Exchange Visitor Program-Summer Work Travel, 4120-4147 [2017-00107]
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Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Proposed Rules
DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: 9522]
RIN 1400–AD14
Exchange Visitor Program—Summer
Work Travel
Department of State.
Proposed rule.
AGENCY:
ACTION:
The U.S. Department of State
(Department) proposes to amend
existing regulations to provide new
program requirements for the Summer
Work Travel category of the Exchange
Visitor Program. This rulemaking
strategy is informed by the Department’s
comprehensive and ongoing review of
the Summer Work Travel program that
began in mid-2010.
With this proposed rulemaking, the
Department proposes to: Specify general
program administration requirements
for sponsors and their third parties;
enhance transparency in the recruitment
of exchange visitors; limit exchange
visitor repeat participation to a total of
three visits; require all exchange visitors
to be placed in advance of the exchange
visitor’s arrival in the United States;
outline additional sponsor
responsibilities for use and vetting of
host entities; and specify host entity
requirements for program participation.
In addition, the proposed rule limits
the number of late night and early
morning hours during which exchange
visitors may work; adds a section
regulating placements in door-to-door
sales; explains new processes for
exchange visitor housing; and
introduces Form DS–7007 (Host
Placement Certification). The proposed
rule also specifies more exactly predeparture orientation and
documentation requirements, including
with respect to bicycle safety; ensures
that sponsors and host entities provide
exchange visitors with cross-cultural
activities; and outlines processes for
sponsor use and vetting of domestic and
foreign third parties.
DATES: The Department of State will
accept comments on this proposed rule
until February 27, 2017.
ADDRESSES: You may submit comments
by any of the following methods:
• Email: JExchanges@state.gov. You
must include the Regulatory
Information Number (RIN) 1400–AD14
in the subject line of your message.
• Persons with access to the Internet
also may view this notice and provide
comments by going to the
regulations.gov Web site at: https://
www.regulations.gov/and search the RIN
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SUMMARY:
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1400–AD14 or docket number DOS–
2016–0034.
• Mail (paper or CD–ROM
submissions): U.S. Department of State,
Office of Policy and Program Support,
SA–5, Floor 5, 2200 C Street NW.,
Washington, DC 20522–0505.
• All comments should include the
commenter’s name, the organization the
commenter represents, if applicable,
and the commenter’s address. If the
Department is unable to receive or
understand your comment for any
reason, and cannot contact you for
clarification, the Department may not be
able to consider your comment. After
the conclusion of the comment period,
the Department will publish a final rule
(in which it will address relevant
comments) as expeditiously as possible.
FOR FURTHER INFORMATION CONTACT: Keri
Lowry, Deputy Assistant Secretary of
State, Office of Private Sector Exchange,
Bureau of Educational and Cultural
Affairs, U.S. Department of State, SA–5,
Floor 5, 2200 C Street NW., Washington,
DC 20522–0505; Email: JExchanges@
state.gov.
SUPPLEMENTARY INFORMATION: For the
past fifty years, the Summer Work
Travel program has served as one of the
most popular exchange opportunities
for foreign post-secondary school
students to visit and learn about the
United States. It is also one of the
Department’s largest avenues to
influence the opinion and attitudes of
foreign post-secondary students toward
the United States through people-topeople diplomacy. The program also
helps these students improve their
English language proficiency. In 2015,
the Summer Work Travel Program
provided students from approximately
125 countries the opportunity to earn
money to help defray some expenses of
a short stay in the United States by
working in seasonal or temporary host
placements that require minimal
training.
The Summer Work Travel program
links university students from every
region of the world to the people of the
United States. In the past decade alone,
approximately one million foreign postsecondary school students have visited
the United States, improved their
English language skills, developed ties
with U.S. persons, and experienced U.S.
culture while sharing their own cultures
with those they meet. They have
returned to their home countries and,
after graduation, have begun careers in
nearly every field. They remain lifelong
ambassadors between their home
countries and the United States.
The Department views Summer Work
Travel as an important and uniquely
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effective mechanism for establishing
cross-cultural communication and
contributing to English language
proficiency globally. The program
represents the largest Department
exchange opportunity for young adults;
most exchange visitors are between the
ages of 18 and 30. The program reaches
diverse exchange audiences, including
those from non-traditional sending
countries and cities and towns outside
national capitals. Such characteristics
make the program important to the
United States because people-to-people
exchanges, and especially exchanges for
young adults, are one of the most
effective ways the U.S. forges ties with
other nations.
The decision for exchange visitors to
participate in the Summer Work Travel
program is a significant one involving
an adventurous spirit, since exchange
visitors must live and work in a
potentially unfamiliar environment in
the United States. The decision also
involves a significant investment of time
and money on the part of these
exchange visitors. It is, therefore,
essential that sponsors—and host
entities and third parties working with
sponsors—take all necessary steps to
ensure that every exchange visitor
enjoys a safe, rewarding, enjoyable, and
memorable U.S. exchange experience.
Sponsors and host entities play vital
roles in the success of the program. This
proposed rulemaking is intended to
promulgate new minimum standards,
clearly articulate program requirements,
and advance consistency throughout the
program.
The Department’s insight from its
monitoring role, as well as from
complaints, incidents, and lessons
learned, informs the contents of this
rulemaking. The Department has
interviewed thousands of exchange
visitors and host entities taking part in
the SWT program and interacts
regularly with program sponsors. The
proposed rule’s provisions are intended
to improve the program as, first and
foremost, a cultural exchange and
public diplomacy program of the
highest quality. As a private sector
exchange model, the program’s success
is based on creating standards of
practice common across all sponsors. In
many cases, the proposed requirements
are actions already being taken by some
sponsors. In others, the Department
views the requirement as essential to
protect the program and/or the exchange
visitor.
As a public diplomacy program,
exchange visitors’ successful experience
with this program will create lifelong
ambassadors of goodwill between the
United States and other countries. As
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such, the quality of the program for the
exchange visitor is the essential goal. In
addition, placement at a host entity
permits exchange visitors of all means
to know their host communities, engage
in cross-cultural activities, and travel.
Such exchange visitors also are
provided the opportunity to gain work
and English language skills and interact
with Americans in the workplace.
Sponsors must ensure that all parties
involved in this exchange commit to its
success.
First, sponsors must provide exchange
visitors with clear, easy-to-read
orientation materials and transparent
information on fees, costs, program
requirements, and wages; place
exchange visitors with only those host
entities that commit to advance the
foreign policy and cultural exchange
goals of the program; orient host entities
to inform them fully about the program;
place exchange visitors only with
suitable and permissible host entities
that provide appropriate compensation;
ensure that exchange visitors have easy
and convenient access to necessary
amenities such as grocery stores, post
offices, and public transportation;
monitor exchange visitors regularly as
required; update exchange visitor siteof-activity information in the Student
and Exchange Visitor Information
System (SEVIS) promptly as required;
and provide and facilitate cross-cultural
activities for all exchange visitors. In
addition, sponsors must carefully vet
and monitor the activities of their
domestic and third party organizations.
Second, sponsors must ensure that the
host entities they select contribute to the
program’s stated goals and know about
and agree to their role as part of a U.S.
public diplomacy program. This
includes requiring that host entities
ensure the exchange visitor’s quality of
experience in the United States and
protect the exchange visitor’s health,
safety, and welfare. Sponsors must place
exchange visitors with those host
entities that respect the benefits and
obligations the program places on
exchange visitors. In addition, sponsors
must place exchange visitors at host
entities that provide an experience
where exchange visitors have significant
contact with U.S. colleagues,
supervisors, and customers, gain new
skills, and increase their English
language proficiency through regular
use in their placements. Exchange
visitor host placement schedules should
accommodate reasonable time outside of
working hours for exchange visitors to
spend time with friends, tour the local
area, and practice English.
And third, sponsors must set
expectations for the exchange visitors
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they recruit so that they come to the
United States already understanding the
underlying cross-cultural purpose of the
program; their responsibility to fulfill
their program obligations as defined
through the Exchange Visitor Program
regulations by the Department and by
the rules set by their sponsor; the
necessity for them to abide by U.S. laws
during their programs; and also their
responsibilities toward their hosts, coworkers, and local U.S. community.
Exchange visitors who have an
enjoyable and productive experience
through the program become
ambassadors of goodwill and
understanding between their countries
and the United States.
In order to strengthen the Summer
Work Travel program, the Department
reviewed its implementation of the
program beginning in mid-2010.
Between 2010 and 2012, the Department
identified a number of regulatory
changes needed to better protect the
health, safety, and welfare of exchange
visitors, enhance the program’s crosscultural component, and strengthen
overall program administration. The
Department published an interim final
rule (IFR) with a request for comment
on April 26, 2011 (RIN 1400–AC79; see
76 FR 23177) (2011 IFR). Then, after
further monitoring program
implementation, the Department
published an IFR with a request for
comment on May 11, 2012 (RIN 1400–
AD14); see 77 FR 27593) (2012 IFR).
This rule addressed public comments
submitted to the 2011 IFR and became
effective immediately, with the
exception of one provision regarding
prohibited placements, which became
effective on November 2, 2012 (see also
77 FR 31724).
In promulgating this and previous
rulemakings, the Department continues
to advance a comprehensive rulemaking
strategy to: (i) Protect the health, safety,
and welfare of exchange visitors on this
important program; (ii) respond to
issues identified during monitoring and
ongoing oversight; (iii) articulate
consistent and robust minimum
standards for program administration;
(iv) prioritize the quality of the
exchange visitor experience; and (v)
fortify the program’s purpose as an
important U.S. public diplomacy tool.
Analysis of Comments Received on the
2012 IFR
The Department reviewed, analyzed,
and fully considered the comments
submitted for both the 2011 and 2012
IFRs. Comments received in response to
the 2011 IFR were analyzed and
addressed in the 2012 IFR (see 77 FR
27598–27600, 27602–27604), which
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responded to emerging program issues
requiring monitoring and enforcement.
Comments received in response to the
2012 IFR are addressed below. The 2012
IFR strengthened protections for
exchange visitors and reemphasized the
cross-cultural component of the
program, consistent with the
requirements of the Mutual Educational
and Cultural Exchange Act of 1961, as
amended (Pub. L. 87–256) (22 U.S.C.
2451, et seq.) (Fulbright-Hays Act), and
22 CFR 62.8(d).
The Department received comments
on the 2012 IFR from 171 parties,
including: 102 former exchange visitors
previously hosted in mobile concession
businesses; 21 leaders of different local,
county, and state fairs; ten organizations
representing and/or advocating for
trafficking victims, low- to-middleincome, migrant and guest workers,
unions, and/or civil rights; nine mobile
concession business owners that have
employed exchange visitors; eight
businesses associated with the mobile
amusement industry; seven trade
associations representing the mobile
amusement industry and/or mobile
concessionaires; one trade association
representing seafood processors; a
membership association of many of the
largest international educational and
cultural exchange organizations in the
United States; eight Departmentdesignated Summer Work Travel
program sponsors; two private U.S.
persons; one foreign entity working with
sponsors; and a commercial printing
business that has hosted exchange
visitors.
The Department received public
comment on the following 2012 IFR
provisions, all in 22 CFR part 62:
Program dates. The 2012 IFR and its
Supplementary section indicated that
the Department determines the program
dates for each country (see § 62.32(c)).
The Department establishes countryspecific program start and end dates
according to the academic year calendar
of each country’s ministeriallyrecognized post-secondary institutions
and may modify them as necessary. The
Department received three comments,
all of which proposed that the
Department continue to be open to
amendments to program start and end
dates. One commenting party suggested
that the Department establish bi-annual
reviews of the calendar for summer and
winter placements.
The Department currently conducts a
regular review of country-specific
program start- and end-dates and
believes that this review addresses these
comments by allowing sufficiently for
amendment of program dates. The
Department is always open to hearing
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from sponsors, participants, and other
members of the public about how
country-specific program dates affect
Summer Work Travel program
participants.
Termination of programs of
unresponsive exchange visitors. The
2012 IFR (see § 62.32(e)(9)) required
sponsors to provide exchange visitors
with information explaining that
sponsors will terminate the programs of
participants who fail to comply with
enumerated program regulations (e.g.,
reporting their arrivals, reporting
changes of residence, not starting work
at un-vetted jobs, responding to sponsor
monthly outreach/monitoring efforts).
The Department explained in the
Supplementary section of that
rulemaking that sponsors should
terminate the programs of exchange
visitors who do not report their arrival
in the United States within ten days.
The Department received six comments,
five of which disagreed with this
provision as overly punitive. They
explained that most exchange visitors
are at an age where it is common not to
follow administrative rules carefully,
that exchange visitors sometimes face
difficulties in contacting sponsors upon
arrival, and that port of entry
information is unreliable if an exchange
visitor arrives before his/her program
start date, rendering consistent
enforcement of this provision
impossible. One sponsor suggested that
exchange visitors should be terminated
only after they demonstrate a pattern of
uncommunicativeness.
The Department does not agree with
these comments. In order for sponsors to
ensure that an exchange visitor is
physically located at the site of program
placement, as is required by the
Department of Homeland Security, and
in order that sponsors may monitor the
health, safety, and welfare of that
exchange visitor at the placement site,
sponsors must know that the exchange
visitor is indeed present there. This
requires the exchange visitor to report
his or her arrival, as well as any
subsequent sites of activity, for example,
if the exchange visitor changes host
entities.
Sponsors can enhance the timeliness
of exchange visitor reporting by giving
them an effective pre-arrival orientation
about the necessity of and usable
methods for reporting U.S arrival to
their sponsor. Sponsors must explain to
exchange visitors as part of their
orientation that site of activity
notification in SEVIS is a Department of
Homeland Security requirement and
that the sponsor is also authorized
under § 62.40(a)(3) to terminate
exchange visitors who violate the
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Exchange Visitor Program regulations
and sponsors’ rules governing the
program. Exchange visitors are assigned
by their sponsors to report to their
initial assignment on the date they are
expected to report and then have ten
days to notify their sponsor that they
have arrived. In addition, exchange
visitors have this same period of time to
notify their sponsor to update their
contact information each time they
undergo a host entity or housing change,
which the Department believes is a
sufficient time-period for such
notification. This provision has not
changed in this proposed rule.
Cross-cultural component. The 2012
IFR required that sponsors plan,
initialize, and carry out events or other
activities that provide exchange visitors
exposure to U.S. culture (§ 62.32(f); see
also § 62.8(d)). The Department received
nine comments, four of which disagreed
with this provision. Two commenting
parties supported this new requirement,
but recommended that the Department
provide for a two-year unofficial pilot
period of the cross-cultural component
to test ways sponsors can most
effectively provide and facilitate these
cross-cultural experiences. Other
commenters disagreed with or
expressed reservations about the crosscultural component requirement, stating
that the Department failed to take into
account the natural cross-cultural
exchange of day-to-day work life and
interactions provided by the Summer
Work Travel program. In contrast,
another party commented that this
provision is critical to protecting the
exchange visitors and the integrity of
the Summer Work Travel program.
Another commenter agreed with the
addition of a cross-cultural component,
but contended that the cross-cultural
requirement is so vaguely defined as to
be meaningless.
The Department maintains its strong
belief that an organized cross-cultural
component is necessary for the
fulfillment of the Summer Work Travel
category’s purpose as a cultural and
educational exchange and U.S. public
diplomacy program. Following the
publication of the 2012 IFR, the
Department provided all sponsors with
a guide to cross-cultural programming,
and the Department has consistently
sought and highlighted examples of
successful cross-cultural programming
to share with the sponsor community.
The Department requires sponsors and
their host entities to create
opportunities to provide cross-cultural
programming for exchange visitors. In
the proposed rule, this requirement has
been set at a minimum of once per
month in order to more clearly define
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the requirement and respond to sponsor
inquiries since publication of the 2012
IFR about what was an adequate amount
of cross-cultural programming. The
Department will continue to work with
sponsors to facilitate successful
implementation of cross-cultural
programming requirements, including
by issuing guidance outlining best
practices.
Since the 2012 IFR went into effect,
many sponsors (approximately 42
percent according to Department
records) have already put policies in
place to implement, either directly or
through host entities, cross-cultural
activities for exchange visitors.
Organizing a cross-cultural activity for
exchange visitors is not especially
complex; there are many possible
activities that can make use of local
resources and community events and
that are not especially costly. Some
examples organized by either sponsors
or host entities over the last year of the
Summer Work Travel program are noted
under point 16 of the proposed rule
discussion below.
72-hour deadline for vetting host
placements. The 2012 IFR required that
sponsors confirm initial host
placements and re-placements for all
exchange visitors before exchange
visitors could start work by verifying, at
a minimum, the terms and conditions of
such employment and fully vetting their
host entities as set forth at § 62.32(g)(2).
If an exchange visitor in in the United
States finds his or her own host replacement, sponsors must vet that host
re-placement within 72-hours. The
Department received nine comments, all
in opposition to the 72-hour deadline,
which they viewed as unrealistic.
Commenters explained that host replacement vetting is a time-consuming
and multi-step process, and it is
particularly challenging when the 72hour timeframe falls over a weekend
when host entities are difficult to
contact and sponsor staff is not available
to carry out all required steps of proper
vetting; they proposed changing the
deadline to three business days.
The Department agrees to propose a
change to the vetting deadline to three
business days, as provided in proposed
paragraph § 62.32(h)(1). Sponsors have
systems in place for vetting host
entities, and the Department believes
that three days are sufficient for the
sponsor to check a host entity’s location
and suitability and conduct a
background check on that entity, so that
the exchange visitor can begin his or her
new placement as soon as possible
thereafter.
Housing and transportation. The 2012
IFR required that sponsors actively and
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immediately assist exchange visitors
with arranging appropriate housing and
identifying appropriate local
transportation when host entities do not
offer housing and local transportation
(see § 62.32(g)(9)(i)), or when exchange
visitors decide to ask for assistance after
initially declining host entity-provided
housing. The Department received four
comments from sponsors on the topic of
housing. Some sought clarification on
what specific measures the Department
intends with regard to sponsors’
assisting exchange visitors with their
housing, while others questioned the
feasibility of sponsors’ providing an
additional level of housing assistance.
One commenter expressed support for
the requirement that sponsors assist
exchange visitors to ensure appropriate
housing and suitable local
transportation. However, others
disagreed. One commenting party
explained that sponsor assistance
should be limited in scope to informing
exchange visitors of their rights,
explaining types of housing and local
transportation, reasonably investigating
allegations of unsafe or inadequate
housing, and offering additional
assistance and guidance as appropriate.
Other commenters worried about
increased costs if sponsors are required
to provide exchange visitors with
suitable housing. Some noted that
sponsors may have to put down
deposits to secure housing even before
knowing whether exchange visitors
have received visas. Still other
commenters stated that exchange
visitors are not minors and may
willingly choose substandard housing to
save money unless the Department
imposes penalties on exchange visitors
who choose to do so.
The Department continues to respond
to serious concerns about housing and
local transportation. The Department
maintains that a placement is
appropriate only if it includes safe and
affordable housing accommodation, as
well as readily available local
transportation. Host entities are a
resource for identifying both housing
and local transportation options. Due to
the reality that poor housing and lack of
local transportation may prove
disastrous to an exchange visitor’s
experience or well-being, sponsors must
only approve placements for exchange
visitors that include an identification of
safe and affordable housing that is
within reasonable distance from the
exchange visitor’s host entity(ies), in a
location that is neither isolated nor
difficult to access, and in reasonable
proximity to commercial infrastructure
and necessities. Sponsors or their host
entities must identify, but are not
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obligated to fund, such housing and
local transportation as part of the
placement selection. Sponsors placing
exchange visitors in remote national
park, summer camp, or resort locations
must document the host entity’s written
arrangement for transportation for those
exchange visitors during their off hours
and in case of emergency. At times,
exchange visitors will identify housing
themselves. Sponsors must verify that
any housing option selected is safe,
affordable, and otherwise appropriate,
including from a local transportation
perspective.
The Department proposes a number of
changes to better ensure access to
appropriate housing and local
transportation, as set forth in proposed
paragraph 62.32(l) and discussed later
in this section.
Expansion of excluded host
placements. The 2012 IFR expanded the
program exclusion list of host
placements (see § 62.32(h)) by adding to
that list host placements that raise
concerns for the health, safety, and
welfare of exchange visitors and the
integrity of the Summer Work Travel
program, and that generally cannot meet
the cross-cultural exchange requirement
(see, for example, proposed paragraph
62.32(o)). Comments on specific
prohibitions follow:
Exclusion of host placements
requiring driver’s licenses. The 2012 IFR
excluded positions that require driving
or operating vehicles for which driver’s
licenses are required (§ 62.32(h)(5)). The
Department received 11 comments,
seven of which disagreed with this
prohibition. Some commenters
understood the prohibition of drivingintensive host placements, but did not
believe it necessary to exclude host
placements that require occasional
driving on non-public roads or host
placements that incidentally require
exchange visitors to drive, such as
positions as bellhops and valet parking
attendants.
In the Department’s view, prohibiting
exchange visitors, on behalf of their host
entity, from driving or operating
vehicles on public roads for which a
driver’s license is required, however
incidental this driving activity may be,
helps mitigate the risk to the health,
safety and welfare of the exchange
visitors. Moreover, should an exchange
visitor collide with another driver or a
pedestrian while driving or be hit by
another vehicle on a public road, the
exchange visitor may become involved
with insurance companies and/or law
enforcement, leading to potentially
serious consequences for the exchange
visitor. (See proposed paragraph
62.32(k)(10)).
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Exclusion of host placements deemed
hazardous to youth. The 2012 IFR
prohibited positions and activities
declared hazardous to youth by the U.S.
Secretary of Labor (§ 62.32(h)(9)). The
Department received five comments,
two of which disagreed with this
prohibition. One commenter disagreed
with the prohibition of such host
placements because the Secretary of
Labor’s list is intended for minors,
while the majority of exchange visitors
on the Summer Work Travel program
are not minors. While a second
commenter generally disagreed with
these exclusions, three other
commenters stated that the Secretary’s
list provides a useful guide for sponsors
in making appropriate placements. A
commenter also noted that the
Department should not bar host
placements in which exchange visitors
conduct hair braiding and henna
tattooing, activities generally not seen as
dangerous but that are incidental to
some summer host placements.
One of the primary goals of the 2012
IFR was to mitigate risks to the health,
safety and welfare of exchange visitors.
The Department believes that, regardless
of the fact that most exchange visitors
are not minors, the Secretary of Labor’s
list provides a sensible, easy-to-use
directory of host placements that are
potentially dangerous and are thus
inappropriate for post-secondary
students working in the United States
on a cultural and educational exchange
program. Proposed paragraph
62.32(k)(13) continues to refer to the
Secretary of Labor’s list at 29 CFR part
570 (https://www.ecfr.gov/cgi-bin/textidx?tpl=/ecfrbrowse/Title29/29cfr570_
main_02.tpl), and puts in place
additional prohibited positions to those
specified in the 2012 Summer Work
Travel program interim final rule.
Exclusion of placements with
traveling fairs and itinerant
concessionaires. The 2012 IFR
prohibited placements in positions with
traveling fairs and itinerant
concessionaires (§ 62.32(w)(14)). Host
placements in the mobile amusement
and mobile concession industries are
overly burdensome to monitor, and
have, in specific instances, created
unacceptably high risks to the health,
safety, and welfare of exchange visitors,
largely as a consequence of the mobile
nature of the worksite. The Department
received 151 comments, 147 of which
disagreed with this prohibition.
Comments in opposition were
submitted by: 102 former exchange
visitors employed by mobile
concessionaires; 21 heads of different
local, county and state fairs; eight
businesses associated with the mobile
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amusement industry; seven
organizations representing the mobile
amusement industry and/or mobile
concessionaires; and nine mobile
concession business owners.
Commenters argued that the
prohibition of host placements in an
entire industry because of the actions of
a few businesses within that industry is
unfair; that the traveling nature of such
host placements provides excellent
cross-cultural experiences; that modern
technology and the submittal of the
businesses’ itineraries make it possible
for exchange visitors to be accurately
tracked in SEVIS; that fairs’ charitable,
technological and agricultural
contributions depend on mobile
concessionaires and that this
relationship could be damaged by the
provisions of the 2012 IFR; and that the
timing of the 2012 IFR’s effective date
was unnecessarily and unacceptably
disruptive. Commenters also argued that
every host placement comes with risks,
and that the 2012 IFR’s prohibitions
were overreactions to negative press.
The Department respectfully disagrees
with these comments. The purpose of
the Exchange Visitor Program, including
the Summer Work Travel category, is
not to satisfy the labor needs of any
industry. The Department also has
received and cannot ignore serious
complaints about substandard housing
and other related inadequacies
associated with almost all host
placements in the mobile amusement
and mobile concession industries. In
addition, placement in these industries
entails frequent address changes that
require exchange visitors and their
sponsors to update SEVIS records
frequently to ensure accuracy and
maintain compliance with both
Department of State and Department of
Homeland Security regulations. Many
sponsors’ demonstrated lack of
compliance with these SEVIS reporting
requirements added to the Department’s
determination that these placements
pose a sufficiently high risk to the
health, safety, and welfare of exchange
visitors. Finally, if a sponsor does not
know where an exchange visitor is
residing, security risks arise for both the
exchange visitor and the general public.
A prohibition is, therefore, appropriate
(see proposed paragraph 62.32(k)(17)).
The Department does not propose
substantial changes to this section in
response to comments. It proposes only
to change the term to identify this
industry as ‘‘traveling fairs and itinerant
concessionaires,’’ rather than ‘‘mobile
amusement or mobile concessionaire
industries.’’
Exchange visitor compensation. The
2012 IFR reinserted language
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inadvertently omitted in the 2011 IFR
that mandates exchange visitor
compensation at the highest of the
applicable federal, state, or local
minimum wage (see § 62.32(i)(1) and
proposed paragraph 62.32(f)(6)(i)). The
Department received five comments
urging further protections to ensure
adequate exchange visitor
compensation. Three commenters
expressed concern that the language as
written does not explicitly guarantee
compensation equal to federal, state, or
local wages in host placements exempt
from minimum wage requirements in
the Fair Labor Standards Act (FLSA) of
1938. Two commenting parties stated
that, unless sponsors are actually
penalized for placing exchange visitors
with host entities that fail to provide
exchange visitors with sufficient pay, no
additional compensation rules will be
effective. In addition, the Department
received two comments suggesting that
exchange visitor wage levels be set at
the same level that U.S. persons receive
for doing the same work.
The Department wishes to ensure that
exchange visitors on the Summer Work
Travel program will be able to meet the
financial obligations they incur as part
of their exchange experience. The
Department proposes to retain the
requirement from the 2012 IFR, with
slight editorial changes. Proposed
paragraph 62.32(m)(1)(i) requires that
sponsors must inform exchange visitors
of federal, state, and local minimum
wage requirements, and proposed
paragraph 62.32(f)(6)(i)-(ii) requires that,
in their host placement(s), exchange
visitors receive pay and benefits
commensurate with those offered to
their U.S. counterparts and/or those on
another class of nonimmigrant visa, as
applicable, doing the same or similar
work in the same work setting, and not
less than the federal, state, or local
minimum wage, whichever is highest,
for all hours worked (including
overtime) in conformance with federal,
state, and local laws, including the Fair
Labor Standards Act. Host entities may
reasonably offer an exchange visitor
wages commensurate with those of a
qualified, experienced, or fully
competent U.S. worker or worker on
another visa class, only after
considering the experience, education,
and skill requirements of the position.
Additional protections for U.S.
workers. The 2012 IFR introduced new
protections for U.S. workers by
requiring sponsors to confirm that host
entities of exchange visitors: (1) Do not
displace U.S. workers at the worksite in
which exchange visitors are placed
(§ 62.32(n)(3)(ii)); (2) have not
experienced layoffs in the past 120 days
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(§ 62.32(n)(3)(iii)); and (3) do not have
workers on lockout or on strike
(§ 62.32(n)(3)(iii)). The Department
received eight comments, all of which
agree with the new provisions or call for
further protections for U.S. workers.
One commenting party proposed
requiring a Department of Laborcertified prevailing wage that protects
U.S. workers from the depressive effects
of foreign labor.
The Department agrees with the need
to have exchange visitors’ compensation
and benefits be commensurate with
those offered to their U.S. counterparts
doing the same or similar work in the
same work setting and having similar
qualifications and experience (and that
exchange visitors should receive the
same compensation and benefits as
those on another class of nonimmigrant
visa if they are doing the same or similar
work in the same work setting and have
similar qualifications and experience),
as well as providing for greater
transparency in wages and work-related
costs. See changes set forth in proposed
paragraph 62.32(f)(6)(i) and (ii).
Proposed Changes
The Department has worked to engage
Summer Work Travel stakeholders,
listening to their views about program
improvement and considering their
comments in drafting this proposed
rule. The Department was represented at
annual international conferences
attended by a large number of sponsors
and foreign partners throughout the
2012–2016 period. It hosted sponsor
conference calls in June and August
2012, and again in January 2013 and
May 2014, for all Summer Work Travel
program sponsors to discuss program
administration improvements, best
practices, host and housing placement
concerns, and the Department’s notional
timeline of this proposed rulemaking.
The Department held two dialogue
meetings for Summer Work Travel
sponsors in late summer and in early
fall 2013, and another dialogue session
in fall 2015.
Furthermore, the Department has
observed a great variety of Summer
Work Travel placements through a
monitoring program that it instituted in
2012. Throughout summer 2012, the
Department conducted 650 Summer
Work Travel site visits in 31 U.S. states.
In summer 2013, the Department visited
667 sites in 32 states. In summer 2014,
the Department visited 676 sites in 33
states. In 2015, the Department visited
985 sites in 42 states and the District of
Columbia. In summer 2016, the
Department visited sites of activity
hosting 1,246 Summer Work Travel
participants in 36 states. Program
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monitoring through site visits includes
interviewing exchange visitors and
visiting their host placement sites and
housing. In addition, in August 2013,
the Department sent surveys directly to
some 15,000 exchange visitors in the
Summer Work Travel program in order
to learn about exchange visitor
perspectives on their program and
received nearly 4,000 responses, for a 25
percent response rate. The Department
has made a determined effort to
catalogue program successes, and in
2014 and 2015 publicly highlighted
these success stories. Observations from
site visits, the study of best practices,
and the Department’s robust interaction
with sponsors contributed directly to
the content of this proposed rulemaking.
The Department invites public
comment on the proposed regulatory
changes set forth below. Provisions of
the proposed regulation have been
organized to follow the general
sequence of administering the Summer
Work Travel program. In your response,
please number comments to coincide
with the following topics:
1. Definitions. The Department
includes in proposed paragraph 62.32(b)
definitions of ‘‘host entity,’’ ‘‘host
placement,’’ ‘‘seasonal nature,’’ and
‘‘temporary nature.’’ These definitions
provide clarity in areas important to the
Summer Work Travel program that are
in common use by the Department and
the sponsor community, but which, up
until now, have not been defined. The
Department in this rulemaking seeks to
define these terms narrowly in terms of
their application only to the Summer
Work Travel category of exchange.
2. General sponsor responsibilities.
Due to the variations in sponsor
program administration, particularly
with respect to relationships with third
parties, the Department delineates in
proposed paragraph 62.32(d) a sponsor’s
general program responsibilities and
those responsibilities it is permitted to
delegate to its foreign and domestic
third parties. Sponsors are directly
responsible for screening; making the
final selection of exchange visitors;
placing and re-placing exchange
visitors; issuing Forms DS–7007 and
DS–2019; orienting host entities;
finding, approving and verifying
exchange visitor housing; and
conducting monitoring of exchange
visitors and their host placements
within the United States. These
activities must be done by employees of
the sponsor. In addition, the sponsor
must make provision for pre-departure
and post-arrival orientations in
accordance with § 62.10(b) and (c). A
sponsor may conduct a pre-arrival
orientation directly and/or through a
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foreign third party. A sponsor may
conduct a post-arrival orientation
directly and/or through the host entity.
Sponsors should encourage their host
entities to provide exchange visitors
with a post-arrival local orientation in
order to acquaint exchange visitors with
resources, financial institutions,
possible cross-cultural activities,
evacuation and other safety procedures,
and so forth, in their specific host
community.
The use of third parties may serve as
an important benefit to a program;
however, it represents some risk to
sponsors, who are responsible for the
actions of their third parties. A sponsor
may use foreign third parties for
recruitment, initial identification of host
entities, and overseas orientation of
exchange visitors. A sponsor may use
domestic third parties for initial
identification of host entities,
implementation of cross-cultural
activities for exchange visitors,
providing a local point of contact or
local orientation for exchange visitors,
providing housing assistance, and
offering transportation options for
exchange visitors.
A host entity (i.e., where exchange
visitors are placed) is not considered to
be a domestic third party. There are
separate regulatory requirements that
apply to a sponsor’s selection of and
relationship with host entities.
The Department reminds sponsors
that third parties that work with
sponsors in administering the program
are always deemed to be acting on that
sponsor’s behalf when conducting
aspects of the sponsor’s exchange visitor
program, and their actions are imputed
to the sponsor as set forth in § 62.2
(Definitions; Third party) and as
provided in proposed paragraph
62.32(d)(5). Sponsors must ensure that
any fees they or their third parties
charge are legal. For example, fees that
sponsors charge to provide program
services to participants, such as
application fees or related document
translation fees to prove program
eligibility as a student or a very recent
student, would be permitted. But any
fees that require an exchange visitor to
remit a portion of his or her earnings in
the United States to overseas private
entities are not permitted. Sponsors
must ensure that fees be clearly
disclosed and that they and their third
parties document all aspects of their
administration of the exchange visitor
program, retaining this documentation
on file for three years.
3. Exchange visitor recruitment.
Because the Department of State
authorizes this program for the purposes
of public diplomacy and global
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engagement with young adults, the
Department is particularly mindful of
sponsor or foreign third party marketing
and promotional efforts that
inaccurately characterize the program as
solely one with a work component. This
program is an international cultural and
educational exchange program, not a
program to recruit aliens to work in U.S.
businesses. The success of this program
derives from exchange visitors’
acquiring cross-cultural knowledge,
gaining English language skills, and
making ties that benefit the United
States and the countries to which they
return after their exchange. In order to
create consistency and appropriate
industry practice, the Department has
included a requirement in proposed
paragraph 62.32(d)(8) that would ensure
sponsors promote the Summer Work
Travel program as a cultural and
educational program and recruit
applicants and host entities
appropriately. Sponsors must cooperate
only with foreign third parties that
abide by this requirement through both
their communications with, and the
marketing materials they distribute to,
potential exchange visitors abroad.
In addition, in the proposed rule, the
Department addresses recurring issues
regarding the lack of transparency in
program costs, including fees charged to
exchange visitors by sponsors, foreign
and domestic third parties, and host
entities, deductions from wages, and
other program-related costs. The
General Provisions (Subpart A) of 22
CFR part 62 create an initial
requirement regarding fee transparency
for the Exchange Visitor Program in
general (as set forth in § 62.9(d)), and
the Department proposes to create
additional administrative requirements
for the Summer Work Travel category.
Exchange visitors recruited into the
program must be made aware, at the
time of their recruitment, what fees are
charged by sponsors and any third party
organizations with which sponsors work
and estimated other costs the exchange
visitor will likely incur. Proposed
paragraph 62.32(d)(9), therefore, would
require each sponsor to include in its
recruiting material, and post on its main
Web site (e.g., with a visible link to such
a page on the sponsor’s homepage),
examples of the typical monthly budgets
of exchange visitors placed in various
regions of the United States to illustrate
wages (based on the required weekly
minimum of 32-hours of work at a
typical host placement) balanced against
itemized fees and estimated costs.
Providing exchange visitors with such
information better ensures that they
fully understand the financial
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obligations they assume when choosing
to participate in the program. This is
especially important since the earnings
of exchange visitors are likely to defray
only some of the costs they will incur
during their exchange opportunity.
4. Exchange visitor screening and
selection. The Summer Work Travel
Program requires exchange visitors to
exercise great responsibility while in the
United States. Exchange visitors must
adjust to life in a new culture, accustom
themselves to a new work environment,
and understand all their rights and
responsibilities as exchange visitors in a
workplace setting. The Department,
therefore, has included in proposed
paragraph 62.32(e)(1), the following
eligibility requirements: Exchange
visitors must be at least 18 years old by
their Summer Work Travel program
start date. In addition, at the time they
file their program applications,
prospective exchange visitors must be
foreign nationals enrolled in and
actively pursuing a full-time course of
study toward a degree at a classroombased post-secondary academic
institution that is physically located
outside the United States and
ministerially-recognized within the
national education system where the
student is enrolled (including final year
students).
Repeat participation has both benefits
and drawbacks. In seeking to create the
appropriate balance, the Department
proposes at § 62.32(e)(1)(iii) to limit to
three the total number of times an
exchange visitor is permitted to
participate in the Summer Work Travel
program during his or her postsecondary education career. The
Department has observed the value of
repeat participation, including
solidifying a relationship between a host
and exchange visitor, and enabling an
exchange visitor to continue building
skills while gaining exposure to an even
greater diversity of U.S. culture, society
and tourism. The Department also has
observed the drawbacks of repeat
participation, where some exchange
visitors with more knowledge of the
United States and the Summer Work
Travel program have been encouraged to
repeat their program participation in
order to organize for host entities or
other entities activities forbidden by
regulation. In limiting participation in
the program to three visits, the
Department notes that the working
holiday programs of 20 other countries,
the programs that are most comparable
to the Summer Work Travel program,
restrict participation to a single work
and travel visit. In several other
countries, working holiday programs are
restricted to two visits. The Department
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is interested in maximizing the number
of individuals who gain exposure to the
Summer Work Travel program, given its
nature as an exchange program.
Moreover, previous participation in the
program will not limit exchange visitors
from participating in other applicable
categories of the Exchange Visitor
Program.
The Summer Work Travel program
permits exchange visitors to practice
and enhance their English language
skills; effectuates both the Department’s
public diplomacy goals and the
legislative intent of the Fulbright-Hays
Act, which enables the U.S. government
to establish programs that promote
mutual understanding between the
people of the United States and people
of other countries by means of
educational and cultural exchange (22
U.S.C. 2451). The Department requires
sponsors to review the applications of,
interview, and select those applicants
who have a level of English language
proficiency that would enable them to
be understood by co-workers and
community members, discuss their
personal backgrounds, and comprehend
safety, work, housing, and
transportation-related instructions. In
addition, because participation in crosscultural activities is a main purpose for
the Summer Work Travel program,
proposed paragraph 62.32(e)(1)(v)
requires sponsors to select exchange
visitors who evidence an intention, for
example, in their written application or
interview, to participate in such
activities while in the United States.
This requirement is important toward
ensuring that exchange visitors
participate in the program for the
correct reasons, and will have the
interest and prior learning experience
necessary to succeed in the program to
which they applied.
Proposed paragraph 62.32(e)(2)
specifies that, prior to selecting
exchange visitors, sponsors must
conduct interviews with them in person
or by video-conference and, upon
request, facilitate videoconferences
between exchange visitors and host
entities in order that these parties can
learn about one another prior to the
exchange.
5. Exchange visitor placement.
Finding an appropriate host placement
for each exchange visitor is one of the
most important decisions a sponsor
must make. In proposed paragraph
62.32(f), the Department summarizes the
responsibilities of sponsors in securing
a host placement for each exchange
visitor. Among these requirements are
that host placements be seasonal and
temporary in nature, require minimal
training, and be interactive. Interaction
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and use of English language during the
regular course of the day can help
achieve the central goals of the Summer
Work Travel program: Relationshipbuilding, cultural exchange, and English
language proficiency. Thus, as provided
in proposed paragraph 62.32(f)(iii),
sponsors must ensure that all
placements permit daily personal
interaction with customers and/or
American co-workers as an integral part
of the placement. The Department seeks
to avoid, as part of this program,
positions that provide little to no
language exposure or skill acquisition,
and that are inappropriate for a cultural
and educational exchange program.
Such positions do not fulfill the stated
goals of the program. Sponsors must be
able to ensure that host entities make
appropriate accommodation to meet this
objective.
