Exchange Visitor Program-Trainees and Interns, 33669-33677 [E7-11703]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 72, Number 117 (Tuesday, June 19, 2007)]
[Rules and Regulations]
[Pages 33669-33677]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11703]


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DEPARTMENT OF STATE

22 CFR Part 62

RIN 1400-AC15
[Public Notice 5824]


Exchange Visitor Program--Trainees and Interns

AGENCY: United States Department of State.

ACTION: Interim final rule with request for comment.

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SUMMARY: The Department is hereby revising its regulations regarding, 
Trainees and Interns to, among other things, eliminate the distinction 
between ``non-specialty occupations'' and ``specialty occupations,'' 
establish a new internship program, and modify the selection criteria 
for participation in a training program. The new regulations also 
require sponsors to screen, vet, and enter into written agreements with 
third parties who assist them in recruiting, selecting, screening, 
orienting, placing, training, or evaluating foreign nationals who 
participate in training and internship programs. Sponsors must fully 
complete and secure signatures on a Form DS-7002, Training/Internship 
Placement Plan (T/IPP) for each trainee and intern prior to issuing a 
Form DS-2019. The Department adopts no changes to existing flight 
training regulations.

DATES: This rule becomes effective July 19, 2007.
    The Department will accept comments from the public up to 30 days 
from June 19, 2007.

ADDRESSES: You may submit comments by any of the following methods:
     Persons with access to the Internet may also view this 
notice and provide comments by going to the regulations.gov Web site 
at: https://www.regulations.gov/index.cfm.
     Mail (paper, disk, or CD-ROM submissions): U.S. Department 
of State, Office of Exchange Coordination and Designation, SA-44, 301 
4th Street, SW., Room 734, Washington, DC 20547.
     E-mail: jexchanges@state.gov. You must include the RIN 
(1400-AC15) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Director, Office of 
Exchange Coordination and Designation, U.S. Department of State, SA-44, 
301 4th Street, SW., Room 734, Washington, DC 20547; 202-203-5096 or e-
mail at jexchanges@state.gov.

SUPPLEMENTARY INFORMATION: The U.S. Department of State designates U.S. 
government, academic, and private sector entities to conduct 
educational and cultural exchange programs pursuant to a broad grant of 
authority provided by the Mutual Educational and Cultural Exchange Act 
of 1961, as amended (Fulbright-Hays Act), 22 U.S.C. 2451 et seq.; the 
Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(J); the Foreign 
Affairs Reform and Restructuring Act of 1998, Public Law 105-277; the 
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 
1996, Public Law 104-208, as amended; Uniting and Strengthening America 
by Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism Act of 2001 (USA PATRIOT ACT) (Pub. L. 107-56), Sec. 416; the 
Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 
107-173; and other statutory enactments, Reorganization Plans, and 
Executive Orders. Under those authorities, designated program sponsors 
facilitate the entry into the United States of more than 300,000 
exchange participants each year, of which approximately 27,000 are 
trainees.
    The former United States Information Agency (USIA) and, as of 
October 1, 1999, its successor, the U.S. Department of State, have 
promulgated regulations governing the Exchange Visitor

[[Page 33670]]

