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[Federal Register Volume 78, Number 85 (Thursday, May 2, 2013)]
[Proposed Rules]
[Pages 25669-25677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-10400]

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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice 8308]
RIN 1400-AC60

Exchange Visitor Program--Teachers

AGENCY: Department of State.

ACTION: Proposed rule with request for comment.

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SUMMARY: The Department is amending existing regulations governing the 
teacher category of the Exchange Visitor Program. The proposed 
amendments clarify the duration of program participation; amend 
eligibility requirements with respect to verifying English proficiency; 
and reduce the required teaching or related experience from three years 
to the equivalent of two years full-time teaching experience; introduce 
a required cultural component; and propose the implementation of a two-
year bar for repeat participation to foster the purpose of the Mutual 
Educational and Cultural Exchange Act of 1961, (``Fulbright-Hays 
Act''). These proposed changes will enhance the integrity and 
programmatic effectiveness of the teacher category.

DATES: The Department will accept comments on the proposed regulation 
from the public up to July 1, 2013.

ADDRESSES: You may submit comments identified 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 and searching for the RIN 
(1400-AC60)
     Mail (paper, disk, or CD-ROM submissions): U.S. Department 
of State, Office of Private Sector Exchange, SA-5, Floor 5, 2200 C 
Street NW., Washington, DC 20522-0505.
     Email: JExchanges@state.gov. You must include the RIN 
(1400-AC60) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT: Robin J. Lerner, Deputy Assistant 
Secretary for Private Sector Exchange, U.S. Department of State, SA-5, 
Floor 5, 2200 C Street NW., Washington, DC 20522-0505; telephone: (202) 
632-2805; fax (202) 632-2701.
SUMMARY: Statement of Need. In recent years, the teacher exchange 
program has been used by some sponsors in a manner that falls outside 
the original intent of the program. Occasionally, it has been used to 
fill a labor need in U.S. public and private schools rather than to 
further a cultural exchange. The Department has identified issues 
regarding job placements, wages and hours, and is of the opinion that 
the program lacks a cultural component necessary for the program to be 
consistent with the Mutual Educational and Cultural Exchange Act of 
1961, as amended. In addition, the substance of this rule has been 
informed by analysis

[[Page 25670]]

and implementation of exchange teacher programs, including pilot 
programs. As a result, the Department is proposing to modify the 
current teacher regulations set forth at 22 CFR 62.24. The Department 
seeks to: (i) Reform the teacher exchange program; (ii) ensure that the 
program better protects the health, safety, and welfare of program 
participants; and (iii) fortify the program's prestige as a world class 
U.S. public diplomacy initiative.
    Statement of Legal Authority. The Exchange Visitor Program (of 
which the teacher category is one of 15 categories of program types) is 
authorized by the Mutual Educational and Cultural Exchange Act of 1961 
(Pub. L. 87-256, 75 Stat. 527) (Fulbright-Hays Act or Act) and 
implemented through 22 CFR 62.24. Enacted by the 87th Congress on 
September 21, 1961, the Act's stated purpose is ``to increase mutual 
understanding between the people of the United States and the people of 
other countries by means of educational and cultural exchange; to 
strengthen the ties which unite us with other nations by demonstrating 
the educational and cultural interests, developments, and achievements 
of the people of the United States and other nations, and the 
contributions being made toward a peaceful and more fruitful life for 
people throughout the world. . . .'' In the half century since the 
Act's passage, millions of foreign participants, Americans, and friends 
and families of the participants have benefitted from the mutual 
understanding and peaceful relations that can be derived from such 
person-to-person contact. The teacher exchange program embodies and 
carries forward the stated purpose and intent of the Act.
    Reasons for this Notice of Proposed Rulemaking (NPRM). The NPRM 
makes several changes, including adding the following requirements:
    1. Sponsors must require each exchange teacher to complete a 
cultural activity component annually through which the exchange 
teachers can share aspects of their own cultural heritage with their 
U.S. communities. Moreover, sponsors must ensure that exchange teachers 
to incorporate cultural heritage lessons or elements into their 
curriculum, and that they do so. This cultural component is seen as a 
valuable tool to involve exchange teachers in the communities where 
they live and teach, to inform their communities about their cultures, 
and to help U.S. students develop global awareness and an interest in 
other countries;
    2. Teacher applicants must, at a minimum, have a university or 
college degree in either education or the subject matter they intend to 
teach;
    3. The eligibility requirement for teachers is being changed from 
``minimum of 3 years of teaching or related professional experience'' 
to ``two years of full-time teaching experience, post degree.'';
    4. Sponsors must verify a teacher applicant's English language 
proficiency through recognized language tests or in-person interviews, 
videoconferencing, or telephone interviews;
    5. Job placements in the U.S. must be full-time positions located 
in accredited primary or secondary (K-12) public or private academic 
institutions in the United States, which excludes pre-kindergarten or 
daycare institutions;
    6. The Department will increase the transparency of the total cost 
and fees to the program participants; and
    7. A repeat participation clause has been added.