For example, one observed best
practice was a host entity that, rather
than retain one individual solely on
dishwashing, a task the host felt offered
little interpersonal interaction, rotated
restaurant staff and exchange visitors
through this task in order to offer each
person a variety of assignments.
Additionally, the Department has no
objection to exchange visitors working
alongside foreign nationals in other visa
categories, as long as the exchange
visitors with similar qualifications and
experience receive the same
compensation and exchange visitor
employment does not have an adverse
effect on U.S. workers. The Summer
Work Travel program serves to create
long-term relationships between
Americans and program participants,
and working alongside U.S. workers is
essential to the achievement of that goal.
Pre-placement. The Department
engages with host communities where
exchange visitors are housed. It has
learned that overcrowding in some
communities can become a major
problem where exchange visitors who
are not pre-placed arrive unannounced
and unexpected. Seasonal communities
struggle to identify affordable and
appropriate housing for those who are
pre-placed. In the worst cases, exchange
visitors live in overcrowded
accommodations, and some even have
been left homeless. These situations
defeat the purposes of the exchange
visitor program, bring notoriety, and can
generate tensions within communities.
Accordingly, the Department proposes
in paragraph 62.32(f)(1) to extend the
applicability of existing pre-placement
requirements so that they pertain to
exchange visitors from all countries,
rather than only exchange visitors from
non-Visa Waiver Program countries, as
is currently so under § 62.32(g)(10).
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Prior to July 15, 2011 (the effective
date of the 2011 IFR), sponsors were
required to allow no more than half of
their Summer Work Travel exchange
visitors to enter the United States
without pre-arranged host placements.
Since July 15, 2011, sponsors have been
required to pre-place all exchange
visitors except those from Visa Waiver
Program countries. Requiring uniform
pre-placement in positions with a vetted
host placement prior to exchange visitor
receipt of a Form DS–2019 will permit
host entities and local communities to
prepare for exchange visitor arrival,
allow sponsors to ensure that each
placement is with a host who has been
oriented in advance and is committed to
the goals of the program, and reduce the
potential for temporary housing or
overcrowding. Finally, requiring preplacement will reduce the number of
exchange visitors from Visa Waiver
Program countries who never get host
placements during their stay in the
United States, estimated according to
Department records to be around 10
percent of exchange visitors from all
Visa Waiver Program countries. The
Department also believes that a 100
percent pre-placement requirement will
better ensure that proposed expanded
host placement requirements are met.
Host entity orientation. A sponsor’s
engaging the host entity in welcoming
the exchange visitor, providing the
exchange visitor with a positive
experience while in the United States,
and connecting with that exchange
visitor to provide cross-cultural
activities are all fundamental elements
of the Summer Work Travel program’s
mission as one of exchange. Many
sponsors have created orientations for
host entities. The Department sees this
as a positive trend, and proposes in
paragraph 62.32(f)(1)(x) that all sponsors
be required to orient host entities (e.g.,
in person, online, through CD or DVD,
through teleconference), clearly
explaining to them the public
diplomacy purpose and requirements of
the program and the host entity’s duties
during the program and toward the
exchange visitor. Sponsors must explain
program regulations and policy to host
entities so that they may be wellinformed at all times about the program.
Remote placements. The Department
receives reports of emergencies and
urgent situations from sponsors,
exchange visitors, host entities, and
members of the public. If serious
incidents occur regarding the host
placement, host entities are responsible
for supervision of and immediate
assistance to their exchange visitors in
such circumstances. However, sponsors
with a presence near and/or that have
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arrived immediately to the location of
an emergency have had the most
success in assisting all parties,
including host entities, in such
situations, during which major
programmatic decisions may need to be
made. The Department proposes in
paragraph 62.32(f)(1)(xii) that each
exchange visitor be placed in a location
that the sponsor’s employee or
representative is able to reach in-person
within eight hours (i.e., within one
business day), through any reliable
transportation means. Each sponsor
should plan how its staff or
representatives would reach exchange
visitors placed in more isolated
locations where there is limited
transportation, and who in the sponsor
organization is to be responsible for
reaching the exchange visitor in such
circumstances.
The Department has monitored
placements that are isolated, with little
to no infrastructure nearby, and where
a sponsor has not visited prior to the
placement. The Department has
concluded that sponsors should take
great care when placing exchange
visitors in locations that are far from
commercial infrastructure and
transportation options, and in those
instances, host entities should assume
responsibility for ensuring sufficient
local transportation for the exchange
visitor to meaningfully experience U.S.
culture and cross-cultural activities.
The Department has seen successful
placement of exchange visitors at
summer camps and national parks,
which may be a distance from
commercial infrastructure. In those
instances, the host entities made
arrangements for cross-cultural outings,
shopping excursions, emergency
evacuation if needed, and so forth.
Sponsor ownership by host entity.
Host entities that either partially or
wholly own the sponsor, and sponsors
that wholly or partly own the host
entity, must under proposed paragraph
62.32(f)(2) divulge that relationship to
the Department and retain or make
available an independent and neutral
entity, such as an ombudsperson, to act
as an advocate for the exchange visitor
should the Department determine there
is a need. This is important because a
sponsor that is owned by the host entity
at which the exchange visitor is placed
may not be able to act impartially or
advocate for the exchange visitor in a
dispute between the exchange visitor
and the host entity. For example, if an
exchange visitor were to complain of
alleged legally non-compliant conduct
on the part of the host entity (such as
requiring the exchange visitor to
conduct unauthorized activities in the
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host placement) and seek redress from
the sponsor, the host entity that owns
the sponsor could exert pressure on that
sponsor not to respond to the exchange
visitor’s request. In this and other cases,
an independent or neutral entity could
serve as an advocate for the exchange
visitor, as the sponsor and host entity
are not well placed to adopt this role
since, by definition, the sponsor and the
host entity have an inseparable business
relationship with each other.
Strikes at the host entity. At proposed
paragraph 62.32(f)(3), during the preplacement phase, sponsors must not
match exchange visitors with host
entities at which there is a strike (or
other labor dispute that the sponsor
reasonably believes would have a
negative impact on the exchange
visitor’s program) at the placement site.
If a strike (or other similar labor dispute)
occurs at the host entity in the location
where an exchange visitor’s host
placement has been finalized pending
the arrival of the exchange visitor or
where an exchange visitor is currently
carrying out the program, sponsors must
re-place the exchange visitor at a
different host entity immediately, to the
extent possible, but in any event, within
five business days. Exchange visitors
placed where there is a strike or other
such labor dispute will likely be
subjected daily to a tense work
environment that requires them either to
cross picket lines and work in the place
of striking employees or choose to join
a strike, which could lead to conflict
with management. Such work
environments at a host entity are not
conducive to the cross-cultural program
experience the Department wishes to
provide for its exchange visitors.
Hours. The Department has learned
that gaining sufficient work hours is a
significant concern to exchange visitors
on the Summer Work Travel program.
Many exchange visitors participate with
the intention of maximizing their days
and experiences, and become
despondent if they have too few hours
of work. Too few hours also may lead
exchange visitors to experience
difficulties with their financial
obligations. On the other hand, too
many hours may exhaust the exchange
visitor and leave little time for any other
activities.
The ideal situation would be for
exchange visitors to work 40-hour work
weeks, as is common in the United
States for full-time employees, but the
Department also understands that
seasonal employment ebbs and flows. In
order to create appropriate standards
and transparency, as well as protect
exchange visitors who expend
significant personal investment to
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participate, the Department proposes at
paragraph 62.32(f)(4) that sponsors
place exchange visitors only with host
entities that commit to provide
exchange visitors with no less than 32hours and no more than 65-hours of
permissible work per calendar week,
averaged over a two-week period, for all
work weeks of their placement. The
Department will allow a calculation of
hours averaged over a two-week period
to accommodate a measure of potential
irregularity in working hours from week
to week. Exchange visitors must be paid
overtime for hours completed,
calculated on a weekly basis, in
accordance with applicable federal,
state, and local laws. Because exchange
visitors have various motivations, the
Department will permit an opt-out
provision for the lower limit of hours
(32), if requested in writing by the
exchange visitor and acknowledged by
the sponsor. Recognizing that certain
host entities may not be able to
guarantee 32-hours consistently, the
Department would find appropriate
placement at two authorized host
entities simultaneously in order to meet
the 32-hour minimum. Each placement
must follow all regulatory requirements.
Over the years, the Department has
been made aware that an exchange
visitor’s hours may decline over the
course of the placement, causing
exchange visitors to seek other
unauthorized host placements. Should
an exchange visitor’s hours, averaged
over a two-week period, fall below the
32-hour weekly minimum for longer
than two weeks, the sponsor must assist
the exchange visitor to increase his or
her hours at the current host placement
or find a re-placement or an additional
placement to meet the required hour
minimum. If the exchange visitor’s
hours averaged over a two-week period
fall below the 32-hour weekly
minimum, the exchange visitor also has
the option to accept the belowminimum hours by indicating such to
the sponsor in writing; the sponsor must
acknowledge the communication.
Although the Department proposes at
paragraph 62.32(f)(4) to require a
minimum of 32-hours and a maximum
of 65-hours per calendar week for
authorized placements in the program,
the Department does allow for some
flexibility within that range in order to
accommodate the special needs of
seasonal placements. An exchange
visitor’s written consent is essential for
work below or beyond previously
agreed-upon hours. The importance of
mutual agreement and clarity in hours
and placement conditions is the
motivation for an amended Form DS–
7007.
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Both the host entity and the exchange
visitor will be subject to the requirement
of two weeks’ notice as set forth in
proposed paragraph 62.32(f)(4)(iii)) and
(iv) before changing central terms of the
host placement agreement. The
Department has learned that exchange
visitor no-shows or abandonment of jobs
are a major risk to the program, as host
entities are counting on and have
prepared for exchange visitor arrival.
Likewise, the Department has too often
been made aware of exchange visitors
who arrive at the agreed placement only
to be told that they have no job, or the
job they are provided upon arrival is not
the job to which they agreed. In order
to instill greater commitment and, thus,
higher quality exchange experiences,
consequences for failure to fulfill
requirements must exist on both sides.
An exchange visitor who abandons
the placement, has a delayed arrival, or
fails to arrive at the placement without
first notifying the sponsor and gaining
sponsor permission may be terminated
from the program. Similarly, a sponsor
may terminate from hosting exchange
visitors any host entity that fails to
provide the exchange visitor and
sponsor two-weeks of notice before
ending the placement, decreasing hours
below the 32-hour weekly minimum,
averaged over a two-week period, or
otherwise significantly changing agreedupon terms of the placement. The twoweek notice provision does not apply to
host entities in cases where the
exchange visitor fails to report to work
on a sustained basis (i.e., for longer than
ten days and without contacting the
sponsor and host entity supervisor and
receiving permission to be absent). The
above requirements are intended to
respond to sponsor concerns of noshows, and exchange visitor concerns of
significant changes to their placements
without their knowledge or advance
consent. (Proposed paragraph(f)(4)(iv)
states that the two-week requirement
does not apply to credible allegations of
conduct that could result in sanctions.)
In addition, once notified, the
exchange visitor must be given at a
minimum 72-hours to consider any
significant additional requirements or
changes that host entities wish to make
to the exchange visitor’s host placement,
such as new duties, departmental
relocation, or geographic relocation. An
exchange visitor cannot be required to
accept major program changes without
consent. As set forth in proposed
paragraph 62.32(m)(3), the sponsor must
inform host entities and exchange
visitors that, if an exchange visitor does
not agree to such requirements or
changes, he or she may continue with
his or her previous host placement
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duties or, if this is not possible, request
a re-placement by the sponsor. In the
Department’s experience, most sponsors
are able to complete the re-placement
vetting process for exchange visitors
(i.e., verifying the terms and conditions
of such employment and fully vetting
host entities) within the three day
period required by this proposed
rulemaking, so that the exchange visitor
may begin the re-placement position as
soon as possible thereafter. Sponsors
should expedite re-placements of
exchange visitors who refuse to take on
additional work requirements and wish,
as a consequence, to be re-placed, so
that exchange visitors are not required
by circumstances to stay in host
placements where they cannot or do not
wish to conduct additional or
alternative work requirements to those
listed on their Form DS–7007.
6. Compensation. The 2012 IFR
required sponsors to ensure that all
exchange visitors are compensated at
‘‘the applicable Federal, State, or Local
Minimum Wage (including overtime)’’
(77 FR 27610; § 62.32(i)). The
Department reiterates that sponsors
must ensure that host entities pay
exchange visitors an hourly wage not
less than the federal, state, or local
minimum wage, whichever is higher, for
all hours worked (including overtime)
in conformance with applicable federal,
state, and local laws, including the Fair
Labor Standards Act. This requirement
is retained in proposed paragraph
62.32(f)(6)(i), which will, in addition,
require sponsors to place exchange
visitors with host entities that agree to
provide exchange visitors with pay,
benefits, and working conditions
commensurate with those offered to
their U.S. counterparts and/or those on
another class of nonimmigrant visa
doing the same or similar work in the
same work setting if they have similar
qualifications and experience (see
proposed paragraph 62.32(f)(6)(ii)). The
Department does not wish host entities
to use exchange visitors as a way of
undercutting the wages of U.S. workers
or the wages of those workers who have
come to the United States after having
been accepted into non-immigrant labor
programs. Any host entity employing
exchange visitors should be advancing
the public diplomacy goal of the
program and willing to offer exchange
visitors an experience that is in keeping
with this program purpose. The sponsor
also must ensure that each exchange
visitor has advance knowledge of his or
her expected hourly earnings, enabling
the exchange visitor to plan accordingly
for living expenses (see proposed
paragraph 62.32(d)(9)). The hourly wage
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requirement is particularly important
for sponsors to monitor in certain
placements, such as summer camps,
where the exchange visitor’s room and
board are covered by the camp and
where hours of work may become
extended due to the setting.
Sponsors or host entities must
compensate eligible exchange visitors
for time spent in required training,
including applicable overtime (if the
exchange visitor is working more than
40-hours in a single work week), in
accordance with all applicable federal,
state, and local laws (see proposed
paragraph 62.32(f)(6)(i) and (ii)). For
trainings held in a city that is farther
than 60 miles away from the exchange
visitor’s site of activity (see proposed
paragraph 62.32(f)(11)), or where
exchange visitors are required by the
sponsor or host entity to stay overnight
at the training site, the sponsor or host
entity must compensate (either
themselves pay or reimburse the
exchange visitor) for related lodging
during the training.
In addition, as set forth in proposed
paragraph 62.32(f)(8), sponsors, in
accordance with the Fair Labor
Standards Act, must ensure that host
entities provide exchange visitors,
without charge or deposit, all uniforms,
tools, supplies, and equipment needed
to perform placement-required
activities. Finally, because the Summer
Work Travel Program is cultural and
educational, and not a work program,
and because exchange visitors are not in
the United States for sufficient time to
make use of union services, sponsors
must reimburse exchange visitors any
union dues that are required as part of
their host placement.
7. Door-to-door sales positions. The
Department is concerned that door-todoor sales positions may create
unsuitable risks for exchange visitors
because such positions involve living in
different housing from time to time and
visiting homes unannounced and
unrequested to sell products. Because
door-to-door sales have become highly
infrequent in this age of online sales,
household reaction to the exchange
visitor’s outreach may be uncertain. The
Department is aware that these positions
are highly interactive, offer professional
skills some exchange visitors are
seeking, and offer daily English
language usage. However, they tend to
require some travel of the exchange
visitor, usually within a pre-defined
area, and may require long and/or
irregular hours.
The Department thus requires in
proposed paragraph 62.32(g) that
sponsors placing exchange visitors in
door-to-door sales positions execute an
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agreement with each exchange visitor in
advance of the exchange visitor’s
acceptance of the host placement. This
agreement must explain host placement
duties and expectations, the
geographical area the placement will
encompass, how the purchase of any
necessary state or local permits will be
handled, how exchange visitors may
access pre-arranged housing while
traveling, and how, in accordance with
the Fair Labor Standards Act, exchange
visitors will be paid an hourly wage for
time spent in their arrival orientation
and be timely reimbursed for housing
and other necessary business costs
incurred while traveling on behalf of
their host entity. Sponsors also must
provide exchange visitors with an
orientation containing information on
safety considerations while selling doorto-door, how they will be supervised,
how to react when faced with possible
adverse situations (e.g., if potential
customers do not wish to buy offered
products), and how products that
customers do purchase will be
delivered, especially in light of the fact
that, in accordance with proposed
paragraph 62.32(k)(10), exchange
visitors are not permitted to drive.
Sponsors of exchange visitors working
in door-to-door sales must ensure, as set
forth in proposed paragraph
62.32(g)(2)(ii), that these exchange
visitors earn in each calendar week of
their program, averaged over a two-week
period, the equivalent of the applicable
federal, state, or local minimum wage
per hour through hourly pay or sales
profits, and receive pay and benefits
commensurate with those offered to
their U.S. counterparts and/or those on
another class of nonimmigrant visa with
similar qualifications and experience
doing the same or similar work in the
same work setting. The Department will
allow a calculation over a two-week
period to accommodate some
fluctuation in sales profits week-byweek. Exchange visitors engaged in
door-to-door sales must begin their sales
calls no earlier than 9:00 a.m. and end
their last sales call no later than 8:00
p.m. in their respective time zones.
In order to protect exchange visitors
from a situation where they may be
mistakenly taxed on funds collected for
a host entity’s business purposes,
sponsors must ensure, as set forth in
proposed paragraph 62.32(g)(2)(iii), that
customers make all checks and other
forms of payment directly payable to the
host entity, not to the exchange visitor.
In addition, proposed paragraph
62.32(g)(3) requires that sponsors honor
an exchange visitor’s reasonable request
for re-placement at a non-door-to-door
assignment.
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8. Exchange visitor host re-placement.
In paragraph 62.32(h), the Department
proposes to change the deadline for
sponsors to complete, at a minimum,
the vetting of host re-placements (i.e.,
verifying the terms and conditions of
such employment and fully vetting the
host entity) from 72-hours to three
business days. Sponsors also are
required to complete and secure the
requisite signatures on a new Form DS–
7007 prior to an exchange visitor’s
beginning work at a host re-placement.
The Department is of the view that
because exchange visitors have already
paid their sponsor to find them a viable
Summer Work Travel placement,
sponsors may not charge exchange
visitors additional fees at the time of replacement.
9. Sponsor vetting of host entities. The
private sector exchange model succeeds
only if sponsors respect their role as an
objective party seeking the best interests
of the program and commit to advancing
U.S. public diplomacy goals. Sponsors
must become knowledgeable about host
entity third parties through the vetting
process. Annual host entity vetting, as
currently required under the 2012 IFR
(§ 62.32(n)(2)) and as retained in
proposed paragraph 62.32(i)(1), works to
ensure that all placements are with
legitimate and reputable entities that
have reputable managers and
supervisors working with the exchange
visitor. As set forth in proposed
paragraph 62.32(j)(3), the Department
will impute to the sponsor the actions
of the host entity and any third parties
hired by a host entity to carry out the
exchange visitor’s program, whether or
not the host entity has disclosed that
third party to the sponsor.
10. Host entity cooperation. Because
the conditions of an exchange visitor’s
placement at his or her host entity may
have a significant impact upon the
opinion that exchange visitor develops
of the Summer Work Travel program
and of the United States, the
Department sees it as vital to create
consistent minimum standards to which
sponsors must adhere in their
authorization of host entities. The
Department proposes in paragraph
62.32(j)(1) and (2) that sponsors be
required to ensure that host entities
understand program regulations and
arrange or permit time for sponsor- or
host-entity-organized cross-cultural
activities for exchange visitors designed
to meet the Department’s cross-cultural
activity requirements. If hosts
understand their role in this public
diplomacy initiative, they are likely to
be more successful in hosting exchange
visitors.
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11. Protections for exchange visitors.
The Department is of the view, as
reflected in proposed paragraph
62.32(j)(6) that, in order for the
exchange visitor to be secure in his or
her possessions and have freedom of
movement, it is never appropriate for a
host entity to hold or withhold an
exchange visitor’s personal documents
without the exchange visitor’s advance
written permission. The Department,
through its program monitoring, has
seen instances where the host entity
seeks to retain exchange visitor
documents or forbid exchange visitor
communication until the exchange
visitor meets certain work requirements.
The Department believes that such host
entity conduct has largely ended as a
result of its monitoring, but wishes to
make clear that no sponsor or host
entity may retain the exchange visitor’s
Forms DS–2019 and DS–7007, money,
identification (including passport and
social security card), cellphone, flight
tickets, or any other personal property,
unless specifically requested in writing
(to include an itemized list), by the
exchange visitor. Such exchange visitor
authorization may be withdrawn at any
time in writing, at which time, the
sponsor or host entity must release the
documents and other items within 48hours. In addition, under proposed
paragraph 62.32(j)(5), a host entity must
never stand in the way of
communication between the exchange
visitor and his or her sponsor, or
prevent communication between the
exchange visitor and his or her family
and friends, or prevent communication
with any other person, while the
exchange visitor is not on duty. Finally,
sponsors or employees of a sponsor
must continue to follow the
requirements set forth in § 62.10(d)
regarding non-retaliation against an
exchange visitor.
12. Program exclusions. The
Department has witnessed improvement
in sponsor administration of the
program since its 2012 IFR, and the
quality of placements has improved
since the Department provided greater
clarity regarding appropriate working
conditions and inappropriate
placements. This regulation proposes to
expand the list of ‘‘program exclusions’’
as set forth in paragraph 62.32(k). In
both the 2011 and 2012 IFRs, the
Department increased the types of host
placements in which sponsors were no
longer permitted to place exchange
visitors. The Department deemed such
host placements as either being
fundamentally unsuitable for a cultural
and educational exchange program or
posing an unacceptably high risk to the
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health, safety or welfare of exchange
visitors. The Department proposes in
this rulemaking to expand this list to
include the following host placements:
Locations without possibility for
regular contact. The Department expects
sponsors to remain in contact with their
exchange visitors. Therefore, sponsors,
in accordance with proposed paragraph
62.32(k)(4), must not place exchange
visitors where regular and convenient
telephone and Internet communication
is not accessible. This is especially
important with regard to placements in
national parks and summer camps.
Staffing agencies. As set forth in
proposed paragraph 62.32(k)(7), a
sponsor must ensure that staffing/
employment agencies or similar entities
do not become inactive intermediaries
between the exchange visitor and the
host entity. In accordance with
proposed paragraph (k)(7), when such
an agency places exchange visitors, it
must provide daily supervision and
primary and onsite monitoring of the
exchange visitor’s work environment at
his or her host entity, and it must pay
the exchange visitor directly. If such an
agency is involved in the exchange
visitor’s program, it, along with the host
entity, must be vetted in accordance
with proposed paragraph 62.32(i).
Mobile amusement. Since publication
of the 2012 IFR, the Department has
become aware that the term ‘‘mobile
amusement’’ is used more widely and is
clearer than existing regulatory language
prohibiting positions in ‘‘traveling
fairs.’’ The Department accordingly
proposes in paragraph 62.32(k)(17) to
replace the term ‘‘traveling fairs’’ with
‘‘mobile amusement.’’ This regulation
retains the prohibition on placements in
the above industries due to a failure of
host entities in these industries in the
past to regularly update the exchange
visitors’ sites of activity, which is a
basic requirement of the program, and to
the fact that such exchange visitors,
through heavy travel in these industries,
never become established in a U.S. host
community where they may make U.S.
friends and engage in cultural activities
on a sustained basis.
Movers. The Department in paragraph
62.32(k)(20) proposes to prohibit host
placements in positions where exchange
visitors’ primary activity is the
movement of household or office goods.
Such positions can place exchange
visitors at risk of serious injury.
Repetitive motion jobs. The
Department in paragraph 62.32(k)(21)
proposes to prohibit host placements in
positions requiring repetitive motion,
including on an assembly line or in
certain factory-like settings. Host
placements that require exchange
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visitors to engage in repetitive motion
activities generally do not offer
exchange visitors the required
opportunity to interact frequently and
substantially with American co-workers
or customers. In addition, some
repetitive motion jobs, including certain
jobs on an assembly line or in certain
factory-like conditions, require working
with heavy machinery or dangerous
chemicals. These positions require a
great deal of focus on the task at hand
to avoid injury, which also takes away
from the opportunity for interaction
with American co-workers.
Waste management and custodian/
janitorial positions. The Department
proposes in paragraph 62.32(k)(22) to
prohibit host placements in any waste
management, janitorial, or custodial
positions or in any position that
involves more than a small percentage
(five percent of the hours or less) of
waste management duties or keeping the
premises of a building clean, tending to
the heating, plumbing or airconditioning system, or making building
repairs. Such positions are not suitable
for a cultural and educational exchange
program. The above types of duties may
be acceptable only if they are incidental
to other types of service placements and
comprise no more than the noted small
percentage of duties performed by the
exchange visitor.
Placements in non-seasonal or nontemporary positions: The Summer Work
Travel program permits sponsors to
place exchange visitors in seasonal or
temporary positions. The nature of the
position is determined by such factors
as whether a host entity has a
supplemental need for assistance;
whether it has an increase in financial
revenue, tourist, or seasonal customer
numbers; the number of months such a
peak includes within one calendar year;
the nature of recreational or crosscultural activities in the area or other
factors that might cause the peak need;
and whether the host entity has
conducted outreach to local residents
for employment.
Sole responsibility for safety of others.
In situations where an exchange visitor
would be solely responsible for the
safety of others, such as working as
lifeguards at single lifeguard pools,
exchange visitors may not be placed at
such host entities where the host entity
does not provide regular on-site or oncall supervision and reasonable time off
for exchange visitor breaks and meals.
(See proposed paragraph 62.32(k)(24)).
13. Exchange visitor housing and
local transportation. Issues involving
housing and local transportation
(between place of residence and place of
work) raise constant concerns both for
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the Department and for exchange
visitors, who file housing-related
complaints each year. In 2015, 16
percent of exchange visitors on the
Summer Work Travel program,
according to Department monitoring
surveys, said they were dissatisfied with
their housing and described their
housing as dirty, run-down, too
crowded, and unsuitable, and often
without cooking facilities. In some
instances, the Department received
complaints that exchange visitors
arrived in the United States to find that
the housing listed on their pre-departure
documents was unavailable or at
capacity. The Department also received
complaints about landlords who
engaged in rent-gouging, withheld
security deposits, and charged exchange
visitors outrageous amounts for normal
wear and tear at the end of the exchange
period before they left for home so that
they did not have to return exchange
visitor security deposits. Unavailable
and unsuitable housing appears to have
been the top issue of concern for
exchange visitors in both the 2014 and
2015 Summer Work Travel program
years.
The Department proposes to require
in paragraph 62.32(l)(1) that sponsors
may only authorize placements that
include options for safe and affordable
housing accommodation and accessible
modes of local transportation. Housing
options must have reasonable proximity
to the host entity and regular, safe, and
affordable local transportation options
leading to commercial infrastructure
and to the host entity, unless the
sponsor or host entity provides such
transportation. Possible housing and
local transportation options must be
identified before the placement is
approved as part of the sponsor’s
program. The specific conditions of the
housing option selected for the
exchange visitor by either the sponsor or
sponsor’s host entity, as applicable,
must be reflected on the Housing
Addendum to Form DS–7007 in
accordance with proposed paragraph
62.32(m).
The Department proposes to retain the
option for exchange visitors to selfidentify housing, but both the sponsor
and the exchange visitor must document
such a selection in writing (proposed
paragraph 62.32(l)(5)), and the sponsor
may deny the housing if it does not
include the characteristics set forth in
proposed paragraph 62.32(l)(2). All
housing, whether provided or found by
the exchange visitor, must meet all
applicable housing codes and
ordinances. It also must be affordable
for the exchange visitor; in a safe
location; within reasonable distance
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from the exchange visitor’s site of
activity at the host entity(ies); in an area
with regular, safe, and affordable
transportation options; in a location that
is neither isolated nor difficult to access;
and in reasonable proximity to
commercial infrastructure. Likewise,
sponsors may not approve a placement
if the associated housing option does
not include those same characteristics.
Recent summers have seen an
increased number of severe exchange
visitor bicycle accidents. If an exchange
visitor bicycles to and from the host
entity or to reach commercial
infrastructure, sponsors, in accordance
with proposed paragraph 62.32(l)(7)
must ensure that the exchange visitor is
informed that he or she must wear a
helmet and other appropriate protective
gear and that he or she must check that
the bicycle is in working order (e.g.,
brakes functional, frame not bent, all
tires inflated properly, bicycle chain
and gears functional). All sponsors must
provide bicycle safety information in
pre-arrival materials and during
orientation, including the Departmentgenerated bicycle safety flyer, and place
a bicycle safety video on their Web site.
No exchange visitor should be expected
by sponsors or host entities to ride a
bicycle to work on a highway or other
major road without bicycle lanes.
Likewise, no exchange visitor should be
expected to ride a bicycle over distances
of longer than a total of eight miles per
day in order to travel to and from the
host entity or reach commercial
infrastructure.
Sponsors placing exchange visitors in
national parks, ski resorts, and summer
camps must have on file, in accordance
with paragraph 62.32(l)(3), the host
entity’s written arrangement for
transportation for those exchange
visitors in their off-duty hours or in case
of emergency.
14. Form DS–7007 (Host Placement
Certification). Proposed paragraph
62.32(m) contains the requirement of
the Summer Work Travel Host
Placement Certification Form (Form
DS–7007). The Department believes
certain host placement information
must be agreed upon by the three
primary parties—the exchange visitor,
host entity, and sponsor—before
issuance of a visa.
Provision of Forms DS–7007 to
exchange visitors will ensure that they
are fully aware, before traveling to the
United States, of the details of their
individual Summer Work Travel
program. As set forth in proposed
paragraph 62.32(m)(1)(i), these details
must include information about location
and description of the host placement;
number of employees and other
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exchange visitors on location; hours of
work each week that will be offered the
exchange visitor; duties, wages, and
expectations of overtime; expected
training period, if any; physical
demands of the host placement; benefits
each exchange visitor will receive from
the host placement; total itemized fees
and costs of the program charged by
sponsors, host entities, and third parties
(noting clearly which of those that are
mandatory and those that are optional)
that the exchange visitor will incur;
itemized costs to each exchange visitor
for benefits and mandatory and optional
deductions (such deductions must be
noted on the form); and any meals
included at the host entity. Deductions
taken from wages must be disclosed in
advance to the exchange visitor.
The Department further proposes, in
paragraph 62.32(m)(1)(i), to require
sponsors to complete Form DS–7007 for
every initial and subsequent host
placement the exchange visitor accepts,
and to update the form if the terms of
the host placement(s) changes
significantly. Sponsors must provide
each signatory an executed copy of the
Form DS–7007 (excluding the Housing
Addendum) before the sponsor issues
the exchange visitor a Form DS–2019
and the exchange visitor makes his or
her visa application; and inform the
exchange visitor that he or she must
have his or her fully executed Form DS–
7007 (excluding the Housing
Addendum) available (along with his or
her Form DS–2019) should it be
requested during the visa interview.
In accordance with proposed
paragraph 62.32 (m)(2), sponsors also
must provide details about any sponsoror host entity-arranged housing on the
Housing Addendum to Form DS–7007,
including the type of housing (house,
apartment, dormitory, or other);
distance to the exchange visitor’s site of
activity, and local transportation type
and cost; cost of housing either weekly
or monthly; need for an exchange visitor
housing deposit; utilities covered in rent
and those that the exchange visitor must
pay separately; number of other tenants;
housing features and description
(including numbers of bedrooms and
bathrooms); and type of housing
contract, if any, that the exchange
visitor must sign.
For protection of exchange visitors
under proposed paragraph 62.32(m)(3),
sponsors must give exchange visitors
72-hours to consider any significant
additional requirements or changes
proposed by the host entity to their host
placement or housing after the DS–7007
or Housing Addendum is initially
executed. If the exchange visitor
disagrees in writing with the proposed
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changes to his or her placement or does
not respond at all about suggested
changes, he or she must be permitted to
continue with the duties in the original
placement, unless the host entity
requests that the sponsor re-place the
exchange visitor. An exception to the
72-hour rule may be made if such a
change must be implemented before 48hours to protect the health, safety, and
welfare of the exchange visitor.
If the sponsor or host entity arranges
housing for the exchange visitor, the
Housing Addendum to Form DS–7007
must be completed and sent to the
exchange visitor prior to the visitor’s
departure for the United States in
accordance with proposed paragraph
62.32(m)(2). Sponsors must update the
DS–7007 and/or Housing Addendum if
exchange visitors move to other
sponsor-provided (including host entityprovided) housing. If exchange visitors
find their own housing or opt out of
sponsor-provided housing (including
host entity-provided), which they must
do in writing, the sponsor need not
complete the Housing Addendum, but
must vet the housing address and its
suitability before the exchange visitor
can move in. Sponsors must keep the
DS–7007 on file for three years, as set
forth in proposed paragraph
62.32(m)(4).
15. Exchange visitor pre-departure
orientation. The Department believes
that an orientation for each exchange
visitor is of the utmost importance in
order to inform the exchange visitor
about the role of the sponsor and the
host entity, exchange visitor
requirements during the program, and
benefits and protections offered.
Sponsors must fulfill the pre-arrival
information and orientation
requirements as set forth at § 62.10(b)–
(c). In addition, pursuant to proposed
paragraph 62.32(n), sponsors would be
required to provide, prior to each
exchange visitor’s departure from his or
her home country, an orientation, either
in person or online, or a combination of
both, that includes the following: An
explanation of the sponsor’s role during
the program, including monitoring, and
of host entity responsibilities; the
Department of State’s Summer Work
Travel Exchange Visitor Welcome Letter
and Diversity Flyer; the sponsor’s 24/7
immediate (i.e., non-answering
machine) contact telephone number; a
description of exchange visitor and host
entity obligations and responsibilities,
including a list of program obligations
and responsibilities; information
explaining the cross-cultural component
of the Summer Work Travel program,
including the exchange visitor’s
obligation to participate in sponsor-
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and/or host entity-arranged crosscultural activities, and how best to
experience local or national U.S.
culture; information on how to identify
and report workplace abuse, sexual
abuse, sexual harassment, bullying, and
exploitation; information on how to
identify and report wage violations,
housing violations, poor housing
conditions, and instances of host entity
retaliation against the exchange visitor
for reporting problems; information on
general personal, pedestrian,
transportation, including bicycle safety
information (i.e., providing the
Department-generated bicycle safety
flyer and placing a bicycle safety video
on the sponsor’s Web site); an
identification card with a photo of the
exchange visitor listing the exchange
visitor’s name, the sponsor’s name, and
main office and emergency telephone
numbers, 911, the telephone number of
the Department’s J–1 visa toll-free
emergency help line, the J–1 visa email
address, and the name and policy
number of the sponsor’s health
insurance provider, if applicable; and
information on how to seek medical
care in the United States (e.g.,
information on insurance deductibles,
the differences between emergency
room visits and regular hospital visits),
and locations of the nearest medical
facilities (e.g. hospitals, clinics, for
general medicine).
The orientation must additionally
include information to exchange visitors
on the process of monitoring and on
their obligation to notify their sponsor
within ten days of arrival in the United
States and of any changes to the terms
agreed to in Form DS–7007. Sponsors
must describe the circumstances that
may lead to termination of an exchange
visitor’s program under rules governing
the program.
All of the proposed requirements for
the pre-departure orientation are those
that cover major aspects of the program,
including the responsibilities of each
party involved in the exchange; what
reporting is required; necessary
communications among the sponsor,
host entity, and exchange visitor;
workplace violations to which the
exchange visitor should be alert; and
what to do in case of emergencies. The
Department is also aware that many
parents of exchange visitors attend predeparture orientation, although this is
not a requirement, and believes that
such information is also helpful for
exchange visitors’ families to know.
16. Cross-cultural activities. The
Department proposes at paragraph
62.32(o)(1) to require all sponsors to
ensure that exchange visitors in the
Summer Work Travel Program work
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with U.S. persons and actually engage
in cross-cultural activities, as opposed
to merely having, as the 2012 IFR
required, the opportunity to do so. This
proposed requirement more properly
reflects the Department’s intent, i.e.,
that exchange visitors are on an
exchange program, the goals of which
are to have them both work alongside
U.S. persons and learn about U.S.
culture through and outside of work.
The Department proposes at paragraph
62.32(o)(2)–(3) that sponsors must
themselves plan, initiate action, and/or
assist host entities, domestic third
parties, or local community groups, to
provide each of their exchange visitors
with at least one cross-cultural activity
per calendar month in addition to their
work activities, thereby giving him or
her exposure to U.S. culture and/or the
opportunity for interaction with U.S.
persons. Sponsors may include in their
agreements with host entities a
provision that the host entity plan and
implement cross-cultural activities each
calendar month during which it has
exchange visitors under its supervision.
Cross-cultural programming
opportunities should provide exchange
visitors on the Summer Work Travel
program at least one of the following
benefits. They should enable exchange
visitors to: (1) Learn about U.S. society,
higher education, and culture outside of
their placement; (2) share their own
culture, traditions, and views with U.S.
residents; (3) experience the United
States and its geographical diversity; (4)
see the world or the United States from
another perspective; (5) better
understand the history and heritage of a
diverse U.S. population; and/or (6)
appreciate similarities that bring people
of different nationalities and
backgrounds together.
Cross-cultural activities can range
from small and informal to large-scale
and organized activities. A cultural
activity does not need to be a trip to
another city or a large or expensive
event that takes weeks of planning. It
can be something small and relatively
spontaneous, making use of local
resources. Some examples that occurred
over the last program year were: Having
the exchange visitor come to an alreadyplanned staff picnic; organizing a
potluck dinner at the supervisor’s house
with colleagues; going to a state fair;
organizing a building-a-bonfire-on-thebeach event; having a group visit a
natural resource, such as a cave or a
federal, state, or local park nearby;
playing softball with fellow employees;
going with the exchange visitor to a
local sporting event such as baseball
(including having a contest about who
can best describe the rules of baseball);
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bowling; or a trip to a downtown area,
museum, library, or outdoor concert that
is either free of charge or has a nominal
charge. Around 42 percent of sponsors
and their host entities already arrange
such cultural activities for exchange
visitors. Sponsors should be prepared to
provide guidance to host entities not yet
offering cultural activities on how to
fulfill this requirement.
17. Exchange visitor monitoring and
assistance. The Department will
continue to require, as set forth in
proposed paragraph 62.32(p), that
sponsors maintain, at a minimum,
monthly personal contact with exchange
visitors. The Department wishes to
clarify that sponsors should make actual
contact with each exchange visitor and
ascertain how his or her program is
progressing. The sponsor must
communicate in a way that elicits an
exchange visitor response (in writing
through email or by telephone or
telephone message) that provides clarity
as to the exchange visitor’s well-being.
In addition, the Department intends for
sponsors to be proactive during their
monitoring in assessing exchange
visitors’ overall health, safety, and
welfare and address appropriately and
in a timely manner issues identified
through their monitoring; provide
assistance to exchange visitors as
requested; and serve as information
resources, facilitators, and counselors
upon an exchange visitor’s request. (See
proposed paragraph 62.32(p)(2)–(6)).
Sponsors must document all efforts to
resolve problematic placements and
efforts to contact non-responsive
exchange visitors before termination.
Sponsors must conduct monitoring of
their exchange visitors and facilitate
Department oversight and visits to
placement locations. In addition,
sponsors should inform host entities
about the Department’s monitoring
process. Sponsors must be prepared to
incorporate additional monitoring steps
at the suggestion of the Department in
order to resolve efficiently any problems
that come to the Department’s attention
regarding the Summer Work Travel
program.
18. Sponsor use and vetting of foreign
third parties. The Department expects
that sponsor use of foreign third parties
be as transparent as possible and that
sponsors be substantially
knowledgeable of and closely oversee
the actions of any foreign third parties
with which they work. The Department
has seen instances of sponsors
delegating most of the responsibility for
their Summer Work Travel program to
third parties, many of which are
domiciled abroad. Because many third
parties recruit exchange visitors in an
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exchange visitor’s home country, these
third parties are known first to the
exchange visitor. But this should not
remain the case throughout the
exchange. Sponsors, which are
designated by the Department to
facilitate the Exchange Visitor Program,
are expected to develop and have the
primary relationship with host entities
in the United States, even though host
placement leads may have been initially
recommended to the sponsor by a
foreign third party. In addition,
sponsors should develop their own
forms and other information-gathering
documents when they work with host
entities in the United States; these
should not be provided by third party
entities.
