[Federal Register Volume 61, Number 61 (Thursday, March 28, 1996)]
[Rules and Regulations]
[Pages 13760-13762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7592]



=======================================================================
-----------------------------------------------------------------------

UNITED STATES INFORMATION AGENCY

22 CFR Part 514


Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Statement of policy.

-----------------------------------------------------------------------

SUMMARY: Since August of 1990, the Agency has continued its oversight 
of Summer Travel/Work programs, notwithstanding suggestions that the 
Agency is in fact without statutory authority to conduct such programs 
as currently configured. The Agency hereby announces its acceptance, as 
statutorily sound, of four Summer Travel/Work programs. A two year 
period of additional review of a fifth program is also hereby announced 
and adopted.

EFFECTIVE DATE: This policy statement is effective March 28, 1996.

FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information 
Agency, 301 4th Street, S.W., Washington, D.C. 20547; Telephone, (202) 
619-6829.

SUPPLEMENTARY INFORMATION: In February of 1990, the General Accounting 
Office (``GAO'') issued its report entitled ``Inappropriate Uses of 
Educational and Cultural Exchange Visas.'' This report specifically 
identified Summer Travel/Work programs designated by the Agency for the 
past twenty-five years as an example of programs operating outside of 
the statutory parameters set forth under the Mutual Educational and 
Cultural Exchange Act of 1961 (Fulbright-Hays Act.) As currently 
configured, Summer Travel/Work programs permit foreign university 
students to enter the United States during their summer months for the 
purpose of travel and the pursuit of employment opportunities wherever 
they may be found. Approximately 16,000 foreign university students to 
charges of inappropriate use of the Exchange Visitor Program and 
brought about, in March of 1993, the promulgation of new and 
comprehensive regulations governing exchange activities. These 
regulations, in turn, resulted in changes to the operations of flagship 
exchange programs and other programs of long-standing and venerable 
reputation. Underlying this policy and regulatory review was the 
Agency's identification of the core components of an exchange activity. 
These components--selection, screening, orientation, placement, 
monitoring, and the promotion of mutual understanding--define what an 
exchange is and whether one is actually occurring.
    The use of these components in a review of the Summer Travel/Work 
programs demonstrates clearly why the Agency has determined that it 
lacks sufficient authority to continue the programs as currently 
configured. Today, five organizations conduct Summer Travel/Work 
programs pursuant to two substantially different program designs. Four 
of the five programs arrange all details of the program including 
prearranged employment and accommodations. The remaining program, 
accounting for approximately 12,000 of all participants, does not make 
advance arrangements for employment or accommodations. Participants in 
this program are left to their own devices in securing both employment 
and accommodation.
    Given the design and operation of these four programs and their 
selection, screening, orientation, placement, and monitoring of program 
participants, the Agency is satisfied that statutory conformity is 
possible. Accordingly, the Agency has determined that these four Summer 
Travel/Work programs should be allowed to expand both their number of 
program participants and the countries from which they are selected. 
Program guidelines have been developed and the four programs currently 
selecting, screening, orienting, placing, and monitoring their program 
enter each year for this purpose.
    The 1990 GAO report was the catalyst for what has become a five 
year debate regarding the public diplomacy value of Summer Travel/Work 
programs and the Agency's legal authority to continue them under the 
aegis of the Fulbright-Hays Act. The debate surrounding these programs 
occurs entirely along the fault lines that necessarily underlie the 
intersection of law and policy. The legal considerations of this debate 
are straightforward, while the policy considerations are less so.

Statutory Considerations

    The Immigration and Nationality Act, as amended, sets forth at 8 
U.S.C.

[[Page 13761]]
1101(a)(15)(J) an alien's statutory eligibility for entry into the 
United States on a J visa. The J visa was created, as a provision of 
the Fulbright-Hays Act, to facilitate educational and cultural exchange 
activities. Pursuant to the provisions of 1101(a)(15)(J), an exchange 
visitor is defined as:

    (J) an alien having a residence in a foreign country which he 
has no intention of abandoning who is a bona fide student, scholar, 
trainee, teacher, professor, research assistant, specialist, or 
leader in a field of specialized knowledge or skill, or other person 
of similar description, who is coming temporarily to the United 
States as a participant in a program designated by the Director of 
the United States Information Agency, for the purpose of teaching, 
instructing or lecturing, studying, observing, conducting research, 
consulting, demonstrating special skills, or receiving training and 
who, if he is coming to the United States to participate in a 
program under which he will receive graduate medical education or 
training, also meets the requirements of section 212(j), and the 
alien spouse and minor children of any such alien if accompanying 
him or following to join him:

