J Subpart A Rule Resource Page

September 01, 2015

 

This page will help keep you up to date on the Department of State's (DOS) amendments to Subpart A of the J exchange visitor regulations, the part of the regulations that applies to all exchange visitor programs and program categories.

The new rule was published in the Federal Register on October 6, 2014, and became effective on January 5, 2015, except for the new insurance levels, which became effective on May 15, 2015. The Department of State has stated that it also plans to publish a "final final" Subpart A rule some time in 2015, which may address some of the comments it received on the October 6, 2014 final rule.

Updates

In an August 31, 2015 letter to Exchange Visitor Program sponsors, DAS Robin Lerner referenced the development of what has become known as the "final final" Subpart A rule, stating: "The promulgation of Subpart A was a big effort in 2014. We greatly appreciate the high number of thoughtful sponsor comments in response to the publication. We know it takes time to comment, but it is essential. We have read every recommendation and take each one seriously. It is our hope to republish the current final rule taking the comments into account before the end of 2015."

Need some resources to help you navigate and implement the Subpart A changes?

 

The Subpart A rule was published in the Federal Register as a final rule: 79 FR 60293 (October 6, 2014).

  • The new rule became effective on January 5, 2015, except for the new insurance levels, which will become effective on May 15, 2015 (other insurance-related provisions not related to insurance levels will become effective on January 5, 2015 with the rest of the rule).
  • Although this is a final rule, the Department of State accepted written public comments until December 5, 2014. Despite the public comment period, though, the rule went into effect as-is on January 5, 2015.
  • NAFSA submitted its comments on the J Subpart A Interim Final Rule to the Department of State. Read NAFSA's December 2, 2014 comment letter.
  • DOS has stated that it also plans to publish a "final final" Subpart A rule some time in 2015, which may address some of the comments it received on the October 6, 2014 final rule.
 

Events leading up to the publication of the final rule:

  • October 1, 2014. Chief of the Academic and Government Programs Division sent an email update to program sponsors: "We wanted to inform you that there has been a slight delay to publication of 22 CFR Part 62 Exchange Visitor Program, Subpart A – General Provisions. As an unfortunate coincidence, promulgation of the rule occurred just at the end of the prior fiscal year and beginning of the current. This will result in an expected delay of a few days before the actual publication of the rule. Thank you for your patience."
  • September 2, 2014. The OMB website was updated to indicate it completed its review of the interim final J Subpart A rule on September 2, 2014.
  • January-February, 2014. OMB review having taken more than 90 days, the interim final J Subpart A rule is placed under "extended review" by OMB.
  • October 22, 2013. DOS sent the J Subpart A rule for Office of Management and Budget (OMB) review as an interim final rule, which means that once it is published in the Federal Register, it will go into effect on the effective date listed in the Federal Register notice, even though the public might still be given an opportunity to comment further.
  • November 20, 2009. NAFSA commented on the proposed J Subpart A rule.
  • September 22, 2009. DOS published a proposed rule that would amend Subpart A of the J exchange visitor regulations.
 

Significant changes in the new rule

Aside from minor language changes and rearrangements, here are some of the major differences between the current Subpart A and the new Subpart A. This is only a summary, and does not constitute legal advice. Please closely read the Subpart A final rule Federal Register document in its entirety as well.

Exchange visitor insurance amounts

This table compares the insurance coverage figures in the current rule at 22 CFR 62.14, the 2009 proposed rule, and the figures in the final rule. The final rule figures became effective on May 15, 2015.

Item

 Prior62.14 Reg

2009 Proposed Rule

Final Rule (effective 05/15/2015)  

Medical benefits

$50,000

$200,000

$100,000

Repatriation of remains

$7,500

$25,000

$25,000

Medical evacuation

$10,000

$50,000

$50,000

Deductible per accident or illness

$500

$500

$500

The new rule also added the following regarding the insurance requirement:

  • "Sponsors must inform all exchange visitors that they, and any accompanying spouse and dependent(s), also may be subject to the requirements of the Affordable Care Act." [22 CFR 62.14(a)]

"Objective measurement" of English language proficiency

The prior rule required sponsors to determine that a prospective exchange visitor "possesses sufficient proficiency in the English language to participate in his or her program,” without specifying how that should be accomplished. The new rule changed the underlying English language proficiency standard to:

