[Federal Register Volume 61, Number 112 (Monday, June 10, 1996)]
[Rules and Regulations]
[Pages 29285-29287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14390]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Final rule.
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SUMMARY: The Agency published an interim final rule with request for
comment in the Federal Register on April 8, 1996. This rule amended
Agency regulations to clarify the procedures for requesting an
extension of program duration for designated sponsors seeking such
extension on behalf or a professor or research scholar participating in
activities conducted by the sponsor. This interim rule also set forth
new procedures whereby the Agency may authorize a sponsor to design and
conduct research programs that allow for the participation of a
professor or research scholar for a period of time in excess of three
years. Limitations governing the eligibility for program participation
of professor and research scholar participants were also set forth.
These limitations enhance the integrity and programmatic effectiveness
of the Exchange Visitor Program. The Agency hereby adopts this interim
rule, with amendments, as final.
DATES: This rule is effective June 10, 1996 except for 22 CFR
514.20(j)(2)(i) which will become effective on October 4, 1996.
FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information
Agency, 301 4th Street, SW., Washington, DC 20547; Telephone, (202)
619-4979.
SUPPLEMENTARY INFORMATION: Professor and research scholar participants
comprise some thirty percent of all exchange visitors participating in
the Agency-administered Exchange Visitor Program and are, accordingly,
of particular interest to the Agency given their involvement in
collaborative research projects throughout the United States and the
potential for the promotion of mutual understanding and peaceful
relations that such collaborative activities provide. Also of interest
to the Agency is the fact that such participants occupy approximately
55,000 positions in U.S. academic institutions and corporate research
facilities.
Unlike all other nonimmigrant visa categories, the J visa allows
for the employment in the United States of accompanying spouses. Thus,
there are potentially 55,000 spouses working in the United States based
solely upon their derivative J-2 visa status. Also, unlike the
employment of all other nonimmigrants in the United States, neither the
employment of the J visa holder principal, nor his or her accompanying
spouse is subject to the requirements of a Labor Condition Application
or U.S. Department of Labor review. Given the above considerations, the
Agency is compelled to examine closely those policies and regulations
that govern the long-term employment of exchange visitors in the United
States.
The Agency published an interim rule on April 8, 1996 that
addressed, in part, an alien's eligibility to pursue teaching or
research opportunities in the United States under the aegis of the
Exchange Visitor Program. This interim rule introduced a prohibition
against program participation as a professor or research scholar for
aliens that had held or been afforded J visa status during any portion
of the twelve month period immediately preceding the commencement of
such participation. This prohibition was introduced in an effort to end
the movement of students in J visa status into the professor and
research scholar category and also to prevent aliens who have completed
a three year period of program participation as a professor or research
scholar from exiting the U.S. and immediately re-entering in a ``new''
program for an additional three year period.
The Agency received 38 comments in response to the request for
comment set forth in the April 8th interim rule, all of which directly
or indirectly touched upon this provision. The commentators generally
agreed that, given the Agency's desire to ensure that exchange visitors
return to their home country in order to safeguard the integrity and
programmatic effectiveness of the Exchange Visitor Program, the
practice of exiting and re-entering in a new program should be
curtailed. These commentators suggested, however, that the regulation,
as written, complicated or prevented the use of the Exchange Visitor
Program by person engaging in short-term collaborative projects. Many
commentators suggested alternatives to the Agency's approach and as a
result of such comments, the Agency is amending the provisions set
forth at Sec. 514.20(d). This amendment exempts from the twelve month
bar those exchange visitors who participated in an exchange visitor
program for six months or less. As a related matter, the Agency is
amending the program duration of the short-term scholar category from
four months to six months both to reflect this change and to facilitate
this category's use for short-term collaborative projects.
Further, based upon comments received, the Agency is amending the
language governing the calculation of the twelve month bar set forth at
Sec. 514.20(d)(ii). The interim rule set forth language, subject to
interpretation, as to how the twelve month period should be calculated.
In an effort to provide clarity, the Agency amends this language by
adopting physical presence in the United States in J status as the
standard for application of the twelve month bar and adopts the date of
program commencement, as set forth on the Form IAP-66, as the standard
to determine the calculation of time.
A number of commentators also suggested that it is unfair to
subject the J-2 spouse to this twelve month bar. The Agency disagrees.
While some J-2 spouses may have made some sacrifices in order to
accompany the J-1 exchange visitor, such sacrifice is compensated by
employment opportunities in the United States--often in research. Thus,
the real issue is whether it is unfair to deny a J-2 spouse the
opportunity to remain in J status and pursue continued
[[Page 29286]]
employment upon completion of the J-1 principal's program
participation.