Because the Summer Work Travel
program is first and foremost a public
diplomacy and cultural exchange
program, if utilizing the services of
foreign third parties, sponsors must,
under proposed paragraph 62.32(q)(1),
select only those that market the
Summer Work Travel program as a
cultural and educational program with a
32- to 65-hour per week work
component rather than a labor program.
As proposed in paragraph
62.32(q)(1)(ii), sponsors must use only
foreign third parties that have a fixed
office address, employees with
professional experience in the service(s)
the foreign third party provides, an
organizational mission applicable to
cultural and educational exchange, and
a secure system to collect, protect, and
dispose of the personal data of potential
and actual program exchange visitors
(e.g., a digital security system for
intrusions if the data is maintained
electronically, a securely locked file
cabinet if collected in paper format). Of
great importance is that third parties
have a secure system in place to dispose
of exchange visitor applications and
other documents that have personal data
on them (e.g., through shredding).
As proposed in paragraph
62.32(q)(1)(iv), sponsors must ensure
that their foreign third parties charge
exchange visitors only fees and costs
that are permissible under regulation,
transparent, justifiable in terms of
services provided, and legal. In
accordance with proposed paragraph
62.32(d)(9), it is not permissible to
require an exchange visitor to remit a
portion of his or her income earned in
the United States to an overseas
business entity.
Sponsors must adequately orient their
foreign third parties on the purpose and
intent of the Exchange Visitor Program,
as set forth in proposed paragraph
62.32(q)(3), as well as provide
regulatory updates about the Exchange
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4133
Visitor Program when these are
announced by the Department. In
addition, as proposed in paragraph
62.32(q)(4), sponsors must require,
review and approve annually the
marketing materials for exchange visitor
programs marketed on the sponsor’s
behalf by each of their foreign third
parties. These marketing materials must
include updated itemized price lists that
adhere to any Department-initiated
template.
In order to promote transparency for
potential exchange visitors, the
Department proposes in paragraph
62.32(q)(6) that a sponsor place
information about each of its foreign
third parties on the sponsor’s main Web
site (i.e., with a visible link to this page
on the sponsor’s homepage). The Web
site entry must include the foreign third
party’s official name, headquarters
address, and specific program functions
performed (e.g., recruitment and
overseas orientation of exchange
visitors, initial identification of host
entities). This will give potential
applicants to the program a way to
check that any third party or outside
entity that approaches them plays a
legitimate role in the sponsor’s program
administration.
In accordance with § 62.2 and as
provided in proposed paragraph
62.32(q)(8), failure by any foreign third
party to comply with the regulations or
with any additional terms and
conditions governing administration of
the Exchange Visitor Program will be
imputed to the sponsor by the
Department. And, pursuant to proposed
paragraph 62.32(q)(8), sponsors are
required to ensure that foreign third
parties know and comply with all
applicable Departmental regulations and
guidance.
The Department proposes in
paragraph 62.32(r) that sponsors
thoroughly vet their foreign third
parties. At a minimum, a sponsor must
annually review current documentation
for each of its foreign third parties as
part of the vetting process to ensure that
the third party is legally authorized to
conduct business where it operates; is
solvent, as determined through an
examination of its recent financial
statements; is reputable, as evidenced
by references from business associates
or partner organizations; does not have
legal judgments against it or pending
legal actions or complaints; and has staff
all of whom have undergone criminal
background checks. These are very
important aspects for sponsors to
consider as they select and vet foreign
third parties. Such foreign third parties
come into direct contact with exchange
visitor program applicants and
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participants, and the reputation of the
Summer Work Travel program is
dependent upon the financial and
operational stability of those third
parties. As proposed in paragraph
62.32(q)(9), a sponsor may not use a
foreign third party if the Department has
determined and informed the sponsor
that the third party does not meet the
requirements of proposed paragraph
62.32(q)(1).
19. Sponsor use and vetting of
domestic third parties. In proposed
paragraphs 62.32(d)(4) and 62.32(s)(2),
domestic third parties providing initial
identification of host entities,
implementing cross-cultural activities
for exchange visitors, serving as a local
point of contact and orientation for
exchange visitors, or providing housing
assistance and transportation for the
program now must be covered under
written agreement with the sponsor. In
proposed paragraph 62.32(s)(4), these
third parties also must be listed on the
sponsor’s main Web site, noting each
party’s official name, headquarters
address, and the specific program
functions performed. As proposed in
paragraph 62.32(s)(1), sponsors must
use only domestic third parties that
have a fixed office address; employees
with professional experience in the
service(s) the domestic third party
provides; a willingness to learn about
and contribute through provided
services to the public diplomacy
mission of the Summer Work Travel
program; and, if the organization
collects applications or other materials
with the personal data of prospective or
actual exchange visitors, a secure
system to collect, protect, and properly
dispose of such data.
Sponsors will be required to supervise
and monitor carefully their third parties’
program-related activities to ensure that
the third party is in compliance with the
Exchange Visitor Program regulations.
Sponsors must not refer any potential
exchange visitor applicants to a
domestic third party that is not covered
by a written agreement. Sponsors that
engage another designated sponsor as a
third party do not need to vet that
sponsor, but must require that the third
party sponsor provide proof of current
Department designation.
Sponsors must vet domestic third
parties in accordance with the
requirements set forth in proposed
paragraph 62.32(t). These are very
important aspects for sponsors to
consider as they select and vet domestic
third parties. Such domestic third
parties may initially identify host
entities where exchange visitors are
placed, which placement will materially
impact the exchange visitor’s experience
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in the United States; implement crosscultural activities for the exchange
visitor, which is a central aspect of such
a public diplomacy program; orient the
exchange visitor on what is permitted
and not permitted on the program; serve
as a point of contact throughout that
exchange visitor’s time in the United
States; or provide transportation for the
exchange visitor. The experience of the
exchange visitor and the reputation of
the Summer Work Travel program are
protected by assessing whether the third
party, at a minimum, legally operates in
the United States; has disclosed any
bankruptcy, complaints, pending legal
actions, or adverse judgments; and has
liability insurance sufficient to cover the
activities it provides in connection to
the Summer Work Travel program.
Requiring sponsors to enter into a
fully executed written agreement with
both foreign and domestic third party
entities (proposed paragraphs
62.32(q)(2) and (s)(2)) will provide more
oversight than the previously informal
agreements sponsors may have relied
upon for such services, and will better
protect the health, safety, and welfare of
exchange visitors. It will also ensure
that the sponsor acknowledges in
writing that the third party is in a legal
relationship with that sponsor in regard
to that third party’s contribution to the
Exchange Visitor Program and what
specific services that sponsor expects
the third party to provide to exchange
visitors.
20. Reporting requirements. As
proposed in paragraph 62.32(u)(1),
sponsors must report to the Department,
within 30 days of conclusion, any new
written agreement they have made with
a foreign third party and the name of
and contact information for that foreign
third party. A sponsor also must notify
the Department within 30 days after
ceasing to work with a foreign third
party previously reported. Each sponsor
must keep the list of foreign third
parties up-to-date with the Department
so that the Department can ensure
program office and consular office
worldwide awareness of whether or not
foreign third parties are operating on
behalf of the Summer Work Travel
program, both within the United States
and abroad. It also will require sponsors
to submit each year by December 1 a
report of itemized exchange visitor price
lists with breakdowns of the costs that
exchange visitors must pay each
sponsor and foreign third party by
country in order to participate in the
program.
21. Re-evaluation of exchange visitor
cap and moratorium on sponsors. On
November 7, 2011, the Office of Private
Sector Exchange published a notice in
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the Federal Register (Public Notice
7677) stating that, until further notice,
Summer Work Travel program sponsors
in business for the full 2011 calendar
year would not be permitted to expand
their number of program participants
beyond their actual total 2011
participant program size (a cap) and that
no new applications from prospective
sponsors for Summer Work Travel
program designation would be accepted
(a moratorium). The cap has meant that
designated sponsors may not increase
the number of exchange visitors
participating in their Summer Work
Travel programs beyond their current
allotment of Forms DS–2019 (i.e., they
cannot request program expansion
under § 62.12(d)(2)). The Department
intends to re-evaluate the cap and the
moratorium upon completion of this
rulemaking and invites public comment.
Regulatory Analysis
Administrative Procedure Act
The Department of State is of the
opinion that administration of the
Exchange Visitor Program, including the
Summer Work Travel program category,
is a foreign affairs function of the U.S.
Government and that rules
implementing this function are exempt
from Section 553 (Rulemaking) and
Section 554 (Adjudications) of the
Administrative Procedure Act (APA). As
reflected in the Fulbright-Hays Act, the
purpose of such programs is to increase
‘‘mutual understanding’’ between the
people of the United States and those of
other countries, ‘‘unite us with other
nations,’’ and ‘‘promote international
cooperation.’’ Pursuant to law, policy,
and longstanding practice, the
Department of State has supervised,
either directly or through private sector
program sponsors or grantee
organizations, those foreign nationals
who come to the United States as
exchange visitors in exchange visitor
programs, one of which is the Summer
Work Travel Program. Exchange visitors
in the Summer Work Travel Program
come to the United States currently
from approximately 125 countries.
When problems occur in a program such
as this, foreign governments often
directly engage the Department of State
regarding the treatment of their
nationals, regardless of who is
responsible for the problems.
A major purpose of this rulemaking is
to put in place extra measures to protect
the health, safety, and welfare of foreign
nationals entering the United States to
participate in the Summer Work Travel
Program then returning to their
countries of nationality or last legal
permanent residence upon completion
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of their programs. A number of foreign
governments have informed the
Department that they regard this
program as important to their bilateral
relationship with the United States and
to their nationals who seek to
participate. Participating countries look
to the Department to protect their
nationals. The Department is of the view
that failure to protect the health and
welfare of these foreign nationals can
have direct and substantial adverse
effects on the foreign affairs of the
United States.
The Department emphasizes that
many provisions of this proposed rule—
indeed, the majority—reflect careful
consideration of public comments
received on two previous Interim Final
Rules issued on May 11, 2012, and April
26, 2011 (see the citations in the
‘‘Supplemental Information’’ section of
this Notice, above). Members of the
public submitted detailed comments,
and this proposed rule has benefited
from those comments. A number of
provisions within this proposed rule are
new, based on additional monitoring of
the program that the Department has
conducted and meetings with sponsors
about their current experience in
conducting this program.
Although the Department is of the
opinion that this rule is exempt from the
rulemaking provisions of the APA, the
Department is publishing this rule as a
proposed rule, with a 45-day provision
for public comment and without
prejudice to its determination that the
Exchange Visitor Program is a foreign
affairs function.
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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 et
seq.).
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in
the expenditure by State, local and
tribal governments, in the aggregate, or
by the private sector, of $100 million in
any year and it will not significantly or
uniquely affect small governments.
Therefore, no actions were deemed
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995.
Executive Order 13175—Consultation
and Coordination with Indian Tribal
Governments
The Department has determined that
this rulemaking will not have tribal
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implications, will not impose
substantial direct compliance costs on
Indian tribal governments, and will not
preempt tribal law. Accordingly, the
requirements of Executive Order 13175
do not apply to this rulemaking.
Regulatory Flexibility Act/Executive
Order 13272: Small Business Impacts
Since the Department is of the
opinion that this rule is exempt from 5
U.S.C. 553, the Department is also of the
view that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601,
et seq.) and Executive Order 13272.
However, to inform the public as to the
costs and burdens of the this rule upon
designated program sponsors, the
Department notes that, if adopted in
full, the changes proposed herein will
affect the operations of 41 corporate,
academic, and tax-exempt program
sponsors designated by the Department
to conduct the Summer Work Travel
Program. Further information follows.
Numbers of Small Businesses
Of the 41 current designated sponsors
in the Summer Work Travel category, 29
sponsors or 70 percent of the total had
annual revenues of less than $7 million
in 2015. These 29 small program
sponsors accounted for approximately
26,000 exchange visitors on the Summer
Work Travel program in 2015, or 28.8%
of the average total number (90,000) of
exchange visitors on the Summer Work
Travel program (averaged over the past
three calendar years (2013–2015)).
• Transparency: Proposed fee and
wage transparency requirements include
the requirement to provide sample
budgets and a breakdown of all fees that
an exchange visitor pays. The
Department estimates cost for 29 small
sponsors multiplied by 1 burden hour at
$26 weighted wage (i.e., including staff
benefits), in accordance with Bureau of
Labor Statistics (National Compensation
Survey, Monthly Labor Review, January
2016) and the salary figures for entry-tojunior-level or ‘‘other services’’ staff at
non-profit or for profit organizations
(also junior contractors) working on
administering daily program activities,
or $754. This is a new cost to sponsors.
• Sponsor screening of candidates for
eligibility and selection. The
Department estimates the cost at 0.5
hours per exchange visitor (26,000
exchange visitors under the purview of
small sponsors) multiplied by $26 per
weighted wage, or $338,000. This is not
a new cost for sponsors. However, the
cost, now set forth in proposed
paragraph (e)(1) of the proposed rule,
was previously calculated as part of
placement (paragraph (g) of the 2012
IFR) and has now been separated out.
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• Exchange visitor pre-placement at
host entities. The Department estimates
that there will be no new costs and that
the cost will be $260,000 (26,000
exchange visitors under the purview of
small sponsors multiplied by 1 hour
multiplied by $10 per exchange visitor).
Placement includes finding a host entity
at which the exchange visitor may
conduct the work component of the
exchange and identifying information
about the work component, such as
hourly wage, activities of the job,
whether any heavy lifting or other
physical labor is involved, whether
there are any training requirements,
whether there are any meals that may be
taken onsite, whether there are costs to
the exchange visitors for the host entity
placement, and so forth.
• Exchange visitor host re-placement.
It is estimated that there may be as
many as 725 re-placements or additional
placements by small sponsors and the
cost to small sponsors will be 0.5 hours
of sponsor administrative staff time
multiplied by $10 (Bureau of Labor
Statistics estimated hourly wages for
seasonal administrative workers)
multiplied by 725 or a total of $3,625.
This is not a new cost to sponsors.
However, the cost was previously
calculated as part of placement and has
now been separated out.
• Sponsor vetting of host entities. The
Department estimates that the cost for
vetting host entities will be $91,000 for
all sponsors collectively (7,000 host
entities associated with small sponsors
multiplied by 0.5 man hours multiplied
by $26). This is not a new cost.
• Facilitating the placement of
exchange visitors in appropriate and
affordable housing. The Department
estimates the cost at $260,000 (26,000
exchange visitors multiplied by 1 hour
multiplied by $10 per hour for
administrative staff wage). This is not a
new cost.
• Preparing and disseminating Form
DS–7007. The Department estimates that
it will take sponsors a total of 1.25 hours
to complete both parts of the form at a
cost of $868,563 (26,725 exchange
visitors (including re-placements)
multiplied by 1.25 hours multiplied by
$26 weighted wage per hour). This cost
includes completion of both the main
form and the housing addendum. This
is a new cost for sponsors.
• Orientation documentation for
exchange visitors: The Department
estimates the cost of sponsors’ providing
orientation-related materials to 26,000
exchange visitors under the purview of
small sponsors at 0.5 hours multiplied
by $26 weighted wage per hour, or
$338,000. This is not a new cost.
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• Cross-cultural activities. Small
sponsors (or their host entities) must
plan cross-cultural activities for
exchange visitors, with one crosscultural activity being planned each
calendar month during which exchange
visitors are on program. Exchange
visitors are, on average, in the program
for a period of four months. Planning
and carrying out the cross-cultural
activities is calculated at 7,000 small
business host entities of exchange
visitors multiplied by six hours (four for
planning and two for implementation of
one activity) over the course of the
summer (one per calendar month of the
summer work travel program period
equals four total) at $10 per hour
administrative staff wage; this equals
$1,680,000. The time commitment to
plan an activity for exchange visitors
could be less for many host entities,
given that the entity is not required to
plan a complex cultural activity. This is
a new cost.
• Exchange visitor monitoring and
assistance: It is estimated that small
sponsors will spend 30 minutes per
exchange visitor to monitor exchange
visitor activities throughout the program
cycle, including checking on exchange
visitor health, safety and welfare,
resolving placement problems, and
contacting less responsive participants,
at an annual cost of $130,000 for
sponsors collectively (26,000 exchange
visitors multiplied by 0.5 multiplied by
$10 per hour administrative staff wage).
This is not a new cost to sponsors.
• Sponsor use and vetting of foreign
and domestic third parties. The
Department estimates that small
sponsors will use and vet around 252
foreign and 280 domestic third parties.
The Department estimates that it will
cost small sponsors two hours to
conclude an agreement and vet each
third party at a cost of $26 weighted
wage per hour, or $27,664. This is not
a new cost.
• Reporting requirement. Sponsors
will only need to submit the foreign
third party (formerly foreign entity)
names and contact information and
their price lists. The twice-yearly
placement report is no longer required,
as the Department can retrieve this
information from existing SEVIS files. It
is estimated that the 29 small sponsors
will spend one hour on each of two
reporting requirements multiplied by
$26 per man hour, or $1,508. This is not
a new cost.
The total cost of all regulatory
provisions per small sponsor exchange
visitor is $154; total cost of all new
regulatory provisions per small sponsor
exchange visitor is $98. Last calendar
year, there were 13 small sponsors
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having fewer than 500 exchange visitors
in the Summer Work Travel category.
The largest of this number had
permission from the Department to host
477 exchange visitors and would under
the proposed regulation incur total costs
of $73,458, and new costs of $46,746, or
four percent of revenue. The smallest of
this number had permission to host five
exchange visitors and would under the
proposed regulation incur total new
costs of $490, or less than one percent
of revenue.
Last calendar year, there were twelve
sponsors with permission to host
between 500 and 2,000 exchange
visitors in the Summer Work Travel
category. Of these, the largest had
permission to host 1,934 exchange
visitors and would under the proposed
regulation incur a total cost of $297,836,
and total new costs of $189,532, or
around nine percent of revenue. The
smallest sponsor in this group had
permission to host 555 exchange visitors
and under the proposed regulation
would incur a total cost of $85,470 or
around eight percent of revenue and
new costs of $54,390, or around six
percent of revenue.
Last calendar year, there were five
sponsors with permission to host more
than 2,000 exchange visitors. The largest
of these were able to host 5,569
exchange visitors and would under the
proposed regulation incur a total cost of
$857,626, or eight percent of revenue
and total new costs of $545,762, or six
percent of revenue. The smallest of
these were permitted to host 2,311 and
would incur under the proposed
regulation total costs of $355,894 and
total new costs of $226,478.
The Department considered whether
alternative approaches for small
businesses could adequately protect the
safety and welfare of exchange visitors
while reducing costs to small entities.
For example, the Department
considered requiring cross-cultural
activities less frequently for small
sponsors and/or host entities. However,
the Department has a mandate to ensure
cross-cultural engagement for all
visitors, and a monthly requirement
provides a minimum level of crosscultural engagement to meet the
objectives of the Fulbright-Hays Act.
The Department also considered the
requirement to complete a DS–7007 on
housing and host entity placement for
small businesses and considered
whether small entities could be given
additional time for compliance. The
Department decided against this
proposal due to the need to provide
adequate information about the host
entity and housing available to all
visitors to the United States. The
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requirements for the Summer Work
Travel category, as well as all Exchange
Visitor Program categories, are driven
almost exclusively by considerations of
the health and safety of the exchange
visitor, and any impact on foreign
relations with the visitor’s home
country. These considerations constrain
the number of feasible alternatives to
the requirements proposed in this
Notice of Proposed Rulemaking. That
said, the Department requests comment
on other possible alternatives that
would meet the objectives of this
rulemaking in a less costly manner for
small entities.
Executive Order 12866 and Executive
Order 13563
As discussed above, the Department is
of the opinion that the subject of this
rulemaking constitutes a foreign affairs
function of the United States, and thus
is exempt from the provisions of
Executive Order 12866. The Department
has nevertheless reviewed this
rulemaking to ensure its consistency
with the regulatory philosophy and
principles set forth in Executive Orders
12866 and 13563. This rulemaking has
been reviewed by the Office of
Information and Regulatory Affairs,
which has designated it a significant
rule pursuant to Executive Order 12866.
In order to inform the public as to the
costs and benefits of this rule, the
Department presents the following
information.
Affected Population. The Department
estimates that this rule will affect 41
current designated sponsors hosting
approximately 90,000 exchange visitors
annually and working with an estimated
26,000 host entities and 1,900 foreign
and domestic third parties. Sponsors
facilitate the Exchange Visitor Program
and provide the necessary information,
support, and guidance for exchange
visitors.
Costs. Implementation of certain
provisions set forth in this proposed
rule may result in costs for sponsors. A
cost breakdown of old and new costs is
noted below:
• Transparency: Proposed fee and
wage transparency requirements,
including the requirement to provide
sample budgets and a breakdown of all
fees and estimated costs that an
exchange visitor pays. The Department
estimates cost at 41 sponsors multiplied
by 1 hour at $26 weighted wage, in
accordance with Bureau of Labor
Statistics salary figures for entry-tojunior-level non-profit organization staff
or contractors working on administering
daily program activities, or $1,066. This
is a new cost to sponsors.
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• Sponsor screening for candidate
eligibility and selection: The
Department estimates the cost at 0.5
hours per exchange visitor (90,000)
multiplied by $26 per weighted wage or
$1,170,000. This is not a new cost for
sponsors; it was previously calculated
as part of placement, and has now been
separated out.
• Exchange visitors for providing
required eligibility and screening
information: The Department estimates
the cost at 1 hour per exchange visitor
(90,000) multiplied by $1 or $90,000.
This is not a new cost, but has been
added to cost calculations for the first
time and is thus calculated as a new
cost. The exchange visitors submitting
eligibility information to the program
are students in their home countries and
are unlikely to be paid an hourly wage.
• Exchange visitor pre-placement at
host entities: The Department estimates
that there will be no new costs and that
the cost will be $900,000 (90,000
exchange visitors multiplied by 1 hour
multiplied by $10 per exchange visitor).
Sponsors generally place exchange
visitors from a contact list that is used
year-to-year and updated through public
notice or current contacts.
• Door-to-door sales placements: The
Department estimates that the cost to
the one sponsor making such
placements to execute an agreement
explaining in detail 1,325 exchange
visitor’s duties will be 0.5 hours
multiplied by $5 per exchange visitor,
or $3,313. This is a new cost to one
current sponsor.
• Exchange visitor host re-placement:
It is estimated that there may be as
many as 2,500 re-placements or
additional placements and the cost to
sponsors will be 0.5 hours of sponsor
administrative staff time multiplied by
$10 Bureau of Labor Statistics estimated
hourly wages for seasonal
administrative workers multiplied by
2,500 or a total of $12,500. This is not
a new cost to sponsors; it was
previously calculated as part of
placement and has now been separated
out.
• Sponsor vetting of host entities: The
Department estimates that the cost for
vetting host entities will remain at
$338,000 for all sponsors collectively
(26,000 host entities multiplied by 0.5
man hours multiplied by $26). This is
not a new cost.
• Facilitating the placement of
exchange visitors in appropriate and
affordable housing: The Department
estimates the cost at $900,000 (90,000
exchange visitors multiplied by 1 hour
multiplied by $10 per hour). This is not
a new cost.
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• Preparing and disseminating Form
DS–7007: The Department estimates that
it will take sponsors (or their host
entities) a total of 1.25 hours to
complete both parts of the form at a cost
of $3,006,250 (92,500 exchange visitors
(including re-placements) multiplied by
1.25 multiplied by $26 weighted wage
per hour). This cost includes
completion of both the main form and
the housing addendum by the sponsor
(or the host entity). This is a new cost
for sponsors.
• Orientation documentation: The
Department estimates the cost of
sponsors’ providing orientation-related
materials to 90,000 exchange visitors at
0.5 hours multiplied by $26 weighted
wage per hour, or $1,170,000. This is
not a new cost.
• Cross-Cultural activities: Sponsors
(or their host entities) must plan crosscultural activities for exchange visitors,
with one cross-cultural activity being
planned each calendar month during
which exchange visitors are on program.
Exchange visitors are, on average, on
program for a period of four months.
Planning and carrying out the crosscultural activities is calculated at 26,000
host entities for exchange visitors
multiplied by six hours (four for
planning and two for implementation of
one activity) over the course of the
summer (one event per calendar month
of the summer work travel program
period equals four total) at $10 per hour
administrative staff wage equals
$6,240,000. This is a new cost.
• Exchange visitor monitoring and
assistance: It is estimated that sponsors
will spend 30 minutes per exchange
visitor to monitor exchange visitor
activities throughout the program cycle,
including checking on exchange visitor
health, safety and welfare, resolving
placement problems, and contacting less
responsive participants, at an annual
cost of $450,000 for sponsors
collectively (90,000 exchange visitors
multiplied by 0.5 multiplied by $10 per
hour administrative staff wage). This is
not a new cost to sponsors.
• Sponsor use and vetting of foreign
and domestic third parties: The
Department estimates that sponsors will
make agreements with and vet around
900 foreign and 1000 domestic third
parties. The Department estimates that it
will cost sponsors two hours to
conclude an agreement and vet each
third party at a cost of $26 weighted
wage per hour, or $98,800. This is not
a new cost.
• Reporting requirements: There will
be a decrease in reporting requirements.
Sponsors will only need to submit the
foreign third party (formerly foreign
entity) names and contact information
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4137
as sponsors make agreements with such
third parties, and also submit third
party price lists. The twice-yearly
placement report is no longer required,
as the Department can retrieve this
information from existing SEVIS files. It
is estimated that sponsors will spend
one hour on each of two reporting
requirements multiplied by $26 per man
hour, or $2,132. This is not a new cost.
Total Costs. The Department
estimates the total cost of this proposed
rule to all designated sponsors in the
Summer Work Travel program category
at $14,382,061 each year, of which up
to $9,340,629 would be new costs,
mainly having to do with better
documenting the host placement and
ensuring that cross-cultural activities
are part of the program for all exchange
visitors. Total costs of the proposed
regulation per exchange visitor would
be $160 and total new costs per
exchange visitor would be $104.
Benefits. This proposed rule is a
continuation of Department efforts
based on a comprehensive review of the
current Summer Work Travel program
category of the Exchange Visitor
Program. The rule predominantly
enhances sponsor requirements for
programmatic, partnership, and fee/cost
transparency and vetting of domestic
entities. These enhancements are
necessary to continue the reform efforts
of the Summer Work Travel category
that began with the 2011 and 2012 IFRs.
Events that occurred prior to 2011 led
the Department to enhance its scrutiny
of the Summer Work Travel category
and amend regulations to protect
exchange visitors. Additionally, in
recent years, the work component of the
Summer Work Travel category has too
often overshadowed the cultural
component required by the FulbrightHays Act.
Accordingly, the Department issued
the 2012 IFR to address issues most
directly affecting the health, safety, and
welfare of the exchange visitors and to
reinforce the cultural exchange aspects
of the program to promote mutual
understanding in accordance with the
purpose of the Fulbright-Hays Act.
Changes made by 2012 IFR were
intended to protect the health, safety,
and welfare of exchange visitors by
reducing the number of improper or
unsafe job placements, fraudulent job
offers, post-arrival job cancellations,
inappropriate work hours, and problems
regarding housing and transportation.
However, as the Department has
increased its monitoring of the program
and received additional sponsor input,
it also has seen the need to make the
proposed rule more specific than the
2012 IFR in certain sections, so that
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Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Proposed Rules
exchange visitors are provided
assurance that sponsors have a formal
agreement with each of the domestic
and foreign entities that work with
exchange visitors; certainty in what
their host placement will entail and in
what housing will be provided; and
transparency about the total cost of the
program balanced against wages they
can expect to earn while in the United
States.
For the reasons outlined above, the
Department considers that the costs of
this proposed rulemaking are
outweighed by: (1) The benefits of
increased protection and transparency
for exchange visitors, enhancing both
their experiences and U.S. foreign
policy; and (2) closer adherence to the
purpose of the Fulbright-Hays Act.
Executive Order 12988
The Department of State has reviewed
this proposed 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 Orders 12372 and 13132
This proposed regulation will not
have substantial direct effect on the
states, on the relationship between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, 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.
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Paperwork Reduction Act—DS–7000
The information collection
requirements contained in this proposed
rule are pursuant to the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
and OMB Control Number 1405–0147,
Form DS–7000. As part of this
rulemaking, the Department is seeking
comment regarding the additional
administrative burden placed on
sponsors due to the corresponding
requirements for the sponsors to
disclose, collect, and maintain
information in the administration of
their programs (see 22 CFR 62.10(f)).
You should include the DS form
number (if applicable), information
collection title, and/or OMB control
number in any correspondence about
burden.
VerDate Sep<11>2014
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Jkt 241001
• Average Hours per Response for the
Summer Work Travel Program: 92
Title: Recording, Reporting, and Data
minutes.
Collection Requirements—Student and
• Total Estimated Burden Time for
Exchange Visitor Information System
the Exchange Visitor Program: 2,182,518
(SEVIS), Form DS–7000.
hours (DS–3036—480 hours; DS–3037—
FOR FURTHER INFORMATION CONTACT:
943 hours; DS–7000—2,181,095 hours
Direct requests for additional
(SEVIS = 9,144 and Non-SEVIS =
information regarding the collection
2,171,951 hours).
listed in this notice, including copies of
• Total Estimated Burden Time for
the proposed collection instrument and
the Summer Work Travel Program:
supporting documents, to the U.S.
1,061,062. For a complete analysis of
Department of State, Office of Policy
the estimated burden for Exchange
and Program Support, SA–5, 2200 C
Visitor Program requirements, please
Street NW., Floor 5, Washington, DC
refer to the Supporting Statement titled
20522.
Form DS–7000—Recording, Reporting
SUPPLEMENTARY INFORMATION:
and Data Collection Requirements—
• Title of Information Collection: 45Student and Exchange Visitor
Day Notice of Recording, Reporting, and Information System (SEVIS) (OMB No.
Data Collection Requirements—Student 1405–014) and ‘‘SEVIS’’ and ‘‘Nonand Exchange Visitor Information
SEVIS’’ spreadsheets included in docket
System (SEVIS), DS–7000.
number DOS–2016–0038.
• OMB Control Number: 1405–0147.
• Frequency: On occasion.
• Type of Request: Revision of a
• Obligation to Respond: Required for
Currently Approved Collection.
participation in the program.
• Originating Office: Bureau of
We are soliciting public comments to
Educational and Cultural Affairs, ECA/
permit the Department to:
EC.
• Evaluate whether the proposed
• Form Number: Form DS–7000.
information collection is necessary for
• Respondents: Exchange Visitors,
the proper functions of the Department;
host entities, and entities designated by
• Evaluate the accuracy of our
the Department of State as Exchange
estimates of the time and cost burden
Visitor Program sponsors in the Summer for this proposed collection;
Work Travel category.
• Enhance the quality, utility, and
• Estimated Total Number of
clarity of the information to be
Respondents for the Exchange Visitor
collected; and
Program: 191,675 (DS–3036—60; DS–
• Minimize the reporting burden on
3037—1,415; DS–7000—190,200). The
those who are to respond, including the
total respondent summary for Summer
use of automated collection techniques
Work Travel requirements is as follows: or other forms of information
technology.
Respondent
Estimate
Please note that the comments
submitted in response to this rule are
Exchange visitor ...................
90,000
Sponsor ................................
41 public record. Before including any
Host entities ..........................
26,000 detailed personal information, you
should be aware that your comments as
Total ...............................
116,041 submitted, including your personal
information, will be available for public
• Estimated Number of Responses for review.
the Exchange Visitor Program: 1,952,655
Abstract of proposed collection: The
(DS–3036—60; DS–3037—2,830; DS–
collection is the continuation of
7000—1,949,765 (SEVIS = 20,977 and
information collected and needed by the
non-SEVIS = 1,928,788 responses)).
Bureau of Educational and Cultural
Number of responses for the Summer
Affairs in administering the Exchange
Work Travel Program: 690,307. For a
Visitor Program. The changes proposed
complete analysis of the number of
are only to Form DS–7000.
responses for Exchange Visitor Program
Methodology: The collection will be
requirements, please refer to the
submitted to the Department by mail or
Supporting Statement titled Form DS–
fax as requested by the Department
7000—Recording, Reporting and Data
during the review of program sponsor
Collection Requirements—Student and
files, re-designations, incidents, etc.
Exchange Visitor Information System
Form DS–7007
(SEVIS) (OMB No. 1405–014) and
‘‘SEVIS’’ and ‘‘Non-SEVIS’’
Title: 45-Day Notice of Proposed
spreadsheets included in docket number Information Collection: Form DS–7007,
DOS–2016–0038.
Summer Work Travel—Host Placement
• Average Hours per Response for the Certification, OMB Control Number
Exchange Visitor Program: 68 minutes.
1405–xxxx.
Form DS–7000
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Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Proposed Rules
Notice of request for public
comments.
SUMMARY: The Department of State is
seeking Office of Management and
Budget (OMB) approval for the
information collection described below.
In accordance with the Paperwork
Reduction Act of 1995, we are
requesting comments from all interested
individuals and organizations on this
collection as it relates to proposed
changes to 22 CFR 62.32. The purpose
of this notice is to allow 45 days for
public comment in the Federal Register
preceding submission to OMB.
DATE(S): The Department will accept
comments from the public up to 45 days
from February 27, 2017.
ADDRESSES: You may submit comments
identified by any of the following
methods:
• Web: Persons with access to the
Internet may view and comment on this
notice by going to
www.regulations.gov.You can search for
the document by entering ‘‘Docket
Number: DOS–2016–0005’’ in the
Search Field. Then click the ‘‘Comment
Now’’ button and complete the
comment form.
• Email: JExchanges@state.gov.
• Mail (paper, disk, or CD–ROM
submissions): U.S. Department of State,
Office of Policy and Program Support,
SA–5, 2200 C Street NW., Floor 5,
Washington, DC 20522.
You must include the form number
(DS–7007 or 7000), information
collection title, and OMB control
number (if any) in any correspondence.
FOR FURTHER INFORMATION CONTACT:
Direct requests for additional
information regarding the collections
listed in this notice, including copies of
the proposed collection instruments and
supporting documents, to the U.S.
Department of State, Office of Policy
and Program Support, SA–5, 2200 C
Street NW., Floor 5, Washington, DC
20522.
SUPPLEMENTARY INFORMATION:
• Title of Information Collection:
Exchange Visitor Program—Summer
Work Travel Host Placement
Certification.
• OMB Control Number: 1405–xxxx.
• Type of Request: New Collection.
• Originating Office: Bureau of
Educational and Cultural Affairs, ECA/
EC.
• Form Number: Form DS–7007.
• Respondents: Entities designated by
the Department of State as Exchange
Visitor Program sponsors in the Summer
Work Travel category.
• Estimated Number of Respondents:
41.
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ACTION:
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• Estimated Number of Responses:
92,500.
• Average Hours per Response: 1.25
hours.
• Total Estimated Burden Time:
115,625 hours.
• Frequency: On occasion.
• Obligation to Respond: Mandatory.
We are soliciting public comments to
permit the Department to:
• Evaluate whether the proposed
information collection is necessary for
the proper functions of the Department;
• Evaluate the accuracy of our
estimates of the time and cost burden
for this proposed collection;
• Enhance the quality, utility, and
clarity of the information to be
collected;
• Minimize the reporting burden on
those who are to respond, including the
use of automated collection techniques
or other forms of information
technology.
Please note that the comments
submitted in response to this Notice are
public record. Before including any
detailed personal information, you
should be aware that your comments as
submitted, including your personal
information, will be available for public
review.
Abstract of proposed collection: This
collection of information is needed by
the Bureau of Educational and Cultural
Affairs in administering the Exchange
Visitor Program (J-Visa) under the
provisions of the Mutual Educational
and Cultural Exchange Act of 1961, as
amended. Summer Work Travel Host
Placement Certification Forms are to be
completed by designated program
sponsors (with reference to some
information provided by host entities).
A Host Placement Certification (Form
DS–7007) is required for each Summer
Work Travel participant. It will set
forth: Location and description of the
host placement; number of employees
and other exchange visitors on location;
hours of work each week that will be
offered the exchange visitor; duties,
wages, expected training period, if any;
physical demands of the host
placement; any placement-related
benefits or amenities; total itemized fees
and estimated costs of the program
charged by sponsors, host entities, and
third parties (noting those that are
mandatory and optional), that that
exchange visitor will incur; explanation
of costs and deductions for benefits and
mandatory and optional deductions
(noting those that are mandatory and
optional); and meals included at host
entity. Form DS–7007 must be signed by
the sponsor, the sponsor’s host entity,
and the exchange visitor.
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4139
The Housing Addendum will describe
the housing and local transportation and
cost (either weekly or monthly),
distance to the site of activity at the host
entity, need for an exchange visitor
housing deposit; utilities covered in rent
and those that the exchange visitor must
pay separately; whether deductions for
housing or local transportation will be
taken from exchange visitors’ wages,
number of other tenants; housing
features and description (including
numbers of bedrooms and bathrooms);
and whether there is a firm contract for
the housing that the exchange visitor
must sign for a fixed period of time. The
Housing Addendum page must state the
market value of housing and/or local
transportation.
Upon request, Summer Work Travel
applicants must present a fully executed
Summer Work Travel Host Placement
Certification (Form DS–7007) to any
Consular Official interviewing them in
connection with the issuance of a J–1
visa.
Methodology: The collection will be
submitted to the Department by mail or
fax as requested by the Department
during the review of program sponsor
files, re-designations, incidents, etc.
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
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 et seq.; 22 U.S.C.
2451 et seq.; 22 U.S.C. 2651a; Pub. L. 105–
277, Div. G, 112 Stat. 2681 et seq.;
Reorganization Plan No. 2 of 1977, 42 FR
62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048
of March 27, 1978; Pub. L. 104–208, Div. C,
110 Stat. 3009–546, as amended; section 416
of Pub. L. 107–56, 115 Stat. 354; and Pub. L.
107–173, 116 Stat. 543.
2. Section 62.32 is revised to read as
follows:
■
§ 62.32
Summer Work Travel.
(a) Purpose. Together with other
applicable provisions of 22 CFR part 62,
the regulations in this section govern
participation in the Summer Work
Travel program category conducted by
U.S. Department of State-designated
sponsors. The purpose of this program
is to provide foreign college or
university students (or those recently
graduated) the opportunity, during their
breaks between or immediately
following academic years, to:
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(1) interact with U.S. persons and
experience the culture and customs of
the United States through authorized
placements and cross-cultural activities;
(2) share their individual cultural
experiences and background with U.S.
friends, colleagues and communities;
(3) improve their command of the
English language;
(4) earn funds to help defray a portion
of their expenses by working in seasonal
or temporary host placements that
require minimal training; and
(5) travel in the United States.
(b) Definitions. In addition to those
definitions set forth in § 62.2, the
following definitions apply to the
Summer Work Travel category of the
Exchange Visitor Program:
(1) Host entity. A person or
organization that employs an exchange
visitor. Host entities are not considered
‘‘third parties’’ as that term is used in
this Part.
(2) Host placement. The location of an
exchange visitor at a host entity and any
related sponsor-or host entity-arranged
housing of such exchange visitor.
(3) Seasonal nature. A host placement
is of a seasonal nature when the
required service is utilized only at a
certain time of the year (e.g., summer or
winter) when the host entity increases
labor levels to accommodate its seasonal
increase in business.
(4) Temporary nature. A host
placement is of a temporary nature
when a host entity’s need for the duties
to be performed is a one-time
occurrence, a peak load need (e.g., the
need for workers is tied to one or more
seasons or other short-term demand), or
an intermittent need. It is the nature of
a host entity’s need, not the nature of
the duties, which is controlling.
(c) Duration of participation.