SUPPLEMENTARY INFORMATION: Educational and cultural exchanges are the 
cornerstone of U.S. public diplomacy and an integral component of U.S. 
foreign policy. The purpose of the teacher category of the Exchange 
Visitor Program is to promote the interchange of American and foreign 
teachers in public and private schools; to enhance mutual understanding 
between the people of the United States and people of other countries; 
to strengthen international education programs in U.S. schools through 
the delivery of an international perspective to students; to provide 
U.S. teachers with an opportunity to expand their international 
understanding by working alongside foreign colleagues; and to provide 
opportunities for the development of lasting links between U.S. and 
foreign schools. These regulations govern exchange visitors who teach 
full-time in primary and secondary (K-12) accredited public or private 
academic institutions in the United States. Program participants 
sharpen their professional skills and foster meaningful relationships 
through their participation in activities with Americans in schools and 
communities, and they return home ultimately to share their experiences 
and increased knowledge of the United States and the U.S. educational 
system. Such exchanges enable visitors to have a heightened 
understanding of U.S. culture, society, and teaching practices at the 
primary and secondary levels, and allow U.S. students who lack 
opportunities to travel abroad to have early, meaningful relationships 
with individuals from other cultures.
    It is equally important that the public and private schools that 
host foreign exchange teachers have the responsibility and intent to 
create a holistic cultural program and contemplate the overall 
experience that these teachers will take back to their home countries. 
The Department supports the use of exchange visitor teachers to help 
students understand other cultures and comprehend global issues and to 
promote the study of foreign languages and culture. Native speakers add 
a vital dimension to foreign language instruction. Speaking another's 
language promotes understanding, conveys respect, and strengthens the 
ability to engage foreign peoples and governments. In recent years, the 
Department has been strengthening the rules throughout the Exchange 
Visitor Program (22 CFR Part 62) to ensure that this program is 
consistent with the purpose of Section 109 of the Fulbright-Hays Act, 
and that this program is not being used for other purposes. On 
occasion, some sponsors have used the J-1 teacher exchange program to 
address teacher shortages by filling permanent teaching positions with 
exchange teachers, who later convert to H-1B visa workers for an 
extended period of employment. This contravenes the underlying purpose 
of the Mutual Educational and Cultural Exchange Act, which is ``to 
increase mutual understanding between the people of the United States 
and the people of other countries . . . and the contributions being 
made toward a peaceful and more fruitful life for people throughout the 
world . . . ''
    Consistent with this stated purpose, the teacher exchange program 
is not to be used to recruit and train foreign teachers for permanent 
employment in the United States. The teacher category regulations are 
being amended to clarify that the exchange teacher's participation at a 
primary or secondary accredited academic institution must be temporary 
while in the United States on a J-1 visa and that J-1 program 
participants are expected to return to their home countries following 
completion of their exchange programs. The Department proposes that 
sponsors be required to ensure that J-1 teachers are only placed in 
primary or secondary academic schools that are duly recognized and 
declared as accredited academic institutions by the appropriate 
authority of the state in which they are located. The definition of an 
accredited academic institution is not currently in Section 62.2; 
however, the Department has proposed a definition of this term in a 
previous NPRM (see 74 FR 48177, RIN 1400-AC36). The proposed definition 
of an accredited academic institution is,

[[Page 25671]]

``any publicly or privately operated primary, secondary, or post-
secondary institution in the United States that offers primarily 
academic programs and is duly accredited by the appropriate academic 
accrediting authority of the jurisdiction in which such institution is 
located. An institution that offers primarily vocational or technical 
programs does not fall within the purview of an academic institution 
for this purpose.''
    Sponsors must ensure that an exchange teacher's appointment to a 
position at a primary or secondary accredited academic institution is 
temporary, even if the teaching position is permanent.
    In addition, a foreign national may be admitted to the United 
States as a J-1 nonimmigrant in the teacher category only for the 
purpose of full-time teaching as a teacher of record, not as a 
teacher's assistant/aide, substitute teacher, or other non-
instructional position at a primary or secondary accredited academic 
institution. A full-time teaching position is defined to be employment 
for a minimum of 32 hours per week.

