work Travel sponsor community. Of the 53 entities 
sponsoring SWT placements, 34 have annual revenues of less than 7 
million dollars. These 34 entities account for approximately 15,000 of 
the 120,000 annual SWT exchange participants. Thus an estimated 12% 
($864,000) of the additional costs will fall upon small entities. These 
costs will range from an additional estimated $120 for one small entity 
having two participants up to an estimated additional $540,000 for a 
small entity conducting an exchange program with 900 participants. The 
Department has been advised by both large and small entity sponsors 
that the additional $60 cost of these security and programmatic 
safeguards will be passed along either to the foreign national 
applicant or foreign entity that assists the U.S. entity in arranging 
these exchange activities. The Department has no reason to believe that 
this additional $60 program cost to participants will result in a 
reduction in the number of program participants and notes that this 
cost increase would represent a 3% increase in the average cost of a 
participant's program.
    The Department has also examined the additional costs associated 
with employer reporting and job vetting requirements and concludes that 
these requirements are no different than the existing business 
practices of designated sponsors currently placing approximately 90% of 
these student participants with U.S. employers and that, accordingly, 
there is not additional burden upon employers. The Department estimates 
that the vetting and reporting requirements require no more than 1 man 
hour per participant and thus for the 10% of placements where job 
vetting and reporting requirements are not the current practice and 
there will be an additional burden of 12,000 man hours spread across an 
indeterminate number of large and small entities, government and 
academic employers who will collectively bear an additional financial 
burden of some $240,000.00 (12,000 hours x $20 per hour). The 
Department thus certifies that it does not believe that these 
regulatory changes will have a significant impact upon small 
businesses.

Executive Order 13563 and Executive Order 12866

    The Department of State does not consider this interim final rule 
to be a ``significant regulatory action'' under Executive Order 12866, 
Sec.  3(f), Regulatory Planning and Review, as amended by Executive 
Order 13563. The Department has reviewed the interim final rule to 
ensure its consistency with the regulatory philosophy and principles 
set forth in the Executive Orders.

Executive Order 12988

    The Department of State has reviewed this interim final rule in 
light of Sec.  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 Sec.  6 of 
Executive Order 13132, it is determined that this interim final 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 interim 
final rule are pursuant to the Paperwork Reduction Act, 44 U.S.C. 
Chapter 35 and OMB Control Number 1405-0147, Form DS-7000. As part of 
this rulemaking, the Department is seeking comment regarding the 
additional administrative burden associated with the collection of 
information for a new Foreign Entity Report, the documentation of 
interviews and monthly contact with participants, and the modification 
of existing semi-annual reporting requirements for the Summer Work 
Travel Program.
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Recording, Reporting, and Data 
Collection Requirements Under 22 CFR Part 62.
    (3) Agency form number: DS-7000.
    (4) Affected public: This is an expansion and continuation of an 
existing information collection utilized by the Bureau of Educational 
and Cultural Affairs in its administration and program oversight of the 
Exchange Visitor Program (J-Visa) under the provisions of the Mutual 
Educational and Cultural Exchange Act, as amended. The Department seeks 
comment from Summer Work Travel Program sponsors and other persons 
directly involved in the administration of the Summer Work Travel 
Program.
    (5) Change to information collected by the Department of State: The 
existing Placement Report data collection is a current collection 
required by all Summer Work Travel sponsors and doesn't impose any 
further record keeping burden. Further, the Department anticipates that 
the electronic spreadsheet template that will be provided to sponsors 
for reporting purposes will reduce sponsors' recordkeeping burden and 
will eliminate their need to submit semi-annual placement reports in a 
paper report format. A planned Foreign Entity Report is expected to 
place a minimal additional administrative burden on the 53 currently 
designated Summer Work Travel program sponsors. The Department believes 
that the requested information is currently collected by sponsors in 
their routine administration of their programs. The additional 
regulatory requirements for documenting interviews and monthly contact 
with participants are already a standard business practice for some 
sponsors. The Department outlines the increased cost and burden hours 
associated with this collection requirement and discussed it fully in 
the Regulatory Flexibility Act/Executive Order 13272: Small Business 
section above and also below.
    (6) You may submit comments by any of the following methods:
     Persons with access to the Internet may also view this 
notice and provide comments by going to the regulations.gov Web site 
at: http://www.regulations.gov/index.cfm.
     E-mail: JExchanges@State.gov.
     Mail (paper, disk, or CD-ROM submissions): U.S. Department 
of State, ECA/EC/D, SA-5, Floor 5, 2200 C Street, NW., Washington, DC 
20522-0505, Attn: Federal Register Notice Response.

