Participation in the Exchange Visitor Program as Professor and Research Scholar, 28815-28818 [05-10020]
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Federal Register / Vol. 70, No. 96 / Thursday, May 19, 2005 / Rules and Regulations
(this applies only to old-age, wife’s,
widow’s, widower’s or husband’s
benefits);
(c) Your receipt of benefits on your
own earnings record, which reduces
(see § 404.407) your entitlement (or
deemed entitlement; see § 404.420) to
benefits on another individual’s
earnings record; and
(d) Your entitlement to benefits
payable (or deemed payable) to you
based on the earnings record of an
individual entitled to a disability
insurance benefit because of that
individual’s entitlement to workers’
compensation (see § 404.408).
I 12. Section 404.452 is revised to read
as follows:
§ 404.452 Reports to Social Security
Administration of earnings; wages; net
earnings from self-employment.
(a) Reporting requirements and
conditions under which a report of
earnings, that is, wages and/or net
earnings from self-employment, is
required. (1) If you have not reached full
retirement age (see § 404.409(a)) and
you are entitled to a monthly benefit,
other than only a disability insurance
benefit, you are required to report to us
the total amount of your earnings (as
defined in § 404.429) for each taxable
year. This report will enable SSA to pay
you accurate benefits and avoid both
overpayments and underpayments.
(2) If your wages and/or net earnings
from self-employment in any month(s)
of the year are below the allowable
amount (see §§ 404.446 and 404.447),
your report should include this
information in order to establish your
grace year (see § 404.435) and possible
eligibility for benefits for those months.
(3) Your report to us for a taxable year
should be filed on or before the 15th day
of the fourth month following the close
of the taxable year; for example, April
15 when the beneficiary’s taxable year is
a calendar year. An income tax return or
form W–2, filed timely with the Internal
Revenue Service, may serve as the
report required to be filed under the
provisions of this section, where the
income tax return or form W–2 shows
the same wages and/or net earnings
from self-employment that must be
reported to us. Although we may accept
W–2 information and special payment
information from employers, you still
have primary responsibility for making
sure that the earnings we use for
deduction purposes are correct. If there
is a valid reason for a delay, we may
grant you an extension of up to 4
months to file this report.
(4) You are not required to report to
us if:
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15:30 May 18, 2005
Jkt 205001
(i) You reached full retirement age
before the first month of your
entitlement to benefits; or
(ii) Your benefit payments were
suspended under the provisions
described in § 404.456 for all months of
a taxable year before the year of full
retirement age, or for all months prior to
your full retirement age in the full
retirement age year, unless you are
entitled to benefits as an auxiliary or
survivor and your benefits are reduced
for any month in the taxable year
because of earnings and there is another
person entitled to auxiliary or survivor’s
benefits on the same record, but living
in a different household.
(b) Report required by person
receiving benefits on behalf of another.
When you receive benefits as a
representative payee on behalf of a
beneficiary (see subpart U of this part),
it is your duty to report any earnings of
the beneficiary to us.
(c) Information required. If you are the
beneficiary, your report should show
your name, address, Social Security
number, the taxable year for which the
report is made, and the total amount of
your wages and/or net earnings from
self employment during the taxable
year. If you are a representative payee,
your report should show the name,
address, and Social Security number of
the beneficiary, the taxable year for
which the report is made, and the total
earnings of the beneficiary, as well as
your name, address, and Social Security
number.
(d) Requirement to furnish requested
information. You, the beneficiary (or the
person reporting on his/her behalf) are
required to furnish any other
information about earnings and services
that we request for the purpose of
determining the correct amount of
benefits payable for a taxable year (see
§ 404.455).
(e) Extension of time for filing report.
(1) Request for extension to file report.
Your request for an extension of time, or
the request of your authorized agent,
must be in writing and must be filed at
a Social Security Administration office
before your report is due. Your request
must include the date, your name, the
Social Security number of the
beneficiary, the name and Social
Security number of the person filing the
request if other than the beneficiary, the
year for which your report is due, the
amount of additional time requested,
the reason why you require this
extension (see § 404.454), and your
signature.
(2) Evidence that extension of time
has been granted. If you do not receive
written approval of an extension of time
for making your report of earnings, it
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28815
will be presumed that no extension of
time was granted. In such case, if you
do not file on time, you will need to
establish that you had good cause
(§ 404.454) for filing your report after
the normal due date.
[FR Doc. 05–9994 Filed 5–18–05; 8:45 am]
BILLING CODE 4191–02–P
DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: PN–5084]
RIN 1400–AC01
Participation in the Exchange Visitor
Program as Professor and Research
Scholar
State Department.
Final rule.