Program. Those regulations appear at 22 CFR part 62. Regulations 
specifically governing training programs appear at 22 CFR 62.22. These 
regulations largely have remained unchanged since 1993, when the USIA 
undertook a major regulatory reform of the Exchange Visitor Program. 
Since then, the Department and the Government Accountability Office 
(GAO) have reviewed the implementation of these regulations. While 
training programs overall have been highly successful in meeting the 
goals of the Fulbright-Hays Act, both the Department and the GAO have 
found there have been occasions where training programs were being 
misused by some sponsors (e.g.; trainees were actually being used as 
``employees'' and the J visa was being used in lieu of the H visa or as 
a stepping stone for another longer-term non-immigrant or immigrant 
classification that may have been unavailable at the time of visa 
application).
    In particular, the GAO Report (``Stronger Action Needed to Improve 
Oversight and Assess Risks of the Summer Work Travel and Trainee 
Categories of the Exchange Visitor Program,'' Report GAO-06-106, 
October 2005) found that ``the potential exists for the Trainee Program 
to be misused as an employment program. Regulations strictly prohibit 
the use of the trainee category for ordinary employment purposes, 
stating in particular that sponsors must not place trainee participants 
in positions that are filled or would be filled by full-time or part-
time employees.'' (GAO Report, p. 20). The Department agrees with the 
GAO on this point. At the same time, the Department recognizes that 
work is an essential component of on-the-job training, and that in many 
respects there are no conceptual or legal distinctions between an 
employee and a trainee. These two perspectives are not inconsistent. 
While a trainee is performing work as a component of his/her training 
experience, the work is only a part of the learning program that is 
designed to enhance the trainee's skills in his/her occupational 
specialty through exposure to American techniques, methodologies, and 
expertise.
    By the same token, the Fulbright-Hays Act and the Exchange Visitor 
Program regulations were not meant to supply U.S. employers with 
employees under the guise of being trainees. The legislative and 
regulatory intent was, and continues to be, that trainees enter the 
United States, are exposed to American techniques, methodologies, and 
expertise, gain a better understanding of American culture and society, 
and then return to their homelands to share that learning with their 
countrymen. Trainees (and the new sub-category Interns) are not meant 
to fill positions that are or could be occupied by American workers on 
a full- or part-time or temporary or permanent basis. Thus, the new 
regulations contain provisions that will permit the Department more 
closely to monitor training programs to ensure that they are consistent 
with the purposes and intent of the Fulbright-Hays Act and are not 
subject to abuses similar to those it and the GAO found with respect to 
certain training programs.
    Also, the 1993 overhaul of the Exchange Visitor Program regulations 
included a provision governing training programs that distinguished 
among training in ``specialized'' occupations, ``non-specialized'' 
occupations, and ``unskilled'' occupations. Time has proven that the 
distinctions among these three occupational categories are conceptually 
artificial and do not adequately describe the types of training that 
the Department desires to promote in the national interest. In that 
regard, the Department has concluded that it is more the amount of 
prior experience that the trainee has acquired, rather than some 
artificial categorization of the type of training, that should be 
determinative as to whether the trainee should be permitted to enter 
the United States for further training. Accordingly, the regulations 
will require that to be eligible to participate in a training program, 
trainees must have either (1) a degree or professional certificate from 
a post-secondary academic institution outside the United States and at 
least one year of prior related work experience in their occupational 
field acquired outside the United States or (2) five years of work 
experience outside the United States in their occupational field. This 
provision ensures that prospective participants have an established 
connection with their home country at the time of application for 
participation in a training program.
    In order to ensure that trainees and interns are sufficiently 
fluent in English to benefit from and comprehend fully the training 
being undertaken, the regulations require that they have verifiable 
English language skills sufficient to function on a day-to-day basis in 
the training environment. Trainees' and interns' English language 
skills must be verified by a recognized English language test, by 
signed documentation from an academic institution or English language 
school, or through a documented interview conducted by program sponsors 
or a third party in person, by videoconferencing, or by web camera.
    The Department will designate training and internship programs in 
the following occupational categories: Agriculture, Forestry, and 
Fishing; Arts and Culture; Aviation (subject to the Statement of Policy 
set forth at 71 Federal Register 3913, January 24, 2006); Construction 
and Building Trades; Education, Social Sciences, Library Science, 
Counseling and Social Services; Health Related Occupations; Hospitality 
and Tourism; Information Media and Communications; Management, 
Business, Commerce and Finance; Public Administration and Law; and the 
Sciences, Engineering, Architecture, Mathematics, and Industrial 
Occupations; and such other occupational categories that the Department 
may from time to time include in training and internship programs. 
Regulations are being developed that will establish a subcategory of 
Student Intern within the College and University Students category 
(Sec.  62.23) for use by U.S. post-secondary academic institutions.
    The regulations the Department adopted in 1993 required the 
completion of structured training plans for trainees [22 CFR 62.22(f) 
and (g)]. The Department's experience since then, however, has shown 
that the regulations regarding the content and use of such training 
plans have not been effective and do not adequately assist the 
Department in determining whether real training is being provided to 
the trainee or whether a ``boilerplate'' structured training plan is 
truly descriptive of what the individual trainee is actually doing in 
the workplace. Accordingly, the Department is replacing the existing 
training plan regulations with new regulations for both training and 
internship placement plans, which are located at 22 CFR 62.22(i), 
Training/Internship Placement Plan (T/IPP)--Form DS-7002.
    The Department also recognizes that foreign nationals who are 
current students at or recent graduates of degree- or certificate-
granting post-secondary academic institutions and who have not yet had 
the opportunity to acquire experience in their academic field may also 
be interested in pursuing training in the United States. This sub-set 
of participants has in the past been the source of discussions 
regarding eligibility and regulatory compliance as the existing 
training plan requirements and selection criteria do not readily 
accommodate the inclusion of this significant portion of the 
population. The Department has concluded that it is in furtherance of 
the goals of the

[[Page 33671]]