You must include the DS form number, information collection title, and 
OMB control number in any correspondence.
    (7) The Department seeks public comment on:
     Whether the collection of information is necessary for the 
proper performance of the functions of the agency, including whether 
the information will have practical utility;
     The accuracy of the agency's estimate of the burden of the 
collection of information, including the validity of the methodology 
and assumptions used;
     The quality, utility, and clarity of the information to be 
collected; and

[[Page 23183]]

     How to minimize the burden of the collection of 
information on those who are to respond, including through the use of 
appropriate automated, electronic, mechanical, or other technological 
collection techniques or other forms of information technology, e.g., 
permitting electronic submission of responses.
    (8) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The total 
number of respondents is estimated to be those 53 organizations 
designated by the Department to conduct the Summer Work Travel Program 
activities.
    (9) An estimate of the total annual public burden (in hours) 
associated with the collection: The Department calculates that these 
new requirements may require up to three additional hours of work per 
placement for those program sponsors that are not currently documenting 
participant interviews or actively maintaining monthly contact with 
their program participants. The Foreign Entity Report is estimated at 
one burden hour, documenting participant interviews as 30 minutes, and 
the documentation of monthly contacts at 20 minutes per month. Under 
the current collection, the semi-annual placement report already is 
estimated at 4 burden hours under the current paper format. This burden 
is expected to be reduced based on the new electronic template that 
will be provided to all Summer Work Travel sponsors. The Department 
estimates that for 60,000 of the 120,000 annual Summer Work Travel 
placements, no additional burden will be imposed to the given current 
business practices of some sponsors. Thus, for the remaining 60,000 
participant placements an additional 180,000 hours of work will be 
imposed on those sponsors not currently maintaining monthly contact 
with their participants or properly documenting participant interviews.

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 continues to read as follows:

    Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 
1431-1442, 2451 et seq.; Foreign Affairs Reform and Restructuring 
Act of 1998, Pub. L. 105-277, Div. G, 112 Stat. 2681 et seq.; 
Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 
12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; the Illegal 
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 
1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act of 2001 (USA 
PATRIOT ACT), Pub. L. 107-56, section 416, 115 Stat. 354; and the 
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 
107-173, 116 Stat. 543.


0
2. Sec.  62.32 is revised to read as follows:


Sec.  62.32  Summer work travel.

    (a) Introduction. These regulations govern program participation in 
Summer Work Travel programs conducted by Department of State-designated 
sponsors pursuant to the authority granted the Department of State 
under Public Law 105-277.
    (b) Purpose. The purpose of this program is to provide bona fide 
foreign students who are enrolled full-time and pursuing studies at 
accredited post-secondary academic institutions located outside the 
United States with the opportunity to work and travel in the United 
States for the shorter of four months or the length of the long break 
between academic years at the schools they attend (i.e., the summer 
break).
    (c) Duration of participation. Summer work travel participants are 
authorized to participate in the Exchange Visitor Program for up to 
four months during their official summer breaks. Extensions of program 
participation are not permitted.
    (d) Participant screening and selection. In addition to satisfying 
the requirements set forth at Sec.  62.10(a), sponsors are solely 
responsible for adequately screening and making the final selection of 
their program participants and at a minimum must:
    (1) Conduct and document interviews with potential participants 
either in-person or by video-conference;
    (2) Ensure that selected applicants have English language skills 
sufficient to successfully function on a day-to-day basis in their work 
environments. Sponsors must verify each participant's English language 
proficiency either through a recognized language test administered by 
an academic institution or English language school or through the 
required documented interview; and
    (3) Confirm that at the time of application, applicants (including 
final year students) are enrolled full-time and pursuing studies at 
accredited post-secondary academic institutions located outside of the 
United States and have successfully completed at least one semester, or 
equivalent, of post-secondary academic study.
    (e) Participant orientation. In addition to satisfying the 
requirements set forth at Sec.  62.10(b) and (c), sponsors must provide 
program participants, prior to participants' departures from their home 
countries, the following information and/or documentation:
    (1) A copy of the Department of State's Summer Work Travel 
Participant Letter;
    (2) A copy of the Department of State's Summer Work Travel Program 
Brochure;
    (3) The Department of State's toll-free help line telephone number;
    (4) The sponsor's 24/7 immediate contact telephone number;
    (5) Information advising participants of their obligation to notify 
their sponsors when they arrive in the United States and to provide 
information, within 10 days, of any change in jobs or residences; and
    (6) Information concerning any contractual obligations related to 
participants' acceptance of paid employment in the United States, if 
employment has been pre-arranged.
    (f) Participant placement. Sponsors and foreign entities (i.e., 
overseas agents or partners acting on their behalf) may not pay or 
otherwise provide any incentive to host employers to accept program 
participants for job placements. Sponsors must confirm the placements 
of all Summer Work Travel participants before the participants may 
start work, at a minimum, by verifying the terms and conditions of such 
employment and vetting their identified host employers as set forth at 
Sec.  62.32(l).
    (1) Sponsors of participants who are nationals of non-Visa Waiver 
Program countries must:
    (i) Ensure that all such participants enter the United States with 
job placements secured in advance by the sponsors (direct-placement) or 
by the participants (self-placement);
    (ii) Fully vet and confirm such placements in advance of placement 
by, at a minimum, verifying the terms and conditions of such employment 
and fully vetting their identified host employers as set forth at Sec.  
62.32(l); and
    (iii) Enter the participants' host employers, sites of activities, 
and job titles in SEVIS prior to issuing their Forms DS-2019.
    (2) Sponsors of participants who are nationals of Visa Waiver 
Program countries must:
    (i) Ensure that participants who enter the United States without 
job placements secured in advance are nationals of Visa Waiver Program 
countries;
    (ii) Ensure that such participants receive pre-departure 
information that

