Exchange Visitor Program-General Provisions, 18249-18252 [2023-06157]
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Federal Register / Vol. 88, No. 59 / Tuesday, March 28, 2023 / Rules and Regulations
22 CFR Part 62
[Public Notice: 12016]
RIN 1400–AC36
Exchange Visitor Program—General
Provisions
Department of State.
Interim final rule, with request
for comment.
AGENCY:
ACTION:
The U.S. Department of State
(Department of State) is publishing an
interim final rule with request for
comment (interim final rule) for
Exchange Visitor Program regulations,
the regulations that apply to sponsors
the Department of State designates to
conduct international educational and
cultural exchange programs. The
Department of State is making
administrative changes to the
regulations to include providing
sponsors two new options: using digital
signature software to sign Certificates of
Eligibility for Exchange Visitor (J–1)
Status (Forms DS–2019) and
electronically transmitting Forms DS–
2019. Sponsors should experience cost
savings and increased efficiencies from
these changes.
DATES: This interim final rule is
effective on April 27, 2023. The
Department of State will accept public
comments until May 30, 2023.
ADDRESSES: Interested parties may
submit comments to the Department of
State by any of the following methods:
• Visit the Regulations.gov website at:
https://www.regulations.gov and search
for the docket number DOS–2023–0010.
• Email: JExchanges@state.gov.
Commenting parties must include RIN
1400–AC36 in the subject line of the
email message.
• All comments should include the
commenter’s name, the organization the
commenter represents, if applicable,
and the commenter’s address. If the
Department of State is unable to read a
comment for any reason, and cannot
contact the commenting party for
clarification, the Department of State
may not be able to consider your
comment. After the conclusion of the
comment period, the Department of
State will publish a final rule (in which
it will address relevant comments) as
expeditiously as possible.
FOR FURTHER INFORMATON CONTACT:
Karen Ward, Director, Office of Private
Sector Exchange Designation, at SA–5,
2200 C Street NW, Washington, DC
20522 or via email at JExchanges@
state.gov.
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SUMMARY:
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The
Department of State published a notice
of proposed rulemaking (NPRM) for
subpart A of 22 CFR part 62 in the
Federal Register on September 22, 2009
(74 FR 48177). Subpart A sets forth the
general provisions for eligibility and
continuing requirements for all
designated sponsors that conduct
exchange visitor programs. After
considering the comments that more
than 100 parties submitted in response
to the NPRM, the Department of State
published a final rule on October 6,
2014 (79 FR 60294), at which time it
requested additional comments (2014
final rule).
The sponsor community has long
sought the ability to digitally sign and
electronically transmit (e.g., via email)
Forms DS–2019, i.e., the Student and
Exchange Visitor Information System(SEVIS-) generated documents that
prospective exchange visitors and their
spouses and dependents, if any, must
present at U.S. embassies or consulates
to apply for J-visas. This Interim Final
Rule permits sponsors to sign Forms
DS–2019 using digital signatures,
defined as follows: An application of
technology for cryptographically
derived signatures that ensures
meaningful authentication of the
identity of the signer and integrity of the
document. Digital signatures are a
subset of electronic signatures, but
unlike other electronic signatures,
digital signatures employ cryptography,
i.e., are backed by a process such as a
public key infrastructure. Commonly
used digital signature software packages
include, but are not limited to,
DocuSign, Adobe Sign, and Global Sign.
For sponsors that are unable or do not
wish to apply digital signatures, the
Interim Final Rule retains the current
option of printing and hand signing
Forms DS–2019 in ink.
With the implementation of this rule,
sponsors may transmit Forms DS–2019
electronically, including directly to
exchange visitors. Sponsors without
digital signature capacity may print and
sign forms in ink (as they do now,
except that blue ink is no longer
required), scan the forms (e.g., into
portable document format (PDF) files),
and then transmit them electronically.
The Department of State notes that these
regulatory changes will have no impact
on SEVIS functionality or the number of
Forms DS–2019 allotted to sponsors.
The Department of State believes that
many sponsors already have digital
signature software, and that the
elimination of the requirement that
sponsors mail paper forms worldwide
will result in significant cost-savings.
Accordingly, it anticipates that most
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF STATE
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sponsors will recognize the benefits of
digital signatures and, if they have not
already done so, will invest in digital
signature software.
In this interim final rule, the
Department of State also clarifies,
corrects, and/or deletes ambiguous,
obsolete, or technically inaccurate
language and requirements, some of
which were adopted before SEVISgenerated Forms DS–2019 replaced
paper Forms IAP–66. The following two
changes are also made by this
rulemaking: adoption of the plural
forms of nouns (e.g., sponsors, exchange
visitors); and replacement of the term
‘‘original’’ with the term ‘‘paper’’ when
describing the physical Forms DS–2019.
The reasons for the regulatory
changes, including comments about
such changes, follow for each provision
of 22 CFR 62.12 that the Department of
State modifies herein. The following
bolded citations represent current
regulatory text in 22 CFR part 62.
22 CFR 62.12(a) Issuance of Forms DS–
2019
22 CFR 62.12(a)(1). The Department
of State adds the language ‘‘to SEVIS’’
to clarify that it is access to SEVIS that
is restricted to Responsible Officers and
Alternate Responsible Officers
(collectively, Officers).
22 CFR 62.12(a)(3). The Department
of State incorporates into this paragraph
the requirement that sponsors may issue
Forms DS–2019 for the enumerated
purposes only if the regulations permit,
and if necessary, the Department of
State authorizes the action. This change
updates this specific regulatory
language to clarify requirements for
sponsors.
22 CFR 62.12(a)(3)(ii). The
Department of State eliminates the
phrase ‘‘when permitted by the
regulations and authorized by the
Department of State’’ because these
general requirements are now present in
22 CFR 62.12(a)(3).
22 CFR 62.12(a)(3)(iii). For the same
reason, the Department of State
eliminates the phrase ‘‘when permitted
by the regulations and/or authorized in
writing by the Department of State.’’
