Request for new effective dates

Transcription

1 NAFSA: Association of International Educators 1307 New York Avenue NW Eighth Floor Washington, DC Telephone: Fax: President and Chair of the Board of Directors Fanta Aw American University Vice President for Education and Professional Development Deborah L. Pierce, PhD Northern Illinois University Vice President for Member Relations Sandy Soohoo-Refaei Linfield College Vice President for Public Policy and Practice Sherif Barsoum Vanderbilt University Treasurer Jolene Koester, PhD California State University, Northridge Secretary Mary H. Reeves, PhD Commission on English Language Program Accreditation Executive Director and CEO Marlene M. Johnson Robin J. Lerner Deputy Assistant Secretary for Private Sector Exchange Bureau of Educational and Cultural Affairs Washington, DC RE: Public Notice 8893 RIN 1400-AC36 Exchange Visitor Program General Provisions Via Federal e-rulemaking Portal: Dear Secretary Lerner: I write today on behalf of NAFSA: Association of International Educators with respect to Public Notice 8893, published at 79 Fed. Reg (October 6, 2014), requesting public comments on the final rule establishing new general provisions applicable to the Exchange Visitor Program (referred to as Subpart A). NAFSA is the world s largest nonprofit association for international education professionals, with nearly 10,000 members at approximately 3,500 colleges and universities throughout the United States and around the world. Our membership includes many Responsible Officers (ROs) and Alternate Responsible Officers (AROs) who administer Exchange Visitor Programs at higher education institutions and advise Exchange Visitors. For this reason, NAFSA is well situated to comment on this rule and recommend improvements. Request for new effective dates We value the Department s efforts to update its regulations applicable to the Exchange Visitor Program. However, since this rule will implement many new and substantive requirements and require sponsors to establish new processes, we urge the Department to delay the effective date of the rule six additional months, until July 5, 2015, and to delay the effective date of the new insurance provisions for an additional year, until May 15, 2016.

2 Page 2 To comply with the rule, sponsors will have to establish background check processes or revise their current processes to meet the Department s requirements, renegotiate insurance contracts, and establish new processes for assessing and documenting the English language proficiency of prospective Exchange Visitors. Sponsors will also need to establish processes for collecting information on the citizenship of their boards of directors. They will need to develop knowledge of labor law or ensure that they have access to such knowledge. Many sponsors will have to implement procedures to collect addresses of spouses and dependents, and to ensure that spouses and dependents can inform the sponsor about their plans to depart the United States. The rule provides sponsors only a 90-day period, spanning two of the busiest times of the year for ROs and AROs at colleges and universities, to accomplish all of this. Providing them with at least an additional six months to collaborate with other offices, implement new procedures, revise systems, and address staffing issues associated with the new requirements will help enable their timely compliance with the rule. Establishing a later effective date for the rule will also allow the Departments of State and Homeland Security to establish internal mechanisms for collecting new data and managing new compliance activities and to ensure that SEVIS, both Real Time Interface (RTI) and batch, is properly updated and implemented to accommodate any new requirements. This must be accomplished before sponsors are obligated to comply with the requirements. NAFSA also has the following specific recommendations. Section 62.2 Definitions Financed Indirectly The Department seems to have inadvertently omitted the definition of financed indirectly from the 2014 final rule. Both the current regulations and the 2009 proposed rule include a definition of financed indirectly. NAFSA suggests returning a definition of that term to Section 62.2 before the effective date of this rule. Third Party The definition of third party includes substantive language not present elsewhere that creates a duty for sponsors to enter into specific written agreements and establishes compliance standards and penalties. We suggest moving these substantive requirements from the definitions section to a new paragraph located more appropriately in the rule. We also recommend moving into the substantive provisions of the rule some of the discussion regarding who is not a third party that appears in the supplemental information in the Federal Register notice. We suggest: Amend 62.2 by striking and adding language as follows: Third party. A person or legal entity who acts on behalf of a sponsor in the conduct of the sponsor's exchange visitor program. Sponsors must execute a written agreement with all

