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State Dept. Notice on Exchange Visitor Program Fees & Charges

[Federal Register Volume 78, Number 20 (Wednesday, January 30, 2013)]
[Proposed Rules]
[Pages 6263-6269]
From the Federal Register Online via the Government Printing Office [www.gpo.gov<</a>]
[FR Doc No: 2013-01555]

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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice 8163]

RIN 1400-AD28

Exchange Visitor Program--Fees and Charges

AGENCY: U.S. Department of State.

ACTION: Proposed rule with request for comment.

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SUMMARY: The U.S. Department of State (Department) is proposing to revise regulations to increase the Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits assessed for providing Exchange Visitor Program (EVP) services, in order to recoup the costs incurred by the Department's Bureau of Educational and Cultural Affairs associated with operating aspects of the Exchange Visitor Program.

DATES: The Department will accept comments from the public up to April 1, 2013.

ADDRESSES: You may submit comments, identified by any of the following methods:

Persons with access to the Internet will be able to view and comment on the rule and supporting documentation, including the supporting cost study, by going to the Regulations.gov Web site http://www.regulations.gov/search/Regs/home.html#home<</a>, and searching on docket ID DOS-2010-0214.

Mail (paper, disk, or CD-ROM submissions): U.S. Department of State, Office of Designation, SA-5, Floor 5, 2200 C Street NW., Washington, DC 20522.

Email: JExchanges [at] state [dot] gov. You must include the title and RIN (1400-AD28) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT:
Robin J. Lerner, Deputy Assistant Secretary for Private Sector Exchange,
U.S. Department of State, SA-5,
Floor 5,
2200 C Street NW.,
Washington, DC 20522,
202-632-2805, or
email at JExchanges [at] state [dot] gov.

SUPPLEMENTARY INFORMATION: Under the authority of Section 810 of the United States Information and Educational Exchange Act of 1948, as amended, 22 U.S.C. 1475e, and the Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, and following the guidelines set forth in Office of Management and Budget (OMB) Circular No. A-25, fees for the Exchange Visitor Program (EVP) Services were adopted for the first time in 2000. The Department issued regulations to establish sufficient fees to recover the cost of administrative processing of requests for program designation or redesignation, and certain services for exchange visitor status changes. OMB Circular No. A-25 directs the Agency review of fees and services every two years.

The two fees for the Exchange Visitor Program under review are those set forth in 22 CFR 62.17(b)(1) and (2): the Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits. The Exchange Visitor Program (EVP) provides foreign nationals, utilizing the J-1 Exchange Visitor Visa (J-1 Visa), opportunities to participate in exchange programs in the United States. It is administered and overseen by the Office of Private Sector Exchange in the Bureau of Educational and Cultural Affairs (ECA/EC). ECA/EC is responsible for designating eligible U.S. government agencies and public and private organizations as EVP sponsors. Upon designation, ECA/EC is also responsible for the oversight of the EVP sponsors. ECA/EC is comprised of a Front Office and three supporting offices: The Office of Private Sector Designation, the Office of Exchange Coordination and Compliance, the Office of Private Sector Exchange Program Administration. Three different funding streams fund all of the ECA/EC units administering and overseeing the EVP, including all of the EVP's program administration activities and the ECA/EC personnel conducting those activities.

These funding streams are:

Application Fee for Sponsor Designation or Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits: The Application Fee is paid by prospective and current EVP sponsors for Designation and Redesignation, respectively. The Administrative Fee is paid by EVP sponsors on behalf of J-1 participants seeking an administrative benefit such as reinstatement or other request related to their current exchange visitor program. Both fees primarily fund the Office of Private Sector Designation labor (salary) and ancillary costs (e.g., staff travel, communications, and utilities). Both fees also fund the Office of Exchange Coordination and Compliance ancillary costs and will fund the ancillary costs of the future Office of Private Sector Exchange Program Administration.

SEVIS Fees paid by J-1 Visa Applicants and Participants to the U.S. Department of Homeland Security (DHS): These fees, via transfer on a reimbursable basis from DHS to the Department of State, fund the Office of Exchange Coordination and Compliance labor (salary) costs; and, in the future, will fund the Office of Private Sector Exchange Program Administration labor (salary) costs.

Bureau of Educational and Cultural Affairs (ECA) Budget: Appropriated funds support certain ECA/EC personnel salaries (or portions of salaries) and portions of salaries of Bureau of Education and Cultural Affairs Support Services personnel who assist the administration of the EVP.

This rulemaking only proposes changes to the Application Fee for Sponsor Designation or Redesignation, and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits.