AGENCY:
ACTION:
SUMMARY: By this notice, the
Department adopts as final with minor
modification, the proposed rule
published in the Federal Register on
June 27, 2002. This rule amends the
Department’s Exchange Visitor Program
regulations set forth at 22 CFR 62.20 by
extending the duration of program
participation for professors and research
scholars from the current three years to
five years. In addition, this rule
implements a limitation on the
eligibility of an extension for the
professor and research scholar
categories and implements a two-year
bar for repeat participation to encourage
and foster the purpose of the Mutual
Educational and Cultural Exchange Act
of 1961 (‘‘Fulbright-Hays Act’’).
Additional minor modifications have
been made throughout Sec. 62.20 for
administrative purposes due to the
implementation of the Student and
Exchange Visitor Information System
(SEVIS).
This rule becomes effective on
the later of June 20, 2005, or the date
upon which the Department of
Homeland Security publishes a notice
in the Federal Register announcing that
it has completed the technical computer
updates to its electronic Student and
Exchange Visitor Information System
(SEVIS) that are necessary to implement
this rule.
FOR FURTHER INFORMATION CONTACT:
Stanley S. Colvin, Acting Director,
Office of Exchange Coordination and
Designation, U.S. Department of State,
301 Fourth Street, SW., Room 734,
Washington, DC 20547; telephone 202–
203–5029; fax 202–203–5087; e-mail:
Jexchanges@state.gov.
DATES:
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28816
Federal Register / Vol. 70, No. 96 / Thursday, May 19, 2005 / Rules and Regulations
The
Department published a proposed rule,
Public Notice 4054 at 67 FR 43264, June
27, 2002, with a request for comments
in the Federal Register regarding the
authorized length of program duration
for professors and research scholars.
The rule proposed to lengthen the
maximum program duration of this
category from three years to five years.
The Department is implementing the
change in maximum program duration
and modifying the current regulations in
order to develop a very simple, easy to
administer, and user-friendly rule. In
light of the favorable comments
received, this rule is adopted to allow a
five-year duration of program
participation beginning with the
participant’s program begin date or
initial program begin date (for
continuing exchange visitors) identified
in SEVIS and ending five years later.
The five-year period of participation is
calculated in calendar years from the
participant’s program begin date
documented in SEVIS at the time the
SEVIS record is validated. The
Department assumes an exchange
participant will actively pursue research
or teaching opportunities for the entire
five-year period. Generally, a participant
in good standing with his or her
program sponsor may depart and reenter
the United States an unlimited number
of times during the five calendar years.
Thus, holiday visits, emergencies,
consultations, attendance at
professional meetings, and the like will
not be prohibited or compromised.
It is extremely important to note,
however, that the five-year period is not,
as suggested in some comments, an
aggregate of five years. The Department
considered this approach and found it
unworkable. Instead, this will be a
calendar year, five-year period afforded
to a participant on a ‘‘use or lose’’ basis
which commences with the program
begin date identified in SEVIS. For
example, a research scholar who comes
to an institution for two years and
returns to his or her home institution for
nine months will be eligible, as a
program matter, to return to the same
U.S. institution—or transfer to
another—for an additional two years
and three months. If the participant
does not return to the United States
until three months later, he or she has
two years remaining on his or her
program.
Comments indicated some confusion
regarding the long-standing ‘‘12-month
bar’’ rule set forth at Sec. 62.20(d)(ii).
The 12-month bar applies to any nonimmigrant and accompanying spouse or
dependent who has held F or J nonimmigrant visa status within the twelveSUPPLEMENTARY INFORMATION:
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Jkt 205001
month period immediately preceding
the commencement of a professor or
research scholar program. The 12-month
bar remains in effect under this rule. If
eligible for professor or research scholar
category, the exchange participant is
eligible for a five-year period of time for
program participation under this
category.
The accompanying spouse and
dependents are also subject to the 12month bar. While some J–2 spouses
have made some sacrifices in order to
accompany the J–1 exchange visitor,
such sacrifice is compensated for by
employment opportunities in the United
States—often in research. If the J–2 visa
holder is not subjected to the 12-month
bar, the underlying objective for
imposing the bar is defeated in that the
J–2 visa holder could become a J–1
participant and the former J–1
participant would be afforded J–2
derivative status.
The Department proposed that
participants afforded five years of
program participation not be eligible to
return to the United States as a repeat
participant of the professor or research
scholar category for a period of two
years (24 months) immediately
following completion of the five-year
period. Almost all comments were in
favor of the two-year bar for repeat
participation of professors and research
scholars. Individuals who have entered
the United States under the auspices of
the Exchange Visitor Program as a
professor or research scholar, or who
have acquired such status while in the
United States, are not eligible for repeat
participation as a professor or research
scholar for a period of two years
following the completion of the fiveyear period. For example, a professor
who enters the United States on
September 1, 2005, may leave the
United States and return several times
within the five years until August 31,
2010. After August 31, 2010, this
individual cannot return to the United
States in the professor or research
scholar category for two years (i.e., their
program begin date as a professor or
research scholar could not be earlier
than September 1, 2012). Sponsors are
not to issue Forms DS–2019 to proposed
participants who meet this restriction.