If the J-2 is not subjected to the twelve month bar, the underlying
objective for imposing the bar is defeated in that the J-2 could become
a J-1 and the former J-1 would be afforded J-2 derivative status and
thus, as discussed above, full employment authorization. This ``flip-
flop'' of status could continue back and forth for years, even decades,
at the expense of program effectiveness and integrity. Accordingly, the
Agency concludes that upon balancing the various interests of the
Agency, designated sponsors, and exchange visitors, application of the
bar to J-2 spouses is both reasonable and desirable.
In a related matter to categorical eligibility, and in response to
specific comment received from NAFSA, the Agency adopts language to
clarify that participants may not be placed on a tenure track as
opposed to the interim rule's language that states the participant may
not be placed in a tenure-track position.
The Agency also received numerous comments regarding the provisions
of Sec. 514.20(i)(2) whereby the Agency may authorize designated
sponsors to conduct an exchange activity requiring participation in
excess of three years by a professor or research scholar. This
provision would allow a sponsor to identify a discrete activity, such
as the International Thermonuclear Experimental Reactor, for which the
sponsor and the activity underwriters have identified the desirability
of a participant's involvement for a period of time in excess of three
years. The requirement for the identification of a discrete activity,
by definition, does not contemplate those situations in which a sponsor
desires to conduct generalized research for periods of time in excess
of three years. The Agency will authorize up to an additional three
years of program duration.
The provisions of the interim rule limited involvement in such
activities to foreign educated research scholars. Many commentators
questioned whether the benefits of such a limitation outweighed
potential losses. In light of the comments received, the Agency
concludes that its program and policy objectives may be achieved by
means other than the limitation to foreign educated participants.
Accordingly, the Agency is eliminating this requirement and adopting in
its place a provision that participants in such extended activities be
financed directly by U.S. foreign government funding. ``Financed
directly'' is defined at Sec. 514.2 and requires that the exchange
visitor receives funds contributed directly to the exchange visitor in
connection with his or her participation in an exchange visitor
program. The Agency concludes that this approach will allow the
underwriters of such significant research projects to identify and
select participants according to their needs while signalling their
bona fide interest in such person by their direct funding of his or her
participation in the project.
Comments regarding Sec. 514.20(j) which governs the extension of a
participant's program participation generally suggested the need for
clarification of what the Agency considers to be ``exceptional or
unusual circumstances.'' The Agency stated in the interim rule, that it
contemplates ``exceptional or unusual circumstances'' will generally
involve situations in which the participant was unable to complete his
or her program due to circumstances not directly related to his or her
project. This general statement should not be misconstrued or over-
emphasized. The Agency recognizes that ``exceptional or unusual''
circumstances may arise that are directly related to a participant's
research project. While ``exceptional or unusual'' circumstances must
be examined on a case by case basis and in the context of all facts
presented, some guidance may be provided. For example, a foreign
government's direct funding of a participant and that government's
desire to have the participant continue in his or her project for an
additional year would be considered as an ``exceptional or unusual''
circumstance sufficient to justify extension of the participant's
program. Other examples of ``exceptional or unusual'' circumstances
include the illness or incapacity of a participant that prevents the
participant from working on his or her project for an extended period
of time, and catastrophes involving the research experiments. Also, the
test may be met when the visitor requires an extension of a few weeks
to complete the project due to unforseen delays in the research.
A number of commentators suggested that these changes diminish a
sponsor's ability to utilize the Exchange Visitor Program for research
requiring more than three years to complete. The Agency does not agree
with these comments, concluding instead, that these changes merely
reinforce the Agency's long-held position that the Exchange Visitor
Program should be utilized for programs that have been designed for
participation of not more than three years and that may, under ordinary
circumstances, be completed on schedule. Moreover, the Agency
concludes, as a matter of policy, that three years of research provides
ample opportunity to both complete meaningful research and develop
valuable relationships that will foster on-going linkages between U.S.
institutions and scientists upon the participant's return to his or her
home country. Thus, while the Agency acknowledges that these changes
may result in some individuals being unable to utilize the Exchange
Visitor Program, the Agency concludes that managerial and program
needs, such as the benefits of ensuring that a higher percentage of
participants return to their home country in a timely manner and
fulfill the underlying exchange policy objectives upon which their
entry into the United States was premised, outweighs the possible loss
of exchange opportunities.
The Agency also, in light of comments received, has determined that
the language of Sec. 514.20(j)(2)(i) should be amended to recognize
that extraordinary events may arise after the ninety day period for
filing an extension of program request has passed. The Agency adopted
the ninety day filing requirement to ensure that a participant does not
fall out of valid program status and thereby subject his or her sponsor
to sanctions for employing aliens without proper work authorization.
