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[Federal Register: August 11, 2010 (Volume 75, Number 154)]
[Rules and Regulations]               
[Page 48555-48562]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11au10-7]                         

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DEPARTMENT OF STATE

22 CFR Part 62

RIN 1400-AC15
[Public Notice: 7114]

 
Exchange Visitor Program--Trainees and Interns

AGENCY: United States Department of State.

ACTION: Final rule.

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SUMMARY: On June 19, 2007, the Department published an interim final 
rule amending its regulations regarding Trainees and Interns to, among 
other things, eliminate the distinction between ``non-specialty 
occupations'' and ``specialty occupations,'' establish a new internship 
program, and modify the selection criteria for participation in a 
training program.
    This document confirms the Interim Final Rule as final and amends 
the requirements to permit the use of telephone interviews to screen 
potential participants for eligibility, to remove the requirement that 
sponsors secure a Dun & Bradstreet report profiling companies with whom 
a participant will be placed and also amends this provision to provide 
clarification regarding the verification of Worker's Compensation 
coverage for participants and use of an Employer Identification Number 
to ascertain that a third-party host organization providing training is 
a viable entity, and to clarify that trainees and interns may repeat 
training and internship programs under certain conditions.

DATES: Effective September 10, 2010 this document confirms as final 
with changes, the interim final rule (E7-11703) published on June 19, 
2007 (72 FR 33669).

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant 
Secretary for Private Sector Exchange, U.S. Department of State, SA-5, 
2200 C Street, NW., 5th Floor, Washington, DC 20522-0505; or e-mail at 
JExchanges@state.gov.

SUPPLEMENTARY INFORMATION: The Department published a Notice of 
Proposed Rulemaking (NPRM) on April 7, 2006 (71 FR 17768), followed by 
the Interim Final Rule on June 19, 2007. Having thoroughly reviewed the 
comments received, the Department has determined that it will, and 
hereby does, adopt the Interim Final Rule with minor amendments to four 
regulatory provisions to provide greater specificity regarding the 
selection, screening, placement and monitoring of trainee and intern 
participants.

Analysis of Comments

    The Interim Final Rule addressed almost 1,600 comments received in 
response to the NPRM. Subsequently, the Department received a total of 
120 comments involving multiple provisions of the Interim Final Rule. 
Of this total, 79 responses were identical form letters encouraged 
through a writing campaign directed by a third party organization that 
opposed the exclusion of trainees or interns from the field of 
veterinary sciences. As explained in both the proposed and interim 
final rules, the Department, as a matter of long established policy 
does not support use of the J-1 visa for clinical patient care 
including veterinary medicine. The sole exception to this policy are 
foreign medical graduates entering the United States for the purpose of 
graduate medical education of training. The activities undertaken by 
Foreign Medical Graduates (FMG) are specifically authorized by statute 
(The Mutual Educational and Cultural Exchange Act, as amended by the 
Health Care Professions Act, Pub. L. 94-484). The remaining 41 
responses were from Exchange Visitor Program sponsors and the general 
public. The commenting parties addressed the following issues:
    One comment was received recommending that the trainee and intern 
categories be separated into two distinct categories and one comment 
proposed a moratorium on all training programs. These two comments are 
beyond the scope of the Interim Rule in that such action was not 
proposed, nor is it current practice.
    Six comments were received regarding Sec.  62.22(b)(1), all of 
which were opposed to the requirement that internships must be related 
to the students' fields of study; these comments recommended that the 
Department eliminate this requirement. The Department has determined 
that for participants to benefit from the Exchange Visitor Program, it 
is essential that their training and internship programs be in their 
fields of study, and that they are adequately advanced in their chosen 
career fields to benefit from program participation. Otherwise, the 
risk exists that persons participating in these internships could be 
seen as a source of labor, rather than interns

[[Page 48556]]