"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." [22 CFR 62.11(a)(2)]

DOS state that this was prompted because it found that "too many exchange visitors lack sufficient English proficiency to perform their jobs or complete their academic programs; to navigate daily life in the United States; to read and comprehend program materials; to understand fully their responsibilities, rights, and protections; and to know how to obtain assistance, if necessary." [79 FR 60294, 60301]

The new provision goes on to require sponsors to use one of the following "objective measurements of English language proficiency" to determine an applicant's language proficiency:

  • A recognized English language test;
  • Signed documentation from an academic institution or English language school; or
  • A documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option

In the supplementary information of the preamble preceding the rule, DOS also "reminds sponsors to retain evidence of how they measured applicants’ English language proficiency so that it may be made available to the Department upon request."  [79 FR 60294, 60301 (October 6, 2014)]

The regulations do not specify methodological details, and sponsors do have some discretion to ensure that the methods they use to verify English language proficiency, as well as the documentation they retain, clearly satisfy the regulations. The Department of State also provided the following guidance to ROs and AROs in its January 30, 2015 Subpart A Webinar:

"The Department leaves the definition of objective measurement of the English language proficiency up to the discretion of the sponsor, but requests that the sponsor maintain the evidence of how it measured the applicant's English language proficiency and whether this is sufficient proficiency for the exchange visitor to participate in the program and function on a day to day basis. So sponsors will need to keep on file the documentation of how they assess the exchange visitor's language ability and how they did that assessment and whether it is suitable to participate in the program, depending on how the program is run, as well as on a day to day basis.

So, for example, sponsors might document that some exchange visitors do not speak English and that they assessed this in a certain manner and they assigned interpreters to guide them through certain portions of their program and day to day activities, or that they have designed a program where prior use of English is not necessary due to other mechanisms, such as classes in the English language that the exchange visitors will take.

But what we do want is to make sure that there is maximal interaction between the exchange visitors and people living in the United States. So, for example, we had a question about Subpart A, which was, "Why would a specialist teaching dance need to be tested for English proficiency?" And our answer is that all instructors need to be able to communicate in English to their students in the process of teaching them. And, in addition, one of the most important public diplomacy goals of the exchange visitor program is to allow all exchange visitors to communicate and interact with U.S. communities generally, using the English language. So, as I say, the program is very important, but it is important that the exchange visitors have some mechanism to interact within their program and, of course, outside their program."

Changes related to Responsible Officers and Alternate Responsible Officers

Criminal background checks for ROs and AROs

The final rule requires sponsors to submit a certification, signed by the CEO, that its current and prospective RO and AROs have undergone a criminal background check performed by a "bona fide background screener." [22 CFR 62.5(c)(8)(iii)]

Here are some key aspects of this new requirement:

  • The requirement to obtain a background check applies to proposed ROs and AROs as well as to current ROs and AROs
    • "...current Responsible Officers and Alternate Responsible Officers will need to obtain a background check before their sponsor organization is next redesignated after the promulgation of this final rule" [60300]
    • "New sponsors seeking designation by the Department must conduct new background checks on their proposed Responsible Officers and Alternate Responsible Officers. Thus, in accordance with section 62.5(c)(8)(iii) below, an entity seeking designation must obtain criminal background reports on all proposed Responsible and Alternate Responsible Officers, certify that it has done so, and maintain records that are no older than four years at any time." [60300]
     
  • How do the results of a criminal background check impact a sponsor's decision to assign the role of RO or ARO to the employee?
    • DOS "intends for sponsors to use their own judgment and internal standards to assess the suitability of individuals for these jobs, based on whether a report revealed any information about a candidate’s past that would disqualify him or her from assuming a position of trust and responsibility." [60300]
    • DOS "emphasizes that obtaining a criminal background report does not in and of itself confirm an individual’s suitability to act as a Responsible Officer or an Alternate Responsible Officer. A sponsor should consider the results of such a report, and other factors, in making a reasoned judgment about an individual’s fitness to assume either of these two roles." [60299
     