Exchange visitors on the Summer Work
Travel Program may participate for no
more than four months. The program
must coincide with the official break
between the exchange visitor’s academic
years or the break immediately
following his or her final academic
term. In permitting exchange visitor
participation, a sponsor must adhere to
the earliest allowable program start date
and the latest allowable program end
date for each country for its exchange
visitors, as communicated to sponsors
by the Department. Extensions beyond
Department-approved program dates are
not permitted.
(d) General sponsor responsibilities.
(1) A sponsor is responsible for
screening prospective exchange visitors
as set forth in § 62.32(e); making the
final selection of exchange visitors;
placing (and re-placing, as necessary)
exchange visitors; issuing Forms DS–
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7007 and DS–2019; providing an
orientation for host entities; finding,
approving, and verifying (as applicable)
exchange visitor housing; and
conducting monitoring of exchange
visitors and their host placements
within the United States. These
activities must be conducted by
employees of the sponsor.
(2) A sponsor must provide for a preand post-arrival orientation for
exchange visitors. The pre-arrival
orientation may be conducted by
sponsor employees or through a foreign
third party with which the sponsor has
a written agreement (pursuant to
§ 62.32(q)(2)), or both. The post-arrival
orientation may be conducted by
sponsor employees or by the host entity,
or both.
(3) A sponsor may use foreign third
parties, in accordance with § 62.32(q),
for recruitment and overseas orientation
of exchange visitors, and initial
identification of host entities.
(4) A sponsor may use domestic third
parties, in accordance with § 62.32(s), to
provide for initial identification of host
entities, implementation of crosscultural activities for exchange visitors,
a local point of contact for exchange
visitors, orientation of exchange visitors,
housing assistance, and exchange visitor
transportation.
(5) A sponsor’s third party or host
entity acts on a sponsor’s behalf in the
conduct of the sponsor’s exchange
visitor program, and failure by any third
party or host entity to comply with the
regulations set forth in this part will be
imputed to the sponsor.
(6) A sponsor and its third parties
shall not pay or otherwise provide
financial incentive to host entities to
accept exchange visitors for host
placements.
(7) A sponsor must ensure that any
fees it or its third parties charge are
legal, justifiable, and permitted under
this Part.
(8) Sponsor promotional materials
must characterize the Summer Work
Travel Program as a cultural and
educational program with a work
component.
(9) A sponsor must include in its
recruiting material, and post on its main
Web site, examples of the typical
monthly budgets of exchange visitors
placed in various regions of the United
States to illustrate wages (based on the
minimum-required 32 hours of work at
a typical host placement) balanced
against fees and estimated costs. A
sponsor must itemize fees that it and its
third parties will charge, or provide
within the sponsor’s fee list a specific
link to a third party’s fee list on the
third party’s Web site, and estimate
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other typical exchange visitor costs,
including estimated housing costs and
estimated costs for cultural activities, in
its posting. Actual fees that should be
itemized include the following, as
applicable: Program fee (with an
explanation of what this includes); fees
for recruitment, interview and
screening, placement, arrival/
orientation services; vetting of replacement or additional jobs; health
insurance; expedited application
review; document translation; and fees
related to program administration and
the Form DS–2019 (such as expedited
form changes, program extensions
within allowable program windows,
health insurance extension during grace
period, reinstatement, re-placement of
lost Form DS–2019, SEVIS adjustments,
and travel validation). No sponsor or
third party may require an exchange
visitor to remit a portion of his or her
earnings in the United States to an
overseas private entity.
(10) A sponsor must ensure that any
host entity at which it places an
exchange visitor hires, remunerates, and
provides supervision for that exchange
visitor and is willing and able to assist
the exchange visitor in the absence of
the sponsor in cases of emergency.
(11) A sponsor must ensure that an
exchange visitor does not change his or
her site of activity at the host entity,
type of position within the current host
placement, or residence without first
notifying the sponsor.
(e) Exchange visitor screening and
selection.
(1) A sponsor must verify and
document, prior to each exchange
visitor’s selection, that each exchange
visitor:
(i) Will be at least 18 years of age by
the program start date;
(ii) Is, at the time of application, a
foreign national post-secondary student
(including a student in his/her final
year) who is enrolled in and actively
pursuing a full-time course of study
toward a degree at a classroom-based
post-secondary academic institution
that is physically located outside the
United States and is ministeriallyrecognized within the national
education system where the student is
enrolled; applicants must have
successfully completed at least one
term, or equivalent, of post-secondary
academic study at the time of
application.
(iii) Has not participated in more than
two previous Summer Work Travel
program exchanges to the United States;
(iv) Has at a minimum a level of
English language proficiency, verified in
accordance with § 62.10(a)(2), that
allows him or her to communicate
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effectively when speaking with coworkers and community members, to
understand work requirements, to
discuss autobiographical information,
and to comprehend both written and
oral instructions related to work,
housing, and transportation; and
(v) Intends to participate in sponsor,
host-entity, and/or self-initiated crosscultural activities while in the United
States.
(2) Prior to selecting an exchange
visitor, a sponsor must conduct an
interview with each prospective
exchange visitor either in-person or by
video-conference and, where requested
by the host entity or exchange visitor,
facilitate a video-conference between
the host entity and the exchange visitor.
(3) A sponsor must communicate to
prospective exchange visitors that they
may not be accompanied by spouses
and dependents unless these spouses
and dependents secure the requisite
immigration status. Spouses and
dependents of an exchange visitor in the
Summer Work Travel program category
are not eligible for J–2 (derivative)
status.
(f) Exchange visitor placement.
(1) Before issuing a Form DS–2019, a
sponsor must secure for each
prospective exchange visitor a host
placement(s):
(i) That is seasonal or temporary in
nature;
(ii) Requiring only minimal training;
(iii) Entailing daily interaction with,
and work alongside, American guests,
customers, co-workers, and supervisors,
as an integral part of the host placement;
(iv) Providing the exchange visitor
with hours of work numbering between
the allowable minimum and maximum,
in no more than two host placements in
accordance with § 62.32(f)(4);
(v) Meeting the requirements for
compensation in accordance with
§ 62.32(f)(6);
(vi) Provided by a host entity that has
been vetted in accordance with
§ 62.32(i);
(vii) Provided by a host entity
informed of its responsibilities pursuant
to § 62.32(j);
(viii) Not on the program exclusions
list set forth in § 62.32(k);
(ix) Satisfying the standard for
exchange visitor housing and local
transportation as set forth in § 62.32(l);
(x) Provided by a host entity that has
been fully oriented by the sponsor about
the public diplomacy purpose of the
Exchange Visitor Program, federal
regulations (including updates), and
other requirements of the Exchange
Visitor Program;
(xi) Provided by a host entity that
accepts responsibility for the exchange
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visitor as necessary in case of
emergency; and
(xii) Located where an employee of
the sponsor can reach the exchange
visitor in-person within eight hours
through any reliable means of
transportation.
(2) A sponsor must divulge to the
Department where a partial or full
ownership relationship exists between
the sponsor and the host entity. In these
instances, the sponsor must identify an
individual who will act as an
independent advocate for the exchange
visitor, such as an ombudsperson.
(3) A sponsor must not place
exchange visitors with host entities if
there is a strike or lockout, at the
placement site, or other labor dispute at
the placement site that the sponsor
reasonably believes would have a
negative impact on the exchange
visitor’s program. If a strike, lockout, or
other such labor dispute occurs at the
host entity in the location where an
exchange visitor’s host placement has
been finalized pending the arrival of the
exchange visitor, or where an exchange
visitor is currently carrying out the
program, a sponsor must place the
exchange visitor at a different host
entity as soon as possible and no later
than five business days after the
occurrence of such dispute.
(4) Hours.
(i) A sponsor must place the exchange
visitor only with one or two host
entities that, taken together, commit to
provide a total minimum of 32-hours
and a total maximum of 65-hours of
permissible work per exchange visitor
per calendar week averaged over a twoweek period, as accepted by the
exchange visitor on Form DS–7007.
Should the exchange visitor’s hours fall
below the required 32-hour minimum
per week for longer than two weeks
(except in cases where the exchange
visitor is ill or otherwise has been
authorized an absence), the sponsor
must assist that exchange visitor within
three business days to raise his/her
placement hours at the host entity or be
re-placed, or, if the exchange visitor
does not already have two placements,
an additional placement. Should the
exchange visitor’s hours increase
beyond the 65-hour maximum for more
than two weeks, the sponsor, in
consultation with the host entity, must
require the exchange visitor to reduce
his or her hours. The exchange visitor
may opt out of the 32-hour weekly
minimum work requirement if
requested in writing by the exchange
visitor and acknowledged by the
sponsor after consultation with the host
entity.
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4141
(ii) A sponsor may place an exchange
visitor with no more than two host
entities at the same time to meet the 32hour minimum and 65-hour maximum
requirements; the two host placements
must be located in close proximity to
each other. An exchange visitor may, if
he or she so desires, take on additional
sponsor-authorized work placements
above the 32-hour minimum and below
the 65-hour maximum per week work
requirement, that conform to all
applicable requirements of this Part.
(iii) A sponsor must ensure that a host
entity provides the exchange visitor
two-weeks’ notice if the exchange
visitor’s job placement will (A)
conclude earlier than the end-date
indicated on Form DS–7007 or (B) fall
below a total of 32-hours per week
averaged over a two-week period. The
two-week notice provision does not
apply to host entities in cases where the
exchange visitor fails to report to work
for a sustained period (i.e., more than 10
consecutive workdays and without
contacting the sponsor or host entity
supervisor and receiving permission to
be absent). In such cases, the sponsor
must fully document the issue that
caused the exchange visitor’s hours to
be reduced or the exchange visitor to be
dismissed; the sponsor must assess
information provided by the exchange
visitor and host entity objectively. A
sponsor must inform the Department of
such incident within 24-hours of its
notification.
(iv) A sponsor must ensure that the
exchange visitor gives the host entity
two weeks’ notice if the exchange
visitor’s host placement will (A)
conclude earlier than the end-date
indicated on Form DS–7007 or (B) fall
below the 32-hour weekly minimum
averaged over a two-week period (if the
exchange visitor has not formally opted
out of the 32-hour requirement). The
two-week notice provision does not
apply to exchange visitors in cases
where the exchange visitor can credibly
allege workplace abuse, sexual abuse,
sexual harassment, bullying,
exploitation, wage violations, criminal
activity, and instances of retaliation
against the exchange visitor for
reporting problems in the workplace; a
sponsor must inform the Department of
such incident within 24-hours of its
being notified.
(5) Notification. A sponsor must
ensure that host entities notify the
exchange visitor and sponsor within 24hours of exigent circumstances affecting
the exchange visitor’s placement.
(6) Compensation. A sponsor must
only place the exchange visitor in a host
placement that compensates the
exchange visitor:
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(i) At not less than the federal, state,
or local minimum wage, whichever is
higher, for all hours worked (including
overtime hours worked and applicable
overtime wage), in conformance with
applicable federal, state, and local laws,
including the Fair Labor Standards Act;
and
(ii) With pay and benefits
commensurate with those offered to
their U.S. counterparts and/or those on
another class of nonimmigrant visa, as
applicable, doing the same or similar
work in the same work setting. Host
entities may reasonably offer different
wages to an employee commensurate
with a qualified, experienced, or fully
competent worker only after considering
the experience, education, and skill
requirements of the position.
(7) A sponsor must inform its host
entities that, when hosting an exchange
visitor, they are required by law to
follow applicable employer
recordkeeping requirements under
federal, state, and local law, including
the Fair Labor Standards Act and
Department of Labor regulations (e.g., 29
CFR part 516);
(8) A sponsor must ensure that host
entities provide exchange visitors,
without charge or deposit, all uniforms,
tools, supplies, and equipment needed
to perform placement-required
activities.
(9) Prior to placing an exchange
visitor at a host entity, the sponsor must
inquire whether the host entity has
displaced or intends to displace a U.S.
worker with an exchange visitor.
Sponsors must ensure that host entities
have not rejected qualified U.S.
applicants for the same position within
90 days of the date on which the
sponsor has confirmed the host entity’s
formal acceptance of that exchange
visitor for the host placement as
indicated on Form DS–7007.
(10) A sponsor must reimburse
exchange visitors for any union dues
required by their host placement.
(11) A sponsor must ensure that
exchange visitors are not charged for
any host entity promotional material
used by the exchange visitor on the job,
and must compensate, or ensure that the
exchange visitor’s host entity
compensates, the exchange visitor for
travel time from the site of activity to
any training site, and for the time spent
in training; if the sponsor or host entity
holds the training in a city that is farther
than 60 miles away from the exchange
visitor’s site of activity, or the sponsor
or host entity requires the exchange
visitor to stay overnight at the training
site, then the sponsor or host entity
must pay the exchange visitor for the
cost of lodging.
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(g) Door-to-door sales placements: A
sponsor placing an exchange visitor in
a door-to-door sales position must, in
addition to the requirements set forth in
§ 62.32(f):
(1) Fully execute an agreement that
explains in detail the exchange visitor’s
placement duties and expectations, who
will obtain and pay or reimburse the
exchange visitor for any necessary state
or local permits, the geographic area the
host placement encompasses, and how
exchange visitors, while traveling, may
access housing that has been prearranged by the sponsor or host entity.
The agreement must be included as an
appendix to Form DS–7007 and must be
accepted in writing by the exchange
visitor before he or she receives a Form
DS–2019.
(2) Ensure that:
(i) The host entity provides the
exchange visitor with a post-arrival
orientation that, at a minimum, includes
information on safety considerations
while selling door-to-door; how to
contact a supervisor while traveling on
duty; how to react when faced with
possible adverse situations; how
exchange visitors will be reimbursed for
housing costs incurred while traveling
on behalf of their host entity; and how
products will be delivered to customers;
(ii) The exchange visitor in each
calendar week of his or her program,
averaged over a two-week period, earns
not less than the equivalent of the
applicable federal, state, or local
minimum wage per hour through hourly
pay or sales profits, in conformance
with applicable federal, state, and local
laws, including the Fair Labor
Standards Act, and receives pay and
benefits commensurate with those
offered to his or her U.S. counterparts
and/or those on another class of
nonimmigrant visa doing the same or
similar work in the same work setting
and having similar qualifications and
experience. Hours that an exchange
visitor spends in orientation constitute
hours worked;
(iii) Customers make all checks and
other forms of payment directly payable
to the host entity, not to the exchange
visitor, for sponsor or host entity
products; and
(iv) The exchange visitor begins
selling door-to-door no earlier than 9:00
a.m. and finishes his/her last sales call
no later than 8:00 p.m. in the time zone
covering his or her location.
(3) Permit an exchange visitor’s
reasonable request for re-placement at a
non-door-to-door assignment and issue
the exchange visitor a new Form DS–
7007.
(4) Pre-authorize and document on
the appendix to the DS–7007 any
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additional types of exchange visitor
sales activities.
(h) Exchange visitor host replacement. A sponsor must:
(1) Find and fully vet a new host
entity for the exchange visitor (i.e.,
verify, at a minimum, the terms and
conditions of the exchange visitor’s
employment at that host entity) within
three business days in response to an
exchange visitor’s reasonable request to
change host placements, provided the
request is made before the final four
weeks of the exchange visitor’s program.
Considerations in determining the
reasonableness of a request may include
whether the new placement would be
consistent with the exchange visitor’s
abilities, is located in the same city or
a nearby city to the previous placement,
and is within an economic sector where
host entities are hiring. Sponsors may
not charge the exchange visitor a fee for
re-placement.
(2) Ensure that a host re-placement
meets the requirements applicable to the
original placement(s).
(3) Complete and secure the requisite
signatures on a new Form DS–7007
prior to the exchange visitor’s beginning
work at a host re-placement.
(i) Sponsor vetting of host entities. A
sponsor must:
(1) Exercise due diligence in vetting a
host entity, its owners, and its managers
and supervisors who work with
exchange visitors. In conducting such
vetting, a sponsor must confirm that a
host entity is a legitimate and reputable
business by taking, at a minimum, the
following steps annually:
(i) Check, through direct contact in
person or by telephone, the names of the
entity’s owner(s), and manager(s),
names of the supervisor(s) for the
exchange visitor, business telephone
numbers, email addresses, street
addresses, and professional activities;
(ii) Use publicly available information
(e.g., state registries, advertisements,
brochures, Web sites, court registries,
state sex-offender registries) and
available information from prior
exchange visitor placements to confirm
that all host entities and their owners
are of good reputation and financially
viable, and that all managers and
supervisors of the exchange visitor are
reputable and have each undergone a
criminal background check that the
sponsor may review;
(iii) Record a potential host entity’s
Employer Identification Number (EIN)
and obtain copies of its current business
or professional license or permit, or
certificate issued by the jurisdiction
where the business operates, granting
the host entity the right to operate in
that jurisdiction;
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(iv) Check whether the host entity
will use any third parties (including
staffing agencies) to conduct the
exchange visitor program and verify
using publicly available information
(e.g., the kind of information noted in
subparagraph (i)(1)(i)) to check whether
such third parties are legitimate and
reputable and that their managers and
supervisors working with exchange
visitors have each had a criminal
background check that the sponsor may
review. Failure of a third party engaged
by a sponsor’s host entity to comply
with the regulations governing
administration of the Exchange Visitor
Program will be imputed to the sponsor,
whether or not such third party has
been disclosed by the host entity to the
sponsor.
(v) Verify that each potential host
entity will have Workers’ Compensation
Insurance coverage or its equivalent, as
applicable, in the appropriate U.S. state
during the time when the exchange
visitor will be placed there, or, if
applicable, evidence of that state’s
exemption from requirement of such
coverage;
(vi) Obtain verification at the
beginning of each season that a host
entity with which an exchange visitor is
planned to be placed will not displace
U.S. workers, has not experienced
layoffs in the past 120 days, and does
not have workers on lockout or strike;
and
(vii) Review the U.S. Department of
Labor Web site and state resources for
judgments and debarments and
revocations pertaining to the host entity
or business owner.
(2) Discontinue cooperation with a
host entity that fails to disclose
information that may affect exchange
visitor health, safety, or welfare, or bring
the Exchange Visitor Program into
notoriety or disrepute.
(j) Host entity cooperation.
(1) A sponsor must inform a host
entity and its relevant managers and
supervisors of program regulations,
regularly monitor the host entity’s
compliance with such regulations, and
take action if it becomes aware of a
violation.
(2) A sponsor must inform a host
entity that it may be required to arrange
cross-cultural activities for its exchange
visitor, or that it must permit time for
the exchange visitor to engage in
sponsor-arranged cross-cultural
activities, as defined in § 62.2.
(3) Failure by any host entity (or any
disclosed or undisclosed third party) to
follow the requirements governing
administration of the Exchange Visitor
Program will be imputed to the sponsor.
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(4) A sponsor must require a host
entity to notify it within 24-hours of the
following events:
(i) The exchange visitor arrives at his/
her site of activity to begin his/her
program;
(ii) There are significant deviations in
the host placement during an exchange
visitor’s program;
(iii) The exchange visitor is not
meeting the requirements of his/her host
placement as detailed on Form DS–
7007;
(iv) The exchange visitor leaves his/
her position ahead of the planned
departure;
(v) There are serious incidents
involving an exchange visitor, including
any situations that have or could have
the effect of endangering his or her
health, safety, or welfare.
(5) No sponsor or host entity may
prevent communication between an
exchange visitor and his or her sponsor,
family or friends, or any other person
while the exchange visitor is not on
duty;
(6) A sponsor shall terminate the
participation of a host entity that is
found to have, without the exchange
visitor’s advance written permission,
held or withheld the exchange visitor’s
money, identification (including
passport and social security card), cellphone, flight tickets, or other personal
property during his or her program; or
held or withheld an exchange visitor’s
Forms DS–2019 or DS–7007. Any
exchange visitor who wishes the
sponsor or sponsor’s host entity to
retain important documents must make
this request in writing, including an
itemized list of the documents. The
exchange visitor may revoke this
authorization in writing at any time,
whereupon such documents or property
must be returned within 48-hours of the
written revocation’s documented
submission to the sponsor.
(k) Program exclusions. A sponsor
must not place an exchange visitor in a
host placement that is:
(1) Inconsistent with U.S. law or that
could bring notoriety or disrepute to the
Department or to the Exchange Visitor
Program, as determined by the
Department;
(2) Lacking acceptable housing and
local transportation, (as set forth in
§ 62.32(l)), including safe local
transportation that is accessible during
late night or early morning hours if the
exchange visitor will work during such
hours;
(3) Requiring more than four hours of
work between 10:00 p.m. and 6:00 a.m.;
(4) In locations where telephone and
Internet communication is not
accessible;
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4143
(5) Requiring licensing of the
exchange visitor;
(6) Compensating the exchange visitor
on a ‘‘piece work basis’’ (i.e., based on
the number of objects produced or
rooms cleaned);
(7) Resulting in the exchange visitor
being supervised by a staffing agency,
unless the sponsor vets the staffing
agency as well as the host entity where
that agency places exchange visitors,
and the staffing agency’s role meets the
following criteria:
(i) The staffing agency provides daily
supervision and primary onsite
monitoring of the exchange visitor’s
work environment at his or her host
entity;
(ii) The exchange visitor is an
employee of, and paid by, the staffing
agency; and
(iii) The staffing agency effectively
controls the host placement (i.e., has
hands-on management responsibility for
the exchange visitor at his or her site of
activity);
(8) Entailing domestic help in private
homes (e.g., child care provider, elder
care provider, housekeeper, gardener,
chauffeur);
(9) Requiring the exchange visitor to
operate or drive a pedicab, rolling chair,
or other vehicle powered by physical
exercise;
(10) Requiring the exchange visitor to
operate or drive a vehicle or vessel for
which a driver’s license is required,
regardless of whether the vehicle carries
passengers;
(11) Related to clinical care that
involves physical contact with patients;
(12) In the adult entertainment
industry or the commercial sex trade
(e.g., placements at escort services, adult
book or video stores, strip or exotic
dance clubs);
(13) Requiring the exchange visitor to
engage in work that is declared
hazardous to youth by the Secretary of
Labor at Subpart E of 29 CFR part 570;
(14) Requiring sustained physical
contact with other people (e.g., hair
care, manicure, henna tattooing) and/or
adherence to the Centers for Disease
Control and Prevention’s Universal
Blood and Body Fluid Precautions
guidelines;
(15) Requiring the exchange visitor to
operate gaming, gambling, wagering, or
betting activities;
(16) In chemical pest control,
warehousing, or a catalogue/online
order distribution center;
(17) In the mobile amusement and
itinerant concessionaires industries;
(18) Meeting the criteria of another
Exchange Visitor Program category (e.g.,
camp counselor, intern, trainee);
(19) In the North American Industry
Classification System’s (NAICS) Goods-
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Producing Industries occupational
categories industry sectors 11, 21, 23,
31–33 numbers (set forth at https://
www.bls.gov/bls/naics.htm); see https://
siccode.com/en/naicscode/list/directory
for code look-up;
(20) Employing the exchange visitor
as a mover or in any position where the
primary work duty is the movement of
household or office goods;
(21) Employing the exchange visitor
in a position requiring repetitive motion
such as that found on an assembly line
or in certain factory-like settings;
(22) Employing the exchange visitor
in waste management, janitorial, or
custodial positions, or in any position
where more than five percent of the
duties as defined by time spent involve
waste management or keeping the
premises of a building and
supplementary machinery (e.g., heating,
air-conditioning) clean and in working
order, or involve making building
repairs;
(23) In a position with a host entity
that participates in the Summer Work
Travel Program on a basis other than
seasonal or temporary (e.g., for more
than two seasons during the year, or that
covers a total period of employment
longer than eight months in a single
calendar year);
(24) In a position where an exchange
visitor is solely responsible for the
safety of others (e.g., as a lifeguard);
does not have regular on-site or timely
on-call supervision by the host entity
and/or would be without reasonable
time off for breaks and meals; or
(25) In a position with a host entity
that does not inform the exchange
visitor about, and enforce the use of,
applicable workplace health and safety
laws (e.g., regulations issued by the
Occupational Safety and Health
Administration), does not provide
equipment that meets relevant safety
standards, or otherwise fails to take
reasonable precautions to safeguard the
health, safety or welfare of an exchange
visitor.
(l) Exchange visitor housing and local
transportation.
(1) Every sponsor-approved
placement must include identification
of acceptable housing and local
transportation before that sponsor
approves the placement and issues a
Form DS–2019. Housing must be fully
and accurately described on the
Housing Addendum of Form DS–7007
in accordance with § 62.32(m).
(2) Acceptable housing must meet all
applicable housing codes and
ordinances and be:
(i) Affordable for the exchange visitor;
(ii) provided in compliance with
applicable federal, state, and local laws,
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including 29 CFR part 531 (if the host
entity plans to deduct housing costs
from the exchange visitor’s wages);
(iii) in a safe location;
(iv) within a reasonable distance of
the exchange visitor’s site of activity at
the host entity(ies);
(v) in an area with regular, safe and
affordable local transportation options
to commercial infrastructure and to his
or her site of activity at the host entity;
and
(vi) in a location that is neither
isolated, nor difficult to access.
(3) The requirements in
subparagraphs (iv), (v) and (vi) above
are waived if the sponsor or host entity
provides reliable, safe, and affordable
local transportation to the exchange
visitor during his/her on- and off-hours,
and has a transportation plan in case of
emergency. A sponsor placing an
exchange visitor in a remote national
park, ski or mountain resort, or summer
camp must document the host entity’s
written arrangement for transportation
for that exchange visitor during his/her
off hours and in case of emergency.
(4) Neither a sponsor nor its host
entity is permitted to require an
exchange visitor to pay a separate fee to
identify housing in excess of any fee
charged for the exchange visitor’s
placement at the host entity.
(5) In the event that the exchange
visitor chooses to secure his or her own
housing, both the sponsor and the
exchange visitor must document such
choice in writing and the sponsor must
verify compliance with the
requirements of paragraph (2) prior to
the exchange visitor’s arrival in the
United States, or the sponsor may deny
the housing or the entire host
placement.
(6) If either the sponsor or the
Department determines that an
exchange visitor’s housing situation is
unacceptable or otherwise problematic
(e.g., excessive noise, serious conflict
among housemates), the sponsor must
identify new acceptable housing and
notify the exchange visitor of that
alternative within one week of this
determination; if the exchange visitor
opts not to accept the new housing, the
sponsor may determine that the
placement is in violation of this
regulation.
(7) If an exchange visitor bicycles to
and from the host entity or to reach
commercial infrastructure, his or her
sponsor must ensure that the exchange
visitor is informed that he or she must
wear a helmet and other appropriate
protective gear and that he or she must
check that the bicycle is in working
order (e.g., brakes functional, frame not
bent, all tires inflated properly, bicycle
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chain and gears functional). All
sponsors must provide exchange visitors
in pre-arrival materials and during
orientation with bicycle safety
information, including the Departmentgenerated bicycle safety flyer, and place
the Department-generated bicycle safety
video on their Web site. No exchange
visitor should be expected by his or her
sponsor or host entity to ride a bicycle
to his or her site of activity at the host
entity if he or she chooses not to do so,
or be expected to ride a bicycle to his
or her site of activity on a highway or
other major road without bicycle lanes;
likewise, no exchange visitor should be
expected to ride a bicycle over distances
of longer than a total of eight miles per
day in order to travel to and from the
host entity or reach commercial
infrastructure.
(m) Form DS–7007 (Host Placement
Certification). The purpose of this form
is to ensure a common understanding
among all parties (through required
signature of the sponsor, exchange
visitor, and host entity) about the terms
of the host placement and arranged
housing before the exchange visitor
begins work at his or her host entity.
(1) A sponsor must:
(i) Fully complete a Form DS–7007 for
each exchange visitor placement, which
must include: Location and description
of the host entity; number of employees
and other exchange visitors on location;
hours of work each week that will be
offered the exchange visitor; duties,
wages (including expectations for
overtime), expected training period, if
any; physical demands of the host
placement; any placement-related
benefits or amenities; total itemized fees
charged by sponsors, host entities, and
third parties, that the exchange visitor
will incur, identifying clearly which are
mandatory and which are optional;
other estimated costs to the exchange
visitor of the placement at the host
entity or for other aspects of the
program (e.g., costs and deductions for
benefits, mandatory and optional
deductions, meals included at host
entity). Deductions taken from wages
must be disclosed in advance to the
exchange visitor. A DS–7007 must be
executed for each placement the
exchange visitor accepts and be updated
according to Department guidance if the
terms of a placement change
significantly;
(ii) Fully execute a Form DS–7007
(excluding Housing Addendum) before
completing and signing a Form DS–2019
for each exchange visitor;
(iii) Provide each signatory an
executed copy of the Form DS–7007
(excluding Housing Addendum) before
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the exchange visitor makes his or her
visa application; and
(iv) Inform the exchange visitor that
he or she must have his or her fullyexecuted Form DS–7007 (excluding
Housing Addendum) available (along
with his or her Form DS–2019) for the
visa interview.
(2) A sponsor must ensure that the
Housing Addendum of the Form DS–
7007 is completed (including by the
host entity), if relevant, and that a copy
is sent to the exchange visitor prior to
the exchange visitor’s departure to the
United States and if the exchange visitor
changes housing. A sponsor must
include a description of the housing;
information about local transportation
type and cost, and distance to the host
entity; cost of housing (either weekly or
monthly); need for an exchange visitor
housing deposit; utilities covered in rent
and those that the exchange visitor must
pay separately; whether deductions for
housing or local transportation will be
taken from exchange visitors’ wages;
number of other tenants; housing
features and description (including
numbers of bedrooms and bathrooms);
and whether there is a firm contract for
the housing that the exchange visitor
must sign for a fixed period of time. The
Housing Addendum page must state the
market value of housing and/or local
transportation. Deductions from wages
may only be made in accordance with
Fair Labor Standards Act regulations set
forth at 29 CFR part 531.
(3) A sponsor must give each
exchange visitor 72-hours to consider
any substantive additional requirements
or changes made by his or her host
entity to the host placement after the
DS–7007 or Housing Addendum is
initially executed; a sponsor must
require the exchange visitor and host
entity to sign a new Form DS–7007 if
the exchange visitor agrees to the
changes. If an exchange visitor
determines that he or she does not wish
to add requirements or make changes, or
is unresponsive, he or she must be
allowed to continue to do those tasks at
the host entity specified on his or her
most recent DS–7007, unless the host
entity makes a request to the sponsor
that the exchange visitor be placed
elsewhere, in which case, the exchange
visitor must be given two-weeks’ notice
of program termination. An exception to
the 72-hour rule may be made if such
changes must be implemented before
72-hours to protect the health, safety,
and welfare of the exchange visitor.
(4) A sponsor must keep each DS–
7007 on file for three years.
(n) Exchange visitor pre-departure
orientation and documentation.
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(1) In addition to satisfying the
requirements set forth at § 62.10(b)–(c),
a sponsor must provide to each
exchange visitor prior to departure from
his or her home country, an orientation
in-person, online, or a combination of
both that includes the following
information and documentation:
(i) An explanation of the sponsor’s
role during the program, including
monitoring, and of host entity
responsibilities;
(ii) The Department of State’s Summer
Work Travel Exchange Visitor Welcome
Letter and Diversity Flyer;
(iii) The sponsor’s 24/7 immediate
(i.e., non-answering machine) contact
telephone number;
(iv) A description of exchange visitor
and host entity obligations and
responsibilities, including a list of
program obligations and responsibilities
as set forth in subparagraph (2) below;
(v) Information explaining the crosscultural component of the Summer
Work Travel program, including the
exchange visitor’s obligation to
participate in sponsor- and host entityarranged cross-cultural activities, and
how best to experience local or national
U.S. culture;
(vi) Information on how to identify
and report workplace abuse, sexual
abuse, sexual harassment, bullying,
exploitation, wage violations, housing
violations, poor housing conditions, and
instances of retaliation against the
exchange visitor for reporting problems,
including how to access whistleblower
protection. The orientation also must
include information for exchange
visitors on the sponsor monitoring
process, and inform exchange visitors
that they must notify their sponsor
within ten days of arrival in the United
States and of any changes to the terms
agreed to in Form DS–7007;
(vii) Information on general personal,
pedestrian, and transportation safety,
including bicycle safety information
(i.e., providing the Departmentgenerated bicycle safety flyer and
placing a bicycle safety video on the
sponsor’s Web site);
(viii) An identification card with a
photo of the exchange visitor listing the
exchange visitor’s name, the sponsor’s
name, and main office and emergency
telephone numbers, 911, the telephone
number of the Department’s J–1 visa
toll-free emergency help line, the J–1
visa email address, and the name and
policy number of the sponsor’s health
insurance provider, if applicable; and
(ix) Information on medical care in
the United States (e.g., information on
insurance deductibles, differences
between emergency room visits and
regular hospital visits, how generally to
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4145
seek medical care in the United States)
and locations of the nearest medical
facilities.
(2) Information on exchange visitor
and host entity obligations and
responsibilities must include the
following:
(i) The exchange visitor must notify
his or her sponsor within ten days of
arrival in the United States, as set forth
in § 62.10(c)(9);
(ii) The exchange visitor must notify
his or her sponsor of any changes to the
terms agreed to in Form DS–7007, as set
forth in § 62.32(m)(1)(i);
(iii) An exchange visitor must not
change his or her host site of activity at
the host entity, type of position within
his or her current host placement, or
residence without first notifying the
sponsor, as set forth in § 62.32(d)(11);
(iv) The host entity must not permit
an exchange visitor to begin working for
an additional host entity, or at a
different host entity, until the sponsor
has vetted such host entity, as set forth
at § 62.32(i), and provided the exchange
visitor and host entity a fully executed
Form DS–7007 for such a placement in
accordance with paragraph (m);
(v) A description of the circumstances
that may lead to termination of the
exchange visitor’s program under rules
governing the program, including, but
not limited to, the following: Engaging
in more than three Summer Work Travel
programs during the exchange visitor’s
academic career; failure of an exchange
visitor to report to his or her sponsor
within ten days of arrival in the United
States; failure to appear timely at the
initial host placement without notifying
the sponsor in advance of any inability
to appear on time; beginning
employment at a non-vetted host entity
or at a host placement on the program
exclusions list set forth at paragraph (k);
engaging in illegal activities (e.g., fraud,
distribution of illegal substances);
failure to give two-weeks’ notice of
departure to the current host entity,
except in cases where health, safety, or
welfare of the exchange visitor is
endangered; failure to report change of
position or change of title within the
current host placement or change of
residence; a pattern of unresponsiveness
to sponsor communications; and
violation of sponsor-specific rules
regarding the exchange visitor program;
(vi) The circumstances that may lead
to program termination of the host
entity; and
(vii) The exchange visitor is
prohibited from engaging in any
activities that could bring the Exchange
Visitor Program into notoriety or
disrepute.
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(o) Cross-cultural activities. A sponsor
must:
(1) Ensure that the exchange visitor’s
placement at the host entity requires
regular interaction with co-workers and
customers and that the exchange
visitor’s host entity also facilitates the
regular interaction of the exchange
visitor with U.S. persons during the
workday portion of their program;
(2) Plan and initiate cross-cultural
activities, and/or act as a resource for
host entities, domestic third parties, or
local community groups in arranging
cross-cultural activities that provide the
exchange visitor exposure to U.S.
culture and/or interaction with U.S.
persons throughout his or her program;
(3) Ensure that, at a minimum, it or its
host entity or entities arrange one crosscultural activity within each calendar
month for the exchange visitor; and
(4) Facilitate additional cross-cultural
activities throughout the duration of the
exchange visitor’s program, and
document such activities.
(p) Exchange visitor monitoring and
assistance. A sponsor must:
(1) Maintain, at a minimum, monthly
personal contacts with the exchange
visitor. Such sponsor contact is
permitted to be in-person, by telephone,
or via exchanges of email
(communications via email and
voicemail messages must elicit a
response from the exchange visitor that
provides information on the exchange
visitor’s well-being);
(2) Gauge the exchange visitor’s
overall health, safety, and welfare and
appropriately address issues identified
through monitoring that involve the
suitability of employment, housing and
transportation, and any other issues
affecting, or that could affect, the
exchange visitor’s health, safety, and
welfare;
(3) Be available to the exchange
visitor as a facilitator, counselor, and
information resource and provide
appropriate assistance on an as-needed
basis;
(4) Document all efforts to resolve any
issue that could result in program
termination, including problematic
placements and inability to contact a
non-responsive exchange visitor, before
pursuing program termination;
(5) Prepare any host entity to facilitate
Department oversight and visits to
placement locations; and
(6) Incorporate additional monitoring
steps at the suggestion of the
Department in the case of Departmentnoted problems in the sponsor’s
Summer Work Travel program.
(q) Sponsor use of foreign third
parties. A sponsor must, in addition to
the description set forth in § 62.2 in the
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definition of Third party, satisfy the
following requirements if it elects to use
a foreign third party:
(1) Select only a foreign third party
that:
(i) The sponsor has vetted in
accordance with § 62.32(r);
(ii) has a fixed office address,
employees with professional experience
in the service(s) the foreign third party
provides, an organizational mission
applicable to cultural and educational
exchange, and a secure system to
collect, protect, and dispose of the
personal data of potential and actual
exchange visitors;
(iii) markets the Summer Work Travel
program as a cultural and educational
program with a work component;
(iv) has fees and other charges that are
permissible under this Part, transparent,
justifiable in terms of services provided,
and legal;
and
(v) would not bring the Exchange
Visitor Program into notoriety or
dispute, or engage in actions that would
endanger the health, safety or welfare of
an exchange visitor;
(2) Fully execute a written agreement,
with documented review every three
years, with the foreign third party and
work only with foreign third parties
with which the sponsor has concluded
such written agreements; agreements
must specifically authorize the foreign
third party to carry out certain program
functions;
(3) Adequately orient any foreign
third party it engages on the purpose of
the Exchange Visitor Program and all
applicable regulations in this Part and
updates and related guidance;
(4) Require, review, and approve
annually the third party’s marketing
materials, including updated price lists
based on any Department-required
template, for programs marketed on the
sponsor’s behalf. The price lists must
include itemization of all fees charged
to the exchange visitor and estimated
costs the exchange visitor might incur,
as set forth in § 62.9(d)(3);
(5) Ensure that the foreign third party
does not permit the use of any other
third party (including staffing or
employment agencies or subcontractors)
to work directly with any prospective or
current exchange visitor for the purpose
of programmatic planning, or otherwise
cooperate or contract with any such
other third party;
(6) Place information about each of its
foreign third parties on the sponsor’s
main Web site, including the official
name, headquarters address, and
specific program functions performed;
(7) Establish and implement internal
controls to ensure that each foreign
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third party complies with the terms of
its agreement with the sponsor;
(8) Ensure the foreign third party
knows and complies with all applicable
provisions of these regulations. Failure
by any foreign third party to comply
with the regulations will be imputed to
the sponsor; and
(9) Not use a foreign third party if the
Department has determined and
informed that sponsor that the third
party does not meet the requirements of
subparagraph (1).
(r) Sponsor vetting of foreign third
parties. A sponsor must:
(1) Ensure that any foreign third party
it utilizes or intends to utilize is
legitimate and employs only reputable
individuals or organizations qualified to
perform agreed program functions;
(2) At a minimum, review annually
current documentation for each of its
foreign third parties, including:
(i) Proof that it is legally authorized to
conduct business in every location in
which it operates;
(ii) Any bankruptcy filing, adverse
legal judgment, or pending legal action
or complaint against such foreign third
party relevant to its conduct of the
exchange visitor program;
(iii) Written references from three
current business associates or partner
organizations;
(iv) A criminal background-check
report (including originals and English
translations, as applicable) for each
owner and officer of the foreign third
party; and
(v) A copy of the foreign third party’s
recent financial statements certified by
an independent public accountant.
(s) Sponsor use of domestic third
parties.