22 CFR 62.12(a)(3)(iv). The
Department of State makes no changes
to this paragraph. The Department of
State confirms the need to use the
reprint function in SEVIS when
replacing Forms DS–2019 that have
been lost, stolen, or damaged. When
nonimmigrants traveling on J-visas lose
their Forms DS–2019, sponsors
historically would reprint the
previously issued forms and send them
to the exchange visitors who requested
a copy. With electronic transmission,
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sponsors should still use the reprint
function in SEVIS to appropriately
record the action before electronically
transmitting replacement forms to
exchange visitors.
22 CFR 62.12(a)(3)(v). Commenting
parties opined that re-entry into the
United States is not a reason that
sponsors initially issue Forms DS–2019.
The Department of State notes, however,
there are instances when all travel
signature lines on Forms DS–2019 are
filled, and Officers must issue new
forms. Accordingly, the Department of
State retains this provision.
22 CFR 62.12(a)(3)(vi). The
Department of State eliminates the
phrase ‘‘when requested in SEVIS and
authorized by the Department of State.’’
The phrase ‘‘when requested in SEVIS’’
describes the method of requesting
category changes and is unnecessary in
a rule that enumerates the reasons for
issuing Forms DS–2019.
22 CFR 62.12(a)(3)(vii). The
Department of State eliminates the
phrase ‘‘or a change in actual and
current U.S. address’’ in response to
numerous comments that explained that
this was not a valid example of reasons
to issue Forms DS–2019 since this
SEVIS field is not printed on Forms DS–
2019.
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22 CFR 62.12(b) Verification
22 CFR 62.1(b)(2)(ii). The Department
of State eliminates the requirement that
Officers sign paper Forms DS–2019
using only blue ink to permit greater
flexibility for sponsors.
22 CFR 62.12(b)(2)(iii). In response to
numerous requests from sponsors to be
able to sign Forms DS–2019
electronically, the Department of State
adds a new paragraph to permit digital
signatures, defined as an application of
technology for cryptographically
derived signatures that ensures
meaningful authentication of the
identity of the signer and integrity of the
document. Digital signatures are a
subset of electronic signatures, but
unlike other electronic signatures,
digital signatures employ cryptography,
i.e., are backed by a process such as a
public key infrastructure. Sponsors may
also continue to sign paper Forms DS–
2019 forms in ink. The Department
removes the requirement that the DS–
2019 be signed in blue ink to allow
greater flexibility for sponsors. The
Department of State also recommends
that sponsors remind applicants and
their accompanying spouses and
dependents, if any, that they must take
a paper form to their visa interviews to
be stamped and signed by a consular
officer. They must also present a paper
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copy of their Forms DS–2019 at their
ports of entry into the United States.
Several commenting parties also
sought the flexibility to allow any
Officer to sign Forms DS–2019 that they
submit via batch processing, when
Officers whose names were printed on
forms are not present to sign paper
forms. However, when Officers print or
reprint Forms DS–2019, SEVIS
automatically populates Field #7 with
the name of the Officer who initially
submitted the action, making it
necessary for that Officer to sign the
paper form. In the electronic
environment, digital signatures are
embedded in documents, allowing
Officers to sign forms as they create
them, thereby mitigating this concern.
Several commenting parties also
asked whether different Officers could
sign Forms DS–2019 when they are
reprinted for travel purposes. As noted
above, SEVIS prints in Field #7 the
name of the Officer who initiated the
print/reprint function. Since a signature
must match the name of the Officer
printed on each form, sponsors should
ensure that Officers whose names
appear on forms are available to sign
them. The Officer that signs the original
Form DS–2019 may be different than the
Officer that reprints the form from
SEVIS. The Department of State will
explore the capability of enhancing
SEVIS to allow users to select the names
of Officers that will print on forms.
22 CFR 62.12(c) Distribution of Forms
DS–2019
The Department of State changes the
heading of paragraph (c) to
‘‘Transmission of Forms DS–2019’’ and
clarifies to whom sponsors may transmit
Forms DS–2019. Many commenting
parties read the current regulatory
language to limit sponsors’ transmission
of Forms DS–2019 to only ‘‘authorized
parties,’’ meaning the Department of
State and the Department of Homeland
Security. Many commenters requested
the Department of State expand the
definition of ‘‘authorized parties.’’ To
clarify this provision, the Department of
State now specifically enumerates the
parties to whom sponsors may transmit
Forms DS–2019 electronically (e.g., via
email) or by mail (e.g., via postal or
delivery service): exchange visitors;
accompanying spouses and dependents;
legal guardians of minor exchange
visitors; sponsor staff; Fulbright
commissions and their staff; and
Federal, State, and local government
agencies or departments. The Fulbright
commissions (and their staff) referenced
above are authorized and established
pursuant to section 103 of the Mutual
Educational and Cultural Exchange Act
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of 1961 (commonly known as the
Fulbright-Hays Act) (22 U.S.C. 2453).
The Department of State notes that
sponsors’ Officers must ensure that
Forms DS–2019 are secured; and they
may transmit them electronically to
other sponsor staff only on a shared
network.
The Department of State clarifies that
sponsors may continue to transmit
paper Forms DS–2019 via mail to
foreign third parties acting on their
behalf to facilitate their gathering
necessary paperwork for multiple
applicants to take to their visa
interviews. Sponsors may not transmit
Forms DS–2019 electronically to foreign
third parties, however, as the ability to
transmit forms electronically to the
parties enumerated above eliminates the
need for foreign third parties to have
access to electronic forms.
