Here are new J1 rules: please go through
[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]
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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.
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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