A sponsor must, in addition to the
description set forth in § 62.2 (definition
of Third party), satisfy the following
requirements if it elects to use a
domestic third party:
(1) Select only a domestic third party
that:
(i) The sponsor has vetted in
accordance with § 62.32(t), unless the
selected entity serving as a domestic
third party is another designated
sponsor; in that case, the sponsor must
require that the domestic third party
sponsor provide proof of current
Department designation;
(ii) has a fixed office address,
employees with professional experience
in the service(s) the domestic third party
provides, an organizational mission
applicable to cultural and educational
exchange, and a secure system to
collect, protect, and dispose of the
personal data of potential and actual
exchange visitors;
(iii) has fees and other charges that are
permissible under this Part, transparent,
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justifiable in terms of services provided,
and legal; and
(iv) would not bring the Exchange
Visitor Program into notoriety or
dispute, or engage in actions that would
endanger the health, safety, or welfare of
exchange visitors.
(2) Fully execute a written agreement,
with documented review every three
years, with the domestic third party and
work only with domestic third parties
with which the sponsor has concluded
such written agreements;
(3) Orient adequately any domestic
third party it engages on the purpose of
the Exchange Visitor Program and all
applicable regulations in this Part and
updates and related guidance;
(4) Place information about each
domestic third party it engages on the
sponsor’s main Web site, including its
official name, headquarters address, and
specific program functions performed;
(5) Establish and implement controls
to ensure that the domestic third party
complies with the terms of its agreement
with the sponsor;
(6) Ensure the domestic third party
knows and complies with all applicable
provisions of these regulations. Failure
by any domestic third party to comply
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with the regulations will be imputed to
the sponsor; and
(7) Not use a domestic third party if
the Department has determined and
informed that sponsor that the third
party does not meet the requirements of
subparagraph(1).
(t) Sponsor vetting of domestic third
parties. A sponsor must:
(1) Ensure that any domestic third
party it utilizes or intends to utilize is
legitimate and employs only reputable
individuals or organizations qualified to
perform agreed program functions; and
(2) At a minimum, review annually
current documentation for each of its
domestic third parties:
(i) Proof that it is legally authorized to
conduct business in every location in
which it operates;
(ii) Any bankruptcy filing, adverse
legal judgment, or pending legal action
or complaint against such domestic
third party relevant to its conduct of the
exchange visitor program; and
(iii) Proof of sufficient liability
insurance to cover the activities
provided to the sponsor.
(u) Reporting requirements.
(1) Foreign third party reporting:
Within 30 days of its conclusion of a
new written agreement with a foreign
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4147
third party, a sponsor must provide the
Department with that third party’s name
and contact information (i.e., telephone
number, email address, street address,
city address, point of contact, and Web
site address). The sponsor also must
provide the Department with updated
contact information for its foreign third
party within 30 days after receiving
notice of any change in that party’s
contact information. A sponsor also
must notify the Department no later
than 30 days after ceasing to work with
a foreign third party previously
reported.
(2) Price lists: A sponsor must submit
to the Department each year, no later
than December 1, itemized exchange
visitor price lists (in accordance with
any Department template) which
identify the costs that exchange visitors
must pay each sponsor and foreign third
party on a country-specific basis in
order to participate in the program.
Keri Lowry,
Deputy Assistant Secretary of State, Office
of Private Sector Exchange, Bureau of
Educational and Cultural Affairs.
[FR Doc. 2017–00107 Filed 1–11–17; 8:45 am]
BILLING CODE 4710–05–P
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Agencies
[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)]
[Proposed Rules]
[Pages 4120-4147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00107]
[[Page 4119]]
Vol. 82
Thursday,
No. 8
January 12, 2017
Part VI
Department of State
-----------------------------------------------------------------------
22 CFR Part 62
Exchange Visitor Program--Summer Work Travel; Proposed Rule
Federal Register / Vol. 82 , No. 8 / Thursday, January 12, 2017 /
Proposed Rules
[[Page 4120]]
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: 9522]
RIN 1400-AD14
Exchange Visitor Program--Summer Work Travel
AGENCY: Department of State.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of State (Department) proposes to amend
existing regulations to provide new program requirements for the Summer
Work Travel category of the Exchange Visitor Program. This rulemaking
strategy is informed by the Department's comprehensive and ongoing
review of the Summer Work Travel program that began in mid-2010.
With this proposed rulemaking, the Department proposes to: Specify
general program administration requirements for sponsors and their
third parties; enhance transparency in the recruitment of exchange
visitors; limit exchange visitor repeat participation to a total of
three visits; require all exchange visitors to be placed in advance of
the exchange visitor's arrival in the United States; outline additional
sponsor responsibilities for use and vetting of host entities; and
specify host entity requirements for program participation.
In addition, the proposed rule limits the number of late night and
early morning hours during which exchange visitors may work; adds a
section regulating placements in door-to-door sales; explains new
processes for exchange visitor housing; and introduces Form DS-7007
(Host Placement Certification). The proposed rule also specifies more
exactly pre-departure orientation and documentation requirements,
including with respect to bicycle safety; ensures that sponsors and
host entities provide exchange visitors with cross-cultural activities;
and outlines processes for sponsor use and vetting of domestic and
foreign third parties.
DATES: The Department of State will accept comments on this proposed
rule until February 27, 2017.
ADDRESSES: You may submit comments by any of the following methods:
Email: JExchanges@state.gov. You must include the
Regulatory Information Number (RIN) 1400-AD14 in the subject line of
your message.
Persons with access to the Internet also may view this
notice and provide comments by going to the regulations.gov Web site
at: https://www.regulations.gov/and search the RIN 1400-AD14 or docket
number DOS-2016-0034.
Mail (paper or CD-ROM submissions): U.S. Department of
State, Office of Policy and Program Support, SA-5, Floor 5, 2200 C
Street NW., Washington, DC 20522-0505.
All comments should include the commenter's name, the
organization the commenter represents, if applicable, and the
commenter's address. If the Department is unable to receive or
understand your comment for any reason, and cannot contact you for
clarification, the Department may not be able to consider your comment.
After the conclusion of the comment period, the Department will publish
a final rule (in which it will address relevant comments) as
expeditiously as possible.
FOR FURTHER INFORMATION CONTACT: Keri Lowry, Deputy Assistant Secretary
of State, Office of Private Sector Exchange, Bureau of Educational and
Cultural Affairs, U.S. Department of State, SA-5, Floor 5, 2200 C
Street NW., Washington, DC 20522-0505; Email: JExchanges@state.gov.
SUPPLEMENTARY INFORMATION: For the past fifty years, the Summer Work
Travel program has served as one of the most popular exchange
opportunities for foreign post-secondary school students to visit and
learn about the United States. It is also one of the Department's
largest avenues to influence the opinion and attitudes of foreign post-
secondary students toward the United States through people-to-people
diplomacy. The program also helps these students improve their English
language proficiency. In 2015, the Summer Work Travel Program provided
students from approximately 125 countries the opportunity to earn money
to help defray some expenses of a short stay in the United States by
working in seasonal or temporary host placements that require minimal
training.
The Summer Work Travel program links university students from every
region of the world to the people of the United States. In the past
decade alone, approximately one million foreign post-secondary school
students have visited the United States, improved their English
language skills, developed ties with U.S. persons, and experienced U.S.
culture while sharing their own cultures with those they meet. They
have returned to their home countries and, after graduation, have begun
careers in nearly every field. They remain lifelong ambassadors between
their home countries and the United States.
The Department views Summer Work Travel as an important and
uniquely effective mechanism for establishing cross-cultural
communication and contributing to English language proficiency
globally. The program represents the largest Department exchange
opportunity for young adults; most exchange visitors are between the
ages of 18 and 30. The program reaches diverse exchange audiences,
including those from non-traditional sending countries and cities and
towns outside national capitals. Such characteristics make the program
important to the United States because people-to-people exchanges, and
especially exchanges for young adults, are one of the most effective
ways the U.S. forges ties with other nations.
The decision for exchange visitors to participate in the Summer
Work Travel program is a significant one involving an adventurous
spirit, since exchange visitors must live and work in a potentially
unfamiliar environment in the United States. The decision also involves
a significant investment of time and money on the part of these
exchange visitors. It is, therefore, essential that sponsors--and host
entities and third parties working with sponsors--take all necessary
steps to ensure that every exchange visitor enjoys a safe, rewarding,
enjoyable, and memorable U.S. exchange experience.
Sponsors and host entities play vital roles in the success of the
program. This proposed rulemaking is intended to promulgate new minimum
standards, clearly articulate program requirements, and advance
consistency throughout the program.
The Department's insight from its monitoring role, as well as from
complaints, incidents, and lessons learned, informs the contents of
this rulemaking. The Department has interviewed thousands of exchange
visitors and host entities taking part in the SWT program and interacts
regularly with program sponsors. The proposed rule's provisions are
intended to improve the program as, first and foremost, a cultural
exchange and public diplomacy program of the highest quality. As a
private sector exchange model, the program's success is based on
creating standards of practice common across all sponsors. In many
cases, the proposed requirements are actions already being taken by
some sponsors. In others, the Department views the requirement as
essential to protect the program and/or the exchange visitor.
As a public diplomacy program, exchange visitors' successful
experience with this program will create lifelong ambassadors of
goodwill between the United States and other countries. As
[[Page 4121]]
such, the quality of the program for the exchange visitor is the
essential goal. In addition, placement at a host entity permits
exchange visitors of all means to know their host communities, engage
in cross-cultural activities, and travel. Such exchange visitors also
are provided the opportunity to gain work and English language skills
and interact with Americans in the workplace.
Sponsors must ensure that all parties involved in this exchange
commit to its success.
First, sponsors must provide exchange visitors with clear, easy-to-
read orientation materials and transparent information on fees, costs,
program requirements, and wages; place exchange visitors with only
those host entities that commit to advance the foreign policy and
cultural exchange goals of the program; orient host entities to inform
them fully about the program; place exchange visitors only with
suitable and permissible host entities that provide appropriate
compensation; ensure that exchange visitors have easy and convenient
access to necessary amenities such as grocery stores, post offices, and
public transportation; monitor exchange visitors regularly as required;
update exchange visitor site-of-activity information in the Student and
Exchange Visitor Information System (SEVIS) promptly as required; and
provide and facilitate cross-cultural activities for all exchange
visitors. In addition, sponsors must carefully vet and monitor the
activities of their domestic and third party organizations.
Second, sponsors must ensure that the host entities they select
contribute to the program's stated goals and know about and agree to
their role as part of a U.S. public diplomacy program. This includes
requiring that host entities ensure the exchange visitor's quality of
experience in the United States and protect the exchange visitor's
health, safety, and welfare. Sponsors must place exchange visitors with
those host entities that respect the benefits and obligations the
program places on exchange visitors. In addition, sponsors must place
exchange visitors at host entities that provide an experience where
exchange visitors have significant contact with U.S. colleagues,
supervisors, and customers, gain new skills, and increase their English
language proficiency through regular use in their placements. Exchange
visitor host placement schedules should accommodate reasonable time
outside of working hours for exchange visitors to spend time with
friends, tour the local area, and practice English.
And third, sponsors must set expectations for the exchange visitors
they recruit so that they come to the United States already
understanding the underlying cross-cultural purpose of the program;
their responsibility to fulfill their program obligations as defined
through the Exchange Visitor Program regulations by the Department and
by the rules set by their sponsor; the necessity for them to abide by
U.S. laws during their programs; and also their responsibilities toward
their hosts, co-workers, and local U.S. community. Exchange visitors
who have an enjoyable and productive experience through the program
become ambassadors of goodwill and understanding between their
countries and the United States.
In order to strengthen the Summer Work Travel program, the
Department reviewed its implementation of the program beginning in mid-
2010. Between 2010 and 2012, the Department identified a number of
regulatory changes needed to better protect the health, safety, and
welfare of exchange visitors, enhance the program's cross-cultural
component, and strengthen overall program administration. The
Department published an interim final rule (IFR) with a request for
comment on April 26, 2011 (RIN 1400-AC79; see 76 FR 23177) (2011 IFR).
Then, after further monitoring program implementation, the Department
published an IFR with a request for comment on May 11, 2012 (RIN 1400-
AD14); see 77 FR 27593) (2012 IFR). This rule addressed public comments
submitted to the 2011 IFR and became effective immediately, with the
exception of one provision regarding prohibited placements, which
became effective on November 2, 2012 (see also 77 FR 31724).
In promulgating this and previous rulemakings, the Department
continues to advance a comprehensive rulemaking strategy to: (i)
Protect the health, safety, and welfare of exchange visitors on this
important program; (ii) respond to issues identified during monitoring
and ongoing oversight; (iii) articulate consistent and robust minimum
standards for program administration; (iv) prioritize the quality of
the exchange visitor experience; and (v) fortify the program's purpose
as an important U.S. public diplomacy tool.
Analysis of Comments Received on the 2012 IFR
The Department reviewed, analyzed, and fully considered the
comments submitted for both the 2011 and 2012 IFRs. Comments received
in response to the 2011 IFR were analyzed and addressed in the 2012 IFR
(see 77 FR 27598-27600, 27602-27604), which responded to emerging
program issues requiring monitoring and enforcement. Comments received
in response to the 2012 IFR are addressed below. The 2012 IFR
strengthened protections for exchange visitors and reemphasized the
cross-cultural component of the program, consistent with the
requirements of the Mutual Educational and Cultural Exchange Act of
1961, as amended (Pub. L. 87-256) (22 U.S.C. 2451, et seq.) (Fulbright-
Hays Act), and 22 CFR 62.8(d).
The Department received comments on the 2012 IFR from 171 parties,
including: 102 former exchange visitors previously hosted in mobile
concession businesses; 21 leaders of different local, county, and state
fairs; ten organizations representing and/or advocating for trafficking
victims, low- to-middle-income, migrant and guest workers, unions, and/
or civil rights; nine mobile concession business owners that have
employed exchange visitors; eight businesses associated with the mobile
amusement industry; seven trade associations representing the mobile
amusement industry and/or mobile concessionaires; one trade association
representing seafood processors; a membership association of many of
the largest international educational and cultural exchange
organizations in the United States; eight Department-designated Summer
Work Travel program sponsors; two private U.S. persons; one foreign
entity working with sponsors; and a commercial printing business that
has hosted exchange visitors.
The Department received public comment on the following 2012 IFR
provisions, all in 22 CFR part 62:
Program dates. The 2012 IFR and its Supplementary section indicated
that the Department determines the program dates for each country (see
Sec. 62.32(c)). The Department establishes country-specific program
start and end dates according to the academic year calendar of each
country's ministerially-recognized post-secondary institutions and may
modify them as necessary. The Department received three comments, all
of which proposed that the Department continue to be open to amendments
to program start and end dates. One commenting party suggested that the
Department establish bi-annual reviews of the calendar for summer and
winter placements.
The Department currently conducts a regular review of country-
specific program start- and end-dates and believes that this review
addresses these comments by allowing sufficiently for amendment of
program dates. The Department is always open to hearing
[[Page 4122]]
from sponsors, participants, and other members of the public about how
country-specific program dates affect Summer Work Travel program
participants.
Termination of programs of unresponsive exchange visitors. The 2012
IFR (see Sec. 62.32(e)(9)) required sponsors to provide exchange
visitors with information explaining that sponsors will terminate the
programs of participants who fail to comply with enumerated program
regulations (e.g., reporting their arrivals, reporting changes of
residence, not starting work at un-vetted jobs, responding to sponsor
monthly outreach/monitoring efforts). The Department explained in the
Supplementary section of that rulemaking that sponsors should terminate
the programs of exchange visitors who do not report their arrival in
the United States within ten days. The Department received six
comments, five of which disagreed with this provision as overly
punitive. They explained that most exchange visitors are at an age
where it is common not to follow administrative rules carefully, that
exchange visitors sometimes face difficulties in contacting sponsors
upon arrival, and that port of entry information is unreliable if an
exchange visitor arrives before his/her program start date, rendering
consistent enforcement of this provision impossible. One sponsor
suggested that exchange visitors should be terminated only after they
demonstrate a pattern of uncommunicativeness.
The Department does not agree with these comments. In order for
sponsors to ensure that an exchange visitor is physically located at
the site of program placement, as is required by the Department of
Homeland Security, and in order that sponsors may monitor the health,
safety, and welfare of that exchange visitor at the placement site,
sponsors must know that the exchange visitor is indeed present there.
This requires the exchange visitor to report his or her arrival, as
well as any subsequent sites of activity, for example, if the exchange
visitor changes host entities.
Sponsors can enhance the timeliness of exchange visitor reporting
by giving them an effective pre-arrival orientation about the necessity
of and usable methods for reporting U.S arrival to their sponsor.
Sponsors must explain to exchange visitors as part of their orientation
that site of activity notification in SEVIS is a Department of Homeland
Security requirement and that the sponsor is also authorized under
Sec. 62.40(a)(3) to terminate exchange visitors who violate the
Exchange Visitor Program regulations and sponsors' rules governing the
program. Exchange visitors are assigned by their sponsors to report to
their initial assignment on the date they are expected to report and
then have ten days to notify their sponsor that they have arrived. In
addition, exchange visitors have this same period of time to notify
their sponsor to update their contact information each time they
undergo a host entity or housing change, which the Department believes
is a sufficient time-period for such notification. This provision has
not changed in this proposed rule.
Cross-cultural component. The 2012 IFR required that sponsors plan,
initialize, and carry out events or other activities that provide
exchange visitors exposure to U.S. culture (Sec. 62.32(f); see also
Sec. 62.8(d)). The Department received nine comments, four of which
disagreed with this provision. Two commenting parties supported this
new requirement, but recommended that the Department provide for a two-
year unofficial pilot period of the cross-cultural component to test
ways sponsors can most effectively provide and facilitate these cross-
cultural experiences. Other commenters disagreed with or expressed
reservations about the cross-cultural component requirement, stating
that the Department failed to take into account the natural cross-
cultural exchange of day-to-day work life and interactions provided by
the Summer Work Travel program. In contrast, another party commented
that this provision is critical to protecting the exchange visitors and
the integrity of the Summer Work Travel program. Another commenter
agreed with the addition of a cross-cultural component, but contended
that the cross-cultural requirement is so vaguely defined as to be
meaningless.
The Department maintains its strong belief that an organized cross-
cultural component is necessary for the fulfillment of the Summer Work
Travel category's purpose as a cultural and educational exchange and
U.S. public diplomacy program. Following the publication of the 2012
IFR, the Department provided all sponsors with a guide to cross-
cultural programming, and the Department has consistently sought and
highlighted examples of successful cross-cultural programming to share
with the sponsor community. The Department requires sponsors and their
host entities to create opportunities to provide cross-cultural
programming for exchange visitors. In the proposed rule, this
requirement has been set at a minimum of once per month in order to
more clearly define the requirement and respond to sponsor inquiries
since publication of the 2012 IFR about what was an adequate amount of
cross-cultural programming. The Department will continue to work with
sponsors to facilitate successful implementation of cross-cultural
programming requirements, including by issuing guidance outlining best
practices.
Since the 2012 IFR went into effect, many sponsors (approximately
42 percent according to Department records) have already put policies
in place to implement, either directly or through host entities, cross-
cultural activities for exchange visitors. Organizing a cross-cultural
activity for exchange visitors is not especially complex; there are
many possible activities that can make use of local resources and
community events and that are not especially costly. Some examples
organized by either sponsors or host entities over the last year of the
Summer Work Travel program are noted under point 16 of the proposed
rule discussion below.
72-hour deadline for vetting host placements. The 2012 IFR required
that sponsors confirm initial host placements and re-placements for all
exchange visitors before exchange visitors could start work by
verifying, at a minimum, the terms and conditions of such employment
and fully vetting their host entities as set forth at Sec.
62.32(g)(2). If an exchange visitor in in the United States finds his
or her own host re-placement, sponsors must vet that host re-placement
within 72-hours. The Department received nine comments, all in
opposition to the 72-hour deadline, which they viewed as unrealistic.
Commenters explained that host re-placement vetting is a time-consuming
and multi-step process, and it is particularly challenging when the 72-
hour timeframe falls over a weekend when host entities are difficult to
contact and sponsor staff is not available to carry out all required
steps of proper vetting; they proposed changing the deadline to three
business days.
The Department agrees to propose a change to the vetting deadline
to three business days, as provided in proposed paragraph Sec.
62.32(h)(1). Sponsors have systems in place for vetting host entities,
and the Department believes that three days are sufficient for the
sponsor to check a host entity's location and suitability and conduct a
background check on that entity, so that the exchange visitor can begin
his or her new placement as soon as possible thereafter.
Housing and transportation. The 2012 IFR required that sponsors
actively and
[[Page 4123]]
immediately assist exchange visitors with arranging appropriate housing
and identifying appropriate local transportation when host entities do
not offer housing and local transportation (see Sec. 62.32(g)(9)(i)),
or when exchange visitors decide to ask for assistance after initially
declining host entity-provided housing. The Department received four
comments from sponsors on the topic of housing. Some sought
clarification on what specific measures the Department intends with
regard to sponsors' assisting exchange visitors with their housing,
while others questioned the feasibility of sponsors' providing an
additional level of housing assistance.
One commenter expressed support for the requirement that sponsors
assist exchange visitors to ensure appropriate housing and suitable
local transportation. However, others disagreed. One commenting party
explained that sponsor assistance should be limited in scope to
informing exchange visitors of their rights, explaining types of
housing and local transportation, reasonably investigating allegations
of unsafe or inadequate housing, and offering additional assistance and
guidance as appropriate. Other commenters worried about increased costs
if sponsors are required to provide exchange visitors with suitable
housing. Some noted that sponsors may have to put down deposits to
secure housing even before knowing whether exchange visitors have
received visas. Still other commenters stated that exchange visitors
are not minors and may willingly choose substandard housing to save
money unless the Department imposes penalties on exchange visitors who
choose to do so.
The Department continues to respond to serious concerns about
housing and local transportation. The Department maintains that a
placement is appropriate only if it includes safe and affordable
housing accommodation, as well as readily available local
transportation. Host entities are a resource for identifying both
housing and local transportation options. Due to the reality that poor
housing and lack of local transportation may prove disastrous to an
exchange visitor's experience or well-being, sponsors must only approve
placements for exchange visitors that include an identification of safe
and affordable housing that is within reasonable distance from the
exchange visitor's host entity(ies), in a location that is neither
isolated nor difficult to access, and in reasonable proximity to
commercial infrastructure and necessities. Sponsors or their host
entities must identify, but are not obligated to fund, such housing and
local transportation as part of the placement selection. Sponsors
placing exchange visitors in remote national park, summer camp, or
resort locations must document the host entity's written arrangement
for transportation for those exchange visitors during their off hours
and in case of emergency. At times, exchange visitors will identify
housing themselves. Sponsors must verify that any housing option
selected is safe, affordable, and otherwise appropriate, including from
a local transportation perspective.
The Department proposes a number of changes to better ensure access
to appropriate housing and local transportation, as set forth in
proposed paragraph 62.32(l) and discussed later in this section.
Expansion of excluded host placements. The 2012 IFR expanded the
program exclusion list of host placements (see Sec. 62.32(h)) by
adding to that list host placements that raise concerns for the health,
safety, and welfare of exchange visitors and the integrity of the
Summer Work Travel program, and that generally cannot meet the cross-
cultural exchange requirement (see, for example, proposed paragraph
62.32(o)). Comments on specific prohibitions follow:
Exclusion of host placements requiring driver's licenses. The 2012
IFR excluded positions that require driving or operating vehicles for
which driver's licenses are required (Sec. 62.32(h)(5)). The
Department received 11 comments, seven of which disagreed with this
prohibition. Some commenters understood the prohibition of driving-
intensive host placements, but did not believe it necessary to exclude
host placements that require occasional driving on non-public roads or
host placements that incidentally require exchange visitors to drive,
such as positions as bellhops and valet parking attendants.
In the Department's view, prohibiting exchange visitors, on behalf
of their host entity, from driving or operating vehicles on public
roads for which a driver's license is required, however incidental this
driving activity may be, helps mitigate the risk to the health, safety
and welfare of the exchange visitors. Moreover, should an exchange
visitor collide with another driver or a pedestrian while driving or be
hit by another vehicle on a public road, the exchange visitor may
become involved with insurance companies and/or law enforcement,
leading to potentially serious consequences for the exchange visitor.
(See proposed paragraph 62.32(k)(10)).
Exclusion of host placements deemed hazardous to youth. The 2012
IFR prohibited positions and activities declared hazardous to youth by
the U.S. Secretary of Labor (Sec. 62.32(h)(9)). The Department
received five comments, two of which disagreed with this prohibition.
One commenter disagreed with the prohibition of such host placements
because the Secretary of Labor's list is intended for minors, while the
majority of exchange visitors on the Summer Work Travel program are not
minors. While a second commenter generally disagreed with these
exclusions, three other commenters stated that the Secretary's list
provides a useful guide for sponsors in making appropriate placements.
A commenter also noted that the Department should not bar host
placements in which exchange visitors conduct hair braiding and henna
tattooing, activities generally not seen as dangerous but that are
incidental to some summer host placements.
One of the primary goals of the 2012 IFR was to mitigate risks to
the health, safety and welfare of exchange visitors. The Department
believes that, regardless of the fact that most exchange visitors are
not minors, the Secretary of Labor's list provides a sensible, easy-to-
use directory of host placements that are potentially dangerous and are
thus inappropriate for post-secondary students working in the United
States on a cultural and educational exchange program. Proposed
paragraph 62.32(k)(13) continues to refer to the Secretary of Labor's
list at 29 CFR part 570 (https://www.ecfr.gov/cgi-bin/text-idx?tpl=/ecfrbrowse/Title29/29cfr570_main_02.tpl), and puts in place additional
prohibited positions to those specified in the 2012 Summer Work Travel
program interim final rule.
Exclusion of placements with traveling fairs and itinerant
concessionaires. The 2012 IFR prohibited placements in positions with
traveling fairs and itinerant concessionaires (Sec. 62.32(w)(14)).
Host placements in the mobile amusement and mobile concession
industries are overly burdensome to monitor, and have, in specific
instances, created unacceptably high risks to the health, safety, and
welfare of exchange visitors, largely as a consequence of the mobile
nature of the worksite. The Department received 151 comments, 147 of
which disagreed with this prohibition. Comments in opposition were
submitted by: 102 former exchange visitors employed by mobile
concessionaires; 21 heads of different local, county and state fairs;
eight businesses associated with the mobile
[[Page 4124]]
amusement industry; seven organizations representing the mobile
amusement industry and/or mobile concessionaires; and nine mobile
concession business owners.
Commenters argued that the prohibition of host placements in an
entire industry because of the actions of a few businesses within that
industry is unfair; that the traveling nature of such host placements
provides excellent cross-cultural experiences; that modern technology
and the submittal of the businesses' itineraries make it possible for
exchange visitors to be accurately tracked in SEVIS; that fairs'
charitable, technological and agricultural contributions depend on
mobile concessionaires and that this relationship could be damaged by
the provisions of the 2012 IFR; and that the timing of the 2012 IFR's
effective date was unnecessarily and unacceptably disruptive.
Commenters also argued that every host placement comes with risks, and
that the 2012 IFR's prohibitions were overreactions to negative press.
The Department respectfully disagrees with these comments. The
purpose of the Exchange Visitor Program, including the Summer Work
Travel category, is not to satisfy the labor needs of any industry. The
Department also has received and cannot ignore serious complaints about
substandard housing and other related inadequacies associated with
almost all host placements in the mobile amusement and mobile
concession industries. In addition, placement in these industries
entails frequent address changes that require exchange visitors and
their sponsors to update SEVIS records frequently to ensure accuracy
and maintain compliance with both Department of State and Department of
Homeland Security regulations. Many sponsors' demonstrated lack of
compliance with these SEVIS reporting requirements added to the
Department's determination that these placements pose a sufficiently
high risk to the health, safety, and welfare of exchange visitors.
Finally, if a sponsor does not know where an exchange visitor is
residing, security risks arise for both the exchange visitor and the
general public. A prohibition is, therefore, appropriate (see proposed
paragraph 62.32(k)(17)). The Department does not propose substantial
changes to this section in response to comments. It proposes only to
change the term to identify this industry as ``traveling fairs and
itinerant concessionaires,'' rather than ``mobile amusement or mobile
concessionaire industries.''
Exchange visitor compensation. The 2012 IFR reinserted language
inadvertently omitted in the 2011 IFR that mandates exchange visitor
compensation at the highest of the applicable federal, state, or local
minimum wage (see Sec. 62.32(i)(1) and proposed paragraph
62.32(f)(6)(i)). The Department received five comments urging further
protections to ensure adequate exchange visitor compensation. Three
commenters expressed concern that the language as written does not
explicitly guarantee compensation equal to federal, state, or local
wages in host placements exempt from minimum wage requirements in the
Fair Labor Standards Act (FLSA) of 1938. Two commenting parties stated
that, unless sponsors are actually penalized for placing exchange
visitors with host entities that fail to provide exchange visitors with
sufficient pay, no additional compensation rules will be effective. In
addition, the Department received two comments suggesting that exchange
visitor wage levels be set at the same level that U.S. persons receive
for doing the same work.
The Department wishes to ensure that exchange visitors on the
Summer Work Travel program will be able to meet the financial
obligations they incur as part of their exchange experience. The
Department proposes to retain the requirement from the 2012 IFR, with
slight editorial changes. Proposed paragraph 62.32(m)(1)(i) requires
that sponsors must inform exchange visitors of federal, state, and
local minimum wage requirements, and proposed paragraph 62.32(f)(6)(i)-
(ii) requires that, in their host placement(s), exchange visitors
receive pay and benefits commensurate with those offered to their U.S.
counterparts and/or those on another class of nonimmigrant visa, as
applicable, doing the same or similar work in the same work setting,
and not less than the federal, state, or local minimum wage, whichever
is highest, for all hours worked (including overtime) in conformance
with federal, state, and local laws, including the Fair Labor Standards
Act. Host entities may reasonably offer an exchange visitor wages
commensurate with those of a qualified, experienced, or fully competent
U.S. worker or worker on another visa class, only after considering the
experience, education, and skill requirements of the position.
Additional protections for U.S. workers. The 2012 IFR introduced
new protections for U.S. workers by requiring sponsors to confirm that
host entities of exchange visitors: (1) Do not displace U.S. workers at
the worksite in which exchange visitors are placed (Sec.
62.32(n)(3)(ii)); (2) have not experienced layoffs in the past 120 days
(Sec. 62.32(n)(3)(iii)); and (3) do not have workers on lockout or on
strike (Sec. 62.32(n)(3)(iii)). The Department received eight
comments, all of which agree with the new provisions or call for
further protections for U.S. workers. One commenting party proposed
requiring a Department of Labor-certified prevailing wage that protects
U.S. workers from the depressive effects of foreign labor.
The Department agrees with the need to have exchange visitors'
compensation and benefits be commensurate with those offered to their
U.S. counterparts doing the same or similar work in the same work
setting and having similar qualifications and experience (and that
exchange visitors should receive the same compensation and benefits as
those on another class of nonimmigrant visa if they are doing the same
or similar work in the same work setting and have similar
qualifications and experience), as well as providing for greater
transparency in wages and work-related costs. See changes set forth in
proposed paragraph 62.32(f)(6)(i) and (ii).
Proposed Changes
The Department has worked to engage Summer Work Travel
stakeholders, listening to their views about program improvement and
considering their comments in drafting this proposed rule. The
Department was represented at annual international conferences attended
by a large number of sponsors and foreign partners throughout the 2012-
2016 period. It hosted sponsor conference calls in June and August
2012, and again in January 2013 and May 2014, for all Summer Work
Travel program sponsors to discuss program administration improvements,
best practices, host and housing placement concerns, and the
Department's notional timeline of this proposed rulemaking. The
Department held two dialogue meetings for Summer Work Travel sponsors
in late summer and in early fall 2013, and another dialogue session in
fall 2015.
Furthermore, the Department has observed a great variety of Summer
Work Travel placements through a monitoring program that it instituted
in 2012. Throughout summer 2012, the Department conducted 650 Summer
Work Travel site visits in 31 U.S. states. In summer 2013, the
Department visited 667 sites in 32 states. In summer 2014, the
Department visited 676 sites in 33 states. In 2015, the Department
visited 985 sites in 42 states and the District of Columbia. In summer
2016, the Department visited sites of activity hosting 1,246 Summer
Work Travel participants in 36 states. Program
[[Page 4125]]
monitoring through site visits includes interviewing exchange visitors
and visiting their host placement sites and housing. In addition, in
August 2013, the Department sent surveys directly to some 15,000
exchange visitors in the Summer Work Travel program in order to learn
about exchange visitor perspectives on their program and received
nearly 4,000 responses, for a 25 percent response rate. The Department
has made a determined effort to catalogue program successes, and in
2014 and 2015 publicly highlighted these success stories. Observations
from site visits, the study of best practices, and the Department's
robust interaction with sponsors contributed directly to the content of
this proposed rulemaking.
The Department invites public comment on the proposed regulatory
changes set forth below. Provisions of the proposed regulation have
been organized to follow the general sequence of administering the
Summer Work Travel program. In your response, please number comments to
coincide with the following topics:
1. Definitions. The Department includes in proposed paragraph
62.32(b) definitions of ``host entity,'' ``host placement,'' ``seasonal
nature,'' and ``temporary nature.'' These definitions provide clarity
in areas important to the Summer Work Travel program that are in common
use by the Department and the sponsor community, but which, up until
now, have not been defined. The Department in this rulemaking seeks to
define these terms narrowly in terms of their application only to the
Summer Work Travel category of exchange.
2. General sponsor responsibilities. Due to the variations in
sponsor program administration, particularly with respect to
relationships with third parties, the Department delineates in proposed
paragraph 62.32(d) a sponsor's general program responsibilities and
those responsibilities it is permitted to delegate to its foreign and
domestic third parties. Sponsors are directly responsible for
screening; making the final selection of exchange visitors; placing and
re-placing exchange visitors; issuing Forms DS-7007 and DS-2019;
orienting host entities; finding, approving and verifying exchange
visitor housing; and conducting monitoring of exchange visitors and
their host placements within the United States. These activities must
be done by employees of the sponsor. In addition, the sponsor must make
provision for pre-departure and post-arrival orientations in accordance
with Sec. 62.10(b) and (c). A sponsor may conduct a pre-arrival
orientation directly and/or through a foreign third party. A sponsor
may conduct a post-arrival orientation directly and/or through the host
entity. Sponsors should encourage their host entities to provide
exchange visitors with a post-arrival local orientation in order to
acquaint exchange visitors with resources, financial institutions,
possible cross-cultural activities, evacuation and other safety
procedures, and so forth, in their specific host community.
The use of third parties may serve as an important benefit to a
program; however, it represents some risk to sponsors, who are
responsible for the actions of their third parties. A sponsor may use
foreign third parties for recruitment, initial identification of host
entities, and overseas orientation of exchange visitors. A sponsor may
use domestic third parties for initial identification of host entities,
implementation of cross-cultural activities for exchange visitors,
providing a local point of contact or local orientation for exchange
visitors, providing housing assistance, and offering transportation
options for exchange visitors.
A host entity (i.e., where exchange visitors are placed) is not
considered to be a domestic third party. There are separate regulatory
requirements that apply to a sponsor's selection of and relationship
with host entities.
The Department reminds sponsors that third parties that work with
sponsors in administering the program are always deemed to be acting on
that sponsor's behalf when conducting aspects of the sponsor's exchange
visitor program, and their actions are imputed to the sponsor as set
forth in Sec. 62.2 (Definitions; Third party) and as provided in
proposed paragraph 62.32(d)(5). Sponsors must ensure that any fees they
or their third parties charge are legal. For example, fees that
sponsors charge to provide program services to participants, such as
application fees or related document translation fees to prove program
eligibility as a student or a very recent student, would be permitted.
But any fees that require an exchange visitor to remit a portion of his
or her earnings in the United States to overseas private entities are
not permitted. Sponsors must ensure that fees be clearly disclosed and
that they and their third parties document all aspects of their
administration of the exchange visitor program, retaining this
documentation on file for three years.
3. Exchange visitor recruitment. Because the Department of State
authorizes this program for the purposes of public diplomacy and global
engagement with young adults, the Department is particularly mindful of
sponsor or foreign third party marketing and promotional efforts that
inaccurately characterize the program as solely one with a work
component. This program is an international cultural and educational
exchange program, not a program to recruit aliens to work in U.S.
businesses. The success of this program derives from exchange visitors'
acquiring cross-cultural knowledge, gaining English language skills,
and making ties that benefit the United States and the countries to
which they return after their exchange. In order to create consistency
and appropriate industry practice, the Department has included a
requirement in proposed paragraph 62.32(d)(8) that would ensure
sponsors promote the Summer Work Travel program as a cultural and
educational program and recruit applicants and host entities
appropriately. Sponsors must cooperate only with foreign third parties
that abide by this requirement through both their communications with,
and the marketing materials they distribute to, potential exchange
visitors abroad.
In addition, in the proposed rule, the Department addresses
recurring issues regarding the lack of transparency in program costs,
including fees charged to exchange visitors by sponsors, foreign and
domestic third parties, and host entities, deductions from wages, and
other program-related costs. The General Provisions (Subpart A) of 22
CFR part 62 create an initial requirement regarding fee transparency
for the Exchange Visitor Program in general (as set forth in Sec.
62.9(d)), and the Department proposes to create additional
administrative requirements for the Summer Work Travel category.
Exchange visitors recruited into the program must be made aware, at the
time of their recruitment, what fees are charged by sponsors and any
third party organizations with which sponsors work and estimated other
costs the exchange visitor will likely incur. Proposed paragraph
62.32(d)(9), therefore, would require each sponsor to include in its
recruiting material, and post on its main Web site (e.g., with a
visible link to such a page on the sponsor's homepage), examples of the
typical monthly budgets of exchange visitors placed in various regions
of the United States to illustrate wages (based on the required weekly
minimum of 32-hours of work at a typical host placement) balanced
against itemized fees and estimated costs. Providing exchange visitors
with such information better ensures that they fully understand the
financial
[[Page 4126]]
obligations they assume when choosing to participate in the program.
This is especially important since the earnings of exchange visitors
are likely to defray only some of the costs they will incur during
their exchange opportunity.
4. Exchange visitor screening and selection. The Summer Work Travel
Program requires exchange visitors to exercise great responsibility
while in the United States. Exchange visitors must adjust to life in a
new culture, accustom themselves to a new work environment, and
understand all their rights and responsibilities as exchange visitors
in a workplace setting. The Department, therefore, has included in
proposed paragraph 62.32(e)(1), the following eligibility requirements:
Exchange visitors must be at least 18 years old by their Summer Work
Travel program start date. In addition, at the time they file their
program applications, prospective exchange visitors must be foreign
nationals enrolled in and actively pursuing a full-time course of study
toward a degree at a classroom-based post-secondary academic
institution that is physically located outside the United States and
ministerially-recognized within the national education system where the
student is enrolled (including final year students).
Repeat participation has both benefits and drawbacks. In seeking to
create the appropriate balance, the Department proposes at Sec.
62.32(e)(1)(iii) to limit to three the total number of times an
exchange visitor is permitted to participate in the Summer Work Travel
program during his or her post-secondary education career. The
Department has observed the value of repeat participation, including
solidifying a relationship between a host and exchange visitor, and
enabling an exchange visitor to continue building skills while gaining
exposure to an even greater diversity of U.S. culture, society and
tourism. The Department also has observed the drawbacks of repeat
participation, where some exchange visitors with more knowledge of the
United States and the Summer Work Travel program have been encouraged
to repeat their program participation in order to organize for host
entities or other entities activities forbidden by regulation. In
limiting participation in the program to three visits, the Department
notes that the working holiday programs of 20 other countries, the
programs that are most comparable to the Summer Work Travel program,
restrict participation to a single work and travel visit. In several
other countries, working holiday programs are restricted to two visits.
The Department is interested in maximizing the number of individuals
who gain exposure to the Summer Work Travel program, given its nature
as an exchange program. Moreover, previous participation in the program
will not limit exchange visitors from participating in other applicable
categories of the Exchange Visitor Program.