gaining hands-on experience in their chosen career fields. This aspect 
of this rulemaking is intended to correct potential deficiencies in 
this exchange category identified by the United States Government 
Accountability Office's (GAO) October 2005 report entitled, ``Stronger 
Action Needed to Improve Oversight and Assess Risks of the Summer Work 
and Travel and Trainee Categories of the Exchange Visitor Program.'' 
With respect to the importance of being adequately advanced in a career 
field, as an example, the Department questions whether an undergraduate 
with less than two semesters' credit in the field of education is 
sufficiently advanced in his or her field to engage in a classroom-
based internship. Generally, it is common practice in the United States 
higher education community to pursue such experience during one's 
junior or senior year of study. Accordingly, the Department makes no 
change to the current requirement that students participating in an 
internship do so in their fields of study. Participants with 
insufficient academic preparation have been viewed as potential 
replacements for American workers rather than bona fide interns by the 
Government Accountability Office, as the activity is, or cannot be 
distinguished from ordinary work. Trainees and interns are therefore 
necessarily excluded from participation until such time as they have 
acquired sufficient education to justify this valuable experiential 
learning opportunity designed to further an established career track 
rather than to provide temporary employment to the non-immigrant alien. 
Further, and of particular concern to the Department is the past 
practice of placing participants as counter help in quick service 
restaurants or other counter service positions. The Department has 
found that training and internship placement plans submitted for these 
visitors are either questionable or in fact not adhered to by the third 
party host organizations. The Department finds that counter help 
positions are unskilled and casual labor. Placement of participants in 
these positions are prohibited as they are not suitable placements for 
interns and trainees and are seen as extended Summer Work Travel 
programs, and may bring the Department and the Exchange Visitor Program 
into notoriety and disrepute due to the potential displacement of 
American workers.
    Fifteen (15) comments were received regarding Sec.  62.22(d)(1). 
This regulation requires sponsors to ensure that trainees and interns 
have verifiable English language skills sufficient to function on a 
day-to-day basis in a training or internship environment. English 
language proficiency should, necessarily, be verified by a recognized 
English language test, by signed documentation from an academic 
institution or English language school, or through a measurable process 
(i.e., an interview conducted by the sponsor in person, or by video 
conference). All comments suggested that telephone interviews also be 
permitted, as such telephonic interviewing is widely utilized in the 
business environment and deemed both reliable and sufficient. Noting 
that video conferencing is not as prevalent in some countries as in the 
United States, the Department agrees that use of telephone interviews 
is appropriate only if the availability of video conferencing is not 
available. The Department anticipates that sponsors will pursue 
diligently the video conferencing approach and will use telephone 
interviews as a secondary or tertiary method of determining English 
language proficiency. The text of Sec.  62.22(d)(1) has been amended 
accordingly. The Department notes that many sponsors have already 
adopted this practice. Regardless of how the interview is conducted, 
sponsors' conclusions regarding English language proficiency must be 
documented and such information maintained by the sponsor in either 
documentary or electronic format for a three-year period following the 
completion of the exchange visitor's exchange program as stipulated in 
22 CFR 62.10(h).
    Fourteen (14) comments were received regarding Sec.  62.22(d)(2), 
all of which opposed an eligibility requirement that trainees possess a 
degree or professional certificate from a foreign post-secondary 
academic institution and at least one year of prior related work 
experience in their occupational field acquired outside the United 
States, or, in the alternative, five years of work experience outside 
the United States in their occupational field. These comments 
recommended that two years of work experience, rather than five, be 
required. Two additional comments recommended that trainees should be 
eligible to participate in a training program directly following 
graduation rather than after obtaining a year of experience. The 
Department takes administrative notice of the GAO October 2005 report 
referenced above. This report highlighted the potential for the Trainee 
Program to be misused as an employment program, suggesting that 
negative experiences for exchange participants could undermine the 
public diplomacy underpinnings of the program. The Department's 
acceptance of these concerns prompted an overhaul of regulations 
governing the Trainee category and the publication of the NPRM followed 
by the Interim Final Rule that has been in effect since July 19, 2007. 
The Interim Final Rule eliminated the ``non-specialty'' and 
``specialty'' categorizations of training activities, establishing in 
its place a ``trainee,'' ``intern'' and ``student intern'' category, 
with participant eligibility requirements to ensure that the programs 
in these categories operate as intended and are not abused. With the 
benefit of two years of experience with these requirements, the 
Department finds that the Interim Final Rule eligibility requirements 
have addressed GAO concerns regarding program abuse; therefore, the 
Department sees no need to modify these requirements.
    Nine (9) comments were received regarding Sec.  62.22(f)(2)(vi), 
which requires that training and internship program sponsors certify 
that training and internship programs in the field of agriculture 
conform with the requirements of the Fair Labor Standards Act, as 
amended, and the Migrant and Seasonal Agricultural Worker Protection 
Act, as amended. The Department finds that these comments offered no 
compelling reason why agricultural training and internship programs 
should not meet the statutory protections afforded all workers in the 
United States. Thus, the Department has determined that this 
requirement is necessary to ensure the appropriate protections and 
treatment of foreign nationals, and makes no modification to these 
requirements.
    One comment was received regarding Sec.  62.22(g)(3)(i), the 
screening and vetting of host organizations. This comment opposed the 
collection of Dun & Bradstreet Identification Numbers. The requirement 
of a Dun & Bradstreet number was proposed to help the Department ensure 
the bona fides of a potential third party provider with whom sponsors 
contract for exchange visitor program-related services, or with whom 
they place program participants. The Department has examined further 
this interim requirement for a Dun & Bradstreet number and has 
determined that the potential financial and resource implications, to 
be borne by designated sponsors outweigh the utility of the report for 
oversight purposes. Accordingly, the Department has removed this 
requirement in the final rule.
    A comment was received opposing site visits of host organizations 
by sponsors. The Department takes this