3 Page 3 third parties with whom a sponsor has executed a written agreement for the person or entity to act on behalf of a sponsor in the conduct of the sponsor's exchange visitor program, as required by section 62.9(h) of this Part. All entities that act on behalf of the sponsor in the conduct of the sponsor's exchange visitor program must execute written agreements with the sponsor that outline the full relationship between the entity and the sponsor on all matters involving the administration of the exchange visitor program. A sponsor's use of a third party does not relieve the sponsor of its obligations to comply, and to ensure third party compliance, with the provisions of this Part. Failure by any third party to comply with the regulations set forth in this Part or with any additional terms and conditions governing administration of the Exchange Visitor Program that the Department of State may from time to time impose will be imputed to the sponsor. Sponsors are required to ensure that third parties know and comply with all applicable provisions of these regulations. Parties with whom sponsors contract with or engage to provide ordinary services in the support of their business operations (e.g., cleaning, payroll processing, and utilities) do not constitute third parties for purposes of this Part. Then move the substance of the deleted text from 62.2 to a new paragraph (h) in section 62.9, General obligations of sponsors: (h) Sponsors must execute written agreements with all third parties who act on behalf of the sponsor in the conduct of the sponsor's exchange visitor program. The written agreement with these third parties must outline the full relationship between the entity and the sponsor on all matters involving the administration of the exchange visitor program. A sponsor's use of a third party does not relieve the sponsor of its obligations to comply, and to ensure third party compliance, with the provisions of this Part. Failure by any third party to comply with the regulations set forth in this Part or with any additional terms and conditions governing administration of the Exchange Visitor Program that the Department of State may from time to time impose will be imputed to the sponsor. Sponsors are required to ensure that third parties know and comply with all applicable provisions of these regulations. Section 62.4 Categories of Participant Eligibility Teaching by Research Professors and Short-term Scholars We thank the Department for returning the activity of teaching to the description of Research Scholar in section 62.4(f). We recommend that the Department also add the activity of teaching to the description of appropriate activities for Short-term scholars in section 62.4(b). Although the activity of lecturing is listed, Short-term Scholars should also be able to teach on a short-term basis (e.g., a semester). Adding the word teaching to 62.4(b) would mirror the teach or lecture used at 62.4(f) and clearly establish that such activity is legitimate in the Short-term Scholar category.

4 Page 4 Section 62.7 Redesignation 62.7(c)(3) Listing Board Member Addresses and Citizenship The rule requires sponsors seeking redesignation to provide the Department with a list of the names, addresses and citizenship or legal permanent resident status of the current members of its Board of Directors or the Board of Trustees or other like body, vested with the management of the organization or partnership, and/or the percentage of stocks/shares held, as applicable. This relates to the requirement at 62.3 that sponsors who are not a government entity or an international organization be Reputable organizations that are United States Persons. The defined term United States Person (legal entity) includes (4) An accredited college, university, or other post-secondary academic institution in the United States created or organized under the laws of the United States, or of any state, country, municipality, or other political subdivision thereof, the District of Columbia, or of any territory or outlying possession of the United States. Since an accredited college, university, or other post-secondary academic institution is a United States Person by definition, such institutions should not have to submit documentation regarding board members and board composition, because the requirement does not relate to sponsor eligibility for such an entity. This applies to both initial designation and redesignation. NAFSA suggests that if the Department requires such information it consider requiring simply an attestation of the President/CEO of the organization that the majority of board members are U.S. persons as individuals. 62.7(c)(5) Criminal Background Check Attestation NAFSA recommends amending this paragraph to reflect the specific criminal background check requirements for redesignation applicants. Those are currently found in section 62.5(c)(8)(iii), which relates to criminal background checks for initial designation. NAFSA recommends describing the requirements specifically in section 62.5(c)(5) as well. For example: (5) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization s governing documents) certifying that the sponsor has completed timely criminal background checks since the date of the last designation or redesignation letter on the Responsible Officer and all Alternate Responsible Officers and has determined their suitability for these positions; to be considered timely, the criminal background checks must be no older than four years at any time for sponsors designated for two years, and must be newly conducted as part of the redesignation application for sponsors designated for only one year; and Section 62.9 General Obligations of Sponsors New Paragraphs NAFSA recommends adding a new paragraph (h) to Section 62.9, as discussed above in our recommendations relating to Third Party and a new paragraph (f)(3) to Section 62.9, as