The Summer Work Travel program permits exchange visitors to
practice and enhance their English language skills; effectuates both
the Department's public diplomacy goals and the legislative intent of
the Fulbright-Hays Act, which enables the U.S. government to establish
programs that promote mutual understanding between the people of the
United States and people of other countries by means of educational and
cultural exchange (22 U.S.C. 2451). The Department requires sponsors to
review the applications of, interview, and select those applicants who
have a level of English language proficiency that would enable them to
be understood by co-workers and community members, discuss their
personal backgrounds, and comprehend safety, work, housing, and
transportation-related instructions. In addition, because participation
in cross-cultural activities is a main purpose for the Summer Work
Travel program, proposed paragraph 62.32(e)(1)(v) requires sponsors to
select exchange visitors who evidence an intention, for example, in
their written application or interview, to participate in such
activities while in the United States. This requirement is important
toward ensuring that exchange visitors participate in the program for
the correct reasons, and will have the interest and prior learning
experience necessary to succeed in the program to which they applied.
Proposed paragraph 62.32(e)(2) specifies that, prior to selecting
exchange visitors, sponsors must conduct interviews with them in person
or by video-conference and, upon request, facilitate videoconferences
between exchange visitors and host entities in order that these parties
can learn about one another prior to the exchange.
5. Exchange visitor placement. Finding an appropriate host
placement for each exchange visitor is one of the most important
decisions a sponsor must make. In proposed paragraph 62.32(f), the
Department summarizes the responsibilities of sponsors in securing a
host placement for each exchange visitor. Among these requirements are
that host placements be seasonal and temporary in nature, require
minimal training, and be interactive. Interaction and use of English
language during the regular course of the day can help achieve the
central goals of the Summer Work Travel program: Relationship-building,
cultural exchange, and English language proficiency. Thus, as provided
in proposed paragraph 62.32(f)(iii), sponsors must ensure that all
placements permit daily personal interaction with customers and/or
American co-workers as an integral part of the placement. The
Department seeks to avoid, as part of this program, positions that
provide little to no language exposure or skill acquisition, and that
are inappropriate for a cultural and educational exchange program. Such
positions do not fulfill the stated goals of the program. Sponsors must
be able to ensure that host entities make appropriate accommodation to
meet this objective.
For example, one observed best practice was a host entity that,
rather than retain one individual solely on dishwashing, a task the
host felt offered little interpersonal interaction, rotated restaurant
staff and exchange visitors through this task in order to offer each
person a variety of assignments. Additionally, the Department has no
objection to exchange visitors working alongside foreign nationals in
other visa categories, as long as the exchange visitors with similar
qualifications and experience receive the same compensation and
exchange visitor employment does not have an adverse effect on U.S.
workers. The Summer Work Travel program serves to create long-term
relationships between Americans and program participants, and working
alongside U.S. workers is essential to the achievement of that goal.
Pre-placement. The Department engages with host communities where
exchange visitors are housed. It has learned that overcrowding in some
communities can become a major problem where exchange visitors who are
not pre-placed arrive unannounced and unexpected. Seasonal communities
struggle to identify affordable and appropriate housing for those who
are pre-placed. In the worst cases, exchange visitors live in
overcrowded accommodations, and some even have been left homeless.
These situations defeat the purposes of the exchange visitor program,
bring notoriety, and can generate tensions within communities.
Accordingly, the Department proposes in paragraph 62.32(f)(1) to extend
the applicability of existing pre-placement requirements so that they
pertain to exchange visitors from all countries, rather than only
exchange visitors from non-Visa Waiver Program countries, as is
currently so under Sec. 62.32(g)(10).
[[Page 4127]]
Prior to July 15, 2011 (the effective date of the 2011 IFR),
sponsors were required to allow no more than half of their Summer Work
Travel exchange visitors to enter the United States without pre-
arranged host placements. Since July 15, 2011, sponsors have been
required to pre-place all exchange visitors except those from Visa
Waiver Program countries. Requiring uniform pre-placement in positions
with a vetted host placement prior to exchange visitor receipt of a
Form DS-2019 will permit host entities and local communities to prepare
for exchange visitor arrival, allow sponsors to ensure that each
placement is with a host who has been oriented in advance and is
committed to the goals of the program, and reduce the potential for
temporary housing or overcrowding. Finally, requiring pre-placement
will reduce the number of exchange visitors from Visa Waiver Program
countries who never get host placements during their stay in the United
States, estimated according to Department records to be around 10
percent of exchange visitors from all Visa Waiver Program countries.
The Department also believes that a 100 percent pre-placement
requirement will better ensure that proposed expanded host placement
requirements are met.
Host entity orientation. A sponsor's engaging the host entity in
welcoming the exchange visitor, providing the exchange visitor with a
positive experience while in the United States, and connecting with
that exchange visitor to provide cross-cultural activities are all
fundamental elements of the Summer Work Travel program's mission as one
of exchange. Many sponsors have created orientations for host entities.
The Department sees this as a positive trend, and proposes in paragraph
62.32(f)(1)(x) that all sponsors be required to orient host entities
(e.g., in person, online, through CD or DVD, through teleconference),
clearly explaining to them the public diplomacy purpose and
requirements of the program and the host entity's duties during the
program and toward the exchange visitor. Sponsors must explain program
regulations and policy to host entities so that they may be well-
informed at all times about the program.
Remote placements. The Department receives reports of emergencies
and urgent situations from sponsors, exchange visitors, host entities,
and members of the public. If serious incidents occur regarding the
host placement, host entities are responsible for supervision of and
immediate assistance to their exchange visitors in such circumstances.
However, sponsors with a presence near and/or that have arrived
immediately to the location of an emergency have had the most success
in assisting all parties, including host entities, in such situations,
during which major programmatic decisions may need to be made. The
Department proposes in paragraph 62.32(f)(1)(xii) that each exchange
visitor be placed in a location that the sponsor's employee or
representative is able to reach in-person within eight hours (i.e.,
within one business day), through any reliable transportation means.
Each sponsor should plan how its staff or representatives would reach
exchange visitors placed in more isolated locations where there is
limited transportation, and who in the sponsor organization is to be
responsible for reaching the exchange visitor in such circumstances.
The Department has monitored placements that are isolated, with
little to no infrastructure nearby, and where a sponsor has not visited
prior to the placement. The Department has concluded that sponsors
should take great care when placing exchange visitors in locations that
are far from commercial infrastructure and transportation options, and
in those instances, host entities should assume responsibility for
ensuring sufficient local transportation for the exchange visitor to
meaningfully experience U.S. culture and cross-cultural activities.
The Department has seen successful placement of exchange visitors
at summer camps and national parks, which may be a distance from
commercial infrastructure. In those instances, the host entities made
arrangements for cross-cultural outings, shopping excursions, emergency
evacuation if needed, and so forth.
Sponsor ownership by host entity. Host entities that either
partially or wholly own the sponsor, and sponsors that wholly or partly
own the host entity, must under proposed paragraph 62.32(f)(2) divulge
that relationship to the Department and retain or make available an
independent and neutral entity, such as an ombudsperson, to act as an
advocate for the exchange visitor should the Department determine there
is a need. This is important because a sponsor that is owned by the
host entity at which the exchange visitor is placed may not be able to
act impartially or advocate for the exchange visitor in a dispute
between the exchange visitor and the host entity. For example, if an
exchange visitor were to complain of alleged legally non-compliant
conduct on the part of the host entity (such as requiring the exchange
visitor to conduct unauthorized activities in the host placement) and
seek redress from the sponsor, the host entity that owns the sponsor
could exert pressure on that sponsor not to respond to the exchange
visitor's request. In this and other cases, an independent or neutral
entity could serve as an advocate for the exchange visitor, as the
sponsor and host entity are not well placed to adopt this role since,
by definition, the sponsor and the host entity have an inseparable
business relationship with each other.
Strikes at the host entity. At proposed paragraph 62.32(f)(3),
during the pre-placement phase, sponsors must not match exchange
visitors with host entities at which there is a strike (or other labor
dispute that the sponsor reasonably believes would have a negative
impact on the exchange visitor's program) at the placement site. If a
strike (or other similar labor dispute) occurs at the host entity in
the location where an exchange visitor's host placement has been
finalized pending the arrival of the exchange visitor or where an
exchange visitor is currently carrying out the program, sponsors must
re-place the exchange visitor at a different host entity immediately,
to the extent possible, but in any event, within five business days.
Exchange visitors placed where there is a strike or other such labor
dispute will likely be subjected daily to a tense work environment that
requires them either to cross picket lines and work in the place of
striking employees or choose to join a strike, which could lead to
conflict with management. Such work environments at a host entity are
not conducive to the cross-cultural program experience the Department
wishes to provide for its exchange visitors.
Hours. The Department has learned that gaining sufficient work
hours is a significant concern to exchange visitors on the Summer Work
Travel program. Many exchange visitors participate with the intention
of maximizing their days and experiences, and become despondent if they
have too few hours of work. Too few hours also may lead exchange
visitors to experience difficulties with their financial obligations.
On the other hand, too many hours may exhaust the exchange visitor and
leave little time for any other activities.
The ideal situation would be for exchange visitors to work 40-hour
work weeks, as is common in the United States for full-time employees,
but the Department also understands that seasonal employment ebbs and
flows. In order to create appropriate standards and transparency, as
well as protect exchange visitors who expend significant personal
investment to
[[Page 4128]]
participate, the Department proposes at paragraph 62.32(f)(4) that
sponsors place exchange visitors only with host entities that commit to
provide exchange visitors with no less than 32-hours and no more than
65-hours of permissible work per calendar week, averaged over a two-
week period, for all work weeks of their placement. The Department will
allow a calculation of hours averaged over a two-week period to
accommodate a measure of potential irregularity in working hours from
week to week. Exchange visitors must be paid overtime for hours
completed, calculated on a weekly basis, in accordance with applicable
federal, state, and local laws. Because exchange visitors have various
motivations, the Department will permit an opt-out provision for the
lower limit of hours (32), if requested in writing by the exchange
visitor and acknowledged by the sponsor. Recognizing that certain host
entities may not be able to guarantee 32-hours consistently, the
Department would find appropriate placement at two authorized host
entities simultaneously in order to meet the 32-hour minimum. Each
placement must follow all regulatory requirements.
Over the years, the Department has been made aware that an exchange
visitor's hours may decline over the course of the placement, causing
exchange visitors to seek other unauthorized host placements. Should an
exchange visitor's hours, averaged over a two-week period, fall below
the 32-hour weekly minimum for longer than two weeks, the sponsor must
assist the exchange visitor to increase his or her hours at the current
host placement or find a re-placement or an additional placement to
meet the required hour minimum. If the exchange visitor's hours
averaged over a two-week period fall below the 32-hour weekly minimum,
the exchange visitor also has the option to accept the below-minimum
hours by indicating such to the sponsor in writing; the sponsor must
acknowledge the communication.
Although the Department proposes at paragraph 62.32(f)(4) to
require a minimum of 32-hours and a maximum of 65-hours per calendar
week for authorized placements in the program, the Department does
allow for some flexibility within that range in order to accommodate
the special needs of seasonal placements. An exchange visitor's written
consent is essential for work below or beyond previously agreed-upon
hours. The importance of mutual agreement and clarity in hours and
placement conditions is the motivation for an amended Form DS-7007.
Both the host entity and the exchange visitor will be subject to
the requirement of two weeks' notice as set forth in proposed paragraph
62.32(f)(4)(iii)) and (iv) before changing central terms of the host
placement agreement. The Department has learned that exchange visitor
no-shows or abandonment of jobs are a major risk to the program, as
host entities are counting on and have prepared for exchange visitor
arrival. Likewise, the Department has too often been made aware of
exchange visitors who arrive at the agreed placement only to be told
that they have no job, or the job they are provided upon arrival is not
the job to which they agreed. In order to instill greater commitment
and, thus, higher quality exchange experiences, consequences for
failure to fulfill requirements must exist on both sides.
An exchange visitor who abandons the placement, has a delayed
arrival, or fails to arrive at the placement without first notifying
the sponsor and gaining sponsor permission may be terminated from the
program. Similarly, a sponsor may terminate from hosting exchange
visitors any host entity that fails to provide the exchange visitor and
sponsor two-weeks of notice before ending the placement, decreasing
hours below the 32-hour weekly minimum, averaged over a two-week
period, or otherwise significantly changing agreed-upon terms of the
placement. The two-week notice provision does not apply to host
entities in cases where the exchange visitor fails to report to work on
a sustained basis (i.e., for longer than ten days and without
contacting the sponsor and host entity supervisor and receiving
permission to be absent). The above requirements are intended to
respond to sponsor concerns of no-shows, and exchange visitor concerns
of significant changes to their placements without their knowledge or
advance consent. (Proposed paragraph(f)(4)(iv) states that the two-week
requirement does not apply to credible allegations of conduct that
could result in sanctions.)
In addition, once notified, the exchange visitor must be given at a
minimum 72-hours to consider any significant additional requirements or
changes that host entities wish to make to the exchange visitor's host
placement, such as new duties, departmental relocation, or geographic
relocation. An exchange visitor cannot be required to accept major
program changes without consent. As set forth in proposed paragraph
62.32(m)(3), the sponsor must inform host entities and exchange
visitors that, if an exchange visitor does not agree to such
requirements or changes, he or she may continue with his or her
previous host placement duties or, if this is not possible, request a
re-placement by the sponsor. In the Department's experience, most
sponsors are able to complete the re-placement vetting process for
exchange visitors (i.e., verifying the terms and conditions of such
employment and fully vetting host entities) within the three day period
required by this proposed rulemaking, so that the exchange visitor may
begin the re-placement position as soon as possible thereafter.
Sponsors should expedite re-placements of exchange visitors who refuse
to take on additional work requirements and wish, as a consequence, to
be re-placed, so that exchange visitors are not required by
circumstances to stay in host placements where they cannot or do not
wish to conduct additional or alternative work requirements to those
listed on their Form DS-7007.
6. Compensation. The 2012 IFR required sponsors to ensure that all
exchange visitors are compensated at ``the applicable Federal, State,
or Local Minimum Wage (including overtime)'' (77 FR 27610; Sec.
62.32(i)). The Department reiterates that sponsors must ensure that
host entities pay exchange visitors an hourly wage not less than the
federal, state, or local minimum wage, whichever is higher, for all
hours worked (including overtime) in conformance with applicable
federal, state, and local laws, including the Fair Labor Standards Act.
This requirement is retained in proposed paragraph 62.32(f)(6)(i),
which will, in addition, require sponsors to place exchange visitors
with host entities that agree to provide exchange visitors with pay,
benefits, and working conditions commensurate with those offered to
their U.S. counterparts and/or those on another class of nonimmigrant
visa doing the same or similar work in the same work setting if they
have similar qualifications and experience (see proposed paragraph
62.32(f)(6)(ii)). The Department does not wish host entities to use
exchange visitors as a way of undercutting the wages of U.S. workers or
the wages of those workers who have come to the United States after
having been accepted into non-immigrant labor programs. Any host entity
employing exchange visitors should be advancing the public diplomacy
goal of the program and willing to offer exchange visitors an
experience that is in keeping with this program purpose. The sponsor
also must ensure that each exchange visitor has advance knowledge of
his or her expected hourly earnings, enabling the exchange visitor to
plan accordingly for living expenses (see proposed paragraph
62.32(d)(9)). The hourly wage
[[Page 4129]]
requirement is particularly important for sponsors to monitor in
certain placements, such as summer camps, where the exchange visitor's
room and board are covered by the camp and where hours of work may
become extended due to the setting.
Sponsors or host entities must compensate eligible exchange
visitors for time spent in required training, including applicable
overtime (if the exchange visitor is working more than 40-hours in a
single work week), in accordance with all applicable federal, state,
and local laws (see proposed paragraph 62.32(f)(6)(i) and (ii)). For
trainings held in a city that is farther than 60 miles away from the
exchange visitor's site of activity (see proposed paragraph
62.32(f)(11)), or where exchange visitors are required by the sponsor
or host entity to stay overnight at the training site, the sponsor or
host entity must compensate (either themselves pay or reimburse the
exchange visitor) for related lodging during the training.
In addition, as set forth in proposed paragraph 62.32(f)(8),
sponsors, in accordance with the Fair Labor Standards Act, must ensure
that host entities provide exchange visitors, without charge or
deposit, all uniforms, tools, supplies, and equipment needed to perform
placement-required activities. Finally, because the Summer Work Travel
Program is cultural and educational, and not a work program, and
because exchange visitors are not in the United States for sufficient
time to make use of union services, sponsors must reimburse exchange
visitors any union dues that are required as part of their host
placement.
7. Door-to-door sales positions. The Department is concerned that
door-to-door sales positions may create unsuitable risks for exchange
visitors because such positions involve living in different housing
from time to time and visiting homes unannounced and unrequested to
sell products. Because door-to-door sales have become highly infrequent
in this age of online sales, household reaction to the exchange
visitor's outreach may be uncertain. The Department is aware that these
positions are highly interactive, offer professional skills some
exchange visitors are seeking, and offer daily English language usage.
However, they tend to require some travel of the exchange visitor,
usually within a pre-defined area, and may require long and/or
irregular hours.
The Department thus requires in proposed paragraph 62.32(g) that
sponsors placing exchange visitors in door-to-door sales positions
execute an agreement with each exchange visitor in advance of the
exchange visitor's acceptance of the host placement. This agreement
must explain host placement duties and expectations, the geographical
area the placement will encompass, how the purchase of any necessary
state or local permits will be handled, how exchange visitors may
access pre-arranged housing while traveling, and how, in accordance
with the Fair Labor Standards Act, exchange visitors will be paid an
hourly wage for time spent in their arrival orientation and be timely
reimbursed for housing and other necessary business costs incurred
while traveling on behalf of their host entity. Sponsors also must
provide exchange visitors with an orientation containing information on
safety considerations while selling door-to-door, how they will be
supervised, how to react when faced with possible adverse situations
(e.g., if potential customers do not wish to buy offered products), and
how products that customers do purchase will be delivered, especially
in light of the fact that, in accordance with proposed paragraph
62.32(k)(10), exchange visitors are not permitted to drive.
Sponsors of exchange visitors working in door-to-door sales must
ensure, as set forth in proposed paragraph 62.32(g)(2)(ii), that these
exchange visitors earn in each calendar week of their program, averaged
over a two-week period, the equivalent of the applicable federal,
state, or local minimum wage per hour through hourly pay or sales
profits, and receive pay and benefits commensurate with those offered
to their U.S. counterparts and/or those on another class of
nonimmigrant visa with similar qualifications and experience doing the
same or similar work in the same work setting. The Department will
allow a calculation over a two-week period to accommodate some
fluctuation in sales profits week-by-week. Exchange visitors engaged in
door-to-door sales must begin their sales calls no earlier than 9:00
a.m. and end their last sales call no later than 8:00 p.m. in their
respective time zones.
In order to protect exchange visitors from a situation where they
may be mistakenly taxed on funds collected for a host entity's business
purposes, sponsors must ensure, as set forth in proposed paragraph
62.32(g)(2)(iii), that customers make all checks and other forms of
payment directly payable to the host entity, not to the exchange
visitor. In addition, proposed paragraph 62.32(g)(3) requires that
sponsors honor an exchange visitor's reasonable request for re-
placement at a non-door-to-door assignment.
8. Exchange visitor host re-placement. In paragraph 62.32(h), the
Department proposes to change the deadline for sponsors to complete, at
a minimum, the vetting of host re-placements (i.e., verifying the terms
and conditions of such employment and fully vetting the host entity)
from 72-hours to three business days. Sponsors also are required to
complete and secure the requisite signatures on a new Form DS-7007
prior to an exchange visitor's beginning work at a host re-placement.
The Department is of the view that because exchange visitors have
already paid their sponsor to find them a viable Summer Work Travel
placement, sponsors may not charge exchange visitors additional fees at
the time of re-placement.
9. Sponsor vetting of host entities. The private sector exchange
model succeeds only if sponsors respect their role as an objective
party seeking the best interests of the program and commit to advancing
U.S. public diplomacy goals. Sponsors must become knowledgeable about
host entity third parties through the vetting process. Annual host
entity vetting, as currently required under the 2012 IFR (Sec.
62.32(n)(2)) and as retained in proposed paragraph 62.32(i)(1), works
to ensure that all placements are with legitimate and reputable
entities that have reputable managers and supervisors working with the
exchange visitor. As set forth in proposed paragraph 62.32(j)(3), the
Department will impute to the sponsor the actions of the host entity
and any third parties hired by a host entity to carry out the exchange
visitor's program, whether or not the host entity has disclosed that
third party to the sponsor.
10. Host entity cooperation. Because the conditions of an exchange
visitor's placement at his or her host entity may have a significant
impact upon the opinion that exchange visitor develops of the Summer
Work Travel program and of the United States, the Department sees it as
vital to create consistent minimum standards to which sponsors must
adhere in their authorization of host entities. The Department proposes
in paragraph 62.32(j)(1) and (2) that sponsors be required to ensure
that host entities understand program regulations and arrange or permit
time for sponsor- or host-entity-organized cross-cultural activities
for exchange visitors designed to meet the Department's cross-cultural
activity requirements. If hosts understand their role in this public
diplomacy initiative, they are likely to be more successful in hosting
exchange visitors.
[[Page 4130]]
11. Protections for exchange visitors. The Department is of the
view, as reflected in proposed paragraph 62.32(j)(6) that, in order for
the exchange visitor to be secure in his or her possessions and have
freedom of movement, it is never appropriate for a host entity to hold
or withhold an exchange visitor's personal documents without the
exchange visitor's advance written permission. The Department, through
its program monitoring, has seen instances where the host entity seeks
to retain exchange visitor documents or forbid exchange visitor
communication until the exchange visitor meets certain work
requirements. The Department believes that such host entity conduct has
largely ended as a result of its monitoring, but wishes to make clear
that no sponsor or host entity may retain the exchange visitor's Forms
DS-2019 and DS-7007, money, identification (including passport and
social security card), cellphone, flight tickets, or any other personal
property, unless specifically requested in writing (to include an
itemized list), by the exchange visitor. Such exchange visitor
authorization may be withdrawn at any time in writing, at which time,
the sponsor or host entity must release the documents and other items
within 48-hours. In addition, under proposed paragraph 62.32(j)(5), a
host entity must never stand in the way of communication between the
exchange visitor and his or her sponsor, or prevent communication
between the exchange visitor and his or her family and friends, or
prevent communication with any other person, while the exchange visitor
is not on duty. Finally, sponsors or employees of a sponsor must
continue to follow the requirements set forth in Sec. 62.10(d)
regarding non-retaliation against an exchange visitor.
12. Program exclusions. The Department has witnessed improvement in
sponsor administration of the program since its 2012 IFR, and the
quality of placements has improved since the Department provided
greater clarity regarding appropriate working conditions and
inappropriate placements. This regulation proposes to expand the list
of ``program exclusions'' as set forth in paragraph 62.32(k). In both
the 2011 and 2012 IFRs, the Department increased the types of host
placements in which sponsors were no longer permitted to place exchange
visitors. The Department deemed such host placements as either being
fundamentally unsuitable for a cultural and educational exchange
program or posing an unacceptably high risk to the health, safety or
welfare of exchange visitors. The Department proposes in this
rulemaking to expand this list to include the following host
placements:
Locations without possibility for regular contact. The Department
expects sponsors to remain in contact with their exchange visitors.
Therefore, sponsors, in accordance with proposed paragraph 62.32(k)(4),
must not place exchange visitors where regular and convenient telephone
and Internet communication is not accessible. This is especially
important with regard to placements in national parks and summer camps.
Staffing agencies. As set forth in proposed paragraph 62.32(k)(7),
a sponsor must ensure that staffing/employment agencies or similar
entities do not become inactive intermediaries between the exchange
visitor and the host entity. In accordance with proposed paragraph
(k)(7), when such an agency places exchange visitors, it must provide
daily supervision and primary and onsite monitoring of the exchange
visitor's work environment at his or her host entity, and it must pay
the exchange visitor directly. If such an agency is involved in the
exchange visitor's program, it, along with the host entity, must be
vetted in accordance with proposed paragraph 62.32(i).
Mobile amusement. Since publication of the 2012 IFR, the Department
has become aware that the term ``mobile amusement'' is used more widely
and is clearer than existing regulatory language prohibiting positions
in ``traveling fairs.'' The Department accordingly proposes in
paragraph 62.32(k)(17) to replace the term ``traveling fairs'' with
``mobile amusement.'' This regulation retains the prohibition on
placements in the above industries due to a failure of host entities in
these industries in the past to regularly update the exchange visitors'
sites of activity, which is a basic requirement of the program, and to
the fact that such exchange visitors, through heavy travel in these
industries, never become established in a U.S. host community where
they may make U.S. friends and engage in cultural activities on a
sustained basis.
Movers. The Department in paragraph 62.32(k)(20) proposes to
prohibit host placements in positions where exchange visitors' primary
activity is the movement of household or office goods. Such positions
can place exchange visitors at risk of serious injury.
Repetitive motion jobs. The Department in paragraph 62.32(k)(21)
proposes to prohibit host placements in positions requiring repetitive
motion, including on an assembly line or in certain factory-like
settings. Host placements that require exchange visitors to engage in
repetitive motion activities generally do not offer exchange visitors
the required opportunity to interact frequently and substantially with
American co-workers or customers. In addition, some repetitive motion
jobs, including certain jobs on an assembly line or in certain factory-
like conditions, require working with heavy machinery or dangerous
chemicals. These positions require a great deal of focus on the task at
hand to avoid injury, which also takes away from the opportunity for
interaction with American co-workers.
Waste management and custodian/janitorial positions. The Department
proposes in paragraph 62.32(k)(22) to prohibit host placements in any
waste management, janitorial, or custodial positions or in any position
that involves more than a small percentage (five percent of the hours
or less) of waste management duties or keeping the premises of a
building clean, tending to the heating, plumbing or air-conditioning
system, or making building repairs. Such positions are not suitable for
a cultural and educational exchange program. The above types of duties
may be acceptable only if they are incidental to other types of service
placements and comprise no more than the noted small percentage of
duties performed by the exchange visitor.
Placements in non-seasonal or non-temporary positions: The Summer
Work Travel program permits sponsors to place exchange visitors in
seasonal or temporary positions. The nature of the position is
determined by such factors as whether a host entity has a supplemental
need for assistance; whether it has an increase in financial revenue,
tourist, or seasonal customer numbers; the number of months such a peak
includes within one calendar year; the nature of recreational or cross-
cultural activities in the area or other factors that might cause the
peak need; and whether the host entity has conducted outreach to local
residents for employment.
Sole responsibility for safety of others. In situations where an
exchange visitor would be solely responsible for the safety of others,
such as working as lifeguards at single lifeguard pools, exchange
visitors may not be placed at such host entities where the host entity
does not provide regular on-site or on-call supervision and reasonable
time off for exchange visitor breaks and meals. (See proposed paragraph
62.32(k)(24)).
13. Exchange visitor housing and local transportation. Issues
involving housing and local transportation (between place of residence
and place of work) raise constant concerns both for
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the Department and for exchange visitors, who file housing-related
complaints each year. In 2015, 16 percent of exchange visitors on the
Summer Work Travel program, according to Department monitoring surveys,
said they were dissatisfied with their housing and described their
housing as dirty, run-down, too crowded, and unsuitable, and often
without cooking facilities. In some instances, the Department received
complaints that exchange visitors arrived in the United States to find
that the housing listed on their pre-departure documents was
unavailable or at capacity. The Department also received complaints
about landlords who engaged in rent-gouging, withheld security
deposits, and charged exchange visitors outrageous amounts for normal
wear and tear at the end of the exchange period before they left for
home so that they did not have to return exchange visitor security
deposits. Unavailable and unsuitable housing appears to have been the
top issue of concern for exchange visitors in both the 2014 and 2015
Summer Work Travel program years.
The Department proposes to require in paragraph 62.32(l)(1) that
sponsors may only authorize placements that include options for safe
and affordable housing accommodation and accessible modes of local
transportation. Housing options must have reasonable proximity to the
host entity and regular, safe, and affordable local transportation
options leading to commercial infrastructure and to the host entity,
unless the sponsor or host entity provides such transportation.
Possible housing and local transportation options must be identified
before the placement is approved as part of the sponsor's program. The
specific conditions of the housing option selected for the exchange
visitor by either the sponsor or sponsor's host entity, as applicable,
must be reflected on the Housing Addendum to Form DS-7007 in accordance
with proposed paragraph 62.32(m).
The Department proposes to retain the option for exchange visitors
to self-identify housing, but both the sponsor and the exchange visitor
must document such a selection in writing (proposed paragraph
62.32(l)(5)), and the sponsor may deny the housing if it does not
include the characteristics set forth in proposed paragraph
62.32(l)(2). All housing, whether provided or found by the exchange
visitor, must meet all applicable housing codes and ordinances. It also
must be affordable for the exchange visitor; in a safe location; within
reasonable distance from the exchange visitor's site of activity at the
host entity(ies); in an area with regular, safe, and affordable
transportation options; in a location that is neither isolated nor
difficult to access; and in reasonable proximity to commercial
infrastructure. Likewise, sponsors may not approve a placement if the
associated housing option does not include those same characteristics.
Recent summers have seen an increased number of severe exchange
visitor bicycle accidents. If an exchange visitor bicycles to and from
the host entity or to reach commercial infrastructure, sponsors, in
accordance with proposed paragraph 62.32(l)(7) must ensure that the
exchange visitor is informed that he or she must wear a helmet and
other appropriate protective gear and that he or she must check that
the bicycle is in working order (e.g., brakes functional, frame not
bent, all tires inflated properly, bicycle chain and gears functional).
All sponsors must provide bicycle safety information in pre-arrival
materials and during orientation, including the Department-generated
bicycle safety flyer, and place a bicycle safety video on their Web
site. No exchange visitor should be expected by sponsors or host
entities to ride a bicycle to work on a highway or other major road
without bicycle lanes. Likewise, no exchange visitor should be expected
to ride a bicycle over distances of longer than a total of eight miles
per day in order to travel to and from the host entity or reach
commercial infrastructure.
Sponsors placing exchange visitors in national parks, ski resorts,
and summer camps must have on file, in accordance with paragraph
62.32(l)(3), the host entity's written arrangement for transportation
for those exchange visitors in their off-duty hours or in case of
emergency.
14. Form DS-7007 (Host Placement Certification). Proposed paragraph
62.32(m) contains the requirement of the Summer Work Travel Host
Placement Certification Form (Form DS-7007). The Department believes
certain host placement information must be agreed upon by the three
primary parties--the exchange visitor, host entity, and sponsor--before
issuance of a visa.
Provision of Forms DS-7007 to exchange visitors will ensure that
they are fully aware, before traveling to the United States, of the
details of their individual Summer Work Travel program. As set forth in
proposed paragraph 62.32(m)(1)(i), these details must include
information about location and description of the host placement;
number of employees and other exchange visitors on location; hours of
work each week that will be offered the exchange visitor; duties,
wages, and expectations of overtime; expected training period, if any;
physical demands of the host placement; benefits each exchange visitor
will receive from the host placement; total itemized fees and costs of
the program charged by sponsors, host entities, and third parties
(noting clearly which of those that are mandatory and those that are
optional) that the exchange visitor will incur; itemized costs to each
exchange visitor for benefits and mandatory and optional deductions
(such deductions must be noted on the form); and any meals included at
the host entity. Deductions taken from wages must be disclosed in
advance to the exchange visitor.
The Department further proposes, in paragraph 62.32(m)(1)(i), to
require sponsors to complete Form DS-7007 for every initial and
subsequent host placement the exchange visitor accepts, and to update
the form if the terms of the host placement(s) changes significantly.
Sponsors must provide each signatory an executed copy of the Form DS-
7007 (excluding the Housing Addendum) before the sponsor issues the
exchange visitor a Form DS-2019 and the exchange visitor makes his or
her visa application; and inform the exchange visitor that he or she
must have his or her fully executed Form DS-7007 (excluding the Housing
Addendum) available (along with his or her Form DS-2019) should it be
requested during the visa interview.
In accordance with proposed paragraph 62.32 (m)(2), sponsors also
must provide details about any sponsor- or host entity-arranged housing
on the Housing Addendum to Form DS-7007, including the type of housing
(house, apartment, dormitory, or other); distance to the exchange
visitor's site of activity, and local transportation type and cost;
cost of housing either weekly or monthly; need for an exchange visitor
housing deposit; utilities covered in rent and those that the exchange
visitor must pay separately; number of other tenants; housing features
and description (including numbers of bedrooms and bathrooms); and type
of housing contract, if any, that the exchange visitor must sign.
For protection of exchange visitors under proposed paragraph
62.32(m)(3), sponsors must give exchange visitors 72-hours to consider
any significant additional requirements or changes proposed by the host
entity to their host placement or housing after the DS-7007 or Housing
Addendum is initially executed. If the exchange visitor disagrees in
writing with the proposed
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changes to his or her placement or does not respond at all about
suggested changes, he or she must be permitted to continue with the
duties in the original placement, unless the host entity requests that
the sponsor re-place the exchange visitor. An exception to the 72-hour
rule may be made if such a change must be implemented before 48-hours
to protect the health, safety, and welfare of the exchange visitor.
If the sponsor or host entity arranges housing for the exchange
visitor, the Housing Addendum to Form DS-7007 must be completed and
sent to the exchange visitor prior to the visitor's departure for the
United States in accordance with proposed paragraph 62.32(m)(2).
Sponsors must update the DS-7007 and/or Housing Addendum if exchange
visitors move to other sponsor-provided (including host entity-
provided) housing. If exchange visitors find their own housing or opt
out of sponsor-provided housing (including host entity-provided), which
they must do in writing, the sponsor need not complete the Housing
Addendum, but must vet the housing address and its suitability before
the exchange visitor can move in. Sponsors must keep the DS-7007 on
file for three years, as set forth in proposed paragraph 62.32(m)(4).
15. Exchange visitor pre-departure orientation. The Department
believes that an orientation for each exchange visitor is of the utmost
importance in order to inform the exchange visitor about the role of
the sponsor and the host entity, exchange visitor requirements during
the program, and benefits and protections offered. Sponsors must
fulfill the pre-arrival information and orientation requirements as set
forth at Sec. 62.10(b)-(c). In addition, pursuant to proposed
paragraph 62.32(n), sponsors would be required to provide, prior to
each exchange visitor's departure from his or her home country, an
orientation, either in person or online, or a combination of both, that
includes the following: An explanation of the sponsor's role during the
program, including monitoring, and of host entity responsibilities; the
Department of State's Summer Work Travel Exchange Visitor Welcome
Letter and Diversity Flyer; the sponsor's 24/7 immediate (i.e., non-
answering machine) contact telephone number; a description of exchange
visitor and host entity obligations and responsibilities, including a
list of program obligations and responsibilities; information
explaining the cross-cultural component of the Summer Work Travel
program, including the exchange visitor's obligation to participate in
sponsor- and/or host entity-arranged cross-cultural activities, and how
best to experience local or national U.S. culture; information on how
to identify and report workplace abuse, sexual abuse, sexual
harassment, bullying, and exploitation; information on how to identify
and report wage violations, housing violations, poor housing
conditions, and instances of host entity retaliation against the
exchange visitor for reporting problems; information on general
personal, pedestrian, transportation, including bicycle safety
information (i.e., providing the Department-generated bicycle safety
flyer and placing a bicycle safety video on the sponsor's Web site); an
identification card with a photo of the exchange visitor listing the
exchange visitor's name, the sponsor's name, and main office and
emergency telephone numbers, 911, the telephone number of the
Department's J-1 visa toll-free emergency help line, the J-1 visa email
address, and the name and policy number of the sponsor's health
insurance provider, if applicable; and information on how to seek
medical care in the United States (e.g., information on insurance
deductibles, the differences between emergency room visits and regular
hospital visits), and locations of the nearest medical facilities (e.g.
hospitals, clinics, for general medicine).
The orientation must additionally include information to exchange
visitors on the process of monitoring and on their obligation to notify
their sponsor within ten days of arrival in the United States and of
any changes to the terms agreed to in Form DS-7007. Sponsors must
describe the circumstances that may lead to termination of an exchange
visitor's program under rules governing the program.
All of the proposed requirements for the pre-departure orientation
are those that cover major aspects of the program, including the
responsibilities of each party involved in the exchange; what reporting
is required; necessary communications among the sponsor, host entity,
and exchange visitor; workplace violations to which the exchange
visitor should be alert; and what to do in case of emergencies. The
Department is also aware that many parents of exchange visitors attend
pre-departure orientation, although this is not a requirement, and
believes that such information is also helpful for exchange visitors'
families to know.
16. Cross-cultural activities. The Department proposes at paragraph
62.32(o)(1) to require all sponsors to ensure that exchange visitors in
the Summer Work Travel Program work with U.S. persons and actually
engage in cross-cultural activities, as opposed to merely having, as
the 2012 IFR required, the opportunity to do so. This proposed
requirement more properly reflects the Department's intent, i.e., that
exchange visitors are on an exchange program, the goals of which are to
have them both work alongside U.S. persons and learn about U.S. culture
through and outside of work. The Department proposes at paragraph
62.32(o)(2)-(3) that sponsors must themselves plan, initiate action,
and/or assist host entities, domestic third parties, or local community
groups, to provide each of their exchange visitors with at least one
cross-cultural activity per calendar month in addition to their work
activities, thereby giving him or her exposure to U.S. culture and/or
the opportunity for interaction with U.S. persons. Sponsors may include
in their agreements with host entities a provision that the host entity
plan and implement cross-cultural activities each calendar month during
which it has exchange visitors under its supervision.
Cross-cultural programming opportunities should provide exchange
visitors on the Summer Work Travel program at least one of the
following benefits. They should enable exchange visitors to: (1) Learn
about U.S. society, higher education, and culture outside of their
placement; (2) share their own culture, traditions, and views with U.S.
residents; (3) experience the United States and its geographical
diversity; (4) see the world or the United States from another
perspective; (5) better understand the history and heritage of a
diverse U.S. population; and/or (6) appreciate similarities that bring
people of different nationalities and backgrounds together.
Cross-cultural activities can range from small and informal to
large-scale and organized activities. A cultural activity does not need
to be a trip to another city or a large or expensive event that takes
weeks of planning. It can be something small and relatively
spontaneous, making use of local resources. Some examples that occurred
over the last program year were: Having the exchange visitor come to an
already-planned staff picnic; organizing a potluck dinner at the
supervisor's house with colleagues; going to a state fair; organizing a
building-a-bonfire-on-the-beach event; having a group visit a natural
resource, such as a cave or a federal, state, or local park nearby;
playing softball with fellow employees; going with the exchange visitor
to a local sporting event such as baseball (including having a contest
about who can best describe the rules of baseball);
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bowling; or a trip to a downtown area, museum, library, or outdoor
concert that is either free of charge or has a nominal charge. Around
42 percent of sponsors and their host entities already arrange such
cultural activities for exchange visitors. Sponsors should be prepared
to provide guidance to host entities not yet offering cultural
activities on how to fulfill this requirement.
17. Exchange visitor monitoring and assistance. The Department will
continue to require, as set forth in proposed paragraph 62.32(p), that
sponsors maintain, at a minimum, monthly personal contact with exchange
visitors. The Department wishes to clarify that sponsors should make
actual contact with each exchange visitor and ascertain how his or her
program is progressing. The sponsor must communicate in a way that
elicits an exchange visitor response (in writing through email or by
telephone or telephone message) that provides clarity as to the
exchange visitor's well-being. In addition, the Department intends for
sponsors to be proactive during their monitoring in assessing exchange
visitors' overall health, safety, and welfare and address appropriately
and in a timely manner issues identified through their monitoring;
provide assistance to exchange visitors as requested; and serve as
information resources, facilitators, and counselors upon an exchange
visitor's request. (See proposed paragraph 62.32(p)(2)-(6)).
Sponsors must document all efforts to resolve problematic
placements and efforts to contact non-responsive exchange visitors
before termination. Sponsors must conduct monitoring of their exchange
visitors and facilitate Department oversight and visits to placement
locations. In addition, sponsors should inform host entities about the
Department's monitoring process. Sponsors must be prepared to
incorporate additional monitoring steps at the suggestion of the
Department in order to resolve efficiently any problems that come to
the Department's attention regarding the Summer Work Travel program.