However, if a participant completes a
professor or research scholar exchange
program at one institution for a period
of less than five years, then remains
outside the United States for a
minimum period of two years, he or she
is eligible to begin another five-year
program. If the period of time outside
the United States is less than two years,
the participant is still considered to be
within the five-year period of time from
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the initial program. If the participant
completes a program at one institution,
which is less than five years (e.g.; four
years), the participant has the option to
have the current program extended up
to the maximum duration of five years,
transfer to another institution for one
additional year, or return home and
fulfill the two year bar.
This rule also permits the extension
beyond five years for participants under
the direct sponsorship of a Federally
Funded National Research and
Development Center (‘‘FFNRDC’’) or a
U.S. Federal Laboratory. These sponsors
will be identified in SEVIS with a
separate program serial (G–7) in order to
differentiate these programs from other
sponsors designated to conduct
exchange activities in the categories of
research scholar and professor. A ‘‘G–7’’
program serial will be assigned to
eligible programs as determined by the
Department. Once fully implemented in
SEVIS by the Department of Homeland
Security, professors and research
scholars currently in the United States
who have begun their exchange activity,
as identified by the program begin date
in SEVIS, will be eligible for extensions
of their program to the five year
maximum. Until the Department of
Homeland Security develops the system
change requirements necessary to
implement the new five-year duration,
such extensions must be submitted to
the Department via SEVIS as extensions
beyond the maximum duration of
participation.
Analysis of Comments
The proposed rule was published for
comment on June 27, 2002. The
Department received twenty-six
comments regarding this proposal, all of
which endorsed the proposed change.
There were not any comments that
objected to the changes, however nine of
the responses thought that the five-year
period should be an aggregate period of
time. The Department finds this method
unworkable and not easily managed.
Five of the comments required
clarification on use of the 12-month bar.
As stated in the supplementary
information, the 12-month bar applies to
any non-immigrant and accompanying
spouse or dependent that has held F or
J non-immigrant visa status within the
twelve-month period immediately
preceding the commencement of a
professor or research scholar program.
The 12-month bar remains in effect
under this rule.
E:\FR\FM\19MYR1.SGM
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Federal Register / Vol. 70, No. 96 / Thursday, May 19, 2005 / Rules and Regulations
litigation, establish clear legal
standards, and reduce burden.
Regulatory Findings
Administrative Procedure Act
The Department is publishing this
rule as a final rule after it was published
as a proposed rule on June 27, 2002.
Regulatory Flexibility Act
The Department of State, in
accordance with the Regulatory Act (5
U.S.C. 601(b)), has reviewed this
regulation and, by approving it, certifies
that this rule will not have a significant
economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the
expenditure by State, local and tribal
governments, in the aggregate, or by the
private sector, of $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.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by 5 U.S.C. 804 for purposes of
Congressional review of agency
rulemaking under the Small Business
Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801–808). This rule will
not result in an annual effect on the
economy of $100 million or more; a
major increase in costs or prices; or
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Paperwork Reduction Act
This rule does not impose any new
reporting or recordkeeping requirements
subject to the Paperwork Reduction Act,
44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs.
Accordingly, 22 CFR part 62 is
amended as follows:
I
PART 62—EXCHANGE VISITOR
PROGRAM
1. The authority citation for part 62
continues to read as follows:
I
Authority: 8 U.S.C. 1101(a)(15)(J), 1182,
1184, 1258; 22 U.S.C. 1431–1442, 2451–2460;
Foreign Affairs Reform and Restructuring Act
of 1998, Public Law. 105–277, 112 Stat. 2681
et seq.; Reorganization Plan No. 2 of 1977, 3
CFR, 1977 Comp. p. 200; E.O. 12048 of
March 27, 1978; 3 CFR, 1978 Comp. p. 168.
2. Section 62.20 is revised to read as
follows:
The Department of State does not
consider this rule to be a ‘‘significant
regulatory action’’ under Executive
Order 12866, section 3(f), Regulatory
Planning and Review. In addition, the
Department is exempt from Executive
Order 12866 except to the extent that it
is promulgating regulations in
conjunction with a domestic agency that
are significant regulatory actions. The
Department has nevertheless reviewed
the regulation to ensure its consistency
with the regulatory philosophy and
principles set forth in that Executive
Order.
Executive Order 12988
The Department has reviewed this
regulation in light of sections 3(a) and
3(b)(2) of Executive Order 12988 to
eliminate ambiguity, minimize
15:30 May 18, 2005
This regulation will not have
substantial direct effects 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, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to require consultations or
warrant the preparation of a federalism
summary impact statement. The
regulations implementing Executive
Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this regulation.