[[Page 48557]]

opportunity to again draw attention to the sponsor's responsibility to 
ensure that host organizations for trainees and interns possess and 
maintain both the ability and resources to provide structured and 
guided training or internship programs. Thus, site visits will be 
required for host organizations that have not previously participated 
successfully in the sponsor's training and internship programs if such 
organizations have fewer than 25 employees or less than three million 
dollars in annual revenue. The Department has determined that these 
requirements are a reasonable methodology to ensure that foreign 
nationals participating in these programs are being placed with 
employers capable of providing the training or internship experience 
that has been offered to the trainee or intern participant and 
documented on the required Training/Internship Placement Plan (Form DS-
7002). This approach further helps to ensure that any training provider 
is properly motivated to participate in an experiential learning public 
diplomacy based activity and is not motivated by the desire for a 
temporary worker to meet transient labor needs. In addition, this 
requirement directly addresses GAO concerns. The Department makes no 
change to this rule.
    Six comments were received relating to activities that are excluded 
from the training and internship programs as set forth at Sec.  
62.22(j)(1). These comments requested clarification of the meaning of 
``social work'' and ``medical social work'' and whether both activities 
are excluded from training and internship programs. In addition, two 
comments proposed allowing supervised clinical activities. With the 
exception of the Alien Physician category, and as a matter of policy 
and long-standing practice, the Department finds that clinical-based 
activities fall outside the purview of the Exchange Visitor Program. 
Given this policy, the rule prohibits training or internship programs 
that involve ``clinical'' activities, i.e. those activities by 
definition or actual practice that involve or require direct patient 
contact. Thus, occupational fields as classified by the Department of 
Education's Classification of Instructional Programs (CIP) codes that 
fall under Public Administration and Social Service Professions (i.e., 
youth services) will be permitted while occupational fields that fall 
under the Health Professions and Related Clinical Sciences 
classification of the CIP codes (i.e., clinical/medical social work, 
hairdressers, dental services, nursing, veterinary medicine and 
services, etc.) are prohibited and no changes to the current interim 
regulation are being made.
    Two (2) comments were received regarding the duration of internship 
program participation Sec.  62.22(k) and nine (9) comments were 
received opposing the change in the program length of agriculture 
training programs from 18 months to 12 months. All 11 comments 
requested that the program length of training and internship programs 
be set at 18 months duration, as previously allowed under the now 
defunct ``non-specialty'' category for training programs. Mindful of 
the expertise of the GAO, and desiring to address criticism raised in 
no less than three GAO reports regarding the potential misuse of the 
Exchange Visitor Program for work purposes, the Department has 
determined that 12 months permits sufficient time to pursue a training 
program in the field of agriculture. Before entering the United States 
to participate in an agricultural training program, trainees must 
already have either a degree or professional certificate from a foreign 
post-secondary academic institution and at least one year of prior 
related work experience in their occupational field acquired outside 
the United States; or in the alternative, five years of work experience 
in their occupational field outside the United States. Thus, this level 
of expertise further supports the Department's view that 12 months 
provides an appropriate length of program participation and the 
Department makes no change to the rule.
    Two comments were received opposing the provisions governing the 
eligibility of intern and trainee participants and their potential 
participation in additional internship and training programs, Sec.  
62.22(n). These requirements were adopted to ensure that the objectives 
of the Exchange Visitor Program are met (i.e., that participants 
receive training that will advance their chosen career fields, that 
interns complete their education and return to their home country with 
enhanced skills, and that the Exchange Visitor Program is not utilized 
for ordinary work purposes). To meet these policy objectives, the rule 
at Sec.  62.22(n) is amended to clearly permit foreign nationals to 
participate in additional internship programs as long as the 
participant maintains full-time student status, (i.e., changes to a 
higher educational level, or begins a new internship program within 12 
months of graduation). The Department concludes that this clarification 
augments the pool of potential participants and is desirable as a 
matter of policy.
    Fourteen (14) comments were received regarding the certifications 
required on the Training/Internship Placement Plan (Form DS-7002). The 
Department acknowledges concerns raised regarding sponsor obligations 
to screen host organizations and has added a field to the Form DS-7002 
that will collect the Employer Identification Number (EIN). The 
Department has ascertained that each state has adopted differing 
requirements for Workers' Compensation Insurance coverage. Accordingly, 
Sec.  62.22(g) has been amended to require sponsors to verify the 
existence of either a Workers' Compensation Insurance Policy, 
equivalent coverage, or if applicable, evidence of state exemption from 
the requirement of coverage.
    The regulatory language governing the duration of a training or 
internship program has been amended to clarify the inherent expectation 
that sponsors administer their programs in accordance with their letter 
of designation or most recent letter of redesignation. This language 
will ensure that the trainee or intern is fully aware of the 
expectations of their program identified in the outlined Training/
Internship Placement Plan (T/IPP). Twelve-month training programs in 
the field of agriculture may not be extended to 18 months by adding six 
months of classroom participation and studies at the end of the 
original 12-month program duration. The six months of related classroom 
participation and studies must have been part of the trainee's original 
T/IPP.
    Finally, the Department published a notice in the Federal Register 
on July 11, 2008, (73 FR 40008) which announced the termination of 
flight training from the Exchange Visitor Program as of June 1, 2010. 
The section which governed flight training regulations has been removed 
from the final rule. Current flight training sponsors continue to have 
obligations to their exchange visitors pursuant to 22 CFR 62.63, and 
they must fulfill their responsibilities to all exchange visitors who 
are in the United States until the individual's exchange program is 
completed.