Fulbright-Hays Act that such current students and recent graduates be 
permitted and, indeed, encouraged to enter the United States to 
participate in the Exchange Visitor Program. Accordingly, these 
regulations create a new intern sub-category within the regulations 
governing trainees.
    It is imperative that the new internship program be a true learning 
experience for the participant, one that is an integral part of the on-
going education of the participant and one that is in harmony with what 
the Congress intended when it enacted the Fulbright-Hays Act. To that 
end, and based upon the requirements for participation in the training 
program, the new intern regulations require sponsors to permit foreign 
nationals who (1) are currently enrolled in and pursuing studies at a 
degree-or certificate-granting post-secondary academic institution or 
(2) graduated from such an institution no more than 12 months prior to 
their exchange visitor program begin date to participate in an 
internship program. Sponsors must ensure that interns have verifiable 
English language skills sufficient to function on a day-to-day basis in 
their program environment. Interns may remain in the United States as a 
participant in a designated internship program for a maximum of 12 
months. The training and internship program will also be subject to a 
number of other sections of the Exchange Visitor Program regulations, 
including the General Provisions. 22 CFR 62.1 through 62.17.
    Training programs in the field of agriculture and in the 
``Hospitality and Tourism'' occupational category will be limited to 12 
months. The Department is of the view that 12 months is sufficient time 
to train a person in these occupational fields or categories, 
especially in light of the fact that, before entering the United States 
to participate in a training program, trainees must already have either 
(1) a degree or professional certificate from a foreign post-secondary 
academic institution and at least one year of prior related work 
experience in their occupational field acquired outside the United 
States or (2) five years of work experience outside the United States 
in their occupational field. However, the new regulations also provide 
that the duration of a training program in the field of agriculture may 
be up to 18 months if at least six months of the program is classroom 
participation and studies. Moreover, the Department also recognizes 
there are training programs in the field of agriculture or in the 
``Hospitality and Tourism'' occupational category that are, in reality, 
management programs (e.g., hotel or restaurant management, turf grass 
management). Such management programs may last up to 18 months. The new 
regulations give the Department the flexibility to classify such 
programs under the occupational code of ``Management, Business, 
Commerce, and Finance,'' as opposed to ``Agriculture'' or ``Hospitality 
and Tourism'' occupational codes. Training programs in all other 
occupational categories will have a maximum duration of 18 months.
    The new regulations also provide that trainees may return to the 
United States for additional training. Should a trainee wish to enter 
the United States for advanced training or for training in a different 
field, they may do so as long as they meet the selection criteria and 
have been absent from the United States for no less than two years 
after the completion of their initial training program.
    The new regulations substantially change the former provisions 
dealing with the obligations of program sponsors and any third 
parties--either domestic or overseas--with whom sponsors contract to 
assist them in recruiting, selecting, screening, orienting, placing, 
training, or evaluating foreign nationals who participate in training 
and internship programs. The regulations require sponsors to enter into 
a written agreement with third parties outlining the full relationship 
between the parties on all matters involving the Exchange Visitor 
Program. Third parties must provide a Dun & Bradstreet identification 
number. At the recommendation of industry comments, the Department is 
also changing its regulations to require sponsors to screen and vet all 
third parties.
    Sponsors often contract with third parties operating outside the 
United States to recruit, select, or screen program participants. The 
regulations require sponsors to vet such third parties to ensure that 
they are legitimate businesses in the context of their home country.
    A wide range of U.S. businesses and governmental or non-
governmental entities host participants in training and internship 
programs on behalf of sponsors. These regulations set baseline 
standards to which sponsors are required to adhere to ensure that such 
host organizations are legitimate entities, are appropriately 
registered or licensed to conduct their activities in their 
jurisdiction, and possess and maintain the ability and resources to 
provide structured and guided work-based experience according to 
individualized T/IPPs. In some instances, sponsors also will be 
required to conduct a site visit of the host organization's training 
location. The goal of the sponsor in vetting host organizations is to 
collect sufficient evidence to support a finding that participants are 
properly placed with host organizations that meet these standards.
    Finally, the regulations prohibit sponsors from placing trainees or 
interns in unskilled or casual labor positions, in positions that 
require or involve child care or elder care, or in any kind of position 
that involves patient care or contact. Further, sponsors must not place 
trainees or interns in positions that involve more than 20 per cent 
clerical work during their programs.

Analysis of Comments

    The Department received a total of 1,591 comments on the proposed 
trainee and intern regulations set forth at 22 CFR 62.22 and published 
in the Federal Register on April 7, 2006. Of this total, 1,332 
responses were identical form letters encouraged through writing 
campaigns directed by either the Alliance for International Educational 
and Cultural Exchange or by German and French academic institutions and 
organizations with ties to the Exchange Visitor Program. The remaining 
259 responses were from Exchange Visitor Program sponsors and the 
general public. The commenting parties addressed the following issues:
    Section 62.22(d)(2) received 1,580 comments, of which all were 
opposed to the change and recommended that the Department allow post-
secondary students to participate in the Intern category. The 
Department concurs and has amended the definition of an Intern to 
include post-secondary students.
    Section 62.22(d)(3) received 705 comments, of which all were 
opposed to the change. Due to the difficulty limiting testing and tying 
a score to one type of English proficiency test, the Department has 
eliminated the TOEFL requirement and amends the regulations to require 
sponsors to conduct a thorough screening of potential trainees or 
interns, including a documented interview in-person, by 
videoconference, or by web camera.
    Section 62.22(e) and (e)(1) received three comments, of which all 
were opposed to the change with the opinion that trainees and interns 
receive stipends and do not need the additional screening. The 
Department has determined that the financial screening of an applicant 
and having a Training/Internship Placement Plan in place is

[[Page 33672]]