I
Executive Order 12866
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Executive Order 13132
Jkt 205001
§ 62.20
Professors and research scholars.
(a) Introduction. These regulations
govern Exchange Visitor Program
participants in the categories of
professor and research scholar, except:
(1) Alien physicians in graduate
medical education or training, who are
governed by regulations set forth at
§ 62.27; and
(2) Short-term scholars, who are
governed by regulations set forth at
§ 62.21.
(b) Purpose. The purpose of the
Exchange Visitor Program, in part, is to
foster the exchange of ideas between
Americans and foreign nationals and to
stimulate international collaborative
teaching, lecturing and research efforts.
The exchange of professors and research
scholars promotes the exchange of
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28817
ideas, research, mutual enrichment, and
linkages between research and
educational institutions in the United
States and foreign countries. It does so
by providing foreign professors and
research scholars the opportunity to
engage in research, teaching and
lecturing with their American
colleagues, to participate actively in
cross-cultural activities with Americans,
and ultimately to share with their
countrymen their experiences and
increased knowledge of the United
States and their substantive fields.
(c) Designation. The Department of
State may, in its sole discretion,
designate bona fide exchange visitor
programs, which offer foreign nationals
the opportunity to engage in research,
teaching, lecturing, observing, or
consulting at research institutions,
corporate research facilities, museums,
libraries, post-secondary accredited
educational institutions, or similar types
of institutions in the United States.
(d) Visitor eligibility. An individual
may be selected for participation in the
Exchange Visitor Program as a professor
or research scholar subject to the
following conditions:
(1) The participant must not be a
candidate for a tenure track position;
(2) The participant has not been
physically present in the United States
as a nonimmigrant pursuant to the
provisions of 8 U.S.C. 1101(a)(15)(F) or
(J) for all or part of the twelve-month
period immediately preceding the date
of program commencement set forth on
his or her Form DS–2019, unless:
(i) The participant is transferring to
the sponsor’s program pursuant to
provisions set forth in § 62.42;
(ii) The participant’s presence in the
United States was of less than six
months duration; or
(iii) The participant’s presence in the
United States was pursuant to a shortterm scholar exchange activity as
authorized by § 62.21; and
(3) The participant is not subject to
the prohibition against repeat
participation set forth at § 62.20(i)(2).
(e) Issuance of Form DS–2019. The
Form DS–2019 must be issued only after
the professor or research scholar has
been accepted by the institution where
he or she will participate in an exchange
visitor program.
(f) Location of the exchange.
Professors or research scholars must
conduct their exchange activity at the
site(s) of activity identified in SEVIS,
which may be either the location of the
exchange visitor program sponsor or the
site of a third party facilitating the
exchange with permission of the
Responsible Officer. An exchange
visitor may also engage in activities at
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28818
Federal Register / Vol. 70, No. 96 / Thursday, May 19, 2005 / Rules and Regulations
other locations if such activities
constitute occasional lectures or
consultations permitted by paragraph (g)
of this section. All such sites of activity
must be entered into SEVIS while the
exchange visitor’s SEVIS record is in
Initial or Active status.
(g) Occasional lectures or
consultations. Professors and research
scholars may participate in occasional
lectures and short-term consultations, if
authorized to do so by his or her
sponsor. Such lectures and
consultations must be incidental to the
exchange visitor’s primary program
activities. If wages or other
remuneration are received by the
exchange visitor for such activities, the
exchange visitor must act as an
independent contractor, as such term is
defined in 8 CFR 274a.1(j), and the
following criteria and procedures must
be satisfied:
(1) Criteria. The occasional lectures or
short-term consultations must:
(i) Be directly related to the objectives
of the exchange visitor’s program;
(ii) Be incidental to the exchange
visitor’s primary program activities;
(iii) Not delay the completion date of
the exchange visitor’s program; and
(iv) Be documented in SEVIS.
(2) Procedures. (i) To obtain
authorization to engage in occasional
lectures or short-term consultations
involving wages or other remuneration,
the exchange visitor must present to the
responsible officer:
(A) A letter from the offeror setting
forth the terms and conditions of the
offer to lecture or consult, including the
duration, number of hours, field or
subject, amount of compensation, and
description of such activity; and
(B) A letter from the exchange
visitor’s department head or supervisor
recommending such activity and
explaining how the activity would
enhance the exchange visitor’s program.
(ii) The responsible officer must
review the letters required in paragraph
(g)(2)(i) of this section and make a
written determination whether such
activity is warranted, will not interrupt
the exchange visitor’s original objective,
and satisfies the criteria set forth in
paragraph (g)(1) of this section.