Administrative Procedure Act

    The Department originally published this rulemaking as a Proposed 
Rule, with a 60-day comment period. 71 FR 17768 (April 7, 2006). The 
Department received almost 1,600 comments in response to the NPRM, and 
incorporating many of the comments received into an Interim Final Rule 
and again solicited public comment (72 FR

[[Page 48558]]

33669 (June 19, 2007)). In response, the Department received and 
analyzed 120 comments. Certain suggestions identified above are 
incorporated in this Final Rule. The Department of State is of the 
opinion that the Exchange Visitor Program is a foreign affairs function 
of the United States Government and that regulations implementing this 
function are exempt from the provisions of 5 U.S.C. 553. This 
rulemaking process has been conducted without prejudice as to whether 
it involves a foreign affairs function of the United States exempt from 
the requirements of 5 U.S.C. 553 and without prejudice as to whether 
the Department may invoke that exemption in other contexts.

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 $1 
million or more 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, 2 
U.S.C. 1501-1504.

Small Business Regulatory Enforcement Fairness Act of 1996

    This Final Rule has been found not to be a major rule within the 
meaning of the Small Business Regulatory Enforcement Fairness Act of 
1996. See 5 U.S.C. 804(2). This rule will not result in an annual 
effect on the economy of $100 million or more; a major increase in 
costs or prices for consumers, individual industries, federal, state, 
or local government agencies, or geographic regions; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.

Executive Orders 12372 and 13132

    This rule will not have a substantial effect on the states, the 
relationship between the national government and the states, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, it is determined that this Final Rule does not 
have sufficient federalism implications to warrant application of the 
consultation provisions of Executive Orders 12372 and 13132.

Regulatory Flexibility Act

    In its promulgation of the Interim Final Rule at 72 FR at page 
33673, the Department certified that the proposed changes to the 
regulations were not expected to have a significant economic impact on 
a substantial number of small entities under the criteria of the 
Regulatory Flexibility Act, 5 U.S.C. 601-612, and Executive Order 
13272, section 3(b). As discussed above, the Department is of the 
opinion that this Final Rule is exempt from the provisions of 5 U.S.C. 
553, and no other law requires the Department of State to give notice 
of proposed rulemaking, and accordingly this proposed rule is not 
subject to the requirements of the Regulatory Flexibility Act. However, 
the Department has examined the potential impact of this final rule on 
small entities. Entities conducting student exchange programs are 
classified under code number 6117.10 of the North American Industry 
Classification System. Some 5,573 for profit and tax exempt entities 
are listed as falling within this classification. Of this total number 
of so-classified entities, 1,226 are designated by the Department of 
State as sponsors of an exchange visitor program, designated as such to 
further the public diplomacy mission of the Department and U.S. 
Government through the conduct of exchange visitor programs. Of these 
1,226 Department designated entities, 933 are academic institutions and 
293 are for profit or tax exempt entities. Of the 293 for profit or tax 
exempt entities designated by the Department, 131 have annual revenues 
of less than $7 million thereby falling within the purview of the 
Regulatory Flexibility Act. Of these 131 entities with revenues of less 
than $7 million, 50 are either an internship or a training program. 
Eight large, i.e. state universities are designated to conduct training 
and or intern based exchange activities. No state, local or tribal 
governments are designated training or intern sponsors. Although, as 
stated above, the Department is of the opinion that the Exchange 
Visitor Program is a foreign affairs function of the United States 
Government and, as such, that this final rule is exempt from the 
rulemaking provisions of Sec.  553 of the Administrative Procedure Act, 
given the demonstrated lack of impact of this rule, discussed 
immediately below to the small entities conducting student exchange 
programs noted above, the Department has determined that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.
    The Department notes that these regulations have been in place 
since June 2007 and that no entity designated to conduct training and 
intern programs has identified an additional cost of compliance, 
involving either money or manpower. The Department has been unable to 
identify any such additional cost as well, thus the Department 
certifies this Rule as not having a significant economic impact on its 
designated sponsoring organizations.
    The Department's certification concerning impact on small entities 
is made without prejudice as to whether this rulemaking involves a 
foreign affairs function of the United States exempt from the 
Regulatory Flexibility Act, as the Department believes it is, and 
without prejudice as to whether the Department may invoke that 
exemption in any other context.