critical to a successful program and therefore upholds the requirement 
as outlined in Section (e).
    Section 62.22(f)(1)(ix) received four comments, of which all were 
opposed to the change which required certification by agricultural 
programs to meet the Fair Labor Standards Act. The Department adopts 
this change and has incorporated the certification on the Training/
Internship Placement Plan (Form DS-7002).
    Section 62.22(f)(2) received 426 comments, of which all were 
opposed to the change. Several parties, however, recommended allowing a 
Third Party to conduct the interview. The Department has reviewed the 
comments and agrees to allow a third party to conduct the initial 
screening as identified in a third-party agreement with the sponsor.
    Section 62.22(f)(2)(v) received 662 comments, of which all were 
opposed to the three year experience requirement for trainees. The 
Department has reviewed all comments and has redefined the experience 
requirements for trainees and interns.
    Section 62.22(g)(1) received 389 comments, of which all were 
opposed to the change, but, however, recommended implementation of 
careful vetting requirements by sponsors. The Department adopts the 
requirement for site visits to host organizations; however amends the 
requirement to host organizations that have not previously participated 
successfully in the sponsor's training or internship programs and that 
have fewer than 25 employees or less than three million dollars in 
annual revenue.
    Section 62.22(g)(2) received 377 comments, of which all were 
opposed to the change and recommended elimination of this requirement. 
The Department concurs and eliminates this requirement.
    Section 62.22(g)(4) received six comments, of which all were 
opposed to the change and recommended clarification of the arrival date 
versus program begin date. The Department amends this requirement to 
require training and internship sponsors to ensure that trainees and 
interns are appropriately selected, placed, oriented, supervised and 
evaluated.
    Section 62.22(j)(2) received two comments, both of which were 
opposed to the change and recommended that the Department not define a 
percentage of time. The Department upholds and adopts this requirement.
    Section 62.22(k) received 392 comments, of which all were opposed 
to the change regarding the duration of training and internship 
programs in the occupational fields of agriculture and hospitality. The 
Department is of the view that 12 months is sufficient time to train a 
person in these occupational fields or categories, especially in light 
of the fact that, before entering the United States to participate in a 
training program, trainees must already have either (1) a degree or 
professional certificate from a foreign post-secondary academic 
institution and at least one year of prior related work experience in 
their occupational field acquired outside the United States or (2) five 
years of work experience outside the United States in their 
occupational field. Therefore, the Department adopts the duration of 
program participation as outlined in 62.22(k).
    Section 62.22(l) received one favorable comment.
    Section 62.22(n) received 22 comments, of which all were opposed to 
the repeat participation requirement. The Department has taken the 
comments into consideration and has amended the section to permit 
interns to participate in additional internship programs as long as 
they maintain student status or begin a new internship program within 
12 months of graduation. Trainees are eligible for additional training 
programs after a period of at least two years residency outside the 
United States following their initial training program.
    Section 62.22(o) received six comments, of which all were opposed 
to the change and recommended rewriting this section. The Department 
has decided not to make any changes to this section at this time.
    Section 62.22 received eight comments requesting elimination of the 
requirement that Internships be directly related to an Intern's field 
of study. The Department has reviewed the comments and upholds the 
requirement as defined.
    Section 62.22 received ten comments stating that the proposed 
regulations will negatively impact U.S. students. The Department has 
reviewed all comments and finds that the new definition of an Intern, 
as defined in this Interim Final Rule, will help alleviate the negative 
impact on U.S. students abroad.
    Section 62.22 received six comments requesting the reinstatement of 
``Counseling and Social Services'' in the list of occupational 
categories. The elimination of the occupational categories of 
Counseling and Social Services in the proposed rule was an oversight 
and has been reinstated in the Interim Final Rule.
    The Department recognizes the concerns regarding eligibility and 
monitoring of trainees and interns and therefore adopted several of the 
suggested changes as appropriate.

Administrative Procedure Act, Unfunded Mandates Reform Act of 1995, and 
Small Business Regulatory Enforcement Fairness Act of 1996

    The Department originally published this rulemaking as a Proposed 
Rule, with a 60-day comment period (See: 71 Federal Register 177768, 
April 7, 2006). Some 1,591 comments were received and analyzed and a 
number of the suggestions made in the comments have been incorporated 
in this Interim Final Rule. This rule is issued on an interim final 
basis as an accommodation to the Department's designated sponsor 
community. This approach will provide the opportunity for 
straightforward amendment of regulatory language, if necessary, but 
will also permit this rule to be implemented in a timely manner.
    This rulemaking process has been conducted without prejudice to 
whether it involves a foreign affairs function of the United States 
exempt from the requirements of 5 U.S.C. 553 and without prejudice to 
whether the Department may invoke that exemption in other contexts.
    This Interim Rule has been found not to be a major rule within the 
meaning of the Small Business Regulatory Enforcement Fairness Act of 
1996. It will not have a substantial effect on the States, 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 has been determined that the Interim Final 
Rule does not have sufficient federalism implications to warrant 
application of the consultation provisions of Executive Orders 12372 
and 13132.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    In its April 7, 2006 promulgation of the Proposed Rule, 71 Federal 
Register 177768, the Department certified that the proposed changes to 
the regulations were not expected to have a significant economic impact 
on a substantial number of small entities under the criteria of the 
Regulatory Flexibility Act, 5 U.S.C. 601 through 612, and Executive 
Order 13272, section 3(b). By letter dated May 30, 2006, the Office of 
Advocacy of the Small Business Administration opined that the 
Department's certification lacked a factual basis in that the Proposed 
Rule, if adopted as written, could have significant impact on a 
substantial number of small entities, in particular, nine flight 
training schools that utilize the J visa.

[[Page 33673]]

    After receiving and analyzing the aforementioned 1,591 comments and 
after consultation with affected stakeholders, a number of changes have 
been made to the proposed regulation. With respect to the flight 
training schools, the Department has decided to make no changes to 
existing regulations governing flight training in this Interim Final 
Rule. Therefore, the changes proposed in this Rule do not impact such 
schools. After revising the Proposed Rule, the Department again 
reviewed the regulations being promulgated in this Interim Final Rule 
in order to determine if they would potentially have a significant 
economic impact on any other small entities utilizing the J visa. Other 
than those comments received from flight training sponsors, no other 
comments asserted potential significant economic impact on small 
entities. Accordingly, the Department has determined and hereby 
certifies that the Interim Final Rule is not expected to have an 
economic impact on a substantial number of small entities.
    In cases where a rulemaking involves a foreign affairs function, 
the rulemaking is not subject to 5 U.S.C. 553, and therefore is not 
subject to sections 603 and 604 of the Regulatory Flexibility Act, 5 
U.S.C. sections 601 through 612, or section 3(b) of Executive Order 
13272. In this case, the Department's certification concerning impact 
on small entities is made without prejudice to whether this rulemaking 
involves a foreign affairs function of the United States exempt from 
the Regulatory Flexibility Act and without prejudice to whether the 
Department may invoke that exemption in any other contexts.