Transparency of Fees

    Various program fees charged to participants by foreign agents, 
sponsors and U.S. host schools remain a key vulnerability in the 
Exchange Visitor Program. This vulnerability is propagated by work-
related deductions (i.e., meals, housing costs, school materials) taken 
out of a participant's wages. In many cases, after these deductions, 
participants' take-home pay is an insufficient amount of money to live 
on in the United States or to defray the cost associated with their 
exchange program.
    The Department believes that requiring sponsors to provide 
participants with a comprehensive breakdown of total Program fees 
(including visa fee, the Student and Exchange Visitor Information 
System (SEVIS) fee, insurance costs, estimates for housing and 
transportation costs, foreign agent/partner fee, sponsor fee, expected 
work-related deductions, and estimates of all other fees) charged for 
participation in a teacher exchange program would greatly enhance 
transparency and better ensure that participants fully understand the 
financial obligation they assume when choosing to participate in an 
exchange program.
    The Department accordingly suggests that sponsors and foreign 
agents post on their Web sites and make known during the teacher 
application process a comprehensive breakdown of those total program 
fees listed above. This requirement would allow all parties involved or 
interested in the Exchange Visitor Program to understand when sponsor 
and foreign agents add extra fees or charge excessive rates. The 
Department seeks comment on whether these proposed requirements would 
make program fees transparent and better ensure that exchange teachers 
understand the cost of an exchange program.

Cultural Activity Component

    To fulfill the cultural goals of the Exchange Visitor Program, this 
rule also proposes to add a mandatory annual cultural component through 
which the exchange teachers can share aspects of their cultural 
heritage with their American communities, set forth at Sec.  62.24(g). 
This cultural component is a valuable tool to involve exchange teachers 
in the communities where they live and teach, to inform their 
communities about their cultures, and to help students develop global 
awareness and interest in learning more about or visiting other 
countries. The Department proposes that the sponsor, host school and 
exchange teacher work together to develop a creative cultural 
component. One example of this component could be to have exchange 
teachers make annual presentations in public settings (e.g., schools, 
museums, civic organizations, businesses associations) where there is 
direct interaction with the school or larger communities and in which 
they could share aspects of their home countries (e.g., history, 
traditions, heritage, music, dance, art, economy, educational system). 
In addition, the Department is proposing that exchange teachers foster 
cross-cultural learning experiences for students by maintaining, and 
involving U.S. students in, a virtual exchange component to complement 
the in-person exchange. The objective for the virtual exchange 
component, defined as technology-enabled, sustained, people-to-people 
cross-cultural education programs, is to supplement the goals of the 
in-person exchange and to integrate global knowledge, cultural 
awareness and/or foreign language into the classroom. Exchange teachers 
may develop dialogues or other virtual activities with schools or 
students in their home countries. The Department expects that the use 
of virtual means may not be possible in every situation and in those 
instances, would accept dialogue facilitated through other means.
    Exchange teachers will be required to submit an annual report to 
their program sponsors detailing this component of their exchange 
visitor programs. The report does not have to be in a specific format, 
but must contain specific fields of information as identified in these 
regulations (i.e., date or dates, teacher name, program sponsor name, 
location, topic, number of individuals in attendance, and a general 
overview of the project and its impact). Sponsors must retain the 
reports as part of each participant's documentation for a period of 
three years following the completion of the teacher's exchange program, 
as required by the Exchange Visitor Program regulations (22 CFR 62.10). 
The Department encourages sponsors to share examples of such cultural 
activities with the Department as best practices and positive program 
models.

Teacher Eligibility

    Current regulations state that foreign teachers are expected to 
have ``a minimum of three years of teaching or related professional 
experience.'' It is critical to the success of this exchange program 
that foreign teachers have the necessary skills and teaching experience 
to benefit from exchange opportunities and to achieve the intended 
goals of this professional exchange program. Exchange teachers must be 
able to make an immediate impact in the classroom and share some of 
their teaching methods with American teachers while developing or 
enhancing their own professional skills. While new teachers or recent 
college graduates may have a strong interest in the cultural 
opportunities offered through the Exchange Visitor Program, they do not 
have the essential teaching experience (including experience in 
classroom control, student discipline, or parental involvement) to meet 
the goals of the Exchange Visitor Program. Therefore, this rule 
proposes that exchange teachers have the equivalent of a U.S. 
Bachelor's degree in either education or in the subject matter (or 
related subjects) they intend to teach; the equivalent of two years of 
post-degree full-time teaching experience; and be employed as a teacher 
at the time of application for the program. Further, the Department 
proposes to reduce the number of years of teaching experience necessary 
to qualify for program participation from three to two years. The 
Department received comments in the past from several larger teacher 
sponsors regarding this reduction and believes that two years of 
teaching experience is sufficient combined with the U.S. Bachelor's 
degree or equivalent requirement. Specific comments on this proposal 
are requested.