Given this statutory definition of an exchange participant, the GAO 
concluded that persons entering the United States to participate in 
Summer Travel/Work programs did not fall within the statutory 
parameters of the Fulbright-Hays Act and the Immigration and 
Nationality Act. Specifically, the GAO opined that the Summer Travel/
Work programs do not require participants to engage in those activities 
set forth in both Acts.
    In response to this GAO report, the Agency published a Statement of 
Policy and Notice in the Federal Register on August 13, 1990 (55 FR 
32906.) This notice advised the public and those organizations 
facilitating Summer Travel/Work programs that, in light of the GAO 
report, a legal and policy review of the programs would be undertaken. 
This notice further advised that upon a favorable determination 
regarding the foreign policy value of these programs, the Agency would 
consider whether regulations could be drafted to conform the programs 
with existing law. The notice also advised that, in the alternative, 
the Agency might pursue legislation to specifically authorize the 
continuation of the programs.
    As the debate regarding statutory authority began, the Agency 
received two well-reasoned and thorough legal memoranda suggesting the 
Agency did in fact possess adequate legal authority to facilitate 
Summer Travel/Work programs. These memoranda proved unpersuasive. 
Accordingly, the Agency remained unconvinced that it possessed 
sufficient statutory authority to facilitate Summer Travel/Work 
programs and so advised the Congress by letter dated June 10, 1991.
    Additional support for this Agency determination was subsequently 
provided by a GAO Office of General Counsel letter opinion dated July 
8, 1992. This letter opinion set forth a review of both the statutory 
language and legislative history of the Fulbright-Hays Act. The GAO 
affirmed its legal opinion set forth in the 1990 report but suggested 
that the Agency may be able to bring Summer Travel/Work programs into 
statutory compliance, stating:

    Notwithstanding our conclusions, given the broad authority an 
agency has in promulgating regulations and implementing an activity 
conferred upon it by statute, Powell v. Schweiker, 688 F. 2d 1357, 
1360-61 11th Cir. 1982), we think USIA could revise its regulations 
to establish trainee, summer student travel/work and international 
camp counselor programs that are consistent with the J-visa statute. 
We emphasize that any determination about the propriety of these 
programs must begin with the J-visa statute. If a program involves 
individuals whose status is comprehended by the categories set forth 
in the J-visa statute, and the statute authorizes the activity that 
such individuals will pursue, then the program would be consistent 
with the intent of the J-visa statute. These categories and 
activities intend an educational or cultural purpose.

Thus, the Agency laid to rest the question of whether it possessed 
sufficient statutory authority to continue Summer Travel/Work programs 
as currently configured. Having determined that it did in fact lack 
such authority, the Agency turned its attention to an examination of 
the policy and public diplomacy aspects underlying these activities.

Policy Considerations

    Summer Travel/Work programs have been designated by the Agency for 
over twenty five years. When these programs began, a strict reciprocal 
element mandated that the number of United States students outbound 
from the United States approximate the number of foreign students 
inbound. Annual consultations with the program's sponsoring 
organizations were held and the number of participants for that year 
established. An additional requirement limited participation to foreign 
students lacking sufficient funds to enter the United States as 
tourists. Periodic reminders of this underlying policy were also 
transmitted to sponsoring organizations. The policy underlying these 
two requirements attempted to (i) ensure no adverse domestic labor 
market impact resulted from the activity; and (2) that only those 
persons otherwise financially unable to visit the United States would 
benefit from this opportunity.
    These original policy objectives have been seriously eroded with 
the passage of time. Exchange programs facilitated under the auspices 
of the Fulbright-Hays Act must, as a matter of policy and law, have an 
underlying educational or cultural programmatic component which 
promotes the Act's raison d'etre of mutual understanding. Critics 
generally suggest that Summer Travel/Work programs do not possess an 
educational or cultural exchange component even when such terms are 
given their broadest of interpretations. Conversely, advocates of these 
programs suggest that ``experiential'' learning, whereby the 
participant gains insight into the American lifestyle and culture 
through travel and employment, does in fact fulfill the expected 
programmatic educational or cultural component.
    The Agency's interpretation of what is an acceptable educational or 
cultural programmatic component is often quite broad. However, the 
Agency has determined that it is unable to adopt the concept of 
``experiential'' learning as sufficient legal justification, in and of 
itself, for an exchange activity under the Fulbright-Hays Act. To do 
so, would suggest that any time an alien enters the country as a 
visitor for business or pleasure or as a temporary worker, an 
educational or cultural exchange occurs.
    In light of this determination, and pursuant to the discussion set 
forth below, the Agency is willing, in general, to accept, 
``experiential'' programs that otherwise incorporate those programmatic 
components common to all other exchange activities designated by the 
Agency.