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. The Department is of the opinion 
that the Exchange Visitor Program is a foreign affairs function of the 
United States Government and that rules governing the conduct of this 
function are exempt from the requirements of Executive Order 12866. 
However, the Department has nevertheless reviewed this proposed 
regulation to ensure its consistency with the regulatory philosophy and 
principles set forth in that Executive Order.
    Training and Internship exchange programs conducted under the 
authorities of the Fulbright-Hays Act promote mutual understanding by 
providing exchange visitors in their academic or occupational fields 
through participation in structured and guided work-based training and 
internship programs and to improve participants' knowledge of American 
techniques, methodologies, and technology. Upon their return home, 
these students and participants enrich their schools and communities 
with different perspectives of U.S. culture and events, providing local 
communities with new and diverse perspectives. Training and internship 
exchanges also foster enduring relationships and lifelong friendships 
which help build longstanding ties between the people of the United 
States and other countries. Though the benefits of these exchanges to 
the United States and its people cannot be monetized, the Department is 
nonetheless of the opinion that these benefits outweigh the costs 
associated with this final rule. The final rule does not impose any 
additional costs, but does eliminate the cost associated with sponsor 
staff researching and identifying Dun and Bradstreet numbers as 
currently required by 22 CFR 62.22(g)(3)(i). The Department

[[Page 48559]]

calculates that the elimination of this requirement provides a net 
savings to sponsors of $140,000 (7,000 staff hours x $20 per hour).

Executive Order 12988

    The Department has reviewed this Final Rule 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 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.

Paperwork Reduction Act

    The information collection requirements contained in this 
rulemaking (Form DS-7002) have been approved by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act, 44 
U.S.C. Chapter 35, under OMB Control Number 1405-0170, expiration date: 
07/31/2012.

List of Subjects in 22 CFR Part 62

    Cultural exchange programs, Reporting and recordkeeping 
requirements.

0
Accordingly, the interim final rule published on June 19, 2007 (72 FR 
33669), amending 22 CFR part 62 confirmed as final with the following 
changes:

PART 62--EXCHANGE VISITOR PROGRAM

0
1. The Authority citation for part 62 is revised 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. Section 62.22 is revised to read as follows:

Sec.  62.22  Trainees and Interns.

    (a) Introduction. These regulations govern Exchange Visitor 
Programs under which foreign nationals with significant experience in 
their occupational field have the opportunity to receive training in 
the United States in such field. These regulations also establish a new 
internship program under which foreign national students and recent 
graduates of foreign post-secondary academic institutions have the 
opportunity to receive training in the United States in their field of 
academic study. These regulations include specific requirements to 
ensure that both trainees and interns receive hands-on experience in 
their specific fields of study/expertise and that they do not merely 
participate in work programs. Regulations dealing with training 
opportunities for certain foreign students who are studying at post-
secondary accredited educational institutions in the United States are 
located at Sec.  62.23 (``College and University Students''). 
Regulations governing alien physicians in graduate medical education or 
training are located at Sec.  62.27 (``Alien Physicians'').
    (b) Purpose. (1)(i) The primary objectives of the programs offered 
under these regulations are to enhance the skills and expertise of 
exchange visitors in their academic or occupational fields through 
participation in structured and guided work-based training and 
internship programs and to improve participants' knowledge of American 
techniques, methodologies, and technology. Such training and internship 
programs are also intended to increase participants' understanding of 
American culture and society and to enhance Americans' knowledge of 
foreign cultures and skills through an open interchange of ideas 
between participants and their American associates. A key goal of the 
Fulbright-Hays Act, which authorizes these programs, is that 
participants will return to their home countries and share their 
experiences with their countrymen.
    (ii) Exchange Visitor Program training and internship programs must 
not be used as substitutes for ordinary employment or work purposes; 
nor may they be used under any circumstances to displace American 
workers. The requirements in these regulations for trainees are 
designed to distinguish between bona fide training, which is permitted, 
and merely gaining additional work experience, which is not permitted. 
The requirements in these regulations for interns are designed to 
distinguish between a period of work-based learning in the intern's 
academic field, which is permitted (and which requires a substantial 
academic framework in the participant's field), and unskilled labor, 
which is not.
    (2) In addition, a specific objective of the new internship program 
is to provide foreign nationals who are currently enrolled full-time 
and pursuing studies at a degree- or certificate-granting post-
secondary academic institution or graduated from such an institution no 
more than 12 months prior to their exchange visitor program begin date 
a period of work-based learning to allow them to develop practical 
skills that will enhance their future careers. Bridging the gap between 
formal education and practical work experience and gaining substantive 
cross-cultural experience are major goals in educational institutions 
around the world. By providing training opportunities for current 
foreign students and recent foreign graduates at formative stages of 
their development, the U.S. Government will build partnerships, promote 
mutual understanding, and develop networks for relationships that will 
last through generations as these foreign nationals move into 
leadership roles in a broad range of occupational fields in their own 
societies. These results are closely tied to the goals, themes, and 
spirit of the Fulbright-Hays Act.
    (c) Designation. (1) The Department may, in its sole discretion, 
designate as sponsors those entities it deems to meet the eligibility 
requirements set forth in Subpart A of 22 CFR part 62 and to have the 
organizational capacity successfully to administer and facilitate 
training and internship programs.
    (2) Sponsors must provide training and internship programs only in 
the occupational category or categories for which the Department has 
designated them as sponsors. The Department may designate training and 
internship programs in any of the following occupational categories:
    (i) Agriculture, Forestry, and Fishing;
    (ii) Arts and Culture;
    (iii) Construction and Building Trades;
    (iv) Education, Social Sciences, Library Science, Counseling and 
Social Services;
    (v) Health Related Occupations;
    (vi) Hospitality and Tourism;
    (vii) Information Media and Communications;
    (viii) Management, Business, Commerce and Finance;
    (ix) Public Administration and Law; and

