[Federal Register Volume 61, Number 112 (Monday, June 10, 1996)]
[Rules and Regulations]
[Pages 29285-29287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14390]



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UNITED STATES INFORMATION AGENCY

22 CFR Part 514


Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Final rule.

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SUMMARY: The Agency published an interim final rule with request for 
comment in the Federal Register on April 8, 1996. This rule amended 
Agency regulations to clarify the procedures for requesting an 
extension of program duration for designated sponsors seeking such 
extension on behalf or a professor or research scholar participating in 
activities conducted by the sponsor. This interim rule also set forth 
new procedures whereby the Agency may authorize a sponsor to design and 
conduct research programs that allow for the participation of a 
professor or research scholar for a period of time in excess of three 
years. Limitations governing the eligibility for program participation 
of professor and research scholar participants were also set forth. 
These limitations enhance the integrity and programmatic effectiveness 
of the Exchange Visitor Program. The Agency hereby adopts this interim 
rule, with amendments, as final.

DATES: This rule is effective June 10, 1996 except for 22 CFR 
514.20(j)(2)(i) which will become effective on October 4, 1996.

FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Assistant General Counsel, United States Information 
Agency, 301 4th Street, SW., Washington, DC 20547; Telephone, (202) 
619-4979.

SUPPLEMENTARY INFORMATION: Professor and research scholar participants 
comprise some thirty percent of all exchange visitors participating in 
the Agency-administered Exchange Visitor Program and are, accordingly, 
of particular interest to the Agency given their involvement in 
collaborative research projects throughout the United States and the 
potential for the promotion of mutual understanding and peaceful 
relations that such collaborative activities provide. Also of interest 
to the Agency is the fact that such participants occupy approximately 
55,000 positions in U.S. academic institutions and corporate research 
facilities.
    Unlike all other nonimmigrant visa categories, the J visa allows 
for the employment in the United States of accompanying spouses. Thus, 
there are potentially 55,000 spouses working in the United States based 
solely upon their derivative J-2 visa status. Also, unlike the 
employment of all other nonimmigrants in the United States, neither the 
employment of the J visa holder principal, nor his or her accompanying 
spouse is subject to the requirements of a Labor Condition Application 
or U.S. Department of Labor review. Given the above considerations, the 
Agency is compelled to examine closely those policies and regulations 
that govern the long-term employment of exchange visitors in the United 
States.
    The Agency published an interim rule on April 8, 1996 that 
addressed, in part, an alien's eligibility to pursue teaching or 
research opportunities in the United States under the aegis of the 
Exchange Visitor Program. This interim rule introduced a prohibition 
against program participation as a professor or research scholar for 
aliens that had held or been afforded J visa status during any portion 
of the twelve month period immediately preceding the commencement of 
such participation. This prohibition was introduced in an effort to end 
the movement of students in J visa status into the professor and 
research scholar category and also to prevent aliens who have completed 
a three year period of program participation as a professor or research 
scholar from exiting the U.S. and immediately re-entering in a ``new'' 
program for an additional three year period.
    The Agency received 38 comments in response to the request for 
comment set forth in the April 8th interim rule, all of which directly 
or indirectly touched upon this provision. The commentators generally 
agreed that, given the Agency's desire to ensure that exchange visitors 
return to their home country in order to safeguard the integrity and 
programmatic effectiveness of the Exchange Visitor Program, the 
practice of exiting and re-entering in a new program should be 
curtailed. These commentators suggested, however, that the regulation, 
as written, complicated or prevented the use of the Exchange Visitor 
Program by person engaging in short-term collaborative projects. Many 
commentators suggested alternatives to the Agency's approach and as a 
result of such comments, the Agency is amending the provisions set 
forth at Sec. 514.20(d). This amendment exempts from the twelve month 
bar those exchange visitors who participated in an exchange visitor 
program for six months or less. As a related matter, the Agency is 
amending the program duration of the short-term scholar category from 
four months to six months both to reflect this change and to facilitate 
this category's use for short-term collaborative projects.
    Further, based upon comments received, the Agency is amending the 
language governing the calculation of the twelve month bar set forth at 
Sec. 514.20(d)(ii). The interim rule set forth language, subject to 
interpretation, as to how the twelve month period should be calculated. 
In an effort to provide clarity, the Agency amends this language by 
adopting physical presence in the United States in J status as the 
standard for application of the twelve month bar and adopts the date of 
program commencement, as set forth on the Form IAP-66, as the standard 
to determine the calculation of time.
    A number of commentators also suggested that it is unfair to 
subject the J-2 spouse to this twelve month bar. The Agency disagrees. 
While some J-2 spouses may have made some sacrifices in order to 
accompany the J-1 exchange visitor, such sacrifice is compensated by 
employment opportunities in the United States--often in research. Thus, 
the real issue is whether it is unfair to deny a J-2 spouse the 
opportunity to remain in J status and pursue continued