Executive Order 12866

    The Department of State does not consider this Interim Final 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 Interim Final Rule to ensure its consistency 
with the regulatory philosophy and principles set forth in that 
Executive Order.

Executive Order 12988

    The Department has reviewed this Interim Final 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.

Paperwork Reduction Act

    The information collection requirements contained in this 
rulemaking (Form DS-7002) have been approved by the Office of 
Management and Budget pursuant to the Paperwork Reduction Act, 44 
U.S.C. Chapter 35, under OMB Control Number 1405-0170, expiration date: 
07/31/2009. The Proposed Rule for Trainees and Interns, published 4/07/
2006, stated in its PRA section that the Department would develop and 
publish a new form (Form DS-7002--Training/Internship Placement Plan). 
This form was designed and developed and a Notice of request for public 
comment was published. The proposed data collection and Form DS-7002 
published in the Federal Register on 06/01/2006. The Notice directed 
that all comments and questions be directed to OMB. Final approval of 
the form and data collection was issued on 07/31/2006.

List of Subjects in 22 CFR Part 62

    Cultural exchange programs, Reporting and recordkeeping 
requirements.

0
Accordingly, 22 CFR part 62 is 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, 1372 
(2001), 1701-1775 (2002); 22 U.S.C. 1431-1442, 2451-2460; 6501 
(1998); 5 U.S.C. app. Sec.  1-11 (1977); 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 62.2 is amended by removing the definitions for ``Non-
specialty occupation'' and ``Specialty occupation'' and by adding the 
following definitions for ``Clerical'', ``Host Organization'', 
``Intern'', ``Internship Program'', ``Staffing Agency'', ``Trainee'', 
and ``Training Program'', to read as follows:


Sec.  62.2  Definitions

* * * * *
    Clerical--means routine administrative work generally performed in 
an office or office-like setting, such as data entry, filing, typing, 
mail sorting and distribution, and other general office tasks.
* * * * *
    Host Organization--means a in the United States that conducts 
training or internship programs on behalf of designated program 
sponsors pursuant to an executed written agreement between the two 
parties.
    Intern--means a foreign national who either
    (1) Is currently enrolled in and pursuing studies at a degree- or 
certificate-granting post-secondary academic institution outside the 
United States or
    (2) Graduated from such an institution no more than 12 months prior 
to his/her exchange visitor program begin date, and who enters the 
United States to participate in a structured and guided work-based 
internship program in his/her specific academic field.
    Internship Program--means a structured and guided work-based 
learning program as set forth in an individualized Training/Internship 
Placement Plan (T/IPP) that reinforces a student's or recent graduate's 
academic study, recognizes the need for work-based experience, provides 
on-the-job exposure to American techniques, methodologies, and 
expertise, and enhances the Intern's knowledge of American culture and 
society.
* * * * *
    Staffing/Employment Agency--means a U.S. business that hires 
individuals for the express purpose of supplying workers to other 
businesses. Typically, the other businesses with which workers are 
placed pay an hourly fee per employee to the Staffing/Employment 
Agency, of which the worker receives a percentage.
    Trainee--means a foreign national who has either:
    (1) A degree or professional certificate from a foreign post-
secondary academic institution and at least one year of prior related 
work experience in his/her occupational field acquired outside the 
United States, or
    (2) Five years of work experience outside the United States in his/
her occupational field, and who enters the United States to participate 
in a structured and guided work-based training program in his/her 
specific occupational field.
    Training Program--means a structured and guided work-based learning 
program set forth in an individualized Trainee/Internship Placement 
Plan (T/IPP) that enhances both a trainee's understanding of American 
culture and society and his/her skills in his/her occupational field 
through exposure to American techniques, methodologies, and expertise.

0
3. Section 62.22 is revised to read as follows:

[[Page 33674]]

Sec.  62.22  Trainees and interns.