[[Page 25672]]

    The Department is of the opinion that all reasonable measures 
should be taken to ensure the safety of students placed in the 
classroom of exchange teachers. U.S. teachers are required to have 
undergone a criminal background check before being hired, and many 
state-level Departments of Education and local schools and school 
districts require the same screening for exchange teachers being placed 
in a U.S. classroom. Sponsors must be aware and comply with all state-
level Departments of Education and local school or school district 
requirements regarding security and criminal background checks. The 
security checks are often completed in separate phases, such as prior 
to program acceptance and visa issuance, and upon arrival in the United 
States and before the beginning of their exchange program.

English Language Screening

    The proposed rule retains the long-standing practice that sponsors 
may develop their own business practice to interview potential 
participants and document such interviews in order to 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, the Department proposes that 
sponsors may either (i) obtain English language test scores from 
recognized language skills tests administered by academic institutions 
or English language schools, or (ii) evaluate applicants' language 
skills during documented sponsor interviews. The proposed rule affords 
a third option for additional flexibility for meeting this requirement 
by allowing sponsors the option to video-conference applicant 
interviews, rather than conducting them only in person. The final 
option consists of conducting an interview by telephone if an in-person 
or videoconferencing interview is not a viable option. Although foreign 
entities may assist sponsors in this recruiting function, sponsors are 
responsible for the final selection of their program participants. 
Sponsors shall document proof of English proficiency in each teacher's 
file and provide such proof of English proficiency to the Department 
upon request during site visits or investigations of complaints.

Program Dates

    The proposed rule includes a new requirement set forth at Sec.  
62.24(e)(2) that program dates should coincide with the academic year 
cycle (July 1-June 30) to ensure a smooth transition as exchange 
teachers arrive and depart, unless specifically requested in writing 
and permitted by the school. This provision will result in less 
disruption to the schools. A school may submit a written waiver of this 
requirement to the sponsor if a teacher is requested and the program 
will be sufficiently supported outside the normal beginning dates of an 
academic year.

Program Extensions

    The Department recognizes that in some circumstances program 
extensions beyond the maximum duration may be necessary when a 
participant is unable to complete the exchange due to extenuating 
circumstances (i.e., accident, medical reasons). However, such 
extension requests should be rare as sponsors of teacher exchange 
programs are expected to develop an exchange visitor program that can 
be completed within three years. Justifications such as wishing not to 
interrupt an ongoing program or heavy reliance on a specific exchange 
teacher are not reconcilable with the Department's requirement that the 
maximum period of program duration for a teacher should not exceed 
three years.

Teacher Compensation

    The proposed regulations also clarify that exchange teachers are to 
be paid (or compensated) directly by the schools or school districts in 
which they are placed, unless they are supported by foreign government 
funding or through continued support from their home schools. 
Participants must be under the direct supervision and guidance of 
schools, and are not employees of sponsor organizations. SEVIS records 
should exactly reflect the funding situation for each participant. 
Teaching positions, including duties/responsibilities and hours of 
employment, must be consistent with similarly situated teachers in the 
district or school where an exchange teacher is assigned to teach.

Repeat Participation

    Since 1949, a three-year period of program duration has been 
afforded to teacher participants. To date, the Department has been 
unable to identify a compelling public diplomacy reason to abandon the 
long-standing three-year limitation governing the teacher program. The 
regulations have been amended, however, to permit exchange teachers who 
have successfully completed their teacher exchange programs to 
participate again as exchange teachers in the Exchange Visitor Program. 
To be eligible to repeat the program, exchange teachers must have 
resided outside the United States for at least two years following 
completion of their programs and must continue to meet all other 
eligibility and regulatory requirements for this category. This 
amendment set forth at Sec.  62.24(j) is proposed to ensure that the 
reciprocal exchange objectives underlying the Exchange Visitor Program 
are met and that the Program is not misused for long-term employment 
purposes.

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). The U.S. Government policy and longstanding practice has been 
for the Department of State to oversee foreign nationals who come to 
the United States as participants in exchange visitor programs, either 
directly or through private sector program sponsors or grantee 
organizations. 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 rule is to protect the health, safety, and welfare of 
foreign nationals 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 upon completion 
of their programs. The Department of State is of the opinion that the 
failure to protect the health, safety, and welfare of these foreign 
nationals will have direct and substantial adverse effects on the 
foreign affairs of the United States. Although the Department is of the 
opinion that this rule is exempt from the rulemaking provisions of the 
APA, the Department nevertheless is publishing this rule as a proposed 
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.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed 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).

[[Page 25673]]

This rule will not result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of U.S.-based companies to compete with 
foreign-based companies in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, or 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 proposed 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 Executive Order 13175 do 
not apply to this rulemaking.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    As discussed above in the APA discussion, the Department is of the 
opinion that this proposed 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 a proposed rulemaking. Accordingly, the Department is of the 
opinion that this proposed rule 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 this rule, the Department notes that the proposed rule will 
affect the operations of 59 sponsors designated by the Department to 
conduct Teacher Programs. Approximately 1,200 new teachers begin 
exchange programs annually, and as the program allows a duration of up 
to three years, there are approximately 2,500 active teachers in the 
United States annually.