[[Page 29286]]

employment upon completion of the J-1 principal's program 
participation.
    If the J-2 is not subjected to the twelve month bar, the underlying 
objective for imposing the bar is defeated in that the J-2 could become 
a J-1 and the former J-1 would be afforded J-2 derivative status and 
thus, as discussed above, full employment authorization. This ``flip-
flop'' of status could continue back and forth for years, even decades, 
at the expense of program effectiveness and integrity. Accordingly, the 
Agency concludes that upon balancing the various interests of the 
Agency, designated sponsors, and exchange visitors, application of the 
bar to J-2 spouses is both reasonable and desirable.
    In a related matter to categorical eligibility, and in response to 
specific comment received from NAFSA, the Agency adopts language to 
clarify that participants may not be placed on a tenure track as 
opposed to the interim rule's language that states the participant may 
not be placed in a tenure-track position.
    The Agency also received numerous comments regarding the provisions 
of Sec. 514.20(i)(2) whereby the Agency may authorize designated 
sponsors to conduct an exchange activity requiring participation in 
excess of three years by a professor or research scholar. This 
provision would allow a sponsor to identify a discrete activity, such 
as the International Thermonuclear Experimental Reactor, for which the 
sponsor and the activity underwriters have identified the desirability 
of a participant's involvement for a period of time in excess of three 
years. The requirement for the identification of a discrete activity, 
by definition, does not contemplate those situations in which a sponsor 
desires to conduct generalized research for periods of time in excess 
of three years. The Agency will authorize up to an additional three 
years of program duration.
    The provisions of the interim rule limited involvement in such 
activities to foreign educated research scholars. Many commentators 
questioned whether the benefits of such a limitation outweighed 
potential losses. In light of the comments received, the Agency 
concludes that its program and policy objectives may be achieved by 
means other than the limitation to foreign educated participants. 
Accordingly, the Agency is eliminating this requirement and adopting in 
its place a provision that participants in such extended activities be 
financed directly by U.S. foreign government funding. ``Financed 
directly'' is defined at Sec. 514.2 and requires that the exchange 
visitor receives funds contributed directly to the exchange visitor in 
connection with his or her participation in an exchange visitor 
program. The Agency concludes that this approach will allow the 
underwriters of such significant research projects to identify and 
select participants according to their needs while signalling their 
bona fide interest in such person by their direct funding of his or her 
participation in the project.
    Comments regarding Sec. 514.20(j) which governs the extension of a 
participant's program participation generally suggested the need for 
clarification of what the Agency considers to be ``exceptional or 
unusual circumstances.'' The Agency stated in the interim rule, that it 
contemplates ``exceptional or unusual circumstances'' will generally 
involve situations in which the participant was unable to complete his 
or her program due to circumstances not directly related to his or her 
project. This general statement should not be misconstrued or over-
emphasized. The Agency recognizes that ``exceptional or unusual'' 
circumstances may arise that are directly related to a participant's 
research project. While ``exceptional or unusual'' circumstances must 
be examined on a case by case basis and in the context of all facts 
presented, some guidance may be provided. For example, a foreign 
government's direct funding of a participant and that government's 
desire to have the participant continue in his or her project for an 
additional year would be considered as an ``exceptional or unusual'' 
circumstance sufficient to justify extension of the participant's 
program. Other examples of ``exceptional or unusual'' circumstances 
include the illness or incapacity of a participant that prevents the 
participant from working on his or her project for an extended period 
of time, and catastrophes involving the research experiments. Also, the 
test may be met when the visitor requires an extension of a few weeks 
to complete the project due to unforseen delays in the research.
    A number of commentators suggested that these changes diminish a 
sponsor's ability to utilize the Exchange Visitor Program for research 
requiring more than three years to complete. The Agency does not agree 
with these comments, concluding instead, that these changes merely 
reinforce the Agency's long-held position that the Exchange Visitor 
Program should be utilized for programs that have been designed for 
participation of not more than three years and that may, under ordinary 
circumstances, be completed on schedule. Moreover, the Agency 
concludes, as a matter of policy, that three years of research provides 
ample opportunity to both complete meaningful research and develop 
valuable relationships that will foster on-going linkages between U.S. 
institutions and scientists upon the participant's return to his or her 
home country. Thus, while the Agency acknowledges that these changes 
may result in some individuals being unable to utilize the Exchange 
Visitor Program, the Agency concludes that managerial and program 
needs, such as the benefits of ensuring that a higher percentage of 
participants return to their home country in a timely manner and 
fulfill the underlying exchange policy objectives upon which their 
entry into the United States was premised, outweighs the possible loss 
of exchange opportunities.
    The Agency also, in light of comments received, has determined that 
the language of Sec. 514.20(j)(2)(i) should be amended to recognize 
that extraordinary events may arise after the ninety day period for 
filing an extension of program request has passed. The Agency adopted 
the ninety day filing requirement to ensure that a participant does not 
fall out of valid program status and thereby subject his or her sponsor 
to sanctions for employing aliens without proper work authorization. 
The necessity for a timely filing requirement remains; however, the 
Agency does agree that an ``extraordinary circumstance'' clause would 
be appropriate. Accordingly, the Agency amends the language of this 
paragraph to include such clause but cautions all sponsors that the 
participant's work authorization expires on the date listed on the 
participant's IAP-66 form unless an extension has been granted by the 
Agency. The Agency also is amending the ninety day filing requirement 
to sixty days to provide for greater flexibility in the filing of an 
extension request.
    In accordance with 5 U.S.C.605(b), the Agency certifies that this 
rule does not have a significant adverse economic impact on a 
substantial number of small entities. This rule is not considered to be 
a major rule within the meaning of Section 1(b) of E.O. 12291, nor does 
it have federal implications warranting the preparation of a Federalism 
Assessment in accordance with E.O. 12612.
    In adopting this final rule, with amendments, the Agency has set 
forth the entire language of the interim rule with amendments 
incorporated therein to assist the reader.