  • Regarding documentation and duration of validity of background checks:
    • "Except on an ad hoc basis, the Department of State has decided not to require applicants or sponsors to submit the results of the criminal background checks. Rather, the Chief Executive Officer, President, or equivalent must submit a certification that the sponsor’s Responsible Officer and Alternate Responsible Officer(s) have undergone criminal background checks within the last four years or when a new sponsor files a designation application." [60299]
    • "the criminal background checks must be no older than four years at any time for re-designated sponsors and must be newly conducted as part of the designation application for new sponsors and the redesignation application for sponsors designated for only one year." [22 CFR 62.5(c)(8)(iii) and 62.9(g)]
    • The supplemental information in the final rule also states that "The Department will not require an additional background check for Responsible Officers and Alternate Responsible Officers who are working for a federal or state government entity and have already passed a government background check." [60299] However, there is no parallel regulatory provision providing a specific exemption for such ROs and AROs. Sponsors that are federal or state government entities should discuss this with their office of legal counsel.
     
  • What constitutes a "bona fide background screener?"
    • Although DOS does not endorse any particular screener or screening organization, it identifies, "for sponsors’ convenience," the National Association of Professional Background Screeners (NAPBS) as an organization that can help identify potential background companies. [60299]
    • If a designated sponsor already has a background check protocol for its employees, there should be no need to depart from those pre-existing protocols, as long as those protocols also meet the new requirements of Subpart A.
    • DOS estimates average costs of "$48–$180 every four years for background checks based on an average of three to six ROs/AROs per sponsor." [60306]
     

10-day window to replace departing ROs and AROs

Under the new Subpart A, when a Responsible Officer or Alternate Responsible Officer stops working for the sponsor, the sponsor must:

  • End the RO/ARO's access to SEVIS as soon as possible, but in no event later than 10 days following the individual's departure from employment [60300, but no parallel in actual regulatory language]
  • Replace the RO or ARO within 10 days by designating a new RO or ARO [22 CFR 62.9(g)(3)]
    • "The Department reminds sponsors that they must make it their highest priority to replace a departing Responsible Officer as quickly as possible as this role is critical to the stewardship of the sponsor’s exchange visitor program." [60301]
    • "The Department is not suggesting that the sponsor organization hire a new employee in this timeframe, but that it designate and provide documentation for an existing staff member to be placed in the position on a temporary basis until a permanent replacement is hired. Ten days is the amount of time that the Department believes that a Responsible Officer/Alternate Responsible Officer work could go uncompleted; after this time period, someone must take on the Responsible Officer/Alternate Responsible Officer monitoring workload at the sponsor organization." [60300]
    • "The Department wishes to reiterate that a sponsor must have in place and maintain a Responsible Officer and a minimum of one Alternate Responsible Officer at all times. If the Responsible Officer leaves, the sponsor may wish to designate an existing Alternate Responsible Officer to that position on a temporary basis. If the only Alternate Responsible Officer leaves, the sponsor should select another existing employee or officer to be an Alternate Responsible Officer." [60300
     

Designation of non-employees as an ARO

The Responsible Officer (RO) must be an employee of the sponsor, and generally, Alternate Responsible Officers must also be employees of the sponsor. Under the new Subpart A, however, "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." [22 CFR 62.9(g)(2)]

  • In the supplementary information in the rule's preamble, DOS explained its decision to allow such requests on a case-by-case basis as follows: "Two parties addressed the requirement in section 62.9(g)(2) that Responsible Officers and Alternate Responsible Officers be employees of the sponsors. One comment, from a Rotary organization, explained that Rotary uses only volunteers, not employees, as Responsible Officers and Alternate Responsible Officers. The other comment, from a large corporation, raised the concern that company lawyers and paralegals would no longer be permitted to serve as Alternate Responsible Officers under the new rules. The Department has reviewed this comment and has determined that it would prefer that Responsible Officers and Alternate Responsible Officers be employees of the sponsor organization. However, an applicant entity or a sponsor that wishes to nominate an individual who is not an employee as an Alternate Responsible Officer may make a request to the Department, which the Department may approve in its discretion. One important factor that may qualify a volunteer as an Alternate Responsible Officer might be that person’s longstanding, close, and continuing relationship with the sponsor organization. Another factor might be that the volunteer works for a sponsor organization that has a predominantly volunteer exchange model." [60300]