    (a) Introduction. These regulations govern Exchange Visitor 
Programs under which foreign nationals have the opportunity to receive 
training in the United States. These regulations also establish a new 
internship program under which foreign nationals who:
    (1) Are currently enrolled in and pursuing studies at a degree- or 
certificate-granting post-secondary academic institution outside the 
United States or
    (2) Graduated from such an institution no more than 12 months prior 
to their exchange visitor program begin date may enter the United 
States to obtain work-based learning to build on their academic 
experience by developing practical skills. Regulations dealing with 
training opportunities for certain foreign students who are studying at 
post-secondary accredited educational institutions in the United States 
are located at Sec.  62.23 (``College and University Students''). 
Regulations governing alien physicians in graduate medical education or 
training are located at Sec.  62.27 (``Alien Physicians'').
    (b) Purpose. (1)(i) The primary objectives of the programs offered 
under these regulations are to enhance the skills and expertise of 
exchange visitors in their academic or occupational fields through 
participation in structured and guided work-based training and 
internship programs and to improve participants' knowledge of American 
techniques, methodologies, and expertise. Such training and internship 
programs are also intended to increase participants' understanding of 
American culture and society and to enhance Americans' knowledge of 
foreign cultures and skills through an open interchange of ideas 
between participants and their American associates. A key goal of the 
Fulbright-Hays Act, which authorizes these programs, is that 
participants will return to their home countries and share their 
experiences with their countrymen.
    (ii) Exchange Visitor Program training and internship programs must 
not be used as substitutes for ordinary employment or work purposes; 
nor may they be used under any circumstances to displace American 
workers. The requirements in these regulations for trainees are 
designed to distinguish between bona fide training, which is permitted, 
and merely gaining additional work experience, which is not permitted. 
The requirements in these regulations for interns are designed to 
distinguish between a period of work-based learning in the intern's 
academic field, which is permitted, and unskilled labor, which is not.
    (2) In addition, a specific objective of the new internship program 
is to provide foreign nationals who are currently enrolled in and 
pursuing studies at a degree- or certificate-granting post-secondary 
academic institution or graduated from such an institution no more than 
12 months prior to their exchange visitor program begin date a period 
of work-based learning to allow them to develop practical skills that 
will enhance their future careers. Bridging the gap between formal 
education and practical work experience and gaining substantive cross-
cultural experience are major goals in educational institutions around 
the world. By providing training opportunities for current foreign 
students and recent foreign graduates at formative stages of their 
development, the U.S. Government will build partnerships, promote 
mutual understanding, and develop networks for relationships that will 
last through generations as these foreign nationals move into 
leadership roles in a broad range of occupational fields in their own 
societies. These results are closely tied to the goals, themes, and 
spirit of the Fulbright-Hays Act.
    (c) Designation. (1) The Department may, in its sole discretion, 
designate as sponsors entities meeting the eligibility requirements set 
forth in Subpart A of 22 CFR Part 62 and satisfying the Department that 
they have the organizational capacity successfully to administer and 
facilitate training and internship programs.
    (2) Sponsors must provide training and internship programs only in 
the occupational category or categories for which the Department has 
designated them as sponsors. The Department will designate training and 
internship programs in any of the following occupational categories:
    (i) Agriculture, Forestry, and Fishing;
    (ii) Arts and Culture;
    (iii) Aviation;
    (iv) Construction and Building Trades;
    (v) Education, Social Sciences, Library Science, Counseling and 
Social Services;
    (vi) Health Related Occupations;
    (vii) Hospitality and Tourism;
    (viii) Information Media and Communications;
    (iv) Management, Business, Commerce and Finance;
    (x) Public Administration and Law; and
    (xi) The Sciences, Engineering, Architecture, Mathematics, and 
Industrial Occupations.
    (d) Selection Criteria. (1) In addition to satisfying the general 
requirements set forth in Sec.  62(10)(a), sponsors must ensure that 
trainees and interns have verifiable English language skills sufficient 
to function on a day-to-day basis in their training environment. 
English language proficiency must be verified by a recognized English 
language test, by signed documentation from an academic institution or 
English language school, or through an interview conducted by the 
sponsor, or an in-person, by videoconference, or by web camera.
    (2) Sponsors of training programs must verify that all potential 
trainees are foreign nationals who have either a degree or professional 
certificate from a foreign post-secondary academic institution and at 
least one year of prior related work experience in their occupational 
field acquired outside the United States or five years of work 
experience outside the United States in their occupational field.
    (3) Sponsors of internship programs must verify that all potential 
interns are foreign nationals who are currently enrolled in and 
pursuing studies at a degree-or certificate-granting post-secondary 
academic institution outside the United States or graduated from such 
an institution no more than 12 months prior to their exchange visitor 
program begin date.
    (e) Issuance of Forms DS-2019. In addition to the requirements set 
forth in Subpart A, sponsors must ensure that:
    (1) They do not issue Forms DS-2019 to potential participants in 
training and internship programs until they secure placements for 
trainees or interns and complete and secure requisite signatures on 
Form DS-7002, Training/Internship Placement Plan (T/IPP or Forms DS-
7002);
    (2) Trainees and interns have sufficient finances to support 
themselves for their entire stay in the United States, including 
housing and living expenses; and
    (3) The training and internship programs expose participants to 
American techniques, methodologies, and expertise and expand upon the 
participants' existing knowledge and skills. Programs must not 
duplicate the participants' prior work experience or training received 
elsewhere.
    (f) Obligations of Training and Internship Program Sponsors. (1) 
Sponsors designated by the Department to administer training and 
internship programs must:
    (i) Ensure that trainees and interns are appropriately selected, 
placed, oriented, supervised, and evaluated;

[[Page 33675]]