The necessity for a timely filing requirement remains; however, the
Agency does agree that an ``extraordinary circumstance'' clause would
be appropriate. Accordingly, the Agency amends the language of this
paragraph to include such clause but cautions all sponsors that the
participant's work authorization expires on the date listed on the
participant's IAP-66 form unless an extension has been granted by the
Agency. The Agency also is amending the ninety day filing requirement
to sixty days to provide for greater flexibility in the filing of an
extension request.
In accordance with 5 U.S.C.605(b), the Agency certifies that this
rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not considered to be
a major rule within the meaning of Section 1(b) of E.O. 12291, nor does
it have federal implications warranting the preparation of a Federalism
Assessment in accordance with E.O. 12612.
In adopting this final rule, with amendments, the Agency has set
forth the entire language of the interim rule with amendments
incorporated therein to assist the reader.
List of Subjects in 22 CFR Part 514
Cultural exchange programs.
[[Page 29287]]
Dated: June 3, 1996.
Les Jin,
General Counsel.
Accordingly the interim rule amending 22 CFR Part 514 which was
published at 61 FR 15372 on April 8, 1996, is adopted as a final rule
with the following changes:
PART 514--EXCHANGE VISITOR PROGRAM
1. The authority citation for part 514 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460; Reorganization Plan No. 2 of 1977, 42 FR 62461, 3
CFR, 1977 Comp. p 200; E.O. 12048, 43 FR 13361, 3 CFR, 1978 Comp. p
168, USIA Delegation Order No. 85-5 (50 FR 27393.)
2. Section 514.20 is amended by revising paragraphs (d), (i), and
(j) to read as follows:
Sec. 514.20 Professors and research scholars.
* * * * *
(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:
(i) The participant shall not be a candidate for tenure track
position; and
(ii) 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)(J) for all or part of the twelve month period immediately
preceding the date of program commencement set forth on his or her Form
IAP-66, unless:
(A) The participant is transferring to the sponsor's program as
provided in Sec. 514.42; or
(B) The participant's presence in the United States was of less
than six months duration; or
(C) The participant's presence in the United States was pursuant to
a Short-term scholar exchange activity as authorized by Sec. 514.21.
* * * * *
(i) Duration of participation. The permitted duration of program
participation for a professor or research scholar shall be as follows:
(1) General limitation. The professor and research scholar shall be
authorized to participate in the Exchange Visitor Program for the
length of time necessary to complete his or her program, which time
shall not exceed three years.
(2) Exceptional circumstance. The Agency may authorize a designated
Exchange Visitor Program sponsor to conduct an exchange activity
requiring a period of program duration in excess of three years. A
sponsor seeking to conduct a discrete activity requiring more than the
permitted three years of program duration, but less than six years of
program duration, shall make written request to the Agency and secure
written Agency approval. Such request shall include:
(i) A detailed explanation of the discrete exchange activity; and
(ii) A certification that the participation of selected research
scholars will be financed directly by United States or foreign
government funds.
(3) Change of category. A change between the categories of
professor and research scholar shall not extend an exchange visitor's
permitted period of participation beyond three years.
(j) Extension of program. Professors and research scholars may be
authorized program extensions as follows:
(1) Responsible officer authorization. A responsible officer may
extend, in his or her discretion and for a period not to exceed six
months, the three year period of program participation permitted under
Sec. 514.20(i). The responsible officer exercising his or her
discretion shall do so only upon his or her affirmative determination
that such extension is necessary in order to permit the research
scholar or professor to complete a specific project or research
activity.
(2) Agency authorization. The Agency may extend, upon request and
in its sole discretion, the three year period of program participation
permitted under Sec. 514.20(i). A request for Agency authorization to
extend the period of program participation for a professor or research
scholar shall:
(i) Be submitted to the Agency, unless prevented by extraordinary
circumstance, no less than 60 days prior to the expiration of the
participant's permitted three year period of program participation; and
(ii) Present evidence, satisfactory to the Agency, that such
request is justified due to exceptional or unusual circumstances and is
necessary in order to permit the researcher or professor to complete a
specific project or research activity.
(3) Timeliness. The Agency will not review a request for Agency
authorization to extend the three year period of program participation
permitted under Sec. 514.20(i) unless timely filed; provided, however,
that the Agency reserves the right to review a request that is not
timely filed due to extraordinary circumstance.
(4) Final decision. The Agency anticipates it will respond to
requests for Agency authorization to extend the three year period of
program participation permitted under Sec. 514.20(i) within 30 days of
Agency receipt of such request and supporting documentation. Such
response shall constitute the Agency's final decision.
[FR Doc. 96-14390 Filed 6-7-96; 8:45 am]
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