22 CFR 62.12(d) Allotment Requests
The Department of State makes case
corrections and clarifying edits in this
paragraph. It also eliminates the
language establishing four weeks as the
estimated time for responding to
allotment requests since conditions
outside the control of the Department of
State may delay meeting any specific
deadline. It also clarifies that sponsors
should refer to the most recent version
of the User Manual for Exchange Visitor
Program Sponsor Users (RO/ARO) of
SEVIS Volume I, Forms DS–3036 and
DS–3037 on the j1visa.state.gov website
to determine whether the Department of
State has modified or updated the
‘‘other information’’ that the regulation
states it may require. Otherwise, it
maintains the current regulatory
language.
22 CFR 62.12(e) Safeguards and
Controls
22 CFR 62.12(e)(1). The Department of
State replaces the term ‘‘SEVIS logon
identification Numbers (IDs)’’ with the
technically accurate term ‘‘SEVIS User
Names.’’
22 CFR 62.12(e)(2). The Department of
State modifies this section to prohibit
transmission of Forms DS–2019 to any
parties other than those listed in
paragraph (c).
22 CFR 62.12(e)(3). The Department of
State adds the word ‘‘damaged’’ to be
consistent with 22 CFR 62.12(a)(3)(iv). It
reminds sponsors to use the reprint
function in SEVIS to sign and transmit
reprinted Forms DS–2019.
22 CFR 62.12(e)(4). The Department of
State makes no changes to this section.
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Regulatory Analysis and Notices
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Administrative Procedure Act
The Department of State is issuing
this rulemaking as an interim final rule
for the following reasons. In the 2014
rulemaking, the Department of State
stated its view that the Exchange Visitor
Program is a foreign affairs function of
the U.S. Government and that rules
implementing this function are exempt
from sections 553 (Rulemaking) and 554
(Adjudications) of the Administrative
Procedure Act (APA). It also asserts that
this rulemaking is exempt from notice
and comment for two separate reasons.
First, the rule responds to relevant
comments submitted in response to the
2014 final rule, and as such, is a logical
outgrowth of the 2014 final rule. The
changes included in this rulemaking
constitute rules of ‘‘agency organization,
procedure, or practice’’ (5 U.S.C.
553(b)(3)(A)). Also, the Department of
State has ‘‘good cause’’ to find that
notice and comment is ‘‘impracticable,
unnecessary, or contrary to the public
interest’’ (5 U.S.C. 553(b)(3)(B)). In the
2014 Final Rule, the Department of State
sought comments on 22 CFR 62.12, the
control of Forms DS–2019. This interim
final rule responds to those commenters
and adopts some changes that were
recommended at that time. With respect
to the procedural rule exception (5
U.S.C. 553(b)(3)(A)), the Department is
expanding options for signing and
transmitting Forms DS–2019, without
eliminating the current method.
Although there may be de minimis costs
for sponsors to obtain digital signature
software to avail themselves of the new
digital signature provision (if they
choose to do so), those sponsors who
elect to continue the current procedure
will not incur that cost. Accordingly,
the Department of State believes that
additional prior notice and public
comment on this provision are not
necessary.
Congressional Review Act
This regulation is not a major rule as
defined by 5 U.S.C. 804. 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 U.S.-based companies to
compete with foreign-based companies
in domestic and export markets.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the
expenditure by State, local or Tribal
governments, in the aggregate, or by the
private sector, of $100 million in any
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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
(2 U.S.C. 1501 et seq.).
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
The Department of State has
determined that this regulation will not
have Tribal implications; will not
impose substantial direct compliance
costs on Indian Tribal governments; and
will not preempt Tribal law.
Accordingly, the requirements of
Executive Order 13175 do not apply to
this rulemaking.
Regulatory Flexibility Act: Small
Business Impacts
Since this rule is exempt from section
553 (Rulemaking) and section 554
(Adjudications) of the APA, this rule is
not subject to the Regulatory Flexibility
Act (5 U.S.C. 601 et seq. (1980)).
Executive Orders 12866 and 13563
The Department of State has
submitted this rule to the Office of
Information and Regulatory Affairs,
pursuant to its longstanding practice.1
The Department of State certifies that
the benefits of this rulemaking outweigh
any costs, since sponsors and exchange
visitors will more likely experience cost
savings from the options presented
herein, and sponsors have in fact
requested the changes. The Office of
Information and Regulatory Affairs has
designated this rule as non-significant,
as defined by Executive Order 12866.
Executive Order 12988
The Department of State has reviewed
this rulemaking considering sections
3(a) and 3(b)(2) of Executive Order
12988 to eliminate ambiguity, minimize
litigation, establish clear legal
standards, and reduce burdens.
Executive Orders 12372 and 13132—
Federalism
The Department of State finds that
this regulation does not have sufficient
federalism implications to require
consultations or warrant the preparation
of a federalism summary impact
statement.
1 Pursuant to letters exchanged between the
Department of State Legal Adviser and the
Administrator of OIRA shortly after E.O. 12866 was
signed, the Department of State is generally exempt
from the provisions of E.O. 12866, except when it
is promulgating regulations in conjunction with a
domestic agency; provided that OIRA may review
any significant regulatory actions of which it
becomes aware.
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Paperwork Reduction Act
This rulemaking does not create or
modify any information collection that
is subject to 44 U.S.C. chapter 35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs;
Reporting and recordkeeping
requirements.
For the reasons stated in the
preamble, the Department of State
amends 22 CFR part 62 as follows:
PART 62—EXCHANGE VISITOR
PROGRAM
1. The authority citation to 22 CFR
part 62 continues to read as follows:
■
Authority: 8 U.S.C. 1101(a)(15)(J), 1182,
1184, 1258; 22 U.S.C. 1431 et seq.; 22 U.S.C.
2451 et seq.; 22 U.S.C. 2651a; 22 U.S.C.
6531–6553; Reorganization Plan No. 2 of
1977, 42 FR 62461, 3 CFR, 1977 Comp. p.
200; E.O. 12048, 43 FR 13361, 3 CFR, 1978
Comp., p. 168; 8 U.S.C. 1372; section 416 of
Pub. L. 107–56, 115 Stat. 354 (8 U.S.C. 1372
note); and 8 U.S.C. 1761–1762.