(h) Change of activity. At the
discretion and approval of the
responsible officer, professors may
freely engage in research and research
scholars may freely engage in teaching
and lecturing. Because these activities
are intertwined, such a change of
activity is not considered a change of
category necessitating formal approval
by the Department of State and does not
require the issuance of a new Form DS–
2019 to reflect a change in category.
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15:30 May 18, 2005
Jkt 205001
Such change in activity does not extend
the exchange visitor’s maximum
duration of program participation.
(i) Duration of participation. The
permitted duration of program
participation for a professor or research
scholar is as follows:
(1) General limitation. A professor or
research scholar may be authorized to
participate in the Exchange Visitor
Program for the length of time necessary
to complete his or her program,
provided such time does not exceed five
years. The five-year period of permitted
program participation is continuous and
begins with the initial program begin
date documented in SEVIS or the date
such status was acquired via a petition
submitted and approved by the
Department of Homeland Security
(DHS) as documented in SEVIS and
ends five years from such date.
(2) Repeat participation. Exchange
participants who have entered the
United States under the Exchange
Visitor Program as a professor or
research scholar, or who have acquired
such status while in the United States,
and who have completed his or her
program are not eligible for
participation as a professor or research
scholar for a period of two years
following the end date of such program
participation as identified in SEVIS.
(3) Extensions. A responsible officer
may not extend the period of program
duration beyond the five-year period of
maximum program duration authorized
for professor and research scholar
participants. The Department may, in its
sole discretion, authorize an extension
beyond the permitted five-year period,
as submitted by a ‘‘G–7’’ program
sponsor, upon successful demonstration
of the following:
(i) The participant for whom an
extension is requested is engaged in a
research project under the direct
sponsorship of a Federally Funded
National Research and Development
Center (‘‘FFNRDC’’) or a U.S. Federal
Laboratory;
(ii) The FFNRDC or U.S. Federal
Laboratory requesting the extension on
behalf of the participant has
determined, through peer review, that
the participant’s continued involvement
in the project is beneficial to its
successful conclusion; and
(iii) The Secretary of the Department
of Homeland Security has determined in
his/her discretion that the extension
may be approved;
(iv) The extension request is for not
more than five years.
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Dated: May 10, 2005.
Patricia S. Harrison,
Assistant Secretary, Bureau of Educational
and Cultural Affairs, Department of State.
[FR Doc. 05–10020 Filed 5–18–05; 8:45 am]
BILLING CODE 4710–05–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[TD 9202]
RIN 1545–BD25
Additional Rules for Exchanges of
Personal Property Under Section
1031(a)
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations and removal of
temporary regulations.
AGENCY:
SUMMARY: This document contains final
regulations that replace the use of the
Standard Industrial Classification (SIC)
system with the North American
Industry Classification System (NAICS)
for determining what properties are of a
like class for purposes of section 1031
of the Internal Revenue Code (Code).
The regulations affect taxpayers that
engage in like-kind exchanges of
depreciable tangible personal property.
DATES: Effective Date: These regulations
are effective May 19, 2005.
Applicability Dates: For dates of
applicability, see § 1.1031(a)–2(d).
FOR FURTHER INFORMATION CONTACT: J.
Peter Baumgarten, (202) 622–4920 (not
a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments
to 26 CFR part 1. On August 13, 2004,
the IRS and Treasury Department
published in the Federal Register a
notice of proposed rulemaking (REG–
116265–04; 69 FR 50108) by cross
reference to temporary regulations (TD
9151; 69 FR 50067) under section
1031(a). These amendments relate to the
transition from the use of the four-digit
codes under the SIC system to the sixdigit NAICS for determining product
classes of depreciable tangible personal
property exchanged under section 1031.
No written or electronic comments in
response to the proposed regulations or
requests to speak at a public hearing
were received, and no hearing was held.
The proposed regulations under section
1031 are adopted by this Treasury
decision, and the temporary regulations
are removed.
E:\FR\FM\19MYR1.SGM
19MYR1
]]>Agencies
[Federal Register Volume 70, Number 96 (Thursday, May 19, 2005)]
[Rules and Regulations]
[Pages 28815-28818]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-10020]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: PN-5084]
RIN 1400-AC01
Participation in the Exchange Visitor Program as Professor and
Research Scholar
AGENCY: State Department.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: By this notice, the Department adopts as final with minor
modification, the proposed rule published in the Federal Register on
June 27, 2002. This rule amends the Department's Exchange Visitor
Program regulations set forth at 22 CFR 62.20 by extending the duration
of program participation for professors and research scholars from the
current three years to five years. In addition, this rule implements a
limitation on the eligibility of an extension for the professor and
research scholar categories and implements a two-year bar for repeat
participation to encourage and foster the purpose of the Mutual
Educational and Cultural Exchange Act of 1961 (``Fulbright-Hays Act'').