5 Page 5 discussed below in our recommendations relating to Section 62.11(a) Knowledge of employment laws. 62.9(g) Appointment of Responsible Officers and Alternate Responsible Officers NAFSA suggests clarifying that the requirement to replace an Alternate Responsible Officer within 10 days only applies to sponsors who have only one ARO. Although sponsors must have at least one ARO, it is in the discretion of sponsors to appoint and maintain any additional AROs. NAFSA suggests the following changes to section 62.8(g) to make this change and other changes, such as subdividing certain paragraphs to improve clarity: (g) Appointment and Maintenance of Responsible Officers and Alternate Responsible Officers. (1) Sponsors must appoint and maintain a Responsible Officer and between one and ten Alternate Responsible Officers to assist the Responsible Officer in performing the duties set forth in Upon written sponsor request, the Department of State may, in its sole discretion, permit a sponsor to appoint more than ten Alternate Responsible Officers. (2) A sponsor redesignated for two years must ensure that the proposed Responsible Officer and Alternate Responsible Officer(s) have undergone a criminal background check within the past four years to determine their suitability for these positions. (3) Responsible Officers and Alternate Responsible Officers must be U.S. persons. (24) Responsible Officers and Alternate Responsible Officers must be employees or officers of the sponsor. Upon written sponsor request, the Department of State may, in its sole discretion, authorize the appointment of an individual who is not an employee or officer to serve as an Alternate Responsible Officer. (35) In the event of the departure of a Responsible Officer or Alternate Responsible Officer (in the case of a sponsor with only one Alternate Responsible Officer), the sponsor must file a request in SEVIS for the approval of a replacement and forward the required documentation to the Department of State within ten calendar days from the date of the Responsible Officer s or Alternate Responsible Officer s departure. (46) Requests to replace the Responsible Officer or add an Alternate Responsible Officer must be submitted in SEVIS, and a signed Form DS 3037 must be either mailed or ed to the Department of State with the required completed Citizenship Certification, along with certification that the individual has undergone a criminal background check conducted at the time of such Certification. (57) The Department of State reserves the right to deny the appointment of a Responsible Officer or an Alternate Responsible Officer.

6 Page 6 Section Program Administration 62.10(a) Selection of Exchange Visitors The rule provides at 62.10(a)(2) that a sponsor must ensure that a prospective exchange visitor possesses sufficient proficiency in the English language, as determined by an objective measurement of English language proficiency, successfully to participate in his or her program and to function on a day-to-day basis. The rule then unnecessarily limits a sponsor s discretion to make this determination by requiring the sponsor to use one of only three methods to verify an applicant s English language proficiency: a recognized language test signed documentation from an academic institution or English language school or a documented interview... either in person or by videoconferencing or by telephone if videoconferencing is not available. In commenting on the 2009 proposed rule, NAFSA and most other commenters had suggested retaining the language of the current regulation, i.e., the exchange visitor possesses sufficient proficiency in the English language to participate in his or her program. In the supplementary information to the interim final rule, however, the Department rejected that suggestion, mentioning its finding that too many exchange visitors lack sufficient English proficiency to successfully engage in their exchange programs, and stating its interest in having sponsors retain evidence of how they measured applicants English language proficiency so that it may be made available to the Department upon request [p ]. NAFSA believes that the Department s findings and concerns can be addressed, while still allowing sponsors flexibility in ensuring applicants English proficiency, by revising the rule to emphasize the documentation of the proficiency determination rather than the means for assessing it. More specifically, we suggest revising the rule to read simply: the exchange visitor possesses sufficient proficiency in the English language to participate in his or her program, as documented by the sponsor. If the Department feels it must address the specific means for assessing English proficiency, NAFSA recommends revising the language of the rule so that it is broader and can accommodate new electronic communication methods that may become available, or other suitable alternatives. Flexibility is also required because the interim final English language proficiency rule does not adequately address the situation of exchange visitor students coming specifically to study the English language, an activity that is clearly provided for in the definition of prescribed course of study, and implied in the general definition of full course of study. Such students are almost categorically not proficient in English before they arrive, and are indeed seeking proficiency as one of their exchange objectives. Furthermore, the regulation does not address the unique circumstances of distinguished high-level exchange visitors. For example, a group of foreign supreme court justices might be coming for a short-term exchange accompanied by professional