    (ii) Be available to trainees and interns (and host organizations, 
as appropriate) to assist as facilitators, counselors, and information 
resources;
    (iii) Ensure that training and internship programs provide a 
balance between the trainees' and interns' learning opportunities and 
their contributions to the organizations in which they are placed;
    (iv) Ensure that the training and internship programs are full-time 
(minimum of 32 hours a week); and
    (v) Ensure that any host organizations and third parties involved 
in the recruitment, selection, screening, placement, orientation, 
evaluation for, or the provision of training and internship programs 
are sufficiently educated on the goals, objectives, and regulations of 
the Exchange Visitor Program and adhere to all regulations set forth in 
this Part as well as all additional terms and conditions governing 
Exchange Visitor Program administration that the Department may from 
time to time impose.
    (2) Sponsors must ensure that they or any host organization acting 
on the sponsor's behalf:
    (i) Have sufficient resources, plant, equipment, and trained 
personnel available to provide the specified training and internship 
program;
    (ii) Provide continuous on-site supervision and mentoring of 
trainees and interns by experienced and knowledgeable staff;
    (iii) Ensure that trainees and interns obtain skills, knowledge, 
and competencies through structured and guided activities such as 
classroom training, seminars, rotation through several departments, on-
the-job training, attendance at conferences, and similar learning 
activities, as appropriate in specific circumstances;
    (iv) Conduct periodic evaluations of trainees and interns, as set 
forth in Sec.  62.22(l);
    (v) Do not displace full-or part-time or temporary or permanent 
American workers or serve to fill a labor need and ensure that the 
positions that trainees and interns fill exist solely to assist 
trainees and interns in achieving the objectives of their participation 
in training and internship programs; and
    (vi) Certify that training and internship programs in the field of 
agriculture meet all the requirements of the Fair Labor Standards Act, 
as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal 
Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et 
seq.).
    (3) Sponsors or any third parties acting on their behalf must 
conduct a thorough screening of potential trainees or interns, 
including a documented interview in-person, by videoconference, or by 
web camera.
    (4) Sponsors must retain all documents referred to in Sec.  
62.22(f) for at least three years following the completion of all 
training and internship programs. Documents and any requisite 
signatures may be retained in either hard copy or electronic format.
    (g) Use of Third Parties-- (1) Sponsors Use of Third Parties. 
Sponsors may engage third parties (including, but not limited to host 
organizations, partners, local businesses, governmental entities, 
academic institutions, and other foreign or domestic agents) to assist 
them in the conduct of their designated training and internship 
programs. Such third parties must have an executed written agreement 
with the sponsor to act on behalf of the sponsor in the conduct of the 
sponsor's program. This agreement must outline the full relationship 
between the sponsor and third party on all matters involving the 
administration of their exchange visitor program. A sponsor's use of a 
third party does not relieve the sponsor of its obligations to comply 
with and to ensure third party compliance with Exchange Visitor Program 
regulations. Any failure by any third party to comply with the 
regulations set forth in this Part or with any additional terms and 
conditions governing Exchange Visitor Program administration that the 
Department may from time to time impose will be imputed to the sponsor.
    (2) Screening and Vetting Third Parties Operating Outside the 
United States. U.S. sponsors must ascertain that third parties 
operating outside the United States are legitimate entities within the 
context of their home country environment. For third parties that 
operate as businesses, sponsors must obtain relevant home country 
documentation, such as business registration or certification, and Dun 
& Bradstreet identification numbers. Written agreements between 
sponsors and third parties operating outside the United States must 
include an annually updated price list for training and internship 
programs offered by each third party, and must ensure that such 
overseas third parties are sufficiently trained in all aspects of the 
programs they represent, including the regulations set forth in this 
Part.
    (3) Screening and Vetting Host Organizations. Sponsors must 
adequately screen all potential host organizations at which a trainee 
or intern will be placed by obtaining the following information:
    (i) The Dun & Bradstreet identification number (unless the host 
organization is an academic institution, government entity, or family 
farm);
    (ii) Employer Identification Number (EIN) used for tax purposes;
    (iii) Verification of telephone number, address, and professional 
activities via advertising, brochures, Web site, and/or feedback from 
prior participants; and
    (iv) Verification of Workman's Compensation Insurance Policy.
    (4) Site Visits of Host Organizations. Sponsors must conduct site 
visits of host organizations that have not previously participated 
successfully in the sponsor's training and internship programs and that 
have fewer than 25 employees or less than three million dollars in 
annual revenue. Placements at academic institutions or at federal, 
state, or local government offices are specifically excluded from this 
requirement. The purpose of the site visits is for the sponsors to 
ensure that host organizations possess and maintain the ability and 
resources to provide structured and guided work-based learning 
experiences according to the individualized T/IPPs and that host 
organizations understand and meet their obligations set forth in this 
Part.
    (h) Host Organization Obligations. Sponsors must ensure that:
    (1) Host organizations sign a completed Form DS-7002 to verify that 
all placements are appropriate and consistent with the objectives of 
the trainees or interns as outlined in their program applications and 
as set forth in their T/IPPs. All parties involved in internship 
programs should recognize that interns are seeking entry-level training 
and experience. Accordingly, all placements must be tailored to the 
skills and experience level of the individual intern; (i) Host 
organizations notify sponsors promptly of any concerns about, changes 
in, or deviations from T/IPPs during training and internship programs 
and contact sponsors immediately in the event of any emergency 
involving trainees or interns; (ii) Host organizations abide by all 
Federal, State, and Local occupational health and safety laws; and 
(iii) Host organizations abide by all program rules and regulations set 
forth by the sponsor, including the completion of all mandatory program 
evaluations.
    (i) Training/Internship Placement Plan (Form DS-7002). (1) Sponsors 
must fully complete and obtain requisite signatures for a Form DS-7002 
for each trainee or intern before issuing a Form DS-2019. Sponsors must 
provide each signatory an executed copy of the Form DS-7002. Upon 
request, trainees and interns must present their fully

[[Page 33676]]