[[Page 48560]]

    (x) The Sciences, Engineering, Architecture, Mathematics, and 
Industrial Occupations.
    (d) Selection criteria. (1) In addition to satisfying the general 
requirements set forth in Sec.  62.10(a), sponsors must ensure that 
trainees and interns have verifiable English language skills sufficient 
to function on a day-to-day basis in their training environment. 
Sponsors must verify an applicant's English language proficiency 
through a recognized English language test, by signed documentation 
from an academic institution or English language school, or through a 
documented interview conducted by the sponsor either in-person or by 
videoconferencing, or by telephone if videoconferencing is not a viable 
option.
    (2) Sponsors of training programs must verify that all potential 
trainees are foreign nationals who have either a degree or professional 
certificate from a foreign post-secondary academic institution and at 
least one year of prior related work experience in their occupational 
field acquired outside the United States or five years of work 
experience in their occupational field acquired outside the United 
States.
    (3) Sponsors of internship programs must verify that all potential 
interns are foreign nationals who are currently enrolled full-time and 
pursuing studies in their advanced chosen career field at a degree- or 
certificate-granting post-secondary academic institution outside the 
United States or graduated from such an institution no more than 12 
months prior to their exchange visitor program begin date.
    (e) Issuance of Forms DS-2019. In addition to the requirements set 
forth in Subpart A, sponsors must ensure that:
    (1) They do not issue Forms DS-2019 to potential participants in 
training and internship programs until they secure placements for 
trainees or interns and complete and secure requisite signatures on 
Form DS-7002, Training/Internship Placement Plan (T/IPP);
    (2) Trainees and interns have sufficient finances to support 
themselves for their entire stay in the United States, including 
housing and living expenses; and
    (3) The training and internship programs expose participants to 
American techniques, methodologies, and technology and expand upon the 
participants' existing knowledge and skills. Programs must not 
duplicate the participants' prior work experience or training received 
elsewhere.
    (f) Obligations of training and internship program sponsors. (1) 
Sponsors designated by the Department to administer training and 
internship programs must:
    (i) Ensure that trainees and interns are appropriately selected, 
placed, oriented, supervised, and evaluated;
    (ii) Be available to trainees and interns (and host organizations, 
as appropriate) to assist as facilitators, counselors, and information 
resources;
    (iii) Ensure that training and internship programs provide a 
balance between the trainees' and interns' learning opportunities and 
their contributions to the organizations in which they are placed;
    (iv) Ensure that the training and internship programs are full-time 
(minimum of 32 hours a week); and
    (v) Ensure that any host organizations and third parties involved 
in the recruitment, selection, screening, placement, orientation, 
evaluation for, or the provision of training and internship programs 
are sufficiently educated on the goals, objectives, and regulations of 
the Exchange Visitor Program and adhere to all regulations set forth in 
this Part as well as all additional terms and conditions governing 
Exchange Visitor Program administration that the Department may from 
time to time impose.
    (2) Sponsors must certify that they or any host organization acting 
on the sponsor's behalf:
    (i) Have sufficient resources, plant, equipment, and trained 
personnel available to provide the specified training and internship 
program;
    (ii) Provide continuous on-site supervision and mentoring of 
trainees and interns by experienced and knowledgeable staff;
    (iii) Ensure that trainees and interns obtain skills, knowledge, 
and competencies through structured and guided activities such as 
classroom training, seminars, rotation through several departments, on-
the-job training, attendance at conferences, and similar learning 
activities, as appropriate in specific circumstances;
    (iv) Conduct periodic evaluations of trainees and interns, as set 
forth in Sec.  62.22(l);
    (v) Do not displace full- or part-time or temporary or permanent 
American workers or serve to fill a labor need and ensure that the 
positions that trainees and interns fill exist primarily to assist 
trainees and interns in achieving the objectives of their participation 
in training and internship programs; and
    (vi) Certify that training and internship programs in the field of 
agriculture meet all the requirements of the Fair Labor Standards Act, 
as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal 
Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et 
seq.).
    (3) Sponsors or any third parties acting on their behalf must 
complete thorough screening of potential trainees or interns, including 
a documented interview conducted by the sponsor either in-person or by 
videoconferencing, or by telephone if videoconferencing is not a viable 
option.
    (4) Sponsors must retain all documents referred to in Sec.  
62.22(f) for at least three years following the completion of all 
training and internship programs. Documents and any requisite 
signatures may be retained in either hard copy or electronic format.
    (g) Use of third parties. (1) Sponsors use of third parties. 
Sponsors may engage third parties (including, but not limited to host 
organizations, partners, local businesses, governmental entities, 
academic institutions, and other foreign or domestic agents) to assist 
them in the conduct of their designated training and internship 
programs. Such third parties must have an executed written agreement 
with the sponsor to act on behalf of the sponsor in the conduct of the 
sponsor's program. This agreement must outline the obligations and full 
relationship between the sponsor and third party on all matters 
involving the administration of their exchange visitor program. A 
sponsor's use of a third party does not relieve the sponsor of its 
obligations to comply with and to ensure third party compliance with 
Exchange Visitor Program regulations. Any failure by any third party to 
comply with the regulations set forth in this Part or with any 
additional terms and conditions governing Exchange Visitor Program 
administration that the Department may from time to time impose will be 
imputed to the sponsors engaging such third party.
    (2) Screening and vetting third parties operating outside the 
United States. Sponsors must ascertain that third parties operating 
outside the United States are legitimate entities within the context of 
their home country environment. For third parties that operate as 
businesses, sponsors must obtain relevant home country documentation, 
such as a business registration or certification. Such home country 
documentation must include an English Language translation for any 
business registration or certification documents submitted in a foreign 
language. Written agreements between sponsors and third parties 
operating outside the United States must include annually updated price 
lists for training and internship programs offered by each third party, 
and must indicate that such