7 Page 7 interpreters and could pursue quite a successful program without extensive English proficiency. NAFSA suggests that the regulation be modified to accommodate these situations. For example: the applicant possesses sufficient proficiency in the English language to participate in his or her program, as documented by the sponsor. Documentation may consist of the results of a recognized English language test, official documentation from an academic institution or English language school, a documented interview conducted by the sponsor (whether in-person or remotely), documentation that corroborates that English is an official language of the applicant s country, or other documentation that supports the sponsor s determination that the participant s proficiency in the English language will not interfere with the applicant s successful participation in his or her program and to function on a day-to-day basis (b)(2) Prearrival Information Regarding the Home-country Physical Presence Requirement Under 62.10(b)(2), sponsors are required to provide prospective exchange visitors with information regarding the INA 212(e) two-year home-country physical presence requirement. So that sponsors can adequately meet this requirement, the Department must make sure that its Online Skills List Tool on the Department s web site accurately represents the Country Skills List. At this time, the Online Skills List Tool does not make use of the All of GROUP (##) notation used in the 2009 Federal Register notice when a country has indicated that it would like all skills under a particular two-digit code to be included on their skills list. For those who consult only the Online Skills List Tool this can lead to confusion. For example, one might mistakenly conclude that a Chinese exchange visitor with subject/field code would not be subject to 212(e) on the basis of the skills list, since that code does not appear in the online tool s list. The 2009 Federal Register notice does include for China "All of GROUP (26)," which would of course include code Comparison of China skills list in the DOS online skills list tool and the Federal Register

8 Page 8 Ensuring the accuracy of the Online Skills List Tool on the Department s web site will further enable sponsors to adequately advise exchange visitors about the home-country physical presence requirement (d)(5) Reporting Addresses of Exchange Visitors Spouses and Dependents The interim final rule requires at 62.10(d)(5) that sponsors report the address for each accompanying spouse and dependent. We urge the Department to revise this provision so that only spouses would be required to report addresses, and only if such addresses are available. The Department should not collect the addresses of minors, and it should not require spouses or dependents to create an account solely so that an address may be reported to the Department. Requiring children to create accounts for use by the Department would infringe on parents prerogative to have a say in their children s online presence. We recommend revising the provision as follows to recognize privacy interests: report the address for each accompanying spouse, if available. If the Department chooses to proceed in collecting addresses for children, then it must set a minimum age for children who must provide an address. In doing so, the Department must take into account that many providers of accounts have established minimum age requirements for creating an account. For example, Google s requirements are as follows ( Below are the minimum age requirements to own a Google Account: United States: 13 or older Spain: 14 or older South Korea: 14 or older Netherlands: 16 or older All other countries: 13 or older Again, we recommend that the Department not collect addresses for dependent children. If it insists on collecting addresses for children, NAFSA urges the Department to collect those only for children aged The Department must also take into account that no SEVIS batch schema currently exists for reporting addresses, so ROs and AROs will have to manually enter the addresses through the Real Time Interface (RTI). This is a significant burden on ROs and AROs, especially those who manage large programs. We recommend that the Department delay implementation of this provision until SEVIS batch schema have been updated and implemented in the batch environment. Section 62.10(d)(4) Updating SEVIS Within 10 Days With Reported Changes To Exchange Visitor Contact Information Currently the regulations require the reporting in SEVIS of any change in the Exchange Visitor s actual and current U.S. address, telephone number, address and/or primary site of activity