Additional minor modifications have been made throughout Sec. 62.20 for
administrative purposes due to the implementation of the Student and
Exchange Visitor Information System (SEVIS).
DATES: This rule becomes effective on the later of June 20, 2005, or
the date upon which the Department of Homeland Security publishes a
notice in the Federal Register announcing that it has completed the
technical computer updates to its electronic Student and Exchange
Visitor Information System (SEVIS) that are necessary to implement this
rule.
FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Acting Director,
Office of Exchange Coordination and Designation, U.S. Department of
State, 301 Fourth Street, SW., Room 734, Washington, DC 20547;
telephone 202-203-5029; fax 202-203-5087; e-mail: Jexchanges@state.gov.
[[Page 28816]]
SUPPLEMENTARY INFORMATION: The Department published a proposed rule,
Public Notice 4054 at 67 FR 43264, June 27, 2002, with a request for
comments in the Federal Register regarding the authorized length of
program duration for professors and research scholars. The rule
proposed to lengthen the maximum program duration of this category from
three years to five years.
The Department is implementing the change in maximum program
duration and modifying the current regulations in order to develop a
very simple, easy to administer, and user-friendly rule. In light of
the favorable comments received, this rule is adopted to allow a five-
year duration of program participation beginning with the participant's
program begin date or initial program begin date (for continuing
exchange visitors) identified in SEVIS and ending five years later. The
five-year period of participation is calculated in calendar years from
the participant's program begin date documented in SEVIS at the time
the SEVIS record is validated. The Department assumes an exchange
participant will actively pursue research or teaching opportunities for
the entire five-year period. Generally, a participant in good standing
with his or her program sponsor may depart and reenter the United
States an unlimited number of times during the five calendar years.
Thus, holiday visits, emergencies, consultations, attendance at
professional meetings, and the like will not be prohibited or
compromised.
It is extremely important to note, however, that the five-year
period is not, as suggested in some comments, an aggregate of five
years. The Department considered this approach and found it unworkable.
Instead, this will be a calendar year, five-year period afforded to a
participant on a ``use or lose'' basis which commences with the program
begin date identified in SEVIS. For example, a research scholar who
comes to an institution for two years and returns to his or her home
institution for nine months will be eligible, as a program matter, to
return to the same U.S. institution--or transfer to another--for an
additional two years and three months. If the participant does not
return to the United States until three months later, he or she has two
years remaining on his or her program.
Comments indicated some confusion regarding the long-standing ``12-
month bar'' rule set forth at Sec. 62.20(d)(ii). The 12-month bar
applies to any non-immigrant and accompanying spouse or dependent who
has held F or J non-immigrant visa status within the twelve-month
period immediately preceding the commencement of a professor or
research scholar program. The 12-month bar remains in effect under this
rule. If eligible for professor or research scholar category, the
exchange participant is eligible for a five-year period of time for
program participation under this category.
The accompanying spouse and dependents are also subject to the 12-
month bar. While some J-2 spouses have made some sacrifices in order to
accompany the J-1 exchange visitor, such sacrifice is compensated for
by employment opportunities in the United States--often in research. If
the J-2 visa holder is not subjected to the 12-month bar, the
underlying objective for imposing the bar is defeated in that the J-2
visa holder could become a J-1 participant and the former J-1
participant would be afforded J-2 derivative status.
The Department proposed that participants afforded five years of
program participation not be eligible to return to the United States as
a repeat participant of the professor or research scholar category for
a period of two years (24 months) immediately following completion of
the five-year period. Almost all comments were in favor of the two-year
bar for repeat participation of professors and research scholars.
Individuals who have entered the United States under the auspices of
the Exchange Visitor Program as a professor or research scholar, or who
have acquired such status while in the United States, are not eligible
for repeat participation as a professor or research scholar for a
period of two years following the completion of the five-year period.
For example, a professor who enters the United States on September 1,
2005, may leave the United States and return several times within the
five years until August 31, 2010. After August 31, 2010, this
individual cannot return to the United States in the professor or
research scholar category for two years (i.e., their program begin date
as a professor or research scholar could not be earlier than September
1, 2012). Sponsors are not to issue Forms DS-2019 to proposed
participants who meet this restriction.
However, if a participant completes a professor or research scholar
exchange program at one institution for a period of less than five
years, then remains outside the United States for a minimum period of
two years, he or she is eligible to begin another five-year program. If
the period of time outside the United States is less than two years,
the participant is still considered to be within the five-year period
of time from the initial program. If the participant completes a
program at one institution, which is less than five years (e.g.; four
years), the participant has the option to have the current program
extended up to the maximum duration of five years, transfer to another
institution for one additional year, or return home and fulfill the two
year bar.