The current Application Fee for Sponsor Designation or Redesignation is $2700 and the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits is currently $233 per request. The Department proposes amendment of both fees to: $3,982 (an increase of $1,282) and $367 (an increase of $134), respectively. The proposed increase in the Application and Administrative Fees is primarily attributable to three initiatives related to ongoing or planned process improvements and technology implementations. These initiatives are expected to increase the efficiency and accuracy of the Designation and Redesignation Application review processes and the level of service provided to EVP sponsors by the Office of Private Sector Exchange. Costs assessments were developed by Deloitte Consulting LLP for each initiative and added into the total cost basis that must be recovered by the two EVP fees.

The three initiatives are:

Development of a Learning Management System (an expansion of the currently existing Local Coordinator Training Certification Module) needed to meet EVP local coordinator training requirements established in new or future EVP regulations.

Development and implementation of the Designation Processing System, which consists of:

[cir] Robust electronic content management system for storing and reviewing new and historical sponsor files;

[cir] Electric file migration of all hard copy sponsor files; and

[cir] Complaint Management Workflow Module for tracking, managing, and reporting on all complaints and incidents reported to the Department (e.g., serious incidents reported by EVP sponsors and complaints reported by Exchange Visitors and any interested persons on behalf of Exchange Visitors or of a general nature).

Addition of a new Office of Private Sector Exchange Program Administration in the Office of Private Sector Exchange (ECA/ EC) and the addition of four Full-time Equivalent employees (FTEs) in the ECA/EC Front Office, which will increase the ancillary costs factored into the cost basis.

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Please See PDF for Table

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History of EVP Fees

The Department's Bureau of Educational and Cultural Affairs, Office of Private Sector Exchange, designates the U.S. government, academic, and private sector entities to conduct educational and cultural exchange programs pursuant to a broad grant of authority provided by the Mutual Educational and Cultural Exchange Act of 1961, as amended (Fulbright-Hays Act), 22 U.S.C. 2451 et seq.; the Immigration and Nationality Act, 8 U.S.C. 1101(a)(15)(J); the Foreign Affairs Reform and Restructuring Act of 1998, Public Law 105-277; as well as other statutory enactments, Reorganization Plans and Executive Orders. Under those authorities, over 1,400 sponsor organizations facilitate the entry of more than 300,000 exchange participants each year.

The Fulbright-Hays Act is the primary statutory authority for the Exchange Visitor Program. The purpose of the Act, set forth in Section 101, is ``to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange.'' The Act authorizes the President to provide for such exchanges when he considers that it would strengthen international cooperative relations. The language of the Act and its legislative history make it clear that Congress considered international educational and cultural exchanges to be a significant part of the public diplomacy efforts of the President in connection with his Constitutional prerogatives in conducting foreign affairs.

In 2006, the Department examined its current Exchange Visitor Program fee structure (which had been instituted by the former USIA, prior to its merger with the Department) for compliance with applicable laws and policies, and to determine the appropriate level of fees given the expansion of the offices providing services. This analysis was grounded on the guiding principle that fees should be fair and reflect the full cost to perform the service; and that services performed on behalf of distinct, identifiable beneficiaries (versus the public at large) should, to the extent possible, be self-sustaining. As a result of the review, it was determined that additional fee categories and increased fees were required, and the Department published a final rule on November 1, 2007 (72 FR 61800), which became effective December 3, 2007.

The 2007 fee rule identified the program re-designation process as a separate and identifiable service for which the cost of such service should be recouped. This fee (Application Fee) is collected from over 1,400 academic, governmental, and private sector sponsor organizations. This fee also includes the cost of services arising from a program sponsor's requests for amendments to programs, allotment requests, and updates of information, as well as the costs for program compliance, regulatory review and development, outreach, and general program administration. Also established in the 2007 fee rule was the Administrative Fee paid by sponsors on behalf of J-1 foreign national exchange participants for services provided on an individual basis and for the sole benefit of the exchange participant (i.e., requests for exchange visitor status changes of program category, extension beyond maximum duration, requests for reinstatement, requests to update the Student and Exchange Visitor Information System (SEVIS) status, and similar requests). The fees received for these individual services also include an apportioned share of costs for regulatory review and development, outreach, and general program administration.

In 2009, per guidelines set forth in OMB Circular A-25, the Department conducted a biennial review of fees established in 2007. In accordance with the Statement of Federal Finance and Accounting Standards No. 4 (SFFAS 4), the Department used an ``activity-based costing'' (ABC) approach to develop a sustainable model to align the costs of the program to the specific services performed by Office of Private Sector Exchange's Office of Designation on behalf of program sponsors and other program stakeholders. ABC is a method of identifying the work that is performed, how resources are consumed by that work, and how that work contributes to the production of required outputs. The ABC methodology enabled the development of a bottom-up budget that factored in forecasts for expected demand of program services in the years when the fees are effective and would provide the program with adequate resources to meet that future program demand. Based on this review, the Department established a user application fee of $2,700 for designation or redesignation, and a fee of $233 to be paid by program sponsors on behalf of J-1 foreign national exchange participants requesting individual program services. The Department published a final rule on February 25, 2011 (76 FR 10498), which became effective March 28, 2011.