The Components of Exchange

    Since 1990, the Agency has engaged in an on-going review of the 
policy and public diplomacy considerations underpinning exchange 
activities. This review has proven useful in responding participants 
have agreed to abide by these guidelines in the absence of program 
specific regulations.
    Because the remaining Summer Travel/Work sponsor does not operate 
its program in the manner that the Agency has determined would meet all 
threshold statutory requirements, the Agency is unable to allow this 
program to expand in size or scope. Thus, this sponsor will continue to 
be limited to the numerical program size at which it operated when 
statutory deficiencies were identified in February of 1990. In similar 
fashion, this sponsor will also be

[[Page 13762]]
limited to recruitment in only those countries in which it was 
operating Summer Travel/Work programs in 1990.
    The Agency has agreed to permit the continued operation of this 
program under these terms notwithstanding its determination that such a 
program design continues to suffer certain statutory deficiencies. As 
agreed with the sponsor, the Agency will allow a two year period of 
continued study of this matter for the purpose of addressing the policy 
considerations arising from possible adverse domestic labor market 
impact due to the lack of preplacement. The Agency will seek the advice 
and counsel of the U.S. Department of Labor regarding labor market 
considerations and will continue this additional period of review until 
March 1, 1998.

List of Subjects in 22 CFR Part 514

    Cultural exchange programs.

    Dated: March 22, 1996.
Les Jin,
General Counsel.

Guidelines for Summer Work/travel Programs

    In lieu of specific programmatic regulations governing the 
administration of Agency-designated Summer Travel/Work programs, the 
guidelines set forth below are hereby adopted by the Agency and 
shall be binding upon all newly designated programs and the existing 
Summer Travel/Work programs operated by the American Institute for 
Foreign Study, YMCA InterExchange, and Camp Counselors USA. These 
guidelines may be amended by the Agency at any time and shall remain 
in full force and effect until rescinded or Superseded by duly 
promulgated regulations.

    (a) Introduction. These guidelines shall apply to the above 
described program sponsors and their administration of exchange visitor 
programs under which foreign university students are afforded the 
opportunity to travel and pursue employment in the United States for a 
four month period corresponding with their summer vacation.
    (b) Participant Selection and Screening. In addition to satisfying 
the requirements set forth at Sec. 514.10(a), sponsors shall adequately 
screen all program participants and at a minimum:
    (1) Conduct an in person interview; and
    (2) Ensure that the participant is a bona fide post-secondary 
school student is his or her home country; and
    (3) Ensure that not more than ten percent of selected participants 
have previously participated in a summer travel/work program.
    (c) Participant Orientation. Sponsors shall provide participants 
prior to their departure from the home country information regarding:
    (1) The name and location of their employer; and
    (2) Any contractual obligations related to their acceptance of paid 
employment in the United States.
    (d) Participant Placements. Sponsors shall not facilitate the entry 
into the United States of any program participant for whom an 
employment position has not been arranged.
    (e) Participant Compensation. Sponsors shall ensure that program 
participants receive pay and benefits commensurate with those offered 
to their American counterparts.
    (f) Monitoring. Sponsors shall provide:
    (1) All participants with a telephone number which allows 24 hour 
immediate contact with the sponsor; and
    (2) Appropriate assistance to program participants on an as needed 
emergency basis.
    (g) Placement report. In lieu of listing the name and address of 
the participant's pre-arranged employer on the form IAP-66 sponsors 
shall submit to the Agency a report of all participant placements. Such 
report shall reflect the participant's name, place of employment, and 
the number of times the participant has previously participated in any 
summer travel/work program. Such report shall be submitted semi-
annually on January 30th and July 30th of each year and shall reflect 
placements made in the preceding six month period.
    (h) Unauthorized activities. Placement as domestic employees in 
United States households is expressly prohibited.

[FR Doc. 96-7592 Filed 3-27-96; 8:45 am]
BILLING CODE 8230-01-M