DOS Publishes Interim Final Rule And Comment Request On Summer Work Travel

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[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]                        

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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.

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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

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

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

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

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

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

    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

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

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

Agency: 
Immigration Law :