■
2. Revise § 62.12 to read as follows:
§ 62.12
Control of Forms DS–2019.
(a) Issuance of Forms DS–2019.
Sponsors must:
(1) Grant access to SEVIS only to
Responsible Officers and Alternate
Responsible Officers and ensure that
they have access to and use SEVIS to
update required information;
(2) Ensure that Responsible Officers
and Alternate Responsible Officers
input into SEVIS accurate, current, and
updated information in accordance with
these regulations; and
(3) Issue Forms DS–2019 only for the
following purposes if permitted by the
regulations and, as necessary,
authorized by the Department of State:
(i) To facilitate the initial entry of
exchange visitors and accompanying
spouses and dependents, if any, into the
United States;
(ii) To extend the duration of
participation of exchange visitors;
(iii) To facilitate program transfers;
(iv) To replace lost, stolen, or
damaged Forms DS–2019;
(v) To facilitate the re-entry into the
United States of exchange visitors and
accompanying spouses and dependents,
if any, who travel outside the United
States during exchange visitors’
programs;
(vi) To facilitate changes of category;
(vii) To update information when
significant changes take place in regard
to exchange visitors’ programs (e.g.,
substantial changes in funding, change
in primary sites of activity, or changes
in actual and current U.S. address);
(viii) To facilitate the correction of a
minor or technical infraction; or
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(ix) To facilitate a ‘‘reinstatement’’ or
a ‘‘reinstatement update SEVIS status.
(b) Verification. (1) Prior to issuing
Forms DS–2019, sponsors must verify
that prospective exchange visitors:
(i) Are eligible and qualified for, and
accepted into, the programs in which
they will participate;
(ii) Possess adequate financial
resources to participate in and complete
their exchange visitor programs; and
(iii) Possess adequate financial
resources to support accompanying
spouses and dependents, if any.
(2) Sponsors must ensure that:
(i) Only Responsible Officers or
Alternate Responsible Officers who are
physically present in the United States
or in a U.S. territory may print and/or
sign Forms DS–2019;
(ii) Only Responsible Officers or
Alternate Responsible Officers whose
names are printed on Forms DS–2019
are permitted to sign the forms; and
(iii) Responsible Officers or Alternate
Responsible Officers sign paper Forms
DS–2019 in ink or sign Forms DS–2019
using digital signatures.
(c) Transmission of Forms DS–2019.
Sponsors may transmit Forms DS–2019
either electronically (e.g., via email) or
by mailing them (e.g., via postal or
delivery service) to only the following
individuals or entities: exchange
visitors; accompanying spouses and
dependents, if any; legal guardians of
minor exchange visitors; sponsor staff;
Fulbright Commissions and their staff;
and Federal, State, or local government
agencies or departments. In addition,
sponsors may mail signed paper Forms
DS–2019 via postal or delivery service
to foreign third parties acting on their
behalf for distribution to prospective
exchange visitors.
(d) Allotment requests—(1) Annual
Form DS–2019 allotment. Sponsors
must submit an electronic request via
SEVIS to the Department of State for an
annual allotment of Forms DS–2019
based on the annual reporting cycle
(e.g., academic, calendar, or fiscal year)
stated in their letter of designation or
redesignation. The Department of State
has sole discretion to determine the
number of Forms DS–2019 it will issue
to sponsors.
(2) Expansion of program. Requests
for program expansion must include
information such as, but not limited to,
the justification for and source of
program growth, staff increases,
confirmation of adequately trained
employees, noted programmatic
successes, current financial information,
additional overseas affiliates, additional
third-party entities, explanations of how
the sponsor will accommodate the
anticipated program growth, and any
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other information the Department of
State may request. The Department of
State will take into consideration the
current size of sponsors programs and
the projected expansion of their
programs in the next 12 months and
may consult with the Responsible
Officer and/or Alternate Responsible
Officers prior to determining the
number of Forms DS–2019 it will issue.
(e) Safeguards and controls. (1)
Responsible Officers and Alternate
Responsible Officers must always secure
their SEVIS User Names and passwords
(i.e., not share User Names and
passwords with any other person or to
permit access to and use of SEVIS by
any person).
(2) Sponsors may transmit Forms D–
2019 only to the parties listed in
paragraph (c) of this section. However,
sponsors must transmit Forms DS–2019
to the Department of State or the
Department of Homeland Security upon
request.
(3) Sponsors must use the reprint
function in SEVIS when exchange
visitors’ Forms DS–2019 are lost, stolen,
or damaged, regardless of whether they
are transmitting forms electronically or
mailing them.
(4) Sponsors must destroy any
damaged and/or unusable Forms DS–
2019 (e.g., forms with errors or forms
damaged by a printer).
Karen Ward,
Director, Office of Private Sector Exchange
Designation, Bureau of Educational and
Cultural Affairs, U.S. Department of State.
[FR Doc. 2023–06157 Filed 3–27–23; 8:45 am]
BILLING CODE 4710–05–P
DEPARTMENT OF STATE
22 CFR Chapter I
[Public Notice 11985]
RIN 1400–ZA27
Employment-Based Preference
Immigrant Visa Final Action Dates and
Dates for Filing for El Salvador,
Guatemala, and Honduras
Department of State.
Interpretation of certain
statutory provisions.
AGENCY:
ACTION:
The Department of State
(‘‘Department’’) is issuing this document
to state its interpretation of certain
provisions in the Immigration and
Nationality Act (INA) regarding the
availability of immigrant visa numbers
in categories subject to an annual
numerical limit. To ensure that
Department practice is consistent with
these INA provisions, future Visa
SUMMARY:
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Bulletins, beginning with the April 2023
Visa Bulletin, will reflect this
interpretation with respect to the
availability of employment-based
preference visas for applicants from the
Northern Central American countries of
El Salvador, Guatemala, and Honduras
(‘‘NCA Countries’’).