Familiarity with laws and policies pertaining to the administration of its exchange visitor program

Prior 22 CFR 62.11(a) required Responsible Officers and Alternate Responsible Officers to "Be thoroughly familiar with the Exchange Visitor Program regulations and the Department of State's current Codebook and Instructions for Responsible Officers." The new rule expanded this to require ROs and AROs to:

"Be thoroughly familiar with the Exchange Visitor Program regulations, relevant immigration laws, and all federal and state regulations and laws pertaining to the administration of their exchange visitor program(s), including the Department of State’s and the Department of Homeland Security’s policies, manuals, instructions, and guidance on SEVIS and all other operations relevant to the Exchange Visitor Program; if Responsible Officers and Alternate Responsible Officers work with programs with an employment component, they also must have a detailed knowledge of federal, state, and local laws pertaining to employment, including the Fair Labor Standards Act."

Regarding accessing DOS regulations and policies, DOS stated that: "In an attempt to capture relevant Department guidance, regulations, and other information, the Department launched a new website design last year, and all such information can now be accessed under one section, at http://j1visa.state.gov/sponsors/current/regulations-compliance. Sponsors nonetheless may need to research some federal, state, and local requirements that may impact their exchange visitor programs."

Addition of more than 10 Alternate Responsible Officers in DOS sole discretion

The new rules specify that "Upon written sponsor request, the Department of State may, in its sole discretion, permit a sponsor to appoint more than ten Alternate Responsible Officers." [22 CFR 62.9(g)] This will be done only on a case-by-case basis.

SEVIS, SEVIS reporting, and Forms DS-2019

The final Subpart A rule:

  • Incorporates the SEVIS procedures currently contained in Subpart F (the "SEVIS overlay" provisions) into Subpart A.
  • Requires sponsors to report email addresses in SEVIS for both J-1 exchange visitors and J-2 dependents
  • Details the SEVIS program Validation requirement
  • Details what evidence a sponsor must provide when it is requesting an increase in its DS-2019 allotment to support a program expansion
  • Allows sponsors to report to DOS the loss or theft of Forms DS-2019 by e-mail, in addition to by telephone
  • Requires sponsors to "report in SEVIS if accompanying spouses and/or dependents depart from the United States prior to the exchange visitors’ departure dates."
    • NAFSA argued in its comment letter to DOS that this should apply only to a J-2s final departure from the U.S. mde without the intention of returning in that status.
     
  • Reduces from 21 days to "ten business days" the time by which sponsors must update an exchange visitor's SEVIS record following notification by the exchange visitor of any change in his or her actual and current U.S. address, telephone number, email address, and/or primary site of activity
  • Regarding Forms DS-2019 [22 CFR 62.12]:
    • Requirement to sign the DS-2019 in blue ink becomes regulatory
    • Only the RO or ARO whose name is printed on the form can sign it
    • DS-2019 can only be signed by RO or ARO who is physically present in the United States
    • Sponsors cannot fax or electronically forward any copies or PDFs of DS-2019s to any party except DOS or DHS
     

Exchange visitor program management

  • Expands the list of items that must be included in the pre-arrival information sent by the sponsor [22 CFR 62.10(b)], including information:
    • About the sponsor’s program:
      • Description of the “cultural goals and components” of the sponsor’s program
      • Detailed terms and conditions of employment
      • Itemized list of fees to be paid to sponsor and third parties
       
    • About procedures:
      • Travel to and entry into the United States: Visa process, SEVIS fee, travel arrangements, POE procedures
      • Sponsor’s arrival notification requirements (how to report to/check in with the sponsor)
      • Insurance requirements and plans
       
     
  • Changes 22 CFR 62.13(d) to require sponsors to inform DOS "on or before the next business day" of any serious problem or controversy. The current rule requires sponsors to inform DOS of such problems "promptly." The new rule and the supplemental information preceding the rule also more thoroughly describe the kinds of "problems or controversies" that would be considered "serious" and require reporting.
  • Requires sponsors to "offer or make available" to the accompanying spouses and dependents, in addition to the exchange visitor, a variety of appropriate cross-cultural activities.
  • Orientation for exchange visitors. [22 CFR 62.10(c)]
    • Requires sponsors to not only offer appropriate orientation to exchange visitors (as is required by the current rule), but to also "record participation in" the orientation offered.
    • Provides a more specific idea of what should be included in the sponsor's "description of the program in which the exchange visitor is participating."
    • Expands the list of items that must be included in orientation
     