[[Page 23184]]

explains how to seek employment and secure lodging in the United 
States;
    (iii) Maintain and provide such participants with a roster of bona 
fide job listings equal to or greater than the number of participants 
who entered the United States without pre-arranged and confirmed job 
placements;
    (iv) Ensure that such participants have sufficient financial 
resources to support themselves during their search for employment;
    (v) Undertake reasonable efforts to assist any such participant who 
has not found suitable employment within two weeks of commencing his or 
her job search; and
    (vi) Instruct participants of their obligation to notify their 
sponsors when they obtain job offers.
    (g) Participant compensation. Sponsors must inform program 
participants of Federal Minimum Wage requirements and ensure that at a 
minimum participants are compensated at the prevailing local wage, 
which must meet the higher of either the applicable state or the 
Federal minimum wage requirement, including payment for overtime in 
accordance with state-specific employment laws.
    (h) Monitoring. Sponsors must:
    (1) Maintain, at a minimum, a monthly schedule of personal contact 
with program participants. Such contact may be in-person, by telephone, 
or via electronic mail and must be properly documented. Sponsors must 
ensure that issues affecting the participants' health, safety, and 
welfare identified through such contacts are promptly and appropriately 
addressed; and
    (2) Ensure appropriate assistance is provided to participants on an 
as-needed basis and that sponsors are available to participants (and 
host employers) to assist as facilitators, counselors, and information 
resources.
    (i) Internal controls. Sponsors must utilize organization-specific 
standard operating procedures for training and supervising all 
organization employees. In addition, sponsors must establish internal 
controls to ensure that host employers and/or foreign entities comply 
with the terms of agreements with such third parties involved in the 
administration of the sponsors' exchange visitor programs, i.e., affect 
the core programmatic functions.
    (j) Sponsors' use of third parties. (1) If sponsors utilize foreign 
entities to assist in fulfilling the sponsors' core programmatic 
functions that may be conducted outside the United States (i.e., 
screening, selection, and orientation), they must obtain written and 
executed agreements with such third parties. For the purpose of this 
section, U.S. entities operating outside the United States (or its 
possessions or territories) are considered foreign entities. These 
agreements must outline the obligations and full relationship between 
the sponsors and such third parties on all matters involving the 
administration of the sponsors' exchange visitor programs;
    (2) Written and executed agreements between sponsors and foreign 
entities acting on their behalf must delineate the respective 
responsibilities of the sponsors and third parties and include:
    (i) Annually updated price lists for Summer Work Travel programs 
marketed by the foreign entities;
    (ii) Representations that such foreign entities will not engage in, 
permit the use of, or otherwise cooperate or contract with other third 
parties (including staffing or employment agencies or subcontractors) 
for the purpose of recruiting or outsourcing any core programmatic 
functions covered by the agreement (i.e., screening, selection, and 
orientation); and
    (iii) Confirmation that the foreign entities agree not to pay or 
provide incentives to host employers in the United States to accept 
program participants for job placements.
    (3) Sponsors may utilize only host employers to assist in 
fulfilling the sponsors' core programmatic functions that are generally 
conducted within the United States (i.e., orientation and monitoring). 
Sponsors may not engage third parties other than host employers; and 
host employers may not engage or subcontract any third parties to 
assist in fulfilling these functions.
    (k) Screening and vetting of foreign entities. Sponsors must 
undertake appropriate due diligence in the review of potential overseas 
agents or partners who assist in fulfilling the sponsors' core 
programmatic functions that may be conducted outside the United States 
(i.e., screening, selection, and orientation) and must, at a minimum, 
review the following documentation for each potential overseas agent or 
partner:
    (1) Proof of business licensing and/or registration to enable it to 
conduct business in the venue(s) where it operates;
    (2) Disclosure of any previous bankruptcy and of any pending legal 
actions;
    (3) Written references from three current business associates or 
partner organizations;
    (4) Summary of previous experience conducting J-1 Exchange Visitor 
Program activities;
    (5) Criminal background check reports (including original and 
English translation) for all owners and officers of the organization; 
and
    (6) A copy of the sponsor-approved advertising materials the 
overseas agent or partner intends to use to market the sponsor's 
program (including original and English translation).
    (l) Vetting host employers. (1) Sponsors must adequately vet all 
potential host employers of Summer Work Travel program participants to 
confirm that the job offers are viable and at a minimum sponsors must:
    (i) Make direct contact in person or by telephone with host 
employers to verify the business owners'/managers' names, telephone 
numbers, email addresses, street addresses, and professional 
activities;
    (ii) Utilize publicly available information (i.e., Web sites of 
Secretaries of States, advertisements, brochures, Web sites, and/or 
feedback from prior participants) to confirm that all job offers have 
been made by viable business entities;
    (iii) Obtain and verify the host employers' Employer Identification 
Numbers used for tax purposes; and
    (iv) Verify the Worker's Compensation Insurance Policy or 
equivalent in each state where a participant will be placed or, if 
applicable, evidence of that state's exemption from requirement of such 
coverage.
    (m) Host employer obligations. Sponsors must ensure that employers 
of Summer Work Travel program participants:
    (1) Provide participants the number of hours of paid employment per 
week as identified on the job offer and agreed to when the sponsors 
vetted the jobs;
    (2) Pay those participants eligible for overtime worked in 
accordance with applicable state or federal law;
    (3) Notify sponsors promptly when participants arrive at the work 
sites to begin their programs; when there are any changes or deviations 
in the job placements during the participants' programs; when 
participants are not meeting the requirements of their job placements; 
or when participants leave their position ahead of their planned 
departure; and
    (4) Contact sponsors immediately in the event of any emergency 
involving participants or any situation that impacts the welfare of 
participants.
    (n) Reporting requirements. Sponsors must electronically submit the 
following reports utilizing Department-provided templates:
    (1) A Placement Report, on January 31 and July 31 of each year, 
identifying all Summer Work Travel exchange visitor participants who 
began an exchange program during the preceding six-month