DATES: March 28, 2023.
FOR FURTHER INFORMATION CONTACT:
Andrea Lage, Acting Senior Regulatory
Coordinator, Visa Services, Bureau of
Consular Affairs, 600 19th Street NW,
Washington, DC 20522, 202–485–7586,
VisaRegs@state.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Applicants for immigrant visas
subject to numerical limitations
prescribed in sections 201–203 of the
INA, 8 U.S.C. 1151–1153, are generally
chargeable to their country of birth. INA
203(e), 8 U.S.C. 1153(e), governs the
order in which immigrant visas in the
family-sponsored and employmentbased preference categories under INA
203(a)–(b), 8 U.S.C. 1153(a)–(b),
respectively, are allocated, and requires
that visas in these categories be made
available in the order in which the
associated petition is filed.
INA 202(a)(2), 8 U.S.C. 1152(a)(2),
imposes a ‘‘per country’’ limit of seven
(7) percent of the total number of
available family-sponsored and
employment-based preference
immigrant visas each fiscal year to
nationals of individual foreign states. If
the Department determines that
preference visa issuances to nationals of
a particular country will exceed the percountry limit, that country is identified
in the Visa Bulletin as ‘‘oversubscribed’’
and INA 202(e), 8 U.S.C. 1152(e),
requires that visas in each preference
category must be pro-rated to ensure
distribution across all preference
categories. Individual family-sponsored
and employment-based preference
categories are also deemed
‘‘oversubscribed’’ when worldwide
demand exceeds the number of
immigrant visas available in those
categories. Final action dates are listed
in the Visa Bulletin when countries and
visa categories are oversubscribed, and
immigrant visas in categories with final
action dates are available only to
applicants with priority dates earlier
than the listed final action date.
The EB–4 category consists of special
immigrants as defined in the INA,
including certain religious workers,
certain current and former U.S.
Government employees abroad, certain
officers and employees of international
organizations, and certain special
E:\FR\FM\28MRR1.SGM
28MRR1
]]>Agencies
[Federal Register Volume 88, Number 59 (Tuesday, March 28, 2023)]
[Rules and Regulations]
[Pages 18249-18252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06157]
[[Page 18249]]
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DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: 12016]
RIN 1400-AC36
Exchange Visitor Program--General Provisions
AGENCY: Department of State.
ACTION: Interim final rule, with request for comment.
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SUMMARY: The U.S. Department of State (Department of State) is
publishing an interim final rule with request for comment (interim
final rule) for Exchange Visitor Program regulations, the regulations
that apply to sponsors the Department of State designates to conduct
international educational and cultural exchange programs. The
Department of State is making administrative changes to the regulations
to include providing sponsors two new options: using digital signature
software to sign Certificates of Eligibility for Exchange Visitor (J-1)
Status (Forms DS-2019) and electronically transmitting Forms DS-2019.
Sponsors should experience cost savings and increased efficiencies from
these changes.
DATES: This interim final rule is effective on April 27, 2023. The
Department of State will accept public comments until May 30, 2023.
ADDRESSES: Interested parties may submit comments to the Department of
State by any of the following methods:
Visit the Regulations.gov website at: https://www.regulations.gov and search for the docket number DOS-2023-0010.
Email: [email protected]. Commenting parties must
include RIN 1400-AC36 in the subject line of the email message.
All comments should include the commenter's name, the
organization the commenter represents, if applicable, and the
commenter's address. If the Department of State is unable to read a
comment for any reason, and cannot contact the commenting party for
clarification, the Department of State may not be able to consider your
comment. After the conclusion of the comment period, the Department of
State will publish a final rule (in which it will address relevant
comments) as expeditiously as possible.
FOR FURTHER INFORMATON CONTACT: Karen Ward, Director, Office of Private
Sector Exchange Designation, at SA-5, 2200 C Street NW, Washington, DC
20522 or via email at [email protected].
SUPPLEMENTARY INFORMATION: The Department of State published a notice
of proposed rulemaking (NPRM) for subpart A of 22 CFR part 62 in the
Federal Register on September 22, 2009 (74 FR 48177). Subpart A sets
forth the general provisions for eligibility and continuing
requirements for all designated sponsors that conduct exchange visitor
programs. After considering the comments that more than 100 parties
submitted in response to the NPRM, the Department of State published a
final rule on October 6, 2014 (79 FR 60294), at which time it requested
additional comments (2014 final rule).
The sponsor community has long sought the ability to digitally sign
and electronically transmit (e.g., via email) Forms DS-2019, i.e., the
Student and Exchange Visitor Information System- (SEVIS-) generated
documents that prospective exchange visitors and their spouses and
dependents, if any, must present at U.S. embassies or consulates to
apply for J-visas. This Interim Final Rule permits sponsors to sign
Forms DS-2019 using digital signatures, defined as follows: An
application of technology for cryptographically derived signatures that
ensures meaningful authentication of the identity of the signer and
integrity of the document. Digital signatures are a subset of
electronic signatures, but unlike other electronic signatures, digital
signatures employ cryptography, i.e., are backed by a process such as a
public key infrastructure. Commonly used digital signature software
packages include, but are not limited to, DocuSign, Adobe Sign, and
Global Sign. For sponsors that are unable or do not wish to apply
digital signatures, the Interim Final Rule retains the current option
of printing and hand signing Forms DS-2019 in ink.
With the implementation of this rule, sponsors may transmit Forms
DS-2019 electronically, including directly to exchange visitors.
Sponsors without digital signature capacity may print and sign forms in
ink (as they do now, except that blue ink is no longer required), scan
the forms (e.g., into portable document format (PDF) files), and then
transmit them electronically. The Department of State notes that these
regulatory changes will have no impact on SEVIS functionality or the
number of Forms DS-2019 allotted to sponsors.