[[Page 48561]]

overseas third parties are sufficiently trained in all aspects of the 
programs they represent, including the regulations set forth in this 
Part.
    (3) Screening and vetting host organizations. Sponsors must 
adequately screen all potential host organizations at which a trainee 
or intern will be placed by obtaining the following information:
    (i) Employer Identification Number (EIN) used for tax purposes;
    (ii) Third party verification of telephone number, address, and 
professional activities, e.g., via advertising, brochures, Web site, 
and/or feedback from prior participants; and
    (iii) Verification of Worker's Compensation Insurance Policy or 
equivalent in each state or, if applicable, evidence of state exemption 
from requirement of coverage.
    (4) Site visits of host organizations. Sponsors must conduct site 
visits of host organizations that have not previously participated 
successfully in the sponsor's training and internship programs and that 
have fewer than 25 employees or less than three million dollars in 
annual revenue. Placements at academic institutions or at federal, 
state, or local government offices are specifically excluded from this 
requirement. The purpose of the site visits is for the sponsors to 
ensure that host organizations possess and maintain the ability and 
resources to provide structured and guided work-based learning 
experiences according to individualized T/IPPs and that host 
organizations understand and meet their obligations set forth in this 
Part.
    (h) Host organization obligations. Sponsors must ensure that:
    (1) Host organizations sign a completed Form DS-7002 to verify that 
all placements are appropriate and consistent with the objectives of 
the trainees or interns as outlined in their program applications and 
as set forth in their T/IPPs. All parties involved in internship 
programs should recognize that interns are seeking entry-level training 
and experience. Accordingly, all placements must be tailored to the 
skills and experience level of the individual intern;
    (2) Host organizations notify sponsors promptly of any concerns 
about, changes in, or deviations from T/IPPs during training and 
internship programs and contact sponsors immediately in the event of 
any emergency involving trainees or interns;
    (3) Host organizations abide by all federal, state, and local 
occupational health and safety laws; and
    (4) Host organizations abide by all program rules and regulations 
set forth by the sponsors, including the completion of all mandatory 
program evaluations.
    (i) Training/internship placement plan (Form DS-7002). (1) Sponsors 
must fully complete and obtain all requisite signatures on a Form DS-
7002 for each trainee or intern before issuing a Form DS-2019. Sponsors 
must provide each signatory an executed copy of the Form DS-7002. Upon 
request, trainees and interns must present their fully executed Form 
DS-7002 to Consular Officials during their visa interview.
    (2) To further distinguish between bona fide training for trainees 
or work-based learning for interns, which are permitted, and unskilled 
or casual labor positions which are not, all T/IPPs must:
    (i) State the specific goals and objectives of the training and 
internship program (for each phase or component, if applicable);
    (ii) Detail the knowledge, skills, or techniques to be imparted to 
the trainee or intern (for each phase or component, if applicable); and
    (iii) Describe the methods of performance evaluation and the 
supervision for each phase or component, if applicable.
    (3) A T/IPP for trainees must be divided into specific and various 
phases or components, and for each phase or component must:
    (i) Describe the methodology of training and
    (ii) Provide a chronology or syllabus.
    (4) A T/IPP for interns must:
    (i) Describe the role of the intern in the organization and, if 
applicable, identify various departments or functional areas in which 
the intern will work; and
    (ii) Identify the specific tasks and activities the intern will 
complete.
    (j) Program exclusions. Sponsors designated by the Department to 
administer training and internship programs must not:
    (1) Place trainees or interns in unskilled or casual labor 
positions, in positions that require or involve child care or elder 
care; or in clinical or any other kind of work that involves patient 
care or patient contact, including any work that would require trainees 
or interns to provide therapy, medication, or other clinical or medical 
care (e.g., sports or physical therapy, psychological counseling, 
nursing, dentistry, veterinary medicine, social work, speech therapy, 
early childhood education);
    (2) Place trainees or interns in positions, occupations, or 
businesses that could bring the Exchange Visitor Program or the 
Department into notoriety or disrepute; or
    (3) Engage or otherwise cooperate or contract with a Staffing/