This rule also permits the extension beyond five years for
participants under the direct sponsorship of a Federally Funded
National Research and Development Center (``FFNRDC'') or a U.S. Federal
Laboratory. These sponsors will be identified in SEVIS with a separate
program serial (G-7) in order to differentiate these programs from
other sponsors designated to conduct exchange activities in the
categories of research scholar and professor. A ``G-7'' program serial
will be assigned to eligible programs as determined by the Department.
Once fully implemented in SEVIS by the Department of Homeland Security,
professors and research scholars currently in the United States who
have begun their exchange activity, as identified by the program begin
date in SEVIS, will be eligible for extensions of their program to the
five year maximum. Until the Department of Homeland Security develops
the system change requirements necessary to implement the new five-year
duration, such extensions must be submitted to the Department via SEVIS
as extensions beyond the maximum duration of participation.
Analysis of Comments
The proposed rule was published for comment on June 27, 2002. The
Department received twenty-six comments regarding this proposal, all of
which endorsed the proposed change. There were not any comments that
objected to the changes, however nine of the responses thought that the
five-year period should be an aggregate period of time. The Department
finds this method unworkable and not easily managed.
Five of the comments required clarification on use of the 12-month
bar. As stated in the supplementary information, the 12-month bar
applies to any non-immigrant and accompanying spouse or dependent that
has held F or J non-immigrant visa status within the twelve-month
period immediately preceding the commencement of a professor or
research scholar program. The 12-month bar remains in effect under this
rule.
[[Page 28817]]
Regulatory Findings
Administrative Procedure Act
The Department is publishing this rule as a final rule after it was
published as a proposed rule on June 27, 2002.
Regulatory Flexibility Act
The Department of State, in accordance with the Regulatory Act (5
U.S.C. 601(b)), has reviewed this regulation and, by approving it,
certifies that this rule will not have a significant economic impact on
a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $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.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by 5 U.S.C. 804 for
purposes of Congressional review of agency rulemaking under the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-
808). This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Executive Order 12866
The Department of State does not consider this rule to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review. In addition, the Department is
exempt from Executive Order 12866 except to the extent that it is
promulgating regulations in conjunction with a domestic agency that are
significant regulatory actions. The Department has nevertheless
reviewed the regulation to ensure its consistency with the regulatory
philosophy and principles set forth in that Executive Order.
Executive Order 12988
The Department has reviewed this regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Order 13132
This regulation will not have substantial direct effects 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, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this regulation.
Paperwork Reduction Act
This rule does not impose any new reporting or recordkeeping
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter
35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs.
0
Accordingly, 22 CFR part 62 is amended as follows:
PART 62--EXCHANGE VISITOR PROGRAM
0
1. The authority citation for part 62 continues to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act
of 1998, Public Law. 105-277, 112 Stat. 2681 et seq.; Reorganization
Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March
27, 1978; 3 CFR, 1978 Comp. p. 168.
0
2. Section 62.20 is revised to read as follows:
Sec. 62.20 Professors and research scholars.
(a) Introduction. These regulations govern Exchange Visitor Program
participants in the categories of professor and research scholar,
except:
(1) Alien physicians in graduate medical education or training, who
are governed by regulations set forth at Sec. 62.27; and
(2) Short-term scholars, who are governed by regulations set forth
at Sec. 62.21.
(b) Purpose. The purpose of the Exchange Visitor Program, in part,
is to foster the exchange of ideas between Americans and foreign
nationals and to stimulate international collaborative teaching,
lecturing and research efforts. The exchange of professors and research
scholars promotes the exchange of ideas, research, mutual enrichment,
and linkages between research and educational institutions in the
United States and foreign countries. It does so by providing foreign
professors and research scholars the opportunity to engage in research,
teaching and lecturing with their American colleagues, to participate
actively in cross-cultural activities with Americans, and ultimately to
share with their countrymen their experiences and increased knowledge
of the United States and their substantive fields.
(c) Designation. The Department of State may, in its sole
discretion, designate bona fide exchange visitor programs, which offer
foreign nationals the opportunity to engage in research, teaching,
lecturing, observing, or consulting at research institutions, corporate
research facilities, museums, libraries, post-secondary accredited
educational institutions, or similar types of institutions in the
United States.
(d) Visitor eligibility. An individual may be selected for
participation in the Exchange Visitor Program as a professor or
research scholar subject to the following conditions:
(1) The participant must not be a candidate for a tenure track
position;
(2) The participant has not been physically present in the United
States as a nonimmigrant pursuant to the provisions of 8 U.S.C.