The Department of State believes that many sponsors already have
digital signature software, and that the elimination of the requirement
that sponsors mail paper forms worldwide will result in significant
cost-savings. Accordingly, it anticipates that most sponsors will
recognize the benefits of digital signatures and, if they have not
already done so, will invest in digital signature software.
In this interim final rule, the Department of State also clarifies,
corrects, and/or deletes ambiguous, obsolete, or technically inaccurate
language and requirements, some of which were adopted before SEVIS-
generated Forms DS-2019 replaced paper Forms IAP-66. The following two
changes are also made by this rulemaking: adoption of the plural forms
of nouns (e.g., sponsors, exchange visitors); and replacement of the
term ``original'' with the term ``paper'' when describing the physical
Forms DS-2019.
The reasons for the regulatory changes, including comments about
such changes, follow for each provision of 22 CFR 62.12 that the
Department of State modifies herein. The following bolded citations
represent current regulatory text in 22 CFR part 62.
22 CFR 62.12(a) Issuance of Forms DS-2019
22 CFR 62.12(a)(1). The Department of State adds the language ``to
SEVIS'' to clarify that it is access to SEVIS that is restricted to
Responsible Officers and Alternate Responsible Officers (collectively,
Officers).
22 CFR 62.12(a)(3). The Department of State incorporates into this
paragraph the requirement that sponsors may issue Forms DS-2019 for the
enumerated purposes only if the regulations permit, and if necessary,
the Department of State authorizes the action. This change updates this
specific regulatory language to clarify requirements for sponsors.
22 CFR 62.12(a)(3)(ii). The Department of State eliminates the
phrase ``when permitted by the regulations and authorized by the
Department of State'' because these general requirements are now
present in 22 CFR 62.12(a)(3).
22 CFR 62.12(a)(3)(iii). For the same reason, the Department of
State eliminates the phrase ``when permitted by the regulations and/or
authorized in writing by the Department of State.''
22 CFR 62.12(a)(3)(iv). The Department of State makes no changes to
this paragraph. The Department of State confirms the need to use the
reprint function in SEVIS when replacing Forms DS-2019 that have been
lost, stolen, or damaged. When nonimmigrants traveling on J-visas lose
their Forms DS-2019, sponsors historically would reprint the previously
issued forms and send them to the exchange visitors who requested a
copy. With electronic transmission,
[[Page 18250]]
sponsors should still use the reprint function in SEVIS to
appropriately record the action before electronically transmitting
replacement forms to exchange visitors.
22 CFR 62.12(a)(3)(v). Commenting parties opined that re-entry into
the United States is not a reason that sponsors initially issue Forms
DS-2019. The Department of State notes, however, there are instances
when all travel signature lines on Forms DS-2019 are filled, and
Officers must issue new forms. Accordingly, the Department of State
retains this provision.
22 CFR 62.12(a)(3)(vi). The Department of State eliminates the
phrase ``when requested in SEVIS and authorized by the Department of
State.'' The phrase ``when requested in SEVIS'' describes the method of
requesting category changes and is unnecessary in a rule that
enumerates the reasons for issuing Forms DS-2019.
22 CFR 62.12(a)(3)(vii). The Department of State eliminates the
phrase ``or a change in actual and current U.S. address'' in response
to numerous comments that explained that this was not a valid example
of reasons to issue Forms DS-2019 since this SEVIS field is not printed
on Forms DS-2019.
22 CFR 62.12(b) Verification
22 CFR 62.1(b)(2)(ii). The Department of State eliminates the
requirement that Officers sign paper Forms DS-2019 using only blue ink
to permit greater flexibility for sponsors.
22 CFR 62.12(b)(2)(iii). In response to numerous requests from
sponsors to be able to sign Forms DS-2019 electronically, the
Department of State adds a new paragraph to permit digital signatures,
defined as an application of technology for cryptographically derived
signatures that ensures meaningful authentication of the identity of
the signer and integrity of the document. Digital signatures are a
subset of electronic signatures, but unlike other electronic
signatures, digital signatures employ cryptography, i.e., are backed by
a process such as a public key infrastructure. Sponsors may also
continue to sign paper Forms DS-2019 forms in ink. The Department
removes the requirement that the DS-2019 be signed in blue ink to allow
greater flexibility for sponsors. The Department of State also
recommends that sponsors remind applicants and their accompanying
spouses and dependents, if any, that they must take a paper form to
their visa interviews to be stamped and signed by a consular officer.
They must also present a paper copy of their Forms DS-2019 at their
ports of entry into the United States.
Several commenting parties also sought the flexibility to allow any
Officer to sign Forms DS-2019 that they submit via batch processing,
when Officers whose names were printed on forms are not present to sign
paper forms. However, when Officers print or reprint Forms DS-2019,
SEVIS automatically populates Field #7 with the name of the Officer who
initially submitted the action, making it necessary for that Officer to
sign the paper form. In the electronic environment, digital signatures
are embedded in documents, allowing Officers to sign forms as they
create them, thereby mitigating this concern.
Several commenting parties also asked whether different Officers
could sign Forms DS-2019 when they are reprinted for travel purposes.
As noted above, SEVIS prints in Field #7 the name of the Officer who
initiated the print/reprint function. Since a signature must match the
name of the Officer printed on each form, sponsors should ensure that
Officers whose names appear on forms are available to sign them. The
Officer that signs the original Form DS-2019 may be different than the
Officer that reprints the form from SEVIS. The Department of State will
explore the capability of enhancing SEVIS to allow users to select the
names of Officers that will print on forms.