18. Sponsor use and vetting of foreign third parties. The
Department expects that sponsor use of foreign third parties be as
transparent as possible and that sponsors be substantially
knowledgeable of and closely oversee the actions of any foreign third
parties with which they work. The Department has seen instances of
sponsors delegating most of the responsibility for their Summer Work
Travel program to third parties, many of which are domiciled abroad.
Because many third parties recruit exchange visitors in an exchange
visitor's home country, these third parties are known first to the
exchange visitor. But this should not remain the case throughout the
exchange. Sponsors, which are designated by the Department to
facilitate the Exchange Visitor Program, are expected to develop and
have the primary relationship with host entities in the United States,
even though host placement leads may have been initially recommended to
the sponsor by a foreign third party. In addition, sponsors should
develop their own forms and other information-gathering documents when
they work with host entities in the United States; these should not be
provided by third party entities.
Because the Summer Work Travel program is first and foremost a
public diplomacy and cultural exchange program, if utilizing the
services of foreign third parties, sponsors must, under proposed
paragraph 62.32(q)(1), select only those that market the Summer Work
Travel program as a cultural and educational program with a 32- to 65-
hour per week work component rather than a labor program.
As proposed in paragraph 62.32(q)(1)(ii), sponsors must use only
foreign third parties that have a fixed office address, employees with
professional experience in the service(s) the foreign third party
provides, an organizational mission applicable to cultural and
educational exchange, and a secure system to collect, protect, and
dispose of the personal data of potential and actual program exchange
visitors (e.g., a digital security system for intrusions if the data is
maintained electronically, a securely locked file cabinet if collected
in paper format). Of great importance is that third parties have a
secure system in place to dispose of exchange visitor applications and
other documents that have personal data on them (e.g., through
shredding).
As proposed in paragraph 62.32(q)(1)(iv), sponsors must ensure that
their foreign third parties charge exchange visitors only fees and
costs that are permissible under regulation, transparent, justifiable
in terms of services provided, and legal. In accordance with proposed
paragraph 62.32(d)(9), it is not permissible to require an exchange
visitor to remit a portion of his or her income earned in the United
States to an overseas business entity.
Sponsors must adequately orient their foreign third parties on the
purpose and intent of the Exchange Visitor Program, as set forth in
proposed paragraph 62.32(q)(3), as well as provide regulatory updates
about the Exchange Visitor Program when these are announced by the
Department. In addition, as proposed in paragraph 62.32(q)(4), sponsors
must require, review and approve annually the marketing materials for
exchange visitor programs marketed on the sponsor's behalf by each of
their foreign third parties. These marketing materials must include
updated itemized price lists that adhere to any Department-initiated
template.
In order to promote transparency for potential exchange visitors,
the Department proposes in paragraph 62.32(q)(6) that a sponsor place
information about each of its foreign third parties on the sponsor's
main Web site (i.e., with a visible link to this page on the sponsor's
homepage). The Web site entry must include the foreign third party's
official name, headquarters address, and specific program functions
performed (e.g., recruitment and overseas orientation of exchange
visitors, initial identification of host entities). This will give
potential applicants to the program a way to check that any third party
or outside entity that approaches them plays a legitimate role in the
sponsor's program administration.
In accordance with Sec. 62.2 and as provided in proposed paragraph
62.32(q)(8), failure by any foreign third party to comply with the
regulations or with any additional terms and conditions governing
administration of the Exchange Visitor Program will be imputed to the
sponsor by the Department. And, pursuant to proposed paragraph
62.32(q)(8), sponsors are required to ensure that foreign third parties
know and comply with all applicable Departmental regulations and
guidance.
The Department proposes in paragraph 62.32(r) that sponsors
thoroughly vet their foreign third parties. At a minimum, a sponsor
must annually review current documentation for each of its foreign
third parties as part of the vetting process to ensure that the third
party is legally authorized to conduct business where it operates; is
solvent, as determined through an examination of its recent financial
statements; is reputable, as evidenced by references from business
associates or partner organizations; does not have legal judgments
against it or pending legal actions or complaints; and has staff all of
whom have undergone criminal background checks. These are very
important aspects for sponsors to consider as they select and vet
foreign third parties. Such foreign third parties come into direct
contact with exchange visitor program applicants and
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participants, and the reputation of the Summer Work Travel program is
dependent upon the financial and operational stability of those third
parties. As proposed in paragraph 62.32(q)(9), a sponsor may not use a
foreign third party if the Department has determined and informed the
sponsor that the third party does not meet the requirements of proposed
paragraph 62.32(q)(1).
19. Sponsor use and vetting of domestic third parties. In proposed
paragraphs 62.32(d)(4) and 62.32(s)(2), domestic third parties
providing initial identification of host entities, implementing cross-
cultural activities for exchange visitors, serving as a local point of
contact and orientation for exchange visitors, or providing housing
assistance and transportation for the program now must be covered under
written agreement with the sponsor. In proposed paragraph 62.32(s)(4),
these third parties also must be listed on the sponsor's main Web site,
noting each party's official name, headquarters address, and the
specific program functions performed. As proposed in paragraph
62.32(s)(1), sponsors must use only domestic third parties that have a
fixed office address; employees with professional experience in the
service(s) the domestic third party provides; a willingness to learn
about and contribute through provided services to the public diplomacy
mission of the Summer Work Travel program; and, if the organization
collects applications or other materials with the personal data of
prospective or actual exchange visitors, a secure system to collect,
protect, and properly dispose of such data.
Sponsors will be required to supervise and monitor carefully their
third parties' program-related activities to ensure that the third
party is in compliance with the Exchange Visitor Program regulations.
Sponsors must not refer any potential exchange visitor applicants to a
domestic third party that is not covered by a written agreement.
Sponsors that engage another designated sponsor as a third party do not
need to vet that sponsor, but must require that the third party sponsor
provide proof of current Department designation.
Sponsors must vet domestic third parties in accordance with the
requirements set forth in proposed paragraph 62.32(t). These are very
important aspects for sponsors to consider as they select and vet
domestic third parties. Such domestic third parties may initially
identify host entities where exchange visitors are placed, which
placement will materially impact the exchange visitor's experience in
the United States; implement cross-cultural activities for the exchange
visitor, which is a central aspect of such a public diplomacy program;
orient the exchange visitor on what is permitted and not permitted on
the program; serve as a point of contact throughout that exchange
visitor's time in the United States; or provide transportation for the
exchange visitor. The experience of the exchange visitor and the
reputation of the Summer Work Travel program are protected by assessing
whether the third party, at a minimum, legally operates in the United
States; has disclosed any bankruptcy, complaints, pending legal
actions, or adverse judgments; and has liability insurance sufficient
to cover the activities it provides in connection to the Summer Work
Travel program.
Requiring sponsors to enter into a fully executed written agreement
with both foreign and domestic third party entities (proposed
paragraphs 62.32(q)(2) and (s)(2)) will provide more oversight than the
previously informal agreements sponsors may have relied upon for such
services, and will better protect the health, safety, and welfare of
exchange visitors. It will also ensure that the sponsor acknowledges in
writing that the third party is in a legal relationship with that
sponsor in regard to that third party's contribution to the Exchange
Visitor Program and what specific services that sponsor expects the
third party to provide to exchange visitors.
20. Reporting requirements. As proposed in paragraph 62.32(u)(1),
sponsors must report to the Department, within 30 days of conclusion,
any new written agreement they have made with a foreign third party and
the name of and contact information for that foreign third party. A
sponsor also must notify the Department within 30 days after ceasing to
work with a foreign third party previously reported. Each sponsor must
keep the list of foreign third parties up-to-date with the Department
so that the Department can ensure program office and consular office
worldwide awareness of whether or not foreign third parties are
operating on behalf of the Summer Work Travel program, both within the
United States and abroad. It also will require sponsors to submit each
year by December 1 a report of itemized exchange visitor price lists
with breakdowns of the costs that exchange visitors must pay each
sponsor and foreign third party by country in order to participate in
the program.
21. Re-evaluation of exchange visitor cap and moratorium on
sponsors. On November 7, 2011, the Office of Private Sector Exchange
published a notice in the Federal Register (Public Notice 7677) stating
that, until further notice, Summer Work Travel program sponsors in
business for the full 2011 calendar year would not be permitted to
expand their number of program participants beyond their actual total
2011 participant program size (a cap) and that no new applications from
prospective sponsors for Summer Work Travel program designation would
be accepted (a moratorium). The cap has meant that designated sponsors
may not increase the number of exchange visitors participating in their
Summer Work Travel programs beyond their current allotment of Forms DS-
2019 (i.e., they cannot request program expansion under Sec.
62.12(d)(2)). The Department intends to re-evaluate the cap and the
moratorium upon completion of this rulemaking and invites public
comment.
Regulatory Analysis
Administrative Procedure Act
The Department of State is of the opinion that administration of
the Exchange Visitor Program, including the Summer Work Travel program
category, is a foreign affairs function of the U.S. Government and that
rules implementing this function are exempt from Section 553
(Rulemaking) and Section 554 (Adjudications) of the Administrative
Procedure Act (APA). As reflected in the Fulbright-Hays Act, the
purpose of such programs is to increase ``mutual understanding''
between the people of the United States and those of other countries,
``unite us with other nations,'' and ``promote international
cooperation.'' Pursuant to law, policy, and longstanding practice, the
Department of State has supervised, either directly or through private
sector program sponsors or grantee organizations, those foreign
nationals who come to the United States as exchange visitors in
exchange visitor programs, one of which is the Summer Work Travel
Program. Exchange visitors in the Summer Work Travel Program come to
the United States currently from approximately 125 countries. When
problems occur in a program such as this, foreign governments often
directly engage the Department of State regarding the treatment of
their nationals, regardless of who is responsible for the problems.
A major purpose of this rulemaking is to put in place extra
measures to protect the health, safety, and welfare of foreign
nationals entering the United States to participate in the Summer Work
Travel Program then returning to their countries of nationality or last
legal permanent residence upon completion
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of their programs. A number of foreign governments have informed the
Department that they regard this program as important to their
bilateral relationship with the United States and to their nationals
who seek to participate. Participating countries look to the Department
to protect their nationals. The Department is of the view that failure
to protect the health and welfare of these foreign nationals can have
direct and substantial adverse effects on the foreign affairs of the
United States.
The Department emphasizes that many provisions of this proposed
rule--indeed, the majority--reflect careful consideration of public
comments received on two previous Interim Final Rules issued on May 11,
2012, and April 26, 2011 (see the citations in the ``Supplemental
Information'' section of this Notice, above). Members of the public
submitted detailed comments, and this proposed rule has benefited from
those comments. A number of provisions within this proposed rule are
new, based on additional monitoring of the program that the Department
has conducted and meetings with sponsors about their current experience
in conducting this program.
Although the Department is of the opinion that this rule is exempt
from the rulemaking provisions of the APA, the Department is publishing
this rule as a proposed rule, with a 45-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 et seq.).
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local and tribal governments, in the aggregate, or by the private
sector, of $100 million in any year and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Executive Order 13175--Consultation and Coordination with Indian Tribal
Governments
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not preempt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Impacts
Since the Department is of the opinion that this rule is exempt
from 5 U.S.C. 553, the Department is also of the view that this rule is
not subject to the Regulatory Flexibility Act (5 U.S.C. 601, et seq.)
and Executive Order 13272. However, to inform the public as to the
costs and burdens of the this rule upon designated program sponsors,
the Department notes that, if adopted in full, the changes proposed
herein will affect the operations of 41 corporate, academic, and tax-
exempt program sponsors designated by the Department to conduct the
Summer Work Travel Program. Further information follows.
Numbers of Small Businesses
Of the 41 current designated sponsors in the Summer Work Travel
category, 29 sponsors or 70 percent of the total had annual revenues of
less than $7 million in 2015. These 29 small program sponsors accounted
for approximately 26,000 exchange visitors on the Summer Work Travel
program in 2015, or 28.8% of the average total number (90,000) of
exchange visitors on the Summer Work Travel program (averaged over the
past three calendar years (2013-2015)).
Transparency: Proposed fee and wage transparency
requirements include the requirement to provide sample budgets and a
breakdown of all fees that an exchange visitor pays. The Department
estimates cost for 29 small sponsors multiplied by 1 burden hour at $26
weighted wage (i.e., including staff benefits), in accordance with
Bureau of Labor Statistics (National Compensation Survey, Monthly Labor
Review, January 2016) and the salary figures for entry-to-junior-level
or ``other services'' staff at non-profit or for profit organizations
(also junior contractors) working on administering daily program
activities, or $754. This is a new cost to sponsors.
Sponsor screening of candidates for eligibility and
selection. The Department estimates the cost at 0.5 hours per exchange
visitor (26,000 exchange visitors under the purview of small sponsors)
multiplied by $26 per weighted wage, or $338,000. This is not a new
cost for sponsors. However, the cost, now set forth in proposed
paragraph (e)(1) of the proposed rule, was previously calculated as
part of placement (paragraph (g) of the 2012 IFR) and has now been
separated out.
Exchange visitor pre-placement at host entities. The
Department estimates that there will be no new costs and that the cost
will be $260,000 (26,000 exchange visitors under the purview of small
sponsors multiplied by 1 hour multiplied by $10 per exchange visitor).
Placement includes finding a host entity at which the exchange visitor
may conduct the work component of the exchange and identifying
information about the work component, such as hourly wage, activities
of the job, whether any heavy lifting or other physical labor is
involved, whether there are any training requirements, whether there
are any meals that may be taken onsite, whether there are costs to the
exchange visitors for the host entity placement, and so forth.
Exchange visitor host re-placement. It is estimated that
there may be as many as 725 re-placements or additional placements by
small sponsors and the cost to small sponsors will be 0.5 hours of
sponsor administrative staff time multiplied by $10 (Bureau of Labor
Statistics estimated hourly wages for seasonal administrative workers)
multiplied by 725 or a total of $3,625. This is not a new cost to
sponsors. However, the cost was previously calculated as part of
placement and has now been separated out.
Sponsor vetting of host entities. The Department estimates
that the cost for vetting host entities will be $91,000 for all
sponsors collectively (7,000 host entities associated with small
sponsors multiplied by 0.5 man hours multiplied by $26). This is not a
new cost.
Facilitating the placement of exchange visitors in
appropriate and affordable housing. The Department estimates the cost
at $260,000 (26,000 exchange visitors multiplied by 1 hour multiplied
by $10 per hour for administrative staff wage). This is not a new cost.
Preparing and disseminating Form DS-7007. The Department
estimates that it will take sponsors a total of 1.25 hours to complete
both parts of the form at a cost of $868,563 (26,725 exchange visitors
(including re-placements) multiplied by 1.25 hours multiplied by $26
weighted wage per hour). This cost includes completion of both the main
form and the housing addendum. This is a new cost for sponsors.
Orientation documentation for exchange visitors: The
Department estimates the cost of sponsors' providing orientation-
related materials to 26,000 exchange visitors under the purview of
small sponsors at 0.5 hours multiplied by $26 weighted wage per hour,
or $338,000. This is not a new cost.
[[Page 4136]]
Cross-cultural activities. Small sponsors (or their host
entities) must plan cross-cultural activities for exchange visitors,
with one cross-cultural activity being planned each calendar month
during which exchange visitors are on program. Exchange visitors are,
on average, in the program for a period of four months. Planning and
carrying out the cross-cultural activities is calculated at 7,000 small
business host entities of exchange visitors multiplied by six hours
(four for planning and two for implementation of one activity) over the
course of the summer (one per calendar month of the summer work travel
program period equals four total) at $10 per hour administrative staff
wage; this equals $1,680,000. The time commitment to plan an activity
for exchange visitors could be less for many host entities, given that
the entity is not required to plan a complex cultural activity. This is
a new cost.
Exchange visitor monitoring and assistance: It is
estimated that small sponsors will spend 30 minutes per exchange
visitor to monitor exchange visitor activities throughout the program
cycle, including checking on exchange visitor health, safety and
welfare, resolving placement problems, and contacting less responsive
participants, at an annual cost of $130,000 for sponsors collectively
(26,000 exchange visitors multiplied by 0.5 multiplied by $10 per hour
administrative staff wage). This is not a new cost to sponsors.
Sponsor use and vetting of foreign and domestic third
parties. The Department estimates that small sponsors will use and vet
around 252 foreign and 280 domestic third parties. The Department
estimates that it will cost small sponsors two hours to conclude an
agreement and vet each third party at a cost of $26 weighted wage per
hour, or $27,664. This is not a new cost.
Reporting requirement. Sponsors will only need to submit
the foreign third party (formerly foreign entity) names and contact
information and their price lists. The twice-yearly placement report is
no longer required, as the Department can retrieve this information
from existing SEVIS files. It is estimated that the 29 small sponsors
will spend one hour on each of two reporting requirements multiplied by
$26 per man hour, or $1,508. This is not a new cost.
The total cost of all regulatory provisions per small sponsor
exchange visitor is $154; total cost of all new regulatory provisions
per small sponsor exchange visitor is $98. Last calendar year, there
were 13 small sponsors having fewer than 500 exchange visitors in the
Summer Work Travel category. The largest of this number had permission
from the Department to host 477 exchange visitors and would under the
proposed regulation incur total costs of $73,458, and new costs of
$46,746, or four percent of revenue. The smallest of this number had
permission to host five exchange visitors and would under the proposed
regulation incur total new costs of $490, or less than one percent of
revenue.
Last calendar year, there were twelve sponsors with permission to
host between 500 and 2,000 exchange visitors in the Summer Work Travel
category. Of these, the largest had permission to host 1,934 exchange
visitors and would under the proposed regulation incur a total cost of
$297,836, and total new costs of $189,532, or around nine percent of
revenue. The smallest sponsor in this group had permission to host 555
exchange visitors and under the proposed regulation would incur a total
cost of $85,470 or around eight percent of revenue and new costs of
$54,390, or around six percent of revenue.
Last calendar year, there were five sponsors with permission to
host more than 2,000 exchange visitors. The largest of these were able
to host 5,569 exchange visitors and would under the proposed regulation
incur a total cost of $857,626, or eight percent of revenue and total
new costs of $545,762, or six percent of revenue. The smallest of these
were permitted to host 2,311 and would incur under the proposed
regulation total costs of $355,894 and total new costs of $226,478.
The Department considered whether alternative approaches for small
businesses could adequately protect the safety and welfare of exchange
visitors while reducing costs to small entities. For example, the
Department considered requiring cross-cultural activities less
frequently for small sponsors and/or host entities. However, the
Department has a mandate to ensure cross-cultural engagement for all
visitors, and a monthly requirement provides a minimum level of cross-
cultural engagement to meet the objectives of the Fulbright-Hays Act.
The Department also considered the requirement to complete a DS-7007 on
housing and host entity placement for small businesses and considered
whether small entities could be given additional time for compliance.
The Department decided against this proposal due to the need to provide
adequate information about the host entity and housing available to all
visitors to the United States. The requirements for the Summer Work
Travel category, as well as all Exchange Visitor Program categories,
are driven almost exclusively by considerations of the health and
safety of the exchange visitor, and any impact on foreign relations
with the visitor's home country. These considerations constrain the
number of feasible alternatives to the requirements proposed in this
Notice of Proposed Rulemaking. That said, the Department requests
comment on other possible alternatives that would meet the objectives
of this rulemaking in a less costly manner for small entities.
Executive Order 12866 and Executive Order 13563
As discussed above, the Department is of the opinion that the
subject of this rulemaking constitutes a foreign affairs function of
the United States, and thus is exempt from the provisions of Executive
Order 12866. The Department has nevertheless reviewed this rulemaking
to ensure its consistency with the regulatory philosophy and principles
set forth in Executive Orders 12866 and 13563. This rulemaking has been
reviewed by the Office of Information and Regulatory Affairs, which has
designated it a significant rule pursuant to Executive Order 12866.
In order to inform the public as to the costs and benefits of this
rule, the Department presents the following information.
Affected Population. The Department estimates that this rule will
affect 41 current designated sponsors hosting approximately 90,000
exchange visitors annually and working with an estimated 26,000 host
entities and 1,900 foreign and domestic third parties. Sponsors
facilitate the Exchange Visitor Program and provide the necessary
information, support, and guidance for exchange visitors.
Costs. Implementation of certain provisions set forth in this
proposed rule may result in costs for sponsors. A cost breakdown of old
and new costs is noted below:
Transparency: Proposed fee and wage transparency
requirements, including the requirement to provide sample budgets and a
breakdown of all fees and estimated costs that an exchange visitor
pays. The Department estimates cost at 41 sponsors multiplied by 1 hour
at $26 weighted wage, in accordance with Bureau of Labor Statistics
salary figures for entry-to-junior-level non-profit organization staff
or contractors working on administering daily program activities, or
$1,066. This is a new cost to sponsors.
[[Page 4137]]
Sponsor screening for candidate eligibility and selection:
The Department estimates the cost at 0.5 hours per exchange visitor
(90,000) multiplied by $26 per weighted wage or $1,170,000. This is not
a new cost for sponsors; it was previously calculated as part of
placement, and has now been separated out.
Exchange visitors for providing required eligibility and
screening information: The Department estimates the cost at 1 hour per
exchange visitor (90,000) multiplied by $1 or $90,000. This is not a
new cost, but has been added to cost calculations for the first time
and is thus calculated as a new cost. The exchange visitors submitting
eligibility information to the program are students in their home
countries and are unlikely to be paid an hourly wage.
Exchange visitor pre-placement at host entities: The
Department estimates that there will be no new costs and that the cost
will be $900,000 (90,000 exchange visitors multiplied by 1 hour
multiplied by $10 per exchange visitor). Sponsors generally place
exchange visitors from a contact list that is used year-to-year and
updated through public notice or current contacts.
Door-to-door sales placements: The Department estimates
that the cost to the one sponsor making such placements to execute an
agreement explaining in detail 1,325 exchange visitor's duties will be
0.5 hours multiplied by $5 per exchange visitor, or $3,313. This is a
new cost to one current sponsor.
Exchange visitor host re-placement: It is estimated that
there may be as many as 2,500 re-placements or additional placements
and the cost to sponsors will be 0.5 hours of sponsor administrative
staff time multiplied by $10 Bureau of Labor Statistics estimated
hourly wages for seasonal administrative workers multiplied by 2,500 or
a total of $12,500. This is not a new cost to sponsors; it was
previously calculated as part of placement and has now been separated
out.
Sponsor vetting of host entities: The Department estimates
that the cost for vetting host entities will remain at $338,000 for all
sponsors collectively (26,000 host entities multiplied by 0.5 man hours
multiplied by $26). This is not a new cost.
Facilitating the placement of exchange visitors in
appropriate and affordable housing: The Department estimates the cost
at $900,000 (90,000 exchange visitors multiplied by 1 hour multiplied
by $10 per hour). This is not a new cost.
Preparing and disseminating Form DS-7007: The Department
estimates that it will take sponsors (or their host entities) a total
of 1.25 hours to complete both parts of the form at a cost of
$3,006,250 (92,500 exchange visitors (including re-placements)
multiplied by 1.25 multiplied by $26 weighted wage per hour). This cost
includes completion of both the main form and the housing addendum by
the sponsor (or the host entity). This is a new cost for sponsors.
Orientation documentation: The Department estimates the
cost of sponsors' providing orientation-related materials to 90,000
exchange visitors at 0.5 hours multiplied by $26 weighted wage per
hour, or $1,170,000. This is not a new cost.
Cross-Cultural activities: Sponsors (or their host
entities) must plan cross-cultural activities for exchange visitors,
with one cross-cultural activity being planned each calendar month
during which exchange visitors are on program. Exchange visitors are,
on average, on program for a period of four months. Planning and
carrying out the cross-cultural activities is calculated at 26,000 host
entities for exchange visitors multiplied by six hours (four for
planning and two for implementation of one activity) over the course of
the summer (one event per calendar month of the summer work travel
program period equals four total) at $10 per hour administrative staff
wage equals $6,240,000. This is a new cost.
Exchange visitor monitoring and assistance: It is
estimated that sponsors will spend 30 minutes per exchange visitor to
monitor exchange visitor activities throughout the program cycle,
including checking on exchange visitor health, safety and welfare,
resolving placement problems, and contacting less responsive
participants, at an annual cost of $450,000 for sponsors collectively
(90,000 exchange visitors multiplied by 0.5 multiplied by $10 per hour
administrative staff wage). This is not a new cost to sponsors.
Sponsor use and vetting of foreign and domestic third
parties: The Department estimates that sponsors will make agreements
with and vet around 900 foreign and 1000 domestic third parties. The
Department estimates that it will cost sponsors two hours to conclude
an agreement and vet each third party at a cost of $26 weighted wage
per hour, or $98,800. This is not a new cost.
Reporting requirements: There will be a decrease in
reporting requirements. Sponsors will only need to submit the foreign
third party (formerly foreign entity) names and contact information as
sponsors make agreements with such third parties, and also submit third
party price lists. The twice-yearly placement report is no longer
required, as the Department can retrieve this information from existing
SEVIS files. It is estimated that sponsors will spend one hour on each
of two reporting requirements multiplied by $26 per man hour, or
$2,132. This is not a new cost.
Total Costs. The Department estimates the total cost of this
proposed rule to all designated sponsors in the Summer Work Travel
program category at $14,382,061 each year, of which up to $9,340,629
would be new costs, mainly having to do with better documenting the
host placement and ensuring that cross-cultural activities are part of
the program for all exchange visitors. Total costs of the proposed
regulation per exchange visitor would be $160 and total new costs per
exchange visitor would be $104.
Benefits. This proposed rule is a continuation of Department
efforts based on a comprehensive review of the current Summer Work
Travel program category of the Exchange Visitor Program. The rule
predominantly enhances sponsor requirements for programmatic,
partnership, and fee/cost transparency and vetting of domestic
entities. These enhancements are necessary to continue the reform
efforts of the Summer Work Travel category that began with the 2011 and
2012 IFRs.
Events that occurred prior to 2011 led the Department to enhance
its scrutiny of the Summer Work Travel category and amend regulations
to protect exchange visitors. Additionally, in recent years, the work
component of the Summer Work Travel category has too often overshadowed
the cultural component required by the Fulbright-Hays Act.
Accordingly, the Department issued the 2012 IFR to address issues
most directly affecting the health, safety, and welfare of the exchange
visitors and to reinforce the cultural exchange aspects of the program
to promote mutual understanding in accordance with the purpose of the
Fulbright-Hays Act. Changes made by 2012 IFR were intended to protect
the health, safety, and welfare of exchange visitors by reducing the
number of improper or unsafe job placements, fraudulent job offers,
post-arrival job cancellations, inappropriate work hours, and problems
regarding housing and transportation.
However, as the Department has increased its monitoring of the
program and received additional sponsor input, it also has seen the
need to make the proposed rule more specific than the 2012 IFR in
certain sections, so that
[[Page 4138]]
exchange visitors are provided assurance that sponsors have a formal
agreement with each of the domestic and foreign entities that work with
exchange visitors; certainty in what their host placement will entail
and in what housing will be provided; and transparency about the total
cost of the program balanced against wages they can expect to earn
while in the United States.
For the reasons outlined above, the Department considers that the
costs of this proposed rulemaking are outweighed by: (1) The benefits
of increased protection and transparency for exchange visitors,
enhancing both their experiences and U.S. foreign policy; and (2)
closer adherence to the purpose of the Fulbright-Hays Act.
Executive Order 12988
The Department of State has reviewed this proposed 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 Orders 12372 and 13132
This proposed regulation will not have substantial direct effect on
the states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, 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--DS-7000
The information collection requirements contained in this proposed
rule are pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq., and OMB Control Number 1405-0147, Form DS-7000. As part of this
rulemaking, the Department is seeking comment regarding the additional
administrative burden placed on sponsors due to the corresponding
requirements for the sponsors to disclose, collect, and maintain
information in the administration of their programs (see 22 CFR
62.10(f)). You should include the DS form number (if applicable),
information collection title, and/or OMB control number in any
correspondence about burden.
Form DS-7000
Title: Recording, Reporting, and Data Collection Requirements--
Student and Exchange Visitor Information System (SEVIS), Form DS-7000.
FOR FURTHER INFORMATION CONTACT: Direct requests for additional
information regarding the collection listed in this notice, including
copies of the proposed collection instrument and supporting documents,
to the U.S. Department of State, Office of Policy and Program Support,
SA-5, 2200 C Street NW., Floor 5, Washington, DC 20522.
SUPPLEMENTARY INFORMATION:
Title of Information Collection: 45-Day Notice of
Recording, Reporting, and Data Collection Requirements--Student and
Exchange Visitor Information System (SEVIS), DS-7000.
OMB Control Number: 1405-0147.
Type of Request: Revision of a Currently Approved
Collection.
Originating Office: Bureau of Educational and Cultural
Affairs, ECA/EC.
Form Number: Form DS-7000.
Respondents: Exchange Visitors, host entities, and
entities designated by the Department of State as Exchange Visitor
Program sponsors in the Summer Work Travel category.
Estimated Total Number of Respondents for the Exchange
Visitor Program: 191,675 (DS-3036--60; DS-3037--1,415; DS-7000--
190,200). The total respondent summary for Summer Work Travel
requirements is as follows:
------------------------------------------------------------------------
Respondent Estimate
------------------------------------------------------------------------
Exchange visitor........................................ 90,000
Sponsor................................................. 41
Host entities........................................... 26,000
---------------
Total............................................... 116,041
------------------------------------------------------------------------
Estimated Number of Responses for the Exchange Visitor
Program: 1,952,655 (DS-3036--60; DS-3037--2,830; DS-7000--1,949,765
(SEVIS = 20,977 and non-SEVIS = 1,928,788 responses)). Number of
responses for the Summer Work Travel Program: 690,307. For a complete
analysis of the number of responses for Exchange Visitor Program
requirements, please refer to the Supporting Statement titled Form DS-
7000--Recording, Reporting and Data Collection Requirements--Student
and Exchange Visitor Information System (SEVIS) (OMB No. 1405-014) and
``SEVIS'' and ``Non-SEVIS'' spreadsheets included in docket number DOS-
2016-0038.
Average Hours per Response for the Exchange Visitor
Program: 68 minutes.
Average Hours per Response for the Summer Work Travel
Program: 92 minutes.
Total Estimated Burden Time for the Exchange Visitor
Program: 2,182,518 hours (DS-3036--480 hours; DS-3037--943 hours; DS-
7000--2,181,095 hours (SEVIS = 9,144 and Non-SEVIS = 2,171,951 hours).
Total Estimated Burden Time for the Summer Work Travel
Program: 1,061,062. For a complete analysis of the estimated burden for
Exchange Visitor Program requirements, please refer to the Supporting
Statement titled Form DS-7000--Recording, Reporting and Data Collection
Requirements--Student and Exchange Visitor Information System (SEVIS)
(OMB No. 1405-014) and ``SEVIS'' and ``Non-SEVIS'' spreadsheets
included in docket number DOS-2016-0038.
Frequency: On occasion.
Obligation to Respond: Required for participation in the
program.
We are soliciting public comments to permit the Department to:
Evaluate whether the proposed information collection is
necessary for the proper functions of the Department;
Evaluate the accuracy of our estimates of the time and
cost burden for this proposed collection;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the reporting burden on those who are to respond,
including the use of automated collection techniques or other forms of
information technology.
Please note that the comments submitted in response to this rule
are public record. Before including any detailed personal information,
you should be aware that your comments as submitted, including your
personal information, will be available for public review.
Abstract of proposed collection: The collection is the continuation
of information collected and needed by the Bureau of Educational and
Cultural Affairs in administering the Exchange Visitor Program. The
changes proposed are only to Form DS-7000.
Methodology: The collection will be submitted to the Department by
mail or fax as requested by the Department during the review of program
sponsor files, re-designations, incidents, etc.
Form DS-7007
Title: 45-Day Notice of Proposed Information Collection: Form DS-
7007, Summer Work Travel--Host Placement Certification, OMB Control
Number 1405-xxxx.
[[Page 4139]]
ACTION: Notice of request for public comments.
SUMMARY: The Department of State is seeking Office of Management and
Budget (OMB) approval for the information collection described below.
In accordance with the Paperwork Reduction Act of 1995, we are
requesting comments from all interested individuals and organizations
on this collection as it relates to proposed changes to 22 CFR 62.32.
The purpose of this notice is to allow 45 days for public comment in
the Federal Register preceding submission to OMB.
DATE(S): The Department will accept comments from the public up to 45
days from February 27, 2017.
ADDRESSES: You may submit comments identified by any of the following
methods:
Web: Persons with access to the Internet may view and
comment on this notice by going to www.regulations.gov.You can search
for the document by entering ``Docket Number: DOS-2016-0005'' in the
Search Field. Then click the ``Comment Now'' button and complete the
comment form.
Email: JExchanges@state.gov.
Mail (paper, disk, or CD-ROM submissions): U.S. Department
of State, Office of Policy and Program Support, SA-5, 2200 C Street
NW., Floor 5, Washington, DC 20522.
You must include the form number (DS-7007 or 7000), information
collection title, and OMB control number (if any) in any
correspondence.
FOR FURTHER INFORMATION CONTACT: Direct requests for additional
information regarding the collections listed in this notice, including
copies of the proposed collection instruments and supporting documents,
to the U.S. Department of State, Office of Policy and Program Support,
SA-5, 2200 C Street NW., Floor 5, Washington, DC 20522.
SUPPLEMENTARY INFORMATION:
Title of Information Collection: Exchange Visitor
Program--Summer Work Travel Host Placement Certification.
OMB Control Number: 1405-xxxx.
Type of Request: New Collection.
Originating Office: Bureau of Educational and Cultural
Affairs, ECA/EC.
Form Number: Form DS-7007.
Respondents: Entities designated by the Department of
State as Exchange Visitor Program sponsors in the Summer Work Travel
category.
Estimated Number of Respondents: 41.
Estimated Number of Responses: 92,500.
Average Hours per Response: 1.25 hours.
Total Estimated Burden Time: 115,625 hours.
Frequency: On occasion.
Obligation to Respond: Mandatory.
We are soliciting public comments to permit the Department to:
Evaluate whether the proposed information collection is
necessary for the proper functions of the Department;
Evaluate the accuracy of our estimates of the time and
cost burden for this proposed collection;
Enhance the quality, utility, and clarity of the
information to be collected;
Minimize the reporting burden on those who are to respond,
including the use of automated collection techniques or other forms of
information technology.
Please note that the comments submitted in response to this Notice
are public record. Before including any detailed personal information,
you should be aware that your comments as submitted, including your
personal information, will be available for public review.
Abstract of proposed collection: This collection of information is
needed by the Bureau of Educational and Cultural Affairs in
administering the Exchange Visitor Program (J-Visa) under the
provisions of the Mutual Educational and Cultural Exchange Act of 1961,
as amended. Summer Work Travel Host Placement Certification Forms are
to be completed by designated program sponsors (with reference to some
information provided by host entities).
A Host Placement Certification (Form DS-7007) is required for each
Summer Work Travel participant. It will set forth: Location and
description of the host placement; number of employees and other
exchange visitors on location; hours of work each week that will be
offered the exchange visitor; duties, wages, expected training period,
if any; physical demands of the host placement; any placement-related
benefits or amenities; total itemized fees and estimated costs of the
program charged by sponsors, host entities, and third parties (noting
those that are mandatory and optional), that that exchange visitor will
incur; explanation of costs and deductions for benefits and mandatory
and optional deductions (noting those that are mandatory and optional);
and meals included at host entity. Form DS-7007 must be signed by the
sponsor, the sponsor's host entity, and the exchange visitor.
The Housing Addendum will describe the housing and local
transportation and cost (either weekly or monthly), distance to the
site of activity at the host entity, need for an exchange visitor
housing deposit; utilities covered in rent and those that the exchange
visitor must pay separately; whether deductions for housing or local
transportation will be taken from exchange visitors' wages, number of
other tenants; housing features and description (including numbers of
bedrooms and bathrooms); and whether there is a firm contract for the
housing that the exchange visitor must sign for a fixed period of time.
The Housing Addendum page must state the market value of housing and/or
local transportation.
Upon request, Summer Work Travel applicants must present a fully
executed Summer Work Travel Host Placement Certification (Form DS-7007)
to any Consular Official interviewing them in connection with the
issuance of a J-1 visa.
Methodology: The collection will be submitted to the Department by
mail or fax as requested by the Department during the review of program
sponsor files, re-designations, incidents, etc.
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 is revised to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431 et seq.; 22 U.S.C. 2451 et seq.; 22 U.S.C. 2651a; Pub. L. 105-
277, Div. G, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 of
1977, 42 FR 62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27,
1978; Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended;
section 416 of Pub. L. 107-56, 115 Stat. 354; and Pub. L. 107-173,
116 Stat. 543.
0
2. Section 62.32 is revised to read as follows:
Sec. 62.32 Summer Work Travel.
(a) Purpose. Together with other applicable provisions of 22 CFR
part 62, the regulations in this section govern participation in the
Summer Work Travel program category conducted by U.S. Department of
State-designated sponsors. The purpose of this program is to provide
foreign college or university students (or those recently graduated)
the opportunity, during their breaks between or immediately following
academic years, to:
[[Page 4140]]
(1) interact with U.S. persons and experience the culture and
customs of the United States through authorized placements and cross-
cultural activities;
(2) share their individual cultural experiences and background with
U.S. friends, colleagues and communities;
(3) improve their command of the English language;
(4) earn funds to help defray a portion of their expenses by
working in seasonal or temporary host placements that require minimal
training; and
(5) travel in the United States.
(b) Definitions. In addition to those definitions set forth in
Sec. 62.2, the following definitions apply to the Summer Work Travel
category of the Exchange Visitor Program:
(1) Host entity. A person or organization that employs an exchange
visitor. Host entities are not considered ``third parties'' as that
term is used in this Part.
(2) Host placement. The location of an exchange visitor at a host
entity and any related sponsor-or host entity-arranged housing of such
exchange visitor.
(3) Seasonal nature. A host placement is of a seasonal nature when
the required service is utilized only at a certain time of the year
(e.g., summer or winter) when the host entity increases labor levels to
accommodate its seasonal increase in business.
(4) Temporary nature. A host placement is of a temporary nature
when a host entity's need for the duties to be performed is a one-time
occurrence, a peak load need (e.g., the need for workers is tied to one
or more seasons or other short-term demand), or an intermittent need.
It is the nature of a host entity's need, not the nature of the duties,
which is controlling.
(c) Duration of participation. Exchange visitors on the Summer Work
Travel Program may participate for no more than four months. The
program must coincide with the official break between the exchange
visitor's academic years or the break immediately following his or her
final academic term. In permitting exchange visitor participation, a
sponsor must adhere to the earliest allowable program start date and
the latest allowable program end date for each country for its exchange
visitors, as communicated to sponsors by the Department. Extensions
beyond Department-approved program dates are not permitted.
(d) General sponsor responsibilities.
(1) A sponsor is responsible for screening prospective exchange
visitors as set forth in Sec. 62.32(e); making the final selection of
exchange visitors; placing (and re-placing, as necessary) exchange
visitors; issuing Forms DS-7007 and DS-2019; providing an orientation
for host entities; finding, approving, and verifying (as applicable)
exchange visitor housing; and conducting monitoring of exchange
visitors and their host placements within the United States. These
activities must be conducted by employees of the sponsor.
(2) A sponsor must provide for a pre- and post-arrival orientation
for exchange visitors. The pre-arrival orientation may be conducted by
sponsor employees or through a foreign third party with which the
sponsor has a written agreement (pursuant to Sec. 62.32(q)(2)), or
both. The post-arrival orientation may be conducted by sponsor
employees or by the host entity, or both.
(3) A sponsor may use foreign third parties, in accordance with
Sec. 62.32(q), for recruitment and overseas orientation of exchange
visitors, and initial identification of host entities.
(4) A sponsor may use domestic third parties, in accordance with
Sec. 62.32(s), to provide for initial identification of host entities,
implementation of cross-cultural activities for exchange visitors, a
local point of contact for exchange visitors, orientation of exchange
visitors, housing assistance, and exchange visitor transportation.