executed Form DS-7002 to a Consular Official during their visa 
interview.
    (2) To further distinguish between bona fide training for trainees 
or work-based learning for interns, which are permitted, and ordinary 
employment or unskilled labor which are not, all T/IPPs must
    (i) State the specific goals and objectives of the training and 
internship program (for each phase or component, if applicable);
    (ii) Detail the knowledge, skills, or techniques to be imparted to 
the trainee or intern (for each phase or component, if applicable); and
    (iii) Describe the methods of performance evaluation and the 
supervision for each phase or component, if applicable.
    (3) A T/IPP for trainees must be divided into specific and various 
phases or components, and for each phase or component must
    (i) Describe the methodology of training and
    (ii) Provide a chronology or syllabus.
    (4) A T/IPP for interns must:
    (i) Describe the role of the intern in the organization and, if 
applicable, identify various departments or functional areas in which 
the intern will work and
    (ii) Identify the specific tasks and activities the intern will 
complete.
    (j) Program Exclusions. Sponsors designated by the Department to 
administer training and internship programs must not:
    (1) Place trainees or interns in unskilled or casual labor 
positions, in positions that require or involve child care or elder 
care, or in clinical or any other kind of work that involves patient 
care or contact, including any work that would require trainees or 
interns to provide therapy, medication, or other clinical or medical 
care (e.g., sports or physical therapy, psychological counseling, 
nursing, dentistry, veterinary medicine, social work, speech therapy, 
or early childhood education);
    (2) Place trainees or interns in positions, occupations, or 
businesses that could bring the Exchange Visitor Program or the 
Department into notoriety or disrepute; or
    (3) Engage or otherwise cooperate or contract with a Staffing/
Employment Agency to recruit, screen, orient, place, evaluate, or train 
trainees or interns, or in any other way involve such agencies in an 
Exchange Visitor Program training and internship program.
    (4) Designated sponsors must ensure that the duties of trainees or 
interns as outlined in the T/IPPs will not involve more than 20 per 
cent clerical work, and that all tasks assigned to trainees or interns 
are necessary for the completion of training and internship program 
assignments.
    (5) Sponsors must also ensure that all ``Hospitality and Tourism'' 
training and internship programs of six months or longer contain at 
least three departmental or functional rotations.
    (6) Place interns in the field of aviation.
    (k) Duration. The duration of a trainee's or intern's participation 
in a training and internship program must be established before a 
sponsor issues a Form DS-2019. Except as noted below, the maximum 
duration of a training program is 18 months, and the maximum duration 
of an internship programs is 12 months. For training programs in the 
field of agriculture and in the ``Hospitality and Tourism'' 
occupational category, the maximum duration is 12 months. Training 
programs in the field of agriculture are permitted to last a total of 
18 months, if in development of the T/IPP the additional six months of 
the program consists of classroom participation and studies. Program 
extensions are permitted within maximum durations as long as the need 
for an extended training and internship program is documented by the 
full completion and execution of a new Form DS-7002.
    (l) Evaluations. In order to ensure the quality of training and 
internship programs, sponsors must develop procedures for evaluating 
all trainees and interns. All required evaluations must be completed 
prior to the conclusion of a training and internship program, and both 
the trainees and interns and their immediate supervisors must sign the 
evaluation forms. For programs exceeding six months' duration, at a 
minimum, midpoint and concluding evaluations are required. For programs 
of six months or less, at a minimum, concluding evaluations are 
required. Sponsors must retain trainee and intern evaluations 
(electronic or hard copy) for a period of at least three years 
following the completion of each training and internship program.
    (m) Issuance of Certificate of Eligibility for Exchange Visitor (J-
1) Status. Sponsors must not deliver or cause to be delivered any 
Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-
2019) to potential trainees or interns unless the individualized Form 
DS-7002 required by Sec.  62.22(i) has been completed and signed by all 
requisite parties.
    (n) Additional Training and Internship Program Participation. 
Foreign nationals who enter the United States under the Exchange 
Visitor Program to participate in training and internship programs are 
eligible to participate in additional training and internship programs 
under certain conditions. For both trainees and interns, additional 
training and internship programs must address the development of more 
advanced skills or a different field of expertise. Interns may 
participate in additional internship programs as long as they maintain 
student status or begin a new internship program within 12 months of 
graduation. Trainees are eligible for additional training programs 
after a period of at least two years residency outside the United 
States following their initial training program. Participants who have 
successfully completed internship programs and no longer meet the 
selection criteria for internship programs may participate in a 
training program after a two-year period of residency outside the 
United States following their internship program. As long as 
participants meet the selection criteria and fulfill these conditions, 
there is no limit to the number of times they may participate in a 
training and internship program.
    (o) Flight Training. (1) The Department will consider the 
application for designation of a flight training program if such 
programs comply with the above regulations, and, additionally:
    (i) Is, at the time of making said application, a Federal Aviation 
Administration certificated pilot school pursuant to title 14 CFR part 
141; and
    (ii) At the time of making said application is accredited as an 
flight training program by an accrediting agency which is listed in the 
current edition of the U.S. Department of Education's ``Nationally 
Recognized Accrediting Agencies and Associations,'' or is accredited as 
a flight training program by a member of the Council on Postsecondary 
Accreditation; or
    (iii) At the time of making said application has formally commenced 
the accreditation process with an accrediting agency which is listed in 
the current edition of the U.S. Department of Education's ``Nationally 
Recognized Accrediting Agencies and Associations,'' or with a member of 
the Council on Postsecondary Accreditation. If the application for 
designation is approved, such designation will be for up to 12 months 
duration, with continued designation thereafter conditioned upon 
completion of the accreditation process.
    (2) Notwithstanding the provisions of Sec.  62.22(k), the maximum 
period of participation for exchange visitors in

[[Page 33677]]

designated flight training programs must not exceed 24 months total. 
Any request for extension of time in excess of that authorized under 
this subsection must be made in accordance with Sec.  62.43.
    (3) For purposes of meeting the evaluation requirements set forth 
in Sec.  62.22(m), sponsors and/or third parties conducting the 
training may utilize the same training records as are required by the 
Federal Aviation Administration to be maintained pursuant to 14 CFR 
141.101.

    Dated: March 12, 2007.
Stanley S. Colvin,
Director, Office of Exchange Coordination and Designation, Bureau of 
Educational and Cultural Affairs, Department of State.
[FR Doc. E7-11703 Filed 6-18-07; 8:45 am]
BILLING CODE 4710-05-P