22 CFR 62.12(c) Distribution of Forms DS-2019
The Department of State changes the heading of paragraph (c) to
``Transmission of Forms DS-2019'' and clarifies to whom sponsors may
transmit Forms DS-2019. Many commenting parties read the current
regulatory language to limit sponsors' transmission of Forms DS-2019 to
only ``authorized parties,'' meaning the Department of State and the
Department of Homeland Security. Many commenters requested the
Department of State expand the definition of ``authorized parties.'' To
clarify this provision, the Department of State now specifically
enumerates the parties to whom sponsors may transmit Forms DS-2019
electronically (e.g., via email) or by mail (e.g., via postal or
delivery service): exchange visitors; accompanying spouses and
dependents; legal guardians of minor exchange visitors; sponsor staff;
Fulbright commissions and their staff; and Federal, State, and local
government agencies or departments. The Fulbright commissions (and
their staff) referenced above are authorized and established pursuant
to section 103 of the Mutual Educational and Cultural Exchange Act of
1961 (commonly known as the Fulbright-Hays Act) (22 U.S.C. 2453). The
Department of State notes that sponsors' Officers must ensure that
Forms DS-2019 are secured; and they may transmit them electronically to
other sponsor staff only on a shared network.
The Department of State clarifies that sponsors may continue to
transmit paper Forms DS-2019 via mail to foreign third parties acting
on their behalf to facilitate their gathering necessary paperwork for
multiple applicants to take to their visa interviews. Sponsors may not
transmit Forms DS-2019 electronically to foreign third parties,
however, as the ability to transmit forms electronically to the parties
enumerated above eliminates the need for foreign third parties to have
access to electronic forms.
22 CFR 62.12(d) Allotment Requests
The Department of State makes case corrections and clarifying edits
in this paragraph. It also eliminates the language establishing four
weeks as the estimated time for responding to allotment requests since
conditions outside the control of the Department of State may delay
meeting any specific deadline. It also clarifies that sponsors should
refer to the most recent version of the User Manual for Exchange
Visitor Program Sponsor Users (RO/ARO) of SEVIS Volume I, Forms DS-3036
and DS-3037 on the j1visa.state.gov website to determine whether the
Department of State has modified or updated the ``other information''
that the regulation states it may require. Otherwise, it maintains the
current regulatory language.
22 CFR 62.12(e) Safeguards and Controls
22 CFR 62.12(e)(1). The Department of State replaces the term
``SEVIS logon identification Numbers (IDs)'' with the technically
accurate term ``SEVIS User Names.''
22 CFR 62.12(e)(2). The Department of State modifies this section
to prohibit transmission of Forms DS-2019 to any parties other than
those listed in paragraph (c).
22 CFR 62.12(e)(3). The Department of State adds the word
``damaged'' to be consistent with 22 CFR 62.12(a)(3)(iv). It reminds
sponsors to use the reprint function in SEVIS to sign and transmit
reprinted Forms DS-2019.
22 CFR 62.12(e)(4). The Department of State makes no changes to
this section.
[[Page 18251]]
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is issuing this rulemaking as an interim
final rule for the following reasons. In the 2014 rulemaking, the
Department of State stated its view that the Exchange Visitor Program
is a foreign affairs function of the U.S. Government and that rules
implementing this function are exempt from sections 553 (Rulemaking)
and 554 (Adjudications) of the Administrative Procedure Act (APA). It
also asserts that this rulemaking is exempt from notice and comment for
two separate reasons. First, the rule responds to relevant comments
submitted in response to the 2014 final rule, and as such, is a logical
outgrowth of the 2014 final rule. The changes included in this
rulemaking constitute rules of ``agency organization, procedure, or
practice'' (5 U.S.C. 553(b)(3)(A)). Also, the Department of State has
``good cause'' to find that notice and comment is ``impracticable,
unnecessary, or contrary to the public interest'' (5 U.S.C.
553(b)(3)(B)). In the 2014 Final Rule, the Department of State sought
comments on 22 CFR 62.12, the control of Forms DS-2019. This interim
final rule responds to those commenters and adopts some changes that
were recommended at that time. With respect to the procedural rule
exception (5 U.S.C. 553(b)(3)(A)), the Department is expanding options
for signing and transmitting Forms DS-2019, without eliminating the
current method. Although there may be de minimis costs for sponsors to
obtain digital signature software to avail themselves of the new
digital signature provision (if they choose to do so), those sponsors
who elect to continue the current procedure will not incur that cost.
Accordingly, the Department of State believes that additional prior
notice and public comment on this provision are not necessary.
Congressional Review Act
This regulation is not a major rule as defined by 5 U.S.C. 804.
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 U.S.-based companies to compete with
foreign-based companies in domestic and export markets.
Unfunded Mandates Reform Act of 1995
This regulation will not result in the expenditure by State, local
or 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 (2
U.S.C. 1501 et seq.).
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of State has determined that this regulation will
not have Tribal implications; will not impose substantial direct
compliance costs on Indian Tribal governments; and will not preempt
Tribal law. Accordingly, the requirements of Executive Order 13175 do
not apply to this rulemaking.
Regulatory Flexibility Act: Small Business Impacts
Since this rule is exempt from section 553 (Rulemaking) and section
554 (Adjudications) of the APA, this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq. (1980)).
Executive Orders 12866 and 13563
The Department of State has submitted this rule to the Office of
Information and Regulatory Affairs, pursuant to its longstanding
practice.\1\ The Department of State certifies that the benefits of
this rulemaking outweigh any costs, since sponsors and exchange
visitors will more likely experience cost savings from the options
presented herein, and sponsors have in fact requested the changes. The
Office of Information and Regulatory Affairs has designated this rule
as non-significant, as defined by Executive Order 12866.
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\1\ Pursuant to letters exchanged between the Department of
State Legal Adviser and the Administrator of OIRA shortly after E.O.
12866 was signed, the Department of State is generally exempt from
the provisions of E.O. 12866, except when it is promulgating
regulations in conjunction with a domestic agency; provided that
OIRA may review any significant regulatory actions of which it
becomes aware.
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Executive Order 12988
The Department of State has reviewed this rulemaking considering
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate
ambiguity, minimize litigation, establish clear legal standards, and
reduce burdens.