  • Modifies minimum 5-EV per year requirement to use the sponsor’s annual reporting cycle (academic, calendar or fiscal year) as the time period for counting “actively participating exchange visitors,” rather than a calendar year for all sponsors. The final rule also inserted the phrase “actively participating.” 

Designation and Redesignation

The new Subpart A:

  • Increase from 1 to 3 years the amount of experience a sponsor or its officers must have in order to apply for initial designation as a new exchange visitor program
  • Articulates the specific documentation that must be submitted as part of the program redesignation process, including [22 CFR 62.7(c)]:
    • A copy of the most recent year-end financial statements;
    • A copy of the most recent letter of accreditation if the sponsor is a secondary or post-secondary academic institution;
    • 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;
    • For a non-profit organization, a signed copy of the sponsor’s most recent Form 990 filed with the Internal Revenue Service;
    • 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; and
    • Such additional information or documentation that the Department of State may deem necessary to evaluate the application.
    • Although not listed at 22 CFR 62.7(c), DOS notes in the supplementary information preceding the rule that sponsors must also maintain "a list of foreign and domestic third parties with whom they have written agreements... which the Department may then request as part of the redesignation process or as circumstances require." [60298]
     

Management audits for Private Sector programs

Sponsors of P-3 and P-4 “Private Sector” programs must file a program specific management review (in a format and on a schedule approved by the Department of State). Categories under the Private Sector Programs Division include: Alien Physician; Au Pair and EduCare; Camp Counselor; Intern; Student, Secondary School; Summer Work/Travel; Teacher; and Trainee.

Added or amended definitions

Among other changes to the definitions section at 22 CFR 62.2 are the following:

  • The definition of "financed indirectly" appears to have been inadvertently removed from the regulation
  • The term "accredited educational institution" is changed to "accredited academic institution" throughout Subpart A
  • Modifies the definition of "exchange visitor" to clarify that the term also includes J-1 participants in the program who are not required to obtain J-1 visas (e.g., Canadian citizens, individuals who were granted a change of status to J-1 status by USCIS)
  • Modifies the definition of "Third Party"
    • In the supplemental information preceding the rule language in the Federal Register notice, DOS states that, "The Department recognizes that sponsors contract with or otherwise engage third parties to provide ordinary services in the support of their business operations (e.g., cleaning, payroll processing, and utilities). The Department excludes these types of generic service providers from the definition of “third party” and includes only those that truly relate to the conduct of a sponsor’s exchange visitor program."
     
  • Changes the term "Citizen of the United States" to "United States Person."
  • Adds a definition of "Validation" of SEVIS records
  • Updates the definitions section to include explanations of the purposes of Forms DS-2019, DS-3036, DS-3037, DS-3097, and DS-7002
  • Provides definitions of the new offices within the Office of Private Sector Exchange, including the Office of Exchange Coordination and Compliance (formerly known as the Exchange Visitor Program Services) and the Office of Private Sector Exchange Administration, in addition to the existing Office of Designation.

Changes proposed in 2009 that were not incorporated into the final rule

In response to public comments received in 2009, DOS decided to not make certain changes that were proposed in the September 2009 proposed rule. Specifically:

  1. The final rule does not require applicants or current sponsors to secure and submit Dun & Bradstreet reports on themselves;
  2. Under the final rule, applicants for sponsor designation will have site visits only at DOS discretion;
  3. Under the final rule, sponsors do not have to collect and report in SEVIS Employment Authorization Document information for an accompanying spouse and dependents;
  4. Under the final rule, sponsors do not have to separately Validate the SEVIS records of J-2 dependents, since those records are Validated automatically when the J-1's record is Validated;
  5. The final rule does not give the Secretary of State the authority to update new mandatory minimum levels of insurance coverage. Any changes to minimum insurance coverage requirements will have to go through the full regulatory review process.