[[Page 23185]]

period. The report must include the exchange visitors' names, SEVIS 
Identification Numbers (or other Department-mandated participant 
identification numbers), countries of citizenship or legal permanent 
residence, names of employers, the length of time it took non-pre-
placed participants to secure job placements, and other information the 
Department may deem essential. For participants who change jobs or have 
multiple jobs during their programs, the report must include all such 
placements; and
    (2) Sponsors are required to maintain current listings of all 
foreign agents or partners on the Foreign Entity Report by promptly 
informing the Department of any additions, deletions, or changes to 
overseas partner information by submitting new versions of the report 
that reflect all current information. The report must include the 
names, addresses, and contact information (i.e., telephone numbers and 
email addresses) of all foreign entities that assist the sponsors in 
fulfilling the provision of core program services, and other 
information the Department may deem essential. Sponsors may utilize 
only vetted foreign entities identified in the report to assist in 
fulfilling the sponsors' core programmatic functions outside the United 
States.
    (o) Program exclusions. U.S. sponsors must not place participants:
    (1) In any position in the adult entertainment industry;
    (2) In sales positions that require participants to purchase 
inventory that they must sell in order to support themselves;
    (3) In domestic help positions in private homes (e.g., child care, 
elder care, gardener, chauffeur);
    (4) As pedicab or rolling chair drivers or operators;
    (5) As operators of vehicles or vessels that carry passengers for 
hire and/or for which commercial drivers licenses are required;
    (6) In any position related to clinical care that involves patient 
contact; or
    (7) In any position that could bring notoriety or disrepute to the 
Exchange Visitor Program.


    Dated: April 21, 2011.
Stanley S. Colvin,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of 
Educational and Cultural Affairs, Department of State.
[FR Doc. 2011-10079 Filed 4-25-11; 8:45 am]
BILLING CODE 4710-05-P



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