9 Page 9 within 21 days. This mirrors the similar reporting requirement for F-1 and M-1 students. The interim final rule at 62.10(d)(4) changes the current 21 day reporting requirement to 10 days, in direct conflict with DHS regulations at 8 C.F.R (j)(1)(viii). Since many ROs and AROs are also Designated School Officials (DSOs) who manage F-1 and M-1 programs, NAFSA recommends revising the rule to retain the 21-day reporting requirement. Setting different reporting timelines for each visa type in SEVIS is certain to create confusion and disrupt wellestablished university compliance programs while providing no gain in oversight for the Department. NAFSA urges the Department to change the 10-day reporting requirements back to 21 days so that it is consistent with 8 C.F.R (j)(1)(viii) and to provide program sponsors who participate in both the F/M and J programs in SEVIS one manageable reporting window. Section Duties of Responsible Officers and Alternate Responsible Officers Section 62.11(a) Knowledge of employment laws Section 62.11(a) requires Responsible Officers and Alternate Responsible Officers who work with programs with an employment component to have a detailed knowledge of federal, state, and local laws pertaining to employment, including the Fair Labor Standards Act. This requirement severely limits the type of employee a sponsor can appoint as an RO or ARO. While many postsecondary academic institutions have extensive expertise in employment law, the expertise would usually be held by staff in the offices of Human Resources or General Counsel. Other smaller organizations may contract out to manage that aspect of their business. Although we understand the Department s interest in ensuring that ROs and AROs can access the necessary information about employment law to carry out their programs successfully, we believe that requiring each individual RO and ARO to have such detailed knowledge is unnecessary and would be ineffective. We recommend revising this provision to require that sponsors, and not individual ROs and AROs either have such knowledge and information or have access to such knowledge or information. We also suggest placing the requirement to maintain such knowledge in Section 62.9, General Obligations of Sponsors, in a new paragraph (f)(3), to read: (f) Staffing and support services. Sponsors must ensure that: (3) If they have programs with an employment component, the sponsor has access to adequate knowledge of relevant federal, state, and local laws pertaining to employment, including the Fair Labor Standards Act, to properly monitor those employment components. Section Control of Forms DS (e)(2) provides that Forms DS-2019 may not be forwarded to any unauthorized party. The Department states in the supplementary information to the rule that the only authorized parties are the Department of State and the Department of Homeland Security [p ]. This