1101(a)(15)(F) or (J) for all or part of the twelve-month period
immediately preceding the date of program commencement set forth on his
or her Form DS-2019, unless:
(i) The participant is transferring to the sponsor's program
pursuant to provisions set forth in Sec. 62.42;
(ii) The participant's presence in the United States was of less
than six months duration; or
(iii) The participant's presence in the United States was pursuant
to a short-term scholar exchange activity as authorized by Sec. 62.21;
and
(3) The participant is not subject to the prohibition against
repeat participation set forth at Sec. 62.20(i)(2).
(e) Issuance of Form DS-2019. The Form DS-2019 must be issued only
after the professor or research scholar has been accepted by the
institution where he or she will participate in an exchange visitor
program.
(f) Location of the exchange. Professors or research scholars must
conduct their exchange activity at the site(s) of activity identified
in SEVIS, which may be either the location of the exchange visitor
program sponsor or the site of a third party facilitating the exchange
with permission of the Responsible Officer. An exchange visitor may
also engage in activities at
[[Page 28818]]
other locations if such activities constitute occasional lectures or
consultations permitted by paragraph (g) of this section. All such
sites of activity must be entered into SEVIS while the exchange
visitor's SEVIS record is in Initial or Active status.
(g) Occasional lectures or consultations. Professors and research
scholars may participate in occasional lectures and short-term
consultations, if authorized to do so by his or her sponsor. Such
lectures and consultations must be incidental to the exchange visitor's
primary program activities. If wages or other remuneration are received
by the exchange visitor for such activities, the exchange visitor must
act as an independent contractor, as such term is defined in 8 CFR
274a.1(j), and the following criteria and procedures must be satisfied:
(1) Criteria. The occasional lectures or short-term consultations
must:
(i) Be directly related to the objectives of the exchange visitor's
program;
(ii) Be incidental to the exchange visitor's primary program
activities;
(iii) Not delay the completion date of the exchange visitor's
program; and
(iv) Be documented in SEVIS.
(2) Procedures. (i) To obtain authorization to engage in occasional
lectures or short-term consultations involving wages or other
remuneration, the exchange visitor must present to the responsible
officer:
(A) A letter from the offeror setting forth the terms and
conditions of the offer to lecture or consult, including the duration,
number of hours, field or subject, amount of compensation, and
description of such activity; and
(B) A letter from the exchange visitor's department head or
supervisor recommending such activity and explaining how the activity
would enhance the exchange visitor's program.
(ii) The responsible officer must review the letters required in
paragraph (g)(2)(i) of this section and make a written determination
whether such activity is warranted, will not interrupt the exchange
visitor's original objective, and satisfies the criteria set forth in
paragraph (g)(1) of this section.
(h) Change of activity. At the discretion and approval of the
responsible officer, professors may freely engage in research and
research scholars may freely engage in teaching and lecturing. Because
these activities are intertwined, such a change of activity is not
considered a change of category necessitating formal approval by the
Department of State and does not require the issuance of a new Form DS-
2019 to reflect a change in category. Such change in activity does not
extend the exchange visitor's maximum duration of program
participation.
(i) Duration of participation. The permitted duration of program
participation for a professor or research scholar is as follows:
(1) General limitation. A professor or research scholar may be
authorized to participate in the Exchange Visitor Program for the
length of time necessary to complete his or her program, provided such
time does not exceed five years. The five-year period of permitted
program participation is continuous and begins with the initial program
begin date documented in SEVIS or the date such status was acquired via
a petition submitted and approved by the Department of Homeland
Security (DHS) as documented in SEVIS and ends five years from such
date.
(2) Repeat participation. Exchange participants who have entered
the United States under the Exchange Visitor Program as a professor or
research scholar, or who have acquired such status while in the United
States, and who have completed his or her program are not eligible for
participation as a professor or research scholar for a period of two
years following the end date of such program participation as
identified in SEVIS.
(3) Extensions. A responsible officer may not extend the period of
program duration beyond the five-year period of maximum program
duration authorized for professor and research scholar participants.
The Department may, in its sole discretion, authorize an extension
beyond the permitted five-year period, as submitted by a ``G-7''
program sponsor, upon successful demonstration of the following:
(i) The participant for whom an extension is requested is engaged
in a research project under the direct sponsorship of a Federally
Funded National Research and Development Center (``FFNRDC'') or a U.S.
Federal Laboratory;
(ii) The FFNRDC or U.S. Federal Laboratory requesting the extension
on behalf of the participant has determined, through peer review, that
the participant's continued involvement in the project is beneficial to
its successful conclusion; and
(iii) The Secretary of the Department of Homeland Security has
determined in his/her discretion that the extension may be approved;
(iv) The extension request is for not more than five years.
Dated: May 10, 2005.
Patricia S. Harrison,
Assistant Secretary, Bureau of Educational and Cultural Affairs,
Department of State.
[FR Doc. 05-10020 Filed 5-18-05; 8:45 am]
BILLING CODE 4710-05-P