List of Subjects in 22 CFR Part 514

    Cultural exchange programs.

[[Page 29287]]

    Dated: June 3, 1996.
Les Jin,
General Counsel.

    Accordingly the interim rule amending 22 CFR Part 514 which was 
published at 61 FR 15372 on April 8, 1996, is adopted as a final rule 
with the following changes:

PART 514--EXCHANGE VISITOR PROGRAM

    1. The authority citation for part 514 continues to read as 
follows:

    Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460; Reorganization Plan No. 2 of 1977, 42 FR 62461, 3 
CFR, 1977 Comp. p 200; E.O. 12048, 43 FR 13361, 3 CFR, 1978 Comp. p 
168, USIA Delegation Order No. 85-5 (50 FR 27393.)

    2. Section 514.20 is amended by revising paragraphs (d), (i), and 
(j) to read as follows:


Sec. 514.20  Professors and research scholars.

* * * * *
    (d) Visitor eligibility. An individual may be selected for 
participation in the Exchange Visitor Program as a professor or 
research scholar subject to the following conditions:
    (i) The participant shall not be a candidate for tenure track 
position; and
    (ii) The participant has not been physically present in the United 
States as a nonimmigrant pursuant to the provisions of 8 U.S.C. 
1101(a)(15)(J) for all or part of the twelve month period immediately 
preceding the date of program commencement set forth on his or her Form 
IAP-66, unless:
    (A) The participant is transferring to the sponsor's program as 
provided in Sec. 514.42; or
    (B) The participant's presence in the United States was of less 
than six months duration; or
    (C) The participant's presence in the United States was pursuant to 
a Short-term scholar exchange activity as authorized by Sec. 514.21.
* * * * *
    (i) Duration of participation. The permitted duration of program 
participation for a professor or research scholar shall be as follows:
    (1) General limitation. The professor and research scholar shall be 
authorized to participate in the Exchange Visitor Program for the 
length of time necessary to complete his or her program, which time 
shall not exceed three years.
    (2) Exceptional circumstance. The Agency may authorize a designated 
Exchange Visitor Program sponsor to conduct an exchange activity 
requiring a period of program duration in excess of three years. A 
sponsor seeking to conduct a discrete activity requiring more than the 
permitted three years of program duration, but less than six years of 
program duration, shall make written request to the Agency and secure 
written Agency approval. Such request shall include:
    (i) A detailed explanation of the discrete exchange activity; and
    (ii) A certification that the participation of selected research 
scholars will be financed directly by United States or foreign 
government funds.
    (3) Change of category. A change between the categories of 
professor and research scholar shall not extend an exchange visitor's 
permitted period of participation beyond three years.
    (j) Extension of program. Professors and research scholars may be 
authorized program extensions as follows:
    (1) Responsible officer authorization. A responsible officer may 
extend, in his or her discretion and for a period not to exceed six 
months, the three year period of program participation permitted under 
Sec. 514.20(i). The responsible officer exercising his or her 
discretion shall do so only upon his or her affirmative determination 
that such extension is necessary in order to permit the research 
scholar or professor to complete a specific project or research 
activity.
    (2) Agency authorization. The Agency may extend, upon request and 
in its sole discretion, the three year period of program participation 
permitted under Sec. 514.20(i). A request for Agency authorization to 
extend the period of program participation for a professor or research 
scholar shall:
    (i) Be submitted to the Agency, unless prevented by extraordinary 
circumstance, no less than 60 days prior to the expiration of the 
participant's permitted three year period of program participation; and
    (ii) Present evidence, satisfactory to the Agency, that such 
request is justified due to exceptional or unusual circumstances and is 
necessary in order to permit the researcher or professor to complete a 
specific project or research activity.
    (3) Timeliness. The Agency will not review a request for Agency 
authorization to extend the three year period of program participation 
permitted under Sec. 514.20(i) unless timely filed; provided, however, 
that the Agency reserves the right to review a request that is not 
timely filed due to extraordinary circumstance.
    (4) Final decision. The Agency anticipates it will respond to 
requests for Agency authorization to extend the three year period of 
program participation permitted under Sec. 514.20(i) within 30 days of 
Agency receipt of such request and supporting documentation. Such 
response shall constitute the Agency's final decision.

[FR Doc. 96-14390 Filed 6-7-96; 8:45 am]
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