10 Page 10 appears to be both an overly restrictive definition of the term authorized party and one that will be lost on sponsors and ROs and AROs who do not refer to the supplementary information once the rule is implemented since it is not included in the rule. Exchange Visitors and their legal representatives should be allowed to receive copies or PDFs of their own DS-2019s. It is not uncommon for Exchange Visitors to require copies of their DS-2019s in order to establish their nonimmigrant history in the U.S., sometimes long after they have completed their programs and have discarded the forms. The rule provides at 62.12(e)(3) that sponsors must use the reprint function in SEVIS in the event the exchange visitor's Form DS-2019 has been lost or stolen, but this SEVIS function is no longer available once an Exchange Visitor s record has completed or been terminated. We recommend that the Department revise 62.12(e)(2) to include the phrase sponsors may provide to exchange visitors, their spouses, and dependents copies and/or PDFs of their Forms DS Section Notification Requirements 62.13(a)(4) Requirement to Report Departure of Spouse and Dependents The rule requires at 62.13(a)(4) that sponsors must report in SEVIS if accompanying spouses and/or dependents depart from the United States prior to the exchange visitor s departure dates. NAFSA believes that arrival and departure date information of dependents should be managed by the SEVIS interface with DHS arrival-departure information systems, and not maintained by sponsors. This is the only way to ensure that Department is provided with timely and accurate information since sponsors can, at best, only know of spouses and dependents travel plans. If the Department insists on collecting departure data on spouses and dependents, we suggest revising the rule to ensure clarity. We believe that the intention of the Department is to collect departure information only when a spouse or dependent departs the United States without the intention to return to accompany the J-1 principal. We suggest that the Department clarify this in the rule so that ROs and AROs do not have to wonder whether they are expected to report each temporary departure of a spouse or dependent. For example, the language could be clarified as follows: Depart for purposes of this paragraph refers to when a J-2 nonimmigrant departs the United States without the intention to return to accompany the J-1 principal. Since there is also no instruction in the User Manual for Exchange Visitor Program Sponsor Users of SEVIS on how to properly report the departure of a dependent in SEVIS, such an instruction must be provided before this requirement is implemented. Section Insurance Coverage Effective Date of New Insurance Requirements The Federal Register notice states that the insurance amounts listed in 22 CFR 62.14(b)(1)-(4) and the provisions of 22 CFR 62.14(b)(h) will be applicable on May 15, While we appreciate the separate and later effective date of these requirements, we believe that the period

11 Page 11 provided is insufficient and encourage the Department to set an effective date of January 5, 2016 for them. We have been informed by many ROs and AROs that their institution s health insurance plans for students and for faculty and staff are the plans made available to Exchange Visitors. These plans are negotiated by the institutions and their health insurance providers and are most often implemented on an annual contract basis, and it will take sponsors time to negotiate and implement new plans as the Department noted in the supplementary information to the rule [p ]. Many institutions will not be able to negotiate new health insurance contracts that comply with the Department s new insurance requirements by May 15, Allowing at least one year for institutions to negotiate new contracts with their insurance providers will help ensure that robust health insurance plans available to other students and faculty and staff are also available to Exchange Visitors (b)(1) Per Accident or Illness Coverage The rule sets forth at 62.14(b)(1) that minimum coverage must provide... medical benefits of at least $100,000 per accident or illness. This provision seems not to recognize that most health insurance policies have per year or per contract period limits rather than per occurrence limits. Many ROs and AROs have expressed concerns that this provision will make Exchange Visitors ineligible for institutional health insurance policies available to other students, faculty, and staff and require creation of policies for Exchange Visitors exclusively which may be both more expensive and less robust. We recommend that the Department revise this provision so that it is a per year rather than per occurrence requirement. Sufficiency of Coverage Meeting Affordable Care Act Requirements NAFSA suggests that the Department add a provision stating that coverage satisfying the individual mandate of the Affordable Care Act would also satisfy the insurance requirements of the Exchange Visitor Program, provided the participant supplements such coverage with a plan that covers repatriation of remains in the amount of $25,000, and expenses associated with the medical evacuation of exchange visitors to his or her home country in the amount of $50,000. Section Employment Subpart F, consisting of sections through 62.79, has been removed and reserved by the rule. Certain of these sections contained language that bridged the gap between SEVIS procedures and the pre-sevis (and still effective) procedural provisions of Subpart B, which have not been amended by the rule. Sections and contained important bridging language that considered an update of the SEVIS record to constitute RO/ARO authorization for purposes of student employment and academic training for J-1 college and university students. NAFSA recommends including that removed language in a new paragraph (d) in Section in the interim final rule, as follows: (d) An update of the SEVIS record with authorization for academic training constitutes compliance with 62.23(f)(5)(ii), and an update of the SEVIS record with authorization for student employment constitutes compliance with 62.23(g)(2)(iv).

12 Page 12 Thank you for the opportunity to submit these comments. Sincerely, Judy Judd-Price Deputy Executive Director Leadership and Professional Development Services NAFSA: Association of International Educators