Numbers of Small Businesses

    Of the 59 currently designated Teacher Program sponsors, 19 are 
corporate, academic, and tax-exempt program sponsors with annual 
revenues of less than $7 million. These 19 small program sponsors 
accounted for 569, or approximately 23%, of the active 2,500 Teacher 
Program participants in 2012.

Teacher Selection

    The proposed rule expands sponsor screening requirements to include 
verification of each potential exchange teacher's English proficiency 
and verification of a U.S. Bachelor's degree equivalent in education or 
in the subject he or she will teach as a participant. The Department 
estimates these additional requirements annually will cost $24,000 (one 
burden hour at $20 for each of the1,200 new participants annually).

Teaching Position

    The proposed rule more precisely defines exchange teacher positions 
by requiring sponsors to ensure that potential exchange teachers have 
accepted written offers of full-time teaching positions; program dates 
coincide with the academic year cycle; exchange teachers are in 
compliance with any applicable collective bargaining agreement; 
exchange teachers are appointed in temporary positions at primary or 
secondary accredited academic institutions; and exchange teachers' 
duties/responsibilities and hours of employment are consistent with 
similarly situated teachers in an exchange teacher's district or 
school. The Department estimates the cost of the additional 
administrative burden caused by the new requirements to be $5,690 (0.5 
burden hours at $20 for each of the 569 participants) annually.

Program Disclosure

    The proposed rule requires sponsors to provide exchange teachers 
with the following information before their program begins: the length 
of program participation; the name and location of the school where the 
exchange teacher will be placed; a brief description of the school; 
residential accommodation arrangements (including cost implications); 
transportation arrangements to and from the exchange teacher's 
residence and school (including cost implications); licensing 
procedures; terms and conditions of compensation (including deductions 
for tax, health insurance, etc. from the gross salary); any provisions 
affecting the ability of the exchange teacher to be accompanied abroad 
by a spouse or dependents (including any assistance and allowances 
offered therewith); a summary of the significant components of the 
program (including a statement of the teaching requirements and related 
professional obligations, including the required cultural activity and 
cultural heritage curriculum components); transparency in fees; and a 
written statement that clearly identifies the compensation, if any, to 
be paid to each exchange teacher and any other financial arrangements 
concerning the exchange visitor program. The Department estimates these 
additional requirements will cost $11,380 (1 burden hour at $20 for 
each of the 569 participants) annually.

Cultural Activity Component

    The proposed rule requires sponsors to collect teachers' annual 
reports detailing their cultural activity component. The Department 
estimates that the collection of these reports will annually cost 
$2,845.00 (0.5 burden hours at $10 for each of the 569 teachers).
    Collectively, the proposed rule will impose new costs of no more 
than $43,915 in total to the 19 small program sponsors. The additional 
burden cost of this proposed rule per exchange teacher is approximately 
$70. The 19 small businesses vary in the number of exchange teachers 
they sponsor annually. Ten of the 19 small businesses bring in no more 
than the five required participants annually, which means a new burden 
of $350. Three small businesses bring in approximately 30 teachers 
annually, one small business sponsored 75 exchange teachers in 2012, 
one sponsored 150 and one sponsored 200 exchange teachers. For the 
small business that recruited the most teachers (200 teachers) in 2012, 
the cost of this proposed rule will be $14,000. The Department 
therefore does not believe that these regulatory changes will have a 
significant economic impact on a substantial number of small entities.

Executive Order 12866 and 13563

    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 and 13563. The Department has 
nevertheless reviewed the proposed rule to ensure its consistency with 
the regulatory philosophy and principles set forth in those Executive 
Orders.
    The teacher exchange program regulations have not been amended 
since March 19, 1993. Although the teacher exchange program is a fairly 
small program of approximately 1,200 new teachers annually, the 
Department is aware of the impact these exchange teachers have on local 
schools and school districts. First, to ensure that both the exchange 
teachers and the Americans with whom they work and teach are receiving 
the full benefit of