In 2011, Deloitte Consulting LLP (hereafter referred to as Deloitte) began its fee study as part of the biennial review of the fees charged by the Department, consistent with the guidelines set forth in OMB Circular A-25. In accordance with SFFAS 4, Deloitte used an ABC approach to align the costs of the program to the administration of the Exchange Visitor Program and the associated administrative activities. The methodology and the results of this study are examined in the following sections.

Results of Fiscal Year (FY) 2012 Fee Study

Methodology

In accordance with the Statement of Federal Finance and Accounting Standards No. 4 (SFFAS 4), Deloitte used an ``activity-based costing'' (ABC) approach to develop a sustainable model to align the associated costs of the EVP to the specific services performed by the Office of Private Sector Designation on behalf of EVP applicants, sponsors, participants and other program stakeholders. ABC is a method of identifying the work that is performed, how resources are consumed by that work, and how that work contributes to the production of required outputs. This methodology enabled the development of a cost model that factored in forecasts for expected demand of program services in the years when the fees are effective (FY2013 and FY2014) and would provide the program with adequate resources to meet that future program demand.

According to legislative and regulatory guidance, user charges should be based on the full cost to the government of providing the services or things of value. OMB Circular A-25 defines full cost as all direct and indirect costs to any part of the Federal government of providing a good, resource, or service. These costs include, but are not limited to, an appropriate share of:

Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement.

Physical overhead, consulting, and other indirect costs including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment.

Management and supervisory costs.

Costs of enforcement, collection, research, establishment of standards, and regulation, including any required environmental impact statements.

The generally accepted government accounting practices for managerial cost accounting, published in Federal Accounting Standards Advisory Board (FASAB) Statement of Federal Financial Accounting Standards (SFFAS) No. 4, provide the standards for cost definition, recognition, accumulation and assignment as they relate to the recognition of full cost. These standards have been applied to the determination of what costs to include in or exclude from the Exchange Visitor Program fees.

To obtain data needed for the cost model using the ABC methodology, a Labor Survey was conducted to determine the time spent by the Office of Private Sector Designation personnel on EVP activities. The survey results were taken into account when determining the two fees.

The results of the Labor Survey were analyzed in conjunction with Office of Private Sector Designation salary data (escalated for benefits) to determine the cost basis of activities supporting the EVP. Added to the cost basis were Office of Private Sector Exchange ancillary costs (including the projected ancillary costs of a planned, new third office and four additional FTEs in the ECA/EC Front Office), costs for the development of a new Designation Processing System and a new Learning Management System, and Bureau of Educational and Cultural Affairs and Department of State labor (salary) costs that support the EVP.

The model then assigned direct costs and allocated indirect and General and Administrative (G&A) costs using allocation ratios to isolate direct, indirect, and G&A costs. The sum of direct, indirect and G&A costs for Designation and Redesignation Applications were divided by the projected number of FY 2013 and FY 2014 Designation and Redesignation Applications to determine the Application Fee for Sponsor Designation or Redesignation. To determine the Administrative Fee for Exchange Visitor (J-1 Visa Holder) Benefits, the sum of direct, indirect and G&A costs for Exchange Visitor Activity Counts were divided by the projected number of FY 2013 and FY 2014 Exchange Visitor Activity Counts; i.e., the expected number of benefit applications.

The following section describes the cost model structure driving the proposed fee changes.

Cost Model Structure

Model Overview

In summary, the EVP Cost Accounting Model takes cost data from the GS Schedule Rates, Baseline ECA Budget, Civilian Pay Cost Data, Activity Model Cost Pools, FTE Capacity Calculation, LCC Cost Assessment, DPS Cost Assessment, and Other Cost Pools modules, assigns direct costs or allocates indirect and General and Administrative (G&A) costs using allocation ratios, and then uses the direct, indirect, and G&A cost pools to calculate the two fees for the Fiscal Year (FY) 2013- 2014 time frame.

The Cost Accounting Model contains twelve modules described in detail in the following sections. Most modules include an FY 2013 section and an FY 2014 section, given the need to enter separate data for each fiscal year. The modules that only have one tab are Home, GS Schedule Rates, ECA Baseline Budget, FTE Capacity Calculation, LCC