Employment Agency to recruit, screen, orient, place, evaluate, or train 
trainees or interns, or in any other way involve such agencies in an 
Exchange Visitor Program training and internship program.
    (4) Issue a T/IPP for any trainee or intern for which the duties 
involve more than 20 per cent clerical work.
    (5) Have less than three departmental or functional rotations for 
``Hospitality and Tourism'' training and internship programs of six 
months or longer.
    (k) Duration. The duration of participation in a training and 
internship program must be established before a sponsor issues a Form 
DS-2019 and must not exceed the sponsor's authorized designation as set 
forth in the sponsor's letter of designation or most recent letter of 
redesignation. Except as noted below, the maximum duration of a 
training program is 18 months, and the maximum duration of an 
internship program is 12 months. For training programs in the field of 
agriculture and in the occupational category of Hospitality and 
Tourism, the maximum duration of program participation is 12 months. If 
an original T/IPP specifies that at least six months of a program 
includes related classroom participation and studies, training programs 
in the field of agriculture may be designated for a total duration of 
18 months. Program extensions are permitted within the maximum duration 
as set forth in the letter of designation/redesignation provided that 
the need for an extended training or internship program is documented 
by the full completion and execution of a new Form DS-7002. 12-month 
training programs in the field of agriculture may not be extended to 18 
months by adding six months of classroom participation and studies at 
the end of the original 12-month program duration. Per above, the six 
months of related classroom participation and studies must have been 
part of the trainee's original T/IPP.
    (l) Evaluations. In order to ensure the quality of training and 
internship programs, sponsors must develop procedures for evaluating 
all trainees and interns. All required evaluations must be completed 
prior to the conclusion of a training and internship program, and both 
the trainees and interns and their immediate supervisors must sign the 
evaluation forms. For programs exceeding six months' duration, at a 
minimum, midpoint and concluding evaluations are required. For programs 
of six months or less, at a minimum, concluding evaluations are

[[Page 48562]]

required. Sponsors must retain trainee and intern evaluations 
(electronic or hard copy) for a period of at least three years 
following the completion of each training and internship program.
    (m) Issuance of certificate of eligibility for exchange visitor (J-
1) status. Sponsors must not deliver or cause to be delivered any 
Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-
2019) to potential trainees or interns unless the individualized Form 
DS-7002 required by Sec.  62.22(i) has been completed and signed by all 
requisite parties.
    (n) Additional training and internship program participation. 
Foreign nationals who enter the United States under the Exchange 
Visitor Program to participate in training and internship programs are 
eligible to participate in additional training and internship programs 
under certain conditions. For both trainees and interns, additional 
training and internship programs must address the development of more 
advanced skills or a different field of expertise. Interns may apply 
for additional internship programs if they:
    (1) Are currently enrolled full-time and pursuing studies at 
degree- or certificate-granting post-secondary academic institutions 
outside the United States; or,
    (2) Have graduated from such institutions no more than 12 months 
prior to the start of their proposed exchange visitor program. A new 
internship is also permissible when a student has successfully 
completed a recognized course of study (i.e., associate, bachelors, 
masters, Ph.D., or their recognized equivalents) and has enrolled and 
is pursuing studies at the next higher level of academic study. 
Trainees are eligible for additional training programs after a period 
of at least two years residency outside the United States following 
completion of their training program. Participants who have 
successfully completed internship programs and no longer meet the 
selection criteria for an internship program may participate in a 
training program if they have resided outside the United States or its 
territories for at least two years. If participants meet these 
selection criteria and fulfill these conditions, there will be no limit 
to the number of times they may participate in a training and 
internship program.

    Dated: August 5, 2010.
Stanley S. Colvin,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of 
Educational and Cultural Affairs, Department of State.
[FR Doc. 2010-19727 Filed 8-10-10; 8:45 am]
BILLING CODE 4710-05-P
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