(5) A sponsor's third party or host entity acts on a sponsor's
behalf in the conduct of the sponsor's exchange visitor program, and
failure by any third party or host entity to comply with the
regulations set forth in this part will be imputed to the sponsor.
(6) A sponsor and its third parties shall not pay or otherwise
provide financial incentive to host entities to accept exchange
visitors for host placements.
(7) A sponsor must ensure that any fees it or its third parties
charge are legal, justifiable, and permitted under this Part.
(8) Sponsor promotional materials must characterize the Summer Work
Travel Program as a cultural and educational program with a work
component.
(9) A sponsor must include in its recruiting material, and post on
its main Web site, examples of the typical monthly budgets of exchange
visitors placed in various regions of the United States to illustrate
wages (based on the minimum-required 32 hours of work at a typical host
placement) balanced against fees and estimated costs. A sponsor must
itemize fees that it and its third parties will charge, or provide
within the sponsor's fee list a specific link to a third party's fee
list on the third party's Web site, and estimate other typical exchange
visitor costs, including estimated housing costs and estimated costs
for cultural activities, in its posting. Actual fees that should be
itemized include the following, as applicable: Program fee (with an
explanation of what this includes); fees for recruitment, interview and
screening, placement, arrival/orientation services; vetting of re-
placement or additional jobs; health insurance; expedited application
review; document translation; and fees related to program
administration and the Form DS-2019 (such as expedited form changes,
program extensions within allowable program windows, health insurance
extension during grace period, reinstatement, re-placement of lost Form
DS-2019, SEVIS adjustments, and travel validation). No sponsor or third
party may require an exchange visitor to remit a portion of his or her
earnings in the United States to an overseas private entity.
(10) A sponsor must ensure that any host entity at which it places
an exchange visitor hires, remunerates, and provides supervision for
that exchange visitor and is willing and able to assist the exchange
visitor in the absence of the sponsor in cases of emergency.
(11) A sponsor must ensure that an exchange visitor does not change
his or her site of activity at the host entity, type of position within
the current host placement, or residence without first notifying the
sponsor.
(e) Exchange visitor screening and selection.
(1) A sponsor must verify and document, prior to each exchange
visitor's selection, that each exchange visitor:
(i) Will be at least 18 years of age by the program start date;
(ii) Is, at the time of application, a foreign national post-
secondary student (including a student in his/her final year) who is
enrolled in and actively pursuing a full-time course of study toward a
degree at a classroom-based post-secondary academic institution that is
physically located outside the United States and is ministerially-
recognized within the national education system where the student is
enrolled; applicants must have successfully completed at least one
term, or equivalent, of post-secondary academic study at the time of
application.
(iii) Has not participated in more than two previous Summer Work
Travel program exchanges to the United States;
(iv) Has at a minimum a level of English language proficiency,
verified in accordance with Sec. 62.10(a)(2), that allows him or her
to communicate
[[Page 4141]]
effectively when speaking with co-workers and community members, to
understand work requirements, to discuss autobiographical information,
and to comprehend both written and oral instructions related to work,
housing, and transportation; and
(v) Intends to participate in sponsor, host-entity, and/or self-
initiated cross-cultural activities while in the United States.
(2) Prior to selecting an exchange visitor, a sponsor must conduct
an interview with each prospective exchange visitor either in-person or
by video-conference and, where requested by the host entity or exchange
visitor, facilitate a video-conference between the host entity and the
exchange visitor.
(3) A sponsor must communicate to prospective exchange visitors
that they may not be accompanied by spouses and dependents unless these
spouses and dependents secure the requisite immigration status. Spouses
and dependents of an exchange visitor in the Summer Work Travel program
category are not eligible for J-2 (derivative) status.
(f) Exchange visitor placement.
(1) Before issuing a Form DS-2019, a sponsor must secure for each
prospective exchange visitor a host placement(s):
(i) That is seasonal or temporary in nature;
(ii) Requiring only minimal training;
(iii) Entailing daily interaction with, and work alongside,
American guests, customers, co-workers, and supervisors, as an integral
part of the host placement;
(iv) Providing the exchange visitor with hours of work numbering
between the allowable minimum and maximum, in no more than two host
placements in accordance with Sec. 62.32(f)(4);
(v) Meeting the requirements for compensation in accordance with
Sec. 62.32(f)(6);
(vi) Provided by a host entity that has been vetted in accordance
with Sec. 62.32(i);
(vii) Provided by a host entity informed of its responsibilities
pursuant to Sec. 62.32(j);
(viii) Not on the program exclusions list set forth in Sec.
62.32(k);
(ix) Satisfying the standard for exchange visitor housing and local
transportation as set forth in Sec. 62.32(l);
(x) Provided by a host entity that has been fully oriented by the
sponsor about the public diplomacy purpose of the Exchange Visitor
Program, federal regulations (including updates), and other
requirements of the Exchange Visitor Program;
(xi) Provided by a host entity that accepts responsibility for the
exchange visitor as necessary in case of emergency; and
(xii) Located where an employee of the sponsor can reach the
exchange visitor in-person within eight hours through any reliable
means of transportation.
(2) A sponsor must divulge to the Department where a partial or
full ownership relationship exists between the sponsor and the host
entity. In these instances, the sponsor must identify an individual who
will act as an independent advocate for the exchange visitor, such as
an ombudsperson.
(3) A sponsor must not place exchange visitors with host entities
if there is a strike or lockout, at the placement site, or other labor
dispute at the placement site that the sponsor reasonably believes
would have a negative impact on the exchange visitor's program. If a
strike, lockout, or other such labor dispute occurs at the host entity
in the location where an exchange visitor's host placement has been
finalized pending the arrival of the exchange visitor, or where an
exchange visitor is currently carrying out the program, a sponsor must
place the exchange visitor at a different host entity as soon as
possible and no later than five business days after the occurrence of
such dispute.
(4) Hours.
(i) A sponsor must place the exchange visitor only with one or two
host entities that, taken together, commit to provide a total minimum
of 32-hours and a total maximum of 65-hours of permissible work per
exchange visitor per calendar week averaged over a two-week period, as
accepted by the exchange visitor on Form DS-7007. Should the exchange
visitor's hours fall below the required 32-hour minimum per week for
longer than two weeks (except in cases where the exchange visitor is
ill or otherwise has been authorized an absence), the sponsor must
assist that exchange visitor within three business days to raise his/
her placement hours at the host entity or be re-placed, or, if the
exchange visitor does not already have two placements, an additional
placement. Should the exchange visitor's hours increase beyond the 65-
hour maximum for more than two weeks, the sponsor, in consultation with
the host entity, must require the exchange visitor to reduce his or her
hours. The exchange visitor may opt out of the 32-hour weekly minimum
work requirement if requested in writing by the exchange visitor and
acknowledged by the sponsor after consultation with the host entity.
(ii) A sponsor may place an exchange visitor with no more than two
host entities at the same time to meet the 32-hour minimum and 65-hour
maximum requirements; the two host placements must be located in close
proximity to each other. An exchange visitor may, if he or she so
desires, take on additional sponsor-authorized work placements above
the 32-hour minimum and below the 65-hour maximum per week work
requirement, that conform to all applicable requirements of this Part.
(iii) A sponsor must ensure that a host entity provides the
exchange visitor two-weeks' notice if the exchange visitor's job
placement will (A) conclude earlier than the end-date indicated on Form
DS-7007 or (B) fall below a total of 32-hours per week averaged over a
two-week period. The two-week notice provision does not apply to host
entities in cases where the exchange visitor fails to report to work
for a sustained period (i.e., more than 10 consecutive workdays and
without contacting the sponsor or host entity supervisor and receiving
permission to be absent). In such cases, the sponsor must fully
document the issue that caused the exchange visitor's hours to be
reduced or the exchange visitor to be dismissed; the sponsor must
assess information provided by the exchange visitor and host entity
objectively. A sponsor must inform the Department of such incident
within 24-hours of its notification.
(iv) A sponsor must ensure that the exchange visitor gives the host
entity two weeks' notice if the exchange visitor's host placement will
(A) conclude earlier than the end-date indicated on Form DS-7007 or (B)
fall below the 32-hour weekly minimum averaged over a two-week period
(if the exchange visitor has not formally opted out of the 32-hour
requirement). The two-week notice provision does not apply to exchange
visitors in cases where the exchange visitor can credibly allege
workplace abuse, sexual abuse, sexual harassment, bullying,
exploitation, wage violations, criminal activity, and instances of
retaliation against the exchange visitor for reporting problems in the
workplace; a sponsor must inform the Department of such incident within
24-hours of its being notified.
(5) Notification. A sponsor must ensure that host entities notify
the exchange visitor and sponsor within 24-hours of exigent
circumstances affecting the exchange visitor's placement.
(6) Compensation. A sponsor must only place the exchange visitor in
a host placement that compensates the exchange visitor:
[[Page 4142]]
(i) At not less than the federal, state, or local minimum wage,
whichever is higher, for all hours worked (including overtime hours
worked and applicable overtime wage), in conformance with applicable
federal, state, and local laws, including the Fair Labor Standards Act;
and
(ii) With pay and benefits commensurate with those offered to their
U.S. counterparts and/or those on another class of nonimmigrant visa,
as applicable, doing the same or similar work in the same work setting.
Host entities may reasonably offer different wages to an employee
commensurate with a qualified, experienced, or fully competent worker
only after considering the experience, education, and skill
requirements of the position.
(7) A sponsor must inform its host entities that, when hosting an
exchange visitor, they are required by law to follow applicable
employer recordkeeping requirements under federal, state, and local
law, including the Fair Labor Standards Act and Department of Labor
regulations (e.g., 29 CFR part 516);
(8) A sponsor must ensure that host entities provide exchange
visitors, without charge or deposit, all uniforms, tools, supplies, and
equipment needed to perform placement-required activities.
(9) Prior to placing an exchange visitor at a host entity, the
sponsor must inquire whether the host entity has displaced or intends
to displace a U.S. worker with an exchange visitor. Sponsors must
ensure that host entities have not rejected qualified U.S. applicants
for the same position within 90 days of the date on which the sponsor
has confirmed the host entity's formal acceptance of that exchange
visitor for the host placement as indicated on Form DS-7007.
(10) A sponsor must reimburse exchange visitors for any union dues
required by their host placement.
(11) A sponsor must ensure that exchange visitors are not charged
for any host entity promotional material used by the exchange visitor
on the job, and must compensate, or ensure that the exchange visitor's
host entity compensates, the exchange visitor for travel time from the
site of activity to any training site, and for the time spent in
training; if the sponsor or host entity holds the training in a city
that is farther than 60 miles away from the exchange visitor's site of
activity, or the sponsor or host entity requires the exchange visitor
to stay overnight at the training site, then the sponsor or host entity
must pay the exchange visitor for the cost of lodging.
(g) Door-to-door sales placements: A sponsor placing an exchange
visitor in a door-to-door sales position must, in addition to the
requirements set forth in Sec. 62.32(f):
(1) Fully execute an agreement that explains in detail the exchange
visitor's placement duties and expectations, who will obtain and pay or
reimburse the exchange visitor for any necessary state or local
permits, the geographic area the host placement encompasses, and how
exchange visitors, while traveling, may access housing that has been
pre-arranged by the sponsor or host entity. The agreement must be
included as an appendix to Form DS-7007 and must be accepted in writing
by the exchange visitor before he or she receives a Form DS-2019.
(2) Ensure that:
(i) The host entity provides the exchange visitor with a post-
arrival orientation that, at a minimum, includes information on safety
considerations while selling door-to-door; how to contact a supervisor
while traveling on duty; how to react when faced with possible adverse
situations; how exchange visitors will be reimbursed for housing costs
incurred while traveling on behalf of their host entity; and how
products will be delivered to customers;
(ii) The exchange visitor in each calendar week of his or her
program, averaged over a two-week period, earns not less than the
equivalent of the applicable federal, state, or local minimum wage per
hour through hourly pay or sales profits, in conformance with
applicable federal, state, and local laws, including the Fair Labor
Standards Act, and receives pay and benefits commensurate with those
offered to his or her U.S. counterparts and/or those on another class
of nonimmigrant visa doing the same or similar work in the same work
setting and having similar qualifications and experience. Hours that an
exchange visitor spends in orientation constitute hours worked;
(iii) Customers make all checks and other forms of payment directly
payable to the host entity, not to the exchange visitor, for sponsor or
host entity products; and
(iv) The exchange visitor begins selling door-to-door no earlier
than 9:00 a.m. and finishes his/her last sales call no later than 8:00
p.m. in the time zone covering his or her location.
(3) Permit an exchange visitor's reasonable request for re-
placement at a non-door-to-door assignment and issue the exchange
visitor a new Form DS-7007.
(4) Pre-authorize and document on the appendix to the DS-7007 any
additional types of exchange visitor sales activities.
(h) Exchange visitor host re-placement. A sponsor must:
(1) Find and fully vet a new host entity for the exchange visitor
(i.e., verify, at a minimum, the terms and conditions of the exchange
visitor's employment at that host entity) within three business days in
response to an exchange visitor's reasonable request to change host
placements, provided the request is made before the final four weeks of
the exchange visitor's program. Considerations in determining the
reasonableness of a request may include whether the new placement would
be consistent with the exchange visitor's abilities, is located in the
same city or a nearby city to the previous placement, and is within an
economic sector where host entities are hiring. Sponsors may not charge
the exchange visitor a fee for re-placement.
(2) Ensure that a host re-placement meets the requirements
applicable to the original placement(s).
(3) Complete and secure the requisite signatures on a new Form DS-
7007 prior to the exchange visitor's beginning work at a host re-
placement.
(i) Sponsor vetting of host entities. A sponsor must:
(1) Exercise due diligence in vetting a host entity, its owners,
and its managers and supervisors who work with exchange visitors. In
conducting such vetting, a sponsor must confirm that a host entity is a
legitimate and reputable business by taking, at a minimum, the
following steps annually:
(i) Check, through direct contact in person or by telephone, the
names of the entity's owner(s), and manager(s), names of the
supervisor(s) for the exchange visitor, business telephone numbers,
email addresses, street addresses, and professional activities;
(ii) Use publicly available information (e.g., state registries,
advertisements, brochures, Web sites, court registries, state sex-
offender registries) and available information from prior exchange
visitor placements to confirm that all host entities and their owners
are of good reputation and financially viable, and that all managers
and supervisors of the exchange visitor are reputable and have each
undergone a criminal background check that the sponsor may review;
(iii) Record a potential host entity's Employer Identification
Number (EIN) and obtain copies of its current business or professional
license or permit, or certificate issued by the jurisdiction where the
business operates, granting the host entity the right to operate in
that jurisdiction;
[[Page 4143]]
(iv) Check whether the host entity will use any third parties
(including staffing agencies) to conduct the exchange visitor program
and verify using publicly available information (e.g., the kind of
information noted in subparagraph (i)(1)(i)) to check whether such
third parties are legitimate and reputable and that their managers and
supervisors working with exchange visitors have each had a criminal
background check that the sponsor may review. Failure of a third party
engaged by a sponsor's host entity to comply with the regulations
governing administration of the Exchange Visitor Program will be
imputed to the sponsor, whether or not such third party has been
disclosed by the host entity to the sponsor.
(v) Verify that each potential host entity will have Workers'
Compensation Insurance coverage or its equivalent, as applicable, in
the appropriate U.S. state during the time when the exchange visitor
will be placed there, or, if applicable, evidence of that state's
exemption from requirement of such coverage;
(vi) Obtain verification at the beginning of each season that a
host entity with which an exchange visitor is planned to be placed will
not displace U.S. workers, has not experienced layoffs in the past 120
days, and does not have workers on lockout or strike; and
(vii) Review the U.S. Department of Labor Web site and state
resources for judgments and debarments and revocations pertaining to
the host entity or business owner.
(2) Discontinue cooperation with a host entity that fails to
disclose information that may affect exchange visitor health, safety,
or welfare, or bring the Exchange Visitor Program into notoriety or
disrepute.
(j) Host entity cooperation.
(1) A sponsor must inform a host entity and its relevant managers
and supervisors of program regulations, regularly monitor the host
entity's compliance with such regulations, and take action if it
becomes aware of a violation.
(2) A sponsor must inform a host entity that it may be required to
arrange cross-cultural activities for its exchange visitor, or that it
must permit time for the exchange visitor to engage in sponsor-arranged
cross-cultural activities, as defined in Sec. 62.2.
(3) Failure by any host entity (or any disclosed or undisclosed
third party) to follow the requirements governing administration of the
Exchange Visitor Program will be imputed to the sponsor.
(4) A sponsor must require a host entity to notify it within 24-
hours of the following events:
(i) The exchange visitor arrives at his/her site of activity to
begin his/her program;
(ii) There are significant deviations in the host placement during
an exchange visitor's program;
(iii) The exchange visitor is not meeting the requirements of his/
her host placement as detailed on Form DS-7007;
(iv) The exchange visitor leaves his/her position ahead of the
planned departure;
(v) There are serious incidents involving an exchange visitor,
including any situations that have or could have the effect of
endangering his or her health, safety, or welfare.
(5) No sponsor or host entity may prevent communication between an
exchange visitor and his or her sponsor, family or friends, or any
other person while the exchange visitor is not on duty;
(6) A sponsor shall terminate the participation of a host entity
that is found to have, without the exchange visitor's advance written
permission, held or withheld the exchange visitor's money,
identification (including passport and social security card), cell-
phone, flight tickets, or other personal property during his or her
program; or held or withheld an exchange visitor's Forms DS-2019 or DS-
7007. Any exchange visitor who wishes the sponsor or sponsor's host
entity to retain important documents must make this request in writing,
including an itemized list of the documents. The exchange visitor may
revoke this authorization in writing at any time, whereupon such
documents or property must be returned within 48-hours of the written
revocation's documented submission to the sponsor.
(k) Program exclusions. A sponsor must not place an exchange
visitor in a host placement that is:
(1) Inconsistent with U.S. law or that could bring notoriety or
disrepute to the Department or to the Exchange Visitor Program, as
determined by the Department;
(2) Lacking acceptable housing and local transportation, (as set
forth in Sec. 62.32(l)), including safe local transportation that is
accessible during late night or early morning hours if the exchange
visitor will work during such hours;
(3) Requiring more than four hours of work between 10:00 p.m. and
6:00 a.m.;
(4) In locations where telephone and Internet communication is not
accessible;
(5) Requiring licensing of the exchange visitor;
(6) Compensating the exchange visitor on a ``piece work basis''
(i.e., based on the number of objects produced or rooms cleaned);
(7) Resulting in the exchange visitor being supervised by a
staffing agency, unless the sponsor vets the staffing agency as well as
the host entity where that agency places exchange visitors, and the
staffing agency's role meets the following criteria:
(i) The staffing agency provides daily supervision and primary
onsite monitoring of the exchange visitor's work environment at his or
her host entity;
(ii) The exchange visitor is an employee of, and paid by, the
staffing agency; and
(iii) The staffing agency effectively controls the host placement
(i.e., has hands-on management responsibility for the exchange visitor
at his or her site of activity);
(8) Entailing domestic help in private homes (e.g., child care
provider, elder care provider, housekeeper, gardener, chauffeur);
(9) Requiring the exchange visitor to operate or drive a pedicab,
rolling chair, or other vehicle powered by physical exercise;
(10) Requiring the exchange visitor to operate or drive a vehicle
or vessel for which a driver's license is required, regardless of
whether the vehicle carries passengers;
(11) Related to clinical care that involves physical contact with
patients;
(12) In the adult entertainment industry or the commercial sex
trade (e.g., placements at escort services, adult book or video stores,
strip or exotic dance clubs);
(13) Requiring the exchange visitor to engage in work that is
declared hazardous to youth by the Secretary of Labor at Subpart E of
29 CFR part 570;
(14) Requiring sustained physical contact with other people (e.g.,
hair care, manicure, henna tattooing) and/or adherence to the Centers
for Disease Control and Prevention's Universal Blood and Body Fluid
Precautions guidelines;
(15) Requiring the exchange visitor to operate gaming, gambling,
wagering, or betting activities;
(16) In chemical pest control, warehousing, or a catalogue/online
order distribution center;
(17) In the mobile amusement and itinerant concessionaires
industries;
(18) Meeting the criteria of another Exchange Visitor Program
category (e.g., camp counselor, intern, trainee);
(19) In the North American Industry Classification System's (NAICS)
Goods-
[[Page 4144]]
Producing Industries occupational categories industry sectors 11, 21,
23, 31-33 numbers (set forth at https://www.bls.gov/bls/naics.htm); see
https://siccode.com/en/naicscode/list/directory for code look-up;
(20) Employing the exchange visitor as a mover or in any position
where the primary work duty is the movement of household or office
goods;
(21) Employing the exchange visitor in a position requiring
repetitive motion such as that found on an assembly line or in certain
factory-like settings;
(22) Employing the exchange visitor in waste management,
janitorial, or custodial positions, or in any position where more than
five percent of the duties as defined by time spent involve waste
management or keeping the premises of a building and supplementary
machinery (e.g., heating, air-conditioning) clean and in working order,
or involve making building repairs;
(23) In a position with a host entity that participates in the
Summer Work Travel Program on a basis other than seasonal or temporary
(e.g., for more than two seasons during the year, or that covers a
total period of employment longer than eight months in a single
calendar year);
(24) In a position where an exchange visitor is solely responsible
for the safety of others (e.g., as a lifeguard); does not have regular
on-site or timely on-call supervision by the host entity and/or would
be without reasonable time off for breaks and meals; or
(25) In a position with a host entity that does not inform the
exchange visitor about, and enforce the use of, applicable workplace
health and safety laws (e.g., regulations issued by the Occupational
Safety and Health Administration), does not provide equipment that
meets relevant safety standards, or otherwise fails to take reasonable
precautions to safeguard the health, safety or welfare of an exchange
visitor.
(l) Exchange visitor housing and local transportation.
(1) Every sponsor-approved placement must include identification of
acceptable housing and local transportation before that sponsor
approves the placement and issues a Form DS-2019. Housing must be fully
and accurately described on the Housing Addendum of Form DS-7007 in
accordance with Sec. 62.32(m).
(2) Acceptable housing must meet all applicable housing codes and
ordinances and be:
(i) Affordable for the exchange visitor;
(ii) provided in compliance with applicable federal, state, and
local laws, including 29 CFR part 531 (if the host entity plans to
deduct housing costs from the exchange visitor's wages);
(iii) in a safe location;
(iv) within a reasonable distance of the exchange visitor's site of
activity at the host entity(ies);
(v) in an area with regular, safe and affordable local
transportation options to commercial infrastructure and to his or her
site of activity at the host entity; and
(vi) in a location that is neither isolated, nor difficult to
access.
(3) The requirements in subparagraphs (iv), (v) and (vi) above are
waived if the sponsor or host entity provides reliable, safe, and
affordable local transportation to the exchange visitor during his/her
on- and off-hours, and has a transportation plan in case of emergency.
A sponsor placing an exchange visitor in a remote national park, ski or
mountain resort, or summer camp must document the host entity's written
arrangement for transportation for that exchange visitor during his/her
off hours and in case of emergency.
(4) Neither a sponsor nor its host entity is permitted to require
an exchange visitor to pay a separate fee to identify housing in excess
of any fee charged for the exchange visitor's placement at the host
entity.
(5) In the event that the exchange visitor chooses to secure his or
her own housing, both the sponsor and the exchange visitor must
document such choice in writing and the sponsor must verify compliance
with the requirements of paragraph (2) prior to the exchange visitor's
arrival in the United States, or the sponsor may deny the housing or
the entire host placement.
(6) If either the sponsor or the Department determines that an
exchange visitor's housing situation is unacceptable or otherwise
problematic (e.g., excessive noise, serious conflict among housemates),
the sponsor must identify new acceptable housing and notify the
exchange visitor of that alternative within one week of this
determination; if the exchange visitor opts not to accept the new
housing, the sponsor may determine that the placement is in violation
of this regulation.
(7) If an exchange visitor bicycles to and from the host entity or
to reach commercial infrastructure, his or her sponsor must ensure that
the exchange visitor is informed that he or she must wear a helmet and
other appropriate protective gear and that he or she must check that
the bicycle is in working order (e.g., brakes functional, frame not
bent, all tires inflated properly, bicycle chain and gears functional).
All sponsors must provide exchange visitors in pre-arrival materials
and during orientation with bicycle safety information, including the
Department-generated bicycle safety flyer, and place the Department-
generated bicycle safety video on their Web site. No exchange visitor
should be expected by his or her sponsor or host entity to ride a
bicycle to his or her site of activity at the host entity if he or she
chooses not to do so, or be expected to ride a bicycle to his or her
site of activity on a highway or other major road without bicycle
lanes; likewise, no exchange visitor should be expected to ride a
bicycle over distances of longer than a total of eight miles per day in
order to travel to and from the host entity or reach commercial
infrastructure.
(m) Form DS-7007 (Host Placement Certification). The purpose of
this form is to ensure a common understanding among all parties
(through required signature of the sponsor, exchange visitor, and host
entity) about the terms of the host placement and arranged housing
before the exchange visitor begins work at his or her host entity.
(1) A sponsor must:
(i) Fully complete a Form DS-7007 for each exchange visitor
placement, which must include: Location and description of the host
entity; number of employees and other exchange visitors on location;
hours of work each week that will be offered the exchange visitor;
duties, wages (including expectations for overtime), expected training
period, if any; physical demands of the host placement; any placement-
related benefits or amenities; total itemized fees charged by sponsors,
host entities, and third parties, that the exchange visitor will incur,
identifying clearly which are mandatory and which are optional; other
estimated costs to the exchange visitor of the placement at the host
entity or for other aspects of the program (e.g., costs and deductions
for benefits, mandatory and optional deductions, meals included at host
entity). Deductions taken from wages must be disclosed in advance to
the exchange visitor. A DS-7007 must be executed for each placement the
exchange visitor accepts and be updated according to Department
guidance if the terms of a placement change significantly;
(ii) Fully execute a Form DS-7007 (excluding Housing Addendum)
before completing and signing a Form DS-2019 for each exchange visitor;
(iii) Provide each signatory an executed copy of the Form DS-7007
(excluding Housing Addendum) before
[[Page 4145]]
the exchange visitor makes his or her visa application; and
(iv) Inform the exchange visitor that he or she must have his or
her fully-executed Form DS-7007 (excluding Housing Addendum) available
(along with his or her Form DS-2019) for the visa interview.
(2) A sponsor must ensure that the Housing Addendum of the Form DS-
7007 is completed (including by the host entity), if relevant, and that
a copy is sent to the exchange visitor prior to the exchange visitor's
departure to the United States and if the exchange visitor changes
housing. A sponsor must include a description of the housing;
information about local transportation type and cost, and distance to
the host entity; cost of housing (either weekly or monthly); need for
an exchange visitor housing deposit; utilities covered in rent and
those that the exchange visitor must pay separately; whether deductions
for housing or local transportation will be taken from exchange
visitors' wages; number of other tenants; housing features and
description (including numbers of bedrooms and bathrooms); and whether
there is a firm contract for the housing that the exchange visitor must
sign for a fixed period of time. The Housing Addendum page must state
the market value of housing and/or local transportation. Deductions
from wages may only be made in accordance with Fair Labor Standards Act
regulations set forth at 29 CFR part 531.
(3) A sponsor must give each exchange visitor 72-hours to consider
any substantive additional requirements or changes made by his or her
host entity to the host placement after the DS-7007 or Housing Addendum
is initially executed; a sponsor must require the exchange visitor and
host entity to sign a new Form DS-7007 if the exchange visitor agrees
to the changes. If an exchange visitor determines that he or she does
not wish to add requirements or make changes, or is unresponsive, he or
she must be allowed to continue to do those tasks at the host entity
specified on his or her most recent DS-7007, unless the host entity
makes a request to the sponsor that the exchange visitor be placed
elsewhere, in which case, the exchange visitor must be given two-weeks'
notice of program termination. An exception to the 72-hour rule may be
made if such changes must be implemented before 72-hours to protect the
health, safety, and welfare of the exchange visitor.
(4) A sponsor must keep each DS-7007 on file for three years.
(n) Exchange visitor pre-departure orientation and documentation.
(1) In addition to satisfying the requirements set forth at Sec.
62.10(b)-(c), a sponsor must provide to each exchange visitor prior to
departure from his or her home country, an orientation in-person,
online, or a combination of both that includes the following
information and documentation:
(i) An explanation of the sponsor's role during the program,
including monitoring, and of host entity responsibilities;
(ii) The Department of State's Summer Work Travel Exchange Visitor
Welcome Letter and Diversity Flyer;
(iii) The sponsor's 24/7 immediate (i.e., non-answering machine)
contact telephone number;
(iv) A description of exchange visitor and host entity obligations
and responsibilities, including a list of program obligations and
responsibilities as set forth in subparagraph (2) below;
(v) Information explaining the cross-cultural component of the
Summer Work Travel program, including the exchange visitor's obligation
to participate in sponsor- and host entity-arranged cross-cultural
activities, and how best to experience local or national U.S. culture;
(vi) Information on how to identify and report workplace abuse,
sexual abuse, sexual harassment, bullying, exploitation, wage
violations, housing violations, poor housing conditions, and instances
of retaliation against the exchange visitor for reporting problems,
including how to access whistleblower protection. The orientation also
must include information for exchange visitors on the sponsor
monitoring process, and inform exchange visitors that they must notify
their sponsor within ten days of arrival in the United States and of
any changes to the terms agreed to in Form DS-7007;
(vii) Information on general personal, pedestrian, and
transportation safety, including bicycle safety information (i.e.,
providing the Department-generated bicycle safety flyer and placing a
bicycle safety video on the sponsor's Web site);
(viii) An identification card with a photo of the exchange visitor
listing the exchange visitor's name, the sponsor's name, and main
office and emergency telephone numbers, 911, the telephone number of
the Department's J-1 visa toll-free emergency help line, the J-1 visa
email address, and the name and policy number of the sponsor's health
insurance provider, if applicable; and
(ix) Information on medical care in the United States (e.g.,
information on insurance deductibles, differences between emergency
room visits and regular hospital visits, how generally to seek medical
care in the United States) and locations of the nearest medical
facilities.
(2) Information on exchange visitor and host entity obligations and
responsibilities must include the following:
(i) The exchange visitor must notify his or her sponsor within ten
days of arrival in the United States, as set forth in Sec.
62.10(c)(9);
(ii) The exchange visitor must notify his or her sponsor of any
changes to the terms agreed to in Form DS-7007, as set forth in Sec.
62.32(m)(1)(i);
(iii) An exchange visitor must not change his or her host site of
activity at the host entity, type of position within his or her current
host placement, or residence without first notifying the sponsor, as
set forth in Sec. 62.32(d)(11);
(iv) The host entity must not permit an exchange visitor to begin
working for an additional host entity, or at a different host entity,
until the sponsor has vetted such host entity, as set forth at Sec.
62.32(i), and provided the exchange visitor and host entity a fully
executed Form DS-7007 for such a placement in accordance with paragraph
(m);
(v) A description of the circumstances that may lead to termination
of the exchange visitor's program under rules governing the program,
including, but not limited to, the following: Engaging in more than
three Summer Work Travel programs during the exchange visitor's
academic career; failure of an exchange visitor to report to his or her
sponsor within ten days of arrival in the United States; failure to
appear timely at the initial host placement without notifying the
sponsor in advance of any inability to appear on time; beginning
employment at a non-vetted host entity or at a host placement on the
program exclusions list set forth at paragraph (k); engaging in illegal
activities (e.g., fraud, distribution of illegal substances); failure
to give two-weeks' notice of departure to the current host entity,
except in cases where health, safety, or welfare of the exchange
visitor is endangered; failure to report change of position or change
of title within the current host placement or change of residence; a
pattern of unresponsiveness to sponsor communications; and violation of
sponsor-specific rules regarding the exchange visitor program;
(vi) The circumstances that may lead to program termination of the
host entity; and
(vii) The exchange visitor is prohibited from engaging in any
activities that could bring the Exchange Visitor Program into notoriety
or disrepute.
[[Page 4146]]
(o) Cross-cultural activities. A sponsor must:
(1) Ensure that the exchange visitor's placement at the host entity
requires regular interaction with co-workers and customers and that the
exchange visitor's host entity also facilitates the regular interaction
of the exchange visitor with U.S. persons during the workday portion of
their program;
(2) Plan and initiate cross-cultural activities, and/or act as a
resource for host entities, domestic third parties, or local community
groups in arranging cross-cultural activities that provide the exchange
visitor exposure to U.S. culture and/or interaction with U.S. persons
throughout his or her program;
(3) Ensure that, at a minimum, it or its host entity or entities
arrange one cross-cultural activity within each calendar month for the
exchange visitor; and
(4) Facilitate additional cross-cultural activities throughout the
duration of the exchange visitor's program, and document such
activities.
(p) Exchange visitor monitoring and assistance. A sponsor must:
(1) Maintain, at a minimum, monthly personal contacts with the
exchange visitor. Such sponsor contact is permitted to be in-person, by
telephone, or via exchanges of email (communications via email and
voicemail messages must elicit a response from the exchange visitor
that provides information on the exchange visitor's well-being);
(2) Gauge the exchange visitor's overall health, safety, and
welfare and appropriately address issues identified through monitoring
that involve the suitability of employment, housing and transportation,
and any other issues affecting, or that could affect, the exchange
visitor's health, safety, and welfare;
(3) Be available to the exchange visitor as a facilitator,
counselor, and information resource and provide appropriate assistance
on an as-needed basis;
(4) Document all efforts to resolve any issue that could result in
program termination, including problematic placements and inability to
contact a non-responsive exchange visitor, before pursuing program
termination;
(5) Prepare any host entity to facilitate Department oversight and
visits to placement locations; and
(6) Incorporate additional monitoring steps at the suggestion of
the Department in the case of Department-noted problems in the
sponsor's Summer Work Travel program.
(q) Sponsor use of foreign third parties. A sponsor must, in
addition to the description set forth in Sec. 62.2 in the definition
of Third party, satisfy the following requirements if it elects to use
a foreign third party:
(1) Select only a foreign third party that:
(i) The sponsor has vetted in accordance with Sec. 62.32(r);
(ii) has a fixed office address, employees with professional
experience in the service(s) the foreign third party provides, an
organizational mission applicable to cultural and educational exchange,
and a secure system to collect, protect, and dispose of the personal
data of potential and actual exchange visitors;
(iii) markets the Summer Work Travel program as a cultural and
educational program with a work component;
(iv) has fees and other charges that are permissible under this
Part, transparent, justifiable in terms of services provided, and
legal;
and
(v) would not bring the Exchange Visitor Program into notoriety or
dispute, or engage in actions that would endanger the health, safety or
welfare of an exchange visitor;
(2) Fully execute a written agreement, with documented review every
three years, with the foreign third party and work only with foreign
third parties with which the sponsor has concluded such written
agreements; agreements must specifically authorize the foreign third
party to carry out certain program functions;
(3) Adequately orient any foreign third party it engages on the
purpose of the Exchange Visitor Program and all applicable regulations
in this Part and updates and related guidance;
(4) Require, review, and approve annually the third party's
marketing materials, including updated price lists based on any
Department-required template, for programs marketed on the sponsor's
behalf. The price lists must include itemization of all fees charged to
the exchange visitor and estimated costs the exchange visitor might
incur, as set forth in Sec. 62.9(d)(3);
(5) Ensure that the foreign third party does not permit the use of
any other third party (including staffing or employment agencies or
subcontractors) to work directly with any prospective or current
exchange visitor for the purpose of programmatic planning, or otherwise
cooperate or contract with any such other third party;
(6) Place information about each of its foreign third parties on
the sponsor's main Web site, including the official name, headquarters
address, and specific program functions performed;
(7) Establish and implement internal controls to ensure that each
foreign third party complies with the terms of its agreement with the
sponsor;
(8) Ensure the foreign third party knows and complies with all
applicable provisions of these regulations. Failure by any foreign
third party to comply with the regulations will be imputed to the
sponsor; and
(9) Not use a foreign third party if the Department has determined
and informed that sponsor that the third party does not meet the
requirements of subparagraph (1).
(r) Sponsor vetting of foreign third parties. A sponsor must:
(1) Ensure that any foreign third party it utilizes or intends to
utilize is legitimate and employs only reputable individuals or
organizations qualified to perform agreed program functions;
(2) At a minimum, review annually current documentation for each of
its foreign third parties, including:
(i) Proof that it is legally authorized to conduct business in
every location in which it operates;
(ii) Any bankruptcy filing, adverse legal judgment, or pending
legal action or complaint against such foreign third party relevant to
its conduct of the exchange visitor program;
(iii) Written references from three current business associates or
partner organizations;
(iv) A criminal background-check report (including originals and
English translations, as applicable) for each owner and officer of the
foreign third party; and
(v) A copy of the foreign third party's recent financial statements
certified by an independent public accountant.
(s) Sponsor use of domestic third parties.
A sponsor must, in addition to the description set forth in Sec.
62.2 (definition of Third party), satisfy the following requirements if
it elects to use a domestic third party:
(1) Select only a domestic third party that:
(i) The sponsor has vetted in accordance with Sec. 62.32(t),
unless the selected entity serving as a domestic third party is another
designated sponsor; in that case, the sponsor must require that the
domestic third party sponsor provide proof of current Department
designation;
(ii) has a fixed office address, employees with professional
experience in the service(s) the domestic third party provides, an
organizational mission applicable to cultural and educational exchange,
and a secure system to collect, protect, and dispose of the personal
data of potential and actual exchange visitors;
(iii) has fees and other charges that are permissible under this
Part, transparent,
[[Page 4147]]
justifiable in terms of services provided, and legal; and
(iv) would not bring the Exchange Visitor Program into notoriety or
dispute, or engage in actions that would endanger the health, safety,
or welfare of exchange visitors.
(2) Fully execute a written agreement, with documented review every
three years, with the domestic third party and work only with domestic
third parties with which the sponsor has concluded such written
agreements;
(3) Orient adequately any domestic third party it engages on the
purpose of the Exchange Visitor Program and all applicable regulations
in this Part and updates and related guidance;
(4) Place information about each domestic third party it engages on
the sponsor's main Web site, including its official name, headquarters
address, and specific program functions performed;
(5) Establish and implement controls to ensure that the domestic
third party complies with the terms of its agreement with the sponsor;
(6) Ensure the domestic third party knows and complies with all
applicable provisions of these regulations. Failure by any domestic
third party to comply with the regulations will be imputed to the
sponsor; and
(7) Not use a domestic third party if the Department has determined
and informed that sponsor that the third party does not meet the
requirements of subparagraph(1).
(t) Sponsor vetting of domestic third parties. A sponsor must:
(1) Ensure that any domestic third party it utilizes or intends to
utilize is legitimate and employs only reputable individuals or
organizations qualified to perform agreed program functions; and
(2) At a minimum, review annually current documentation for each of
its domestic third parties:
(i) Proof that it is legally authorized to conduct business in
every location in which it operates;
(ii) Any bankruptcy filing, adverse legal judgment, or pending
legal action or complaint against such domestic third party relevant to
its conduct of the exchange visitor program; and
(iii) Proof of sufficient liability insurance to cover the
activities provided to the sponsor.
(u) Reporting requirements.
(1) Foreign third party reporting: Within 30 days of its conclusion
of a new written agreement with a foreign third party, a sponsor must
provide the Department with that third party's name and contact
information (i.e., telephone number, email address, street address,
city address, point of contact, and Web site address). The sponsor also
must provide the Department with updated contact information for its
foreign third party within 30 days after receiving notice of any change
in that party's contact information. A sponsor also must notify the
Department no later than 30 days after ceasing to work with a foreign
third party previously reported.
(2) Price lists: A sponsor must submit to the Department each year,
no later than December 1, itemized exchange visitor price lists (in
accordance with any Department template) which identify the costs that
exchange visitors must pay each sponsor and foreign third party on a
country-specific basis in order to participate in the program.
Keri Lowry,
Deputy Assistant Secretary of State, Office of Private Sector Exchange,
Bureau of Educational and Cultural Affairs.
[FR Doc. 2017-00107 Filed 1-11-17; 8:45 am]
BILLING CODE 4710-05-P