[[Page 25674]]

this program, the Department proposes to increase the screening and 
vetting of potential exchange teachers. Specifically, a sponsor (or 
sponsor representative) must conduct an interview in-person or by 
videoconferencing during the application process to ensure sufficient 
English proficiency. In the case where either in-person or 
videoconferencing is not an option, telephone interviews may be used. 
The Department identifies the potential costs associated with the 
additional screening requirements as minimal. Screening applicants and 
ensuring English proficiency is a current business practice of 
sponsors.
    The proposed rule also includes a requirement for sponsors to 
provide full transparency on all fees associated with teacher 
exchanges. The Department believes that requiring sponsors to provide 
participants with a comprehensive breakdown of total program fees 
(including visa fee, SEVIS fee, estimates for food, housing and 
transportation costs, foreign agent/partner fee, sponsor fee, expected 
work-related deductions, and estimates of all other fees) would greatly 
enhance transparency and better ensure that participants fully 
understand the financial obligation they assume when choosing to 
participate in the Exchange Visitor Program. The Department accordingly 
believes that sponsors and foreign agents should post on their Web 
sites or through recruiting measures a comprehensive breakdown of those 
total program fees listed above. The Department believes that sponsors 
already prepare the comprehensive breakdown information as a business 
practice. The cost of this requirement will come from adding a summary 
to the existing sponsor application and orientation materials and is 
estimated at an additional $1.00 per exchange teacher for a total of 
$1,200.00 annually.
    Finally, to ensure that this program remains an educational and 
cultural exchange program, the Department proposes the submission of an 
annual cultural activity to be reported by all exchange teachers to 
their sponsors. The average cost of these reports per exchange teacher 
is estimated at $50.00 per person. These costs would derive from travel 
expenses and materials required for presentations and reporting 
requirements. The Department recognizes that the sponsor may need 
additional resources or staff to review and store the reports. The 
Department estimates that the collection of these reports will annually 
cost $12,500.00 (0.5 burden hours at $10 for 2500 teachers).
    Teacher exchange programs conducted under the authorities of the 
Exchange Visitor Program promote mutual understanding by providing 
foreign teachers the opportunity to teach in American schools and 
participate in daily educational curricula in the United States. 
Teacher program participants gain an understanding of and an 
appreciation for the similarities and differences between their culture 
and that of the United States. Upon their return home, these teachers 
enrich their schools and communities with their fresh perspectives of 
U.S. culture and events. Teacher exchanges also foster enduring 
relationships and lifelong friendships that help build longstanding 
ties between the people of the United States and other countries. In 
reciprocal fashion, American school teachers and students are provided 
opportunities to increase their knowledge and understanding of the 
world through these friendships. 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 proposed rule.

Executive Order 12988

    The Department of State has reviewed this proposed rule in light of 
Sec. 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

    Acknowledging that the administration of schools is primarily a 
state function, the Department finds that this proposed rule will not 
have substantial direct effect on the states, on the relationships 
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 proposed 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

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting and recordkeeping 
requirements inherent in a rule. See Public Law 104-13, 109 Stat. 163 
(May 22, 1995). This proposed rule requires new collection of 
information by sponsors and is covered under the PRA. The Department 
has submitted an information collection request to OMB for review and 
approval under the PRA.
    The information collection requirements contained in this proposed 
rule are pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 
and OMB Control Number 1405-0147, Form DS-7000, which requires 
collection of additional information for the Exchange Visitor Program. 
As part of this rulemaking, the Department is seeking comment on the 
administrative burden associated with modifying the collection of 
information in three areas. Additional collections are being proposed 
under the teacher selection, teaching position, program disclosure and 
cultural activity component sections.
    First, sponsors would be required to provide additional information 
for the teacher, including information on the length of program 
participation; the name and location of the school where the teacher 
will be placed; a description of the school; residential accommodation 
arrangements; transportation options from the teacher's residence to 
his or her site of activity (the school) and return; licensing 
procedures; terms and conditions of compensation; and a summary of the 
significant components of the program, as set forth in proposed Section 
62.24(f). Also, sponsors would be required to collect each year a 
report on the cultural activity component of the teacher's program, as 
set forth in proposed Section 62.24(g).
    (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 
public comment, including comments from teacher exchange program 
sponsors and other persons directly involved in the administration of 
teacher exchanges.
    (5) Change to information collected by the Department of State: The

[[Page 25675]]

Department is proposing changes to both reporting and recordkeeping 
requirements. In addition to current collections, the Department 
proposes that sponsors will now be required to provide the following to 
exchange teachers in advance of their arrival in the United States:
    1. the name of the specific school where the teacher will be 
placed;
    2. a brief description of the school;
    3. residential accommodation arrangements (including cost 
implications);
    4. transportation arrangements to and from the exchange teacher's 
residence and school (including cost implications);
    5. fees associated with the teacher exchange program;
    6. licensing procedures;
    7. terms and conditions of compensation (including deductions for 
taxes, health insurance, etc. from the gross salary);
    8. any provisions affecting the ability of the teacher to be 
accompanied abroad by a spouse or dependents (including any assistance 
and allowances offered therewith); and
    9. a summary of the required cultural activity component.