Executive Orders 12372 and 13132--Federalism
The Department of State finds that this regulation does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement.
Paperwork Reduction Act
This rulemaking does not create or modify any information
collection that is subject to 44 U.S.C. chapter 35.
List of Subjects in 22 CFR Part 62
Cultural exchange programs; Reporting and recordkeeping
requirements.
For the reasons stated in the preamble, the Department of State
amends 22 CFR part 62 as follows:
PART 62--EXCHANGE VISITOR PROGRAM
0
1. The authority citation to 22 CFR part 62 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431 et seq.; 22 U.S.C. 2451 et seq.; 22 U.S.C. 2651a; 22 U.S.C.
6531-6553; Reorganization Plan No. 2 of 1977, 42 FR 62461, 3 CFR,
1977 Comp. p. 200; E.O. 12048, 43 FR 13361, 3 CFR, 1978 Comp., p.
168; 8 U.S.C. 1372; section 416 of Pub. L. 107-56, 115 Stat. 354 (8
U.S.C. 1372 note); and 8 U.S.C. 1761-1762.
0
2. Revise Sec. 62.12 to read as follows:
Sec. 62.12 Control of Forms DS-2019.
(a) Issuance of Forms DS-2019. Sponsors must:
(1) Grant access to SEVIS only to Responsible Officers and
Alternate Responsible Officers and ensure that they have access to and
use SEVIS to update required information;
(2) Ensure that Responsible Officers and Alternate Responsible
Officers input into SEVIS accurate, current, and updated information in
accordance with these regulations; and
(3) Issue Forms DS-2019 only for the following purposes if
permitted by the regulations and, as necessary, authorized by the
Department of State:
(i) To facilitate the initial entry of exchange visitors and
accompanying spouses and dependents, if any, into the United States;
(ii) To extend the duration of participation of exchange visitors;
(iii) To facilitate program transfers;
(iv) To replace lost, stolen, or damaged Forms DS-2019;
(v) To facilitate the re-entry into the United States of exchange
visitors and accompanying spouses and dependents, if any, who travel
outside the United States during exchange visitors' programs;
(vi) To facilitate changes of category;
(vii) To update information when significant changes take place in
regard to exchange visitors' programs (e.g., substantial changes in
funding, change in primary sites of activity, or changes in actual and
current U.S. address);
(viii) To facilitate the correction of a minor or technical
infraction; or
[[Page 18252]]
(ix) To facilitate a ``reinstatement'' or a ``reinstatement update
SEVIS status.
(b) Verification. (1) Prior to issuing Forms DS-2019, sponsors must
verify that prospective exchange visitors:
(i) Are eligible and qualified for, and accepted into, the programs
in which they will participate;
(ii) Possess adequate financial resources to participate in and
complete their exchange visitor programs; and
(iii) Possess adequate financial resources to support accompanying
spouses and dependents, if any.
(2) Sponsors must ensure that:
(i) Only Responsible Officers or Alternate Responsible Officers who
are physically present in the United States or in a U.S. territory may
print and/or sign Forms DS-2019;
(ii) Only Responsible Officers or Alternate Responsible Officers
whose names are printed on Forms DS-2019 are permitted to sign the
forms; and
(iii) Responsible Officers or Alternate Responsible Officers sign
paper Forms DS-2019 in ink or sign Forms DS-2019 using digital
signatures.
(c) Transmission of Forms DS-2019. Sponsors may transmit Forms DS-
2019 either electronically (e.g., via email) or by mailing them (e.g.,
via postal or delivery service) to only the following individuals or
entities: exchange visitors; accompanying spouses and dependents, if
any; legal guardians of minor exchange visitors; sponsor staff;
Fulbright Commissions and their staff; and Federal, State, or local
government agencies or departments. In addition, sponsors may mail
signed paper Forms DS-2019 via postal or delivery service to foreign
third parties acting on their behalf for distribution to prospective
exchange visitors.
(d) Allotment requests--(1) Annual Form DS-2019 allotment. Sponsors
must submit an electronic request via SEVIS to the Department of State
for an annual allotment of Forms DS-2019 based on the annual reporting
cycle (e.g., academic, calendar, or fiscal year) stated in their letter
of designation or redesignation. The Department of State has sole
discretion to determine the number of Forms DS-2019 it will issue to
sponsors.
(2) Expansion of program. Requests for program expansion must
include information such as, but not limited to, the justification for
and source of program growth, staff increases, confirmation of
adequately trained employees, noted programmatic successes, current
financial information, additional overseas affiliates, additional
third-party entities, explanations of how the sponsor will accommodate
the anticipated program growth, and any other information the
Department of State may request. The Department of State will take into
consideration the current size of sponsors programs and the projected
expansion of their programs in the next 12 months and may consult with
the Responsible Officer and/or Alternate Responsible Officers prior to
determining the number of Forms DS-2019 it will issue.
(e) Safeguards and controls. (1) Responsible Officers and Alternate
Responsible Officers must always secure their SEVIS User Names and
passwords (i.e., not share User Names and passwords with any other
person or to permit access to and use of SEVIS by any person).
(2) Sponsors may transmit Forms D-2019 only to the parties listed
in paragraph (c) of this section. However, sponsors must transmit Forms
DS-2019 to the Department of State or the Department of Homeland
Security upon request.
(3) Sponsors must use the reprint function in SEVIS when exchange
visitors' Forms DS-2019 are lost, stolen, or damaged, regardless of
whether they are transmitting forms electronically or mailing them.
(4) Sponsors must destroy any damaged and/or unusable Forms DS-2019
(e.g., forms with errors or forms damaged by a printer).
Karen Ward,
Director, Office of Private Sector Exchange Designation, Bureau of
Educational and Cultural Affairs, U.S. Department of State.
[FR Doc. 2023-06157 Filed 3-27-23; 8:45 am]
BILLING CODE 4710-05-P