    The Department proposes that program participants will now be 
required to provide the following documents to the sponsors:

    1. cultural requirement annual report;
    2. proof of educational requirements; and
    3. proof of English proficiency.
    Recordkeeping: Sponsors will now be required to retain additional 
records as a result of these changes. The additional recordkeeping 
requirements are the results of the cultural component requirement 
annual reports. The school information, teaching position, and 
compensation are already collected. Additional information collection 
or retention burdens are discussed 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.
    Email: 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 (DS-7000), information 
collection title, and OMB control number (1405-0147) 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 Department, including 
whether the information will have practical utility;
     The accuracy of the Department'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 for the teacher selection, teacher position and 
program disclosure sections remains at an estimated 59 organizations 
designated by the Department to conduct teacher exchange program 
activities. The number of respondents for the annual cultural activity 
component reporting requirement is estimated to be 2,500 active 
exchange teachers annually. The recordkeeping burden on the 59 sponsors 
as a result of retaining the annual cultural activity reports is 
estimated to be $12,500.00 (0.5 burden hours at $10 for 2500 active 
teachers). However, it is estimated that the burden on the 2500 active 
teachers to complete the cultural activity component will be 
approximately two hours. Of those 2,500 active teachers, 1,200 teachers 
who are in their first year of the program will be required to provide 
English language test scores as part of the teacher selection process.
    (9) An estimate of the total annual public burden (in hours) 
associated with the collection: The additional burden hours for the 
additional teacher selection requirements for the 59 program sponsors 
will be approximately 1.5 hours for each of the 1,200 new teacher 
applicants annually, for a total additional burden of 1,800 hours 
(1,200 responses x 1.5 burden hours). The Department calculates that 
the new annual reporting requirements for the cultural component may 
require up to two additional hours of work for each exchange teacher to 
complete the activity and a half hour per placement for the 59 program 
sponsors. The Department estimates that for 2,500 active exchange 
teachers, the burden hours will total 5,000 hours (2,500 responses x 2 
hours) annually and 1,200 hours for all sponsors (2,500 responses x 0.5 
hours). Under the current collection, program disclosures are already 
estimated at 0.5 burden hours. The Department is increasing the 
estimated burden by .5 hour for an estimated total 1,200 burden hours 
(1,200 responses x 1.0 burden hour).

List of Subjects in 22 CFR Part 62

    Cultural exchange programs, reporting and recordkeeping 
requirements.

    Accordingly, 22 CFR part 62 is proposed to be 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. 
Sec.  1431 et seq.; 22 U.S.C. 2451 et seq. (Fulbright-Hays Act); 
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, Sec.  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 62.24 is revised to read as follows:

Sec.  62.24  Teachers

    (a) Purpose. These regulations govern exchange visitors who teach 
full-time in primary and secondary (K-12) accredited, public or private 
academic institutions in the United States. Programs in this category 
promote the interchange of American and foreign teachers and enhance 
the mutual understanding between people of the United States and other 
countries. Program participants sharpen their professional skills and 
participate in cross-cultural activities with Americans in schools and 
communities, and they return home ultimately to share their experiences 
and increased knowledge of the United States and the U.S. educational 
system. Such exchanges enable exchange teachers to better understand 
American culture, society, and teaching practices at the primary and 
secondary levels and enhance Americans' knowledge of foreign cultures, 
customs, and teaching approaches.

[[Page 25676]]

    (b) Designation. The Department of State may, in its discretion, 
designate bona fide programs satisfying the objectives in paragraph (a) 
of this section as exchange visitor programs in the teacher category.
    (c) Visitor eligibility. Foreign nationals are eligible to 
participate in exchange visitor programs as full-time teachers if, at 
the time of application to the sponsor, the individual demonstrates to 
the satisfaction of the sponsor that they:
    (1) Meet the qualifications for teaching in primary or secondary 
schools in their country of nationality or last legal permanent 
residence, and are working as teachers at the time of application;
    (2) At a minimum have a degree equivalent to a U.S. Bachelor's 
degree in either education or the subject matter they intend to teach;
    (3) Have, at a minimum, the equivalent of two years of full-time 
teaching experience, post-degree;
    (4) Satisfy the teaching eligibility standards of the U.S. state in 
which they will teach;
    (5) Are of good reputation and character; and
    (6) Agree to come to the United States temporarily for the purpose 
of full-time teaching as the teacher of record in a primary or 
secondary (K-12) accredited public or private academic institution in 
the United States.
    (d) Teacher selection. Sponsors must adequately screen foreign 
teachers prior to acceptance in the program. In addition to the 
requirements of Sec.  62.10(a) and all security checks required by 
State Departments of Education and host schools, sponsor screening must 
include:
    (1) Evaluating the qualifications of the foreign teachers to 
determine whether they satisfy the criteria set forth in paragraph (c) 
of this section;
    (2) Securing references from one colleague and one current or 
former employer of the foreign teachers, attesting to the teachers' 
good reputations, character, and teaching skills; and
    (3) Ensuring that foreign teachers possess sufficient proficiency 
in the English language to function in American classrooms on a day-to-
day basis. Sponsors must verify applicants' English language 
proficiency through one of the following:
    (i) A recognized English language test;
    (ii) Signed documentation from academic institutions or English 
language schools;
    (iii) Documented interviews conducted by the sponsors in-person or 
through videoconferencing; or
    (iv) A telephone interview if an in-person interview or 
videoconferencing is not a viable option.
    (e) Teaching position. Sponsors must ensure:
    (1) Forms DS-2019 are not issued until potential exchange teachers 
have received and accepted written offers of full-time teaching 
positions of not less than 32 hours per week from the primary or 
secondary (K-12) accredited academic institutions in which they will 
teach;
    (2) Program dates coincide with the academic year cycle to ensure a 
smooth transition as exchange teachers arrive and depart, unless 
otherwise requested in writing by the school;
    (3) Exchange teachers are in compliance with any applicable 
collective bargaining agreement where one exists;
    (4) Exchange teacher appointments to positions at primary or 
secondary accredited academic institutions must be temporary, even if 
the teaching positions are permanent, and may not lead to tenure; and
    (5) Teaching positions, including duties/responsibilities and hours 
of employment, must be consistent and commensurate with the pay and 
benefits with similarly situated teachers in the district or school 
where an exchange teacher is assigned to teach.
    (f) Program disclosure. Before programs begin and prior to 
finalization of any contracts, sponsors must provide each exchange 
teacher, in addition to the requirements set forth in Sec.  62.10(b), 
with the following information in writing:
    (1) The length of program participation; the name and location of 
the school where the teacher will be placed; a brief description of the 
school; any residential accommodation arrangements (including cost 
implications); transportation arrangements to and from the exchange 
teacher's residence and school (including cost implications); licensing 
procedures; terms and conditions of compensation (including deductions 
for tax, health insurance, etc. from the gross salary); any provisions 
affecting the ability of the teacher to be accompanied abroad by a 
spouse or dependents (including any assistance and allowances offered 
therewith); and a summary of the significant components of the program 
(including a statement of the teaching requirements and related 
professional obligations, including the required cultural activity 
component, as set forth in paragraph (g) of this section);
    (2) A written statement that clearly identifies the compensation to 
be paid to each exchange teacher and any other financial arrangements 
concerning the Exchange Visitor Program. Teacher salaries, unless 
provided directly to the participants through government funding or 
through continued support from their home school, must come directly 
from the schools or school districts in which the teachers are placed; 
and
    (3) A full listing of all fees associated with the exchange program 
(i.e., sponsor and third party fees, insurance, housing, 
transportation, visa fees)
    (g) Cultural activity component. (1) Sponsors must require and 
should assist exchange teachers to:
    (i) Complete a cultural activity component each academic year of 
program participation (e.g., making a presentation in a public setting 
where there is direct interaction with the school community or the 
American public, designed to give an overview of the history, 
traditions, heritage, music, dance, art, economy, educational system 
and/or other attributes of their home country); and
    (ii) Maintain and involve U.S. students in dialogue or other 
activities with schools or students in another country through virtual 
exchange or other means, in order to supplement the goals of the in-
person exchange and to integrate global knowledge, cultural awareness 
and/or foreign language into the classroom.
    (2) Sponsors must require exchange teachers to submit annual 
reports detailing the cultural activity components of their exchange 
programs. The reports do not have to be in a specific format, but must 
contain the following information:
    (i) Date(s) of the activity;
    (ii) Teacher's full name;
    (iii) Program sponsor's name; and
    (iv) Location, attendance, topic, impact and general overview of 
the activity.
    (h) Location of the exchange. Exchange teachers must participate in 
exchange visitor programs at the primary or secondary accredited 
academic institution(s) listed on their Forms DS-2019 or at location(s) 
where the institutions are involved in official school activities 
(e.g., school field trips, teacher development programs).
    (i) Duration of participation. Exchange teachers may be authorized 
to participate in the Exchange Visitor Program for the length of time 
necessary to complete the program, which may not exceed three years.
    (j) Repeat participation. Foreign nationals who have successfully 
completed teacher exchange programs are eligible to participate in 
additional teacher exchange programs, provided

[[Page 25677]]

that they have resided outside the United States for at least two years 
following the completion of their most recent teacher exchange program, 
and provided they continue to meet the eligibility requirements set 
forth in paragraph (c) of this section.

     Dated: April 26, 2013.
Robin J. Lerner,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of 
Educational and Cultural Affairs, Department of State.
[FR Doc. 2013-10400 Filed 5-1-13; 8:45 am]
BILLING CODE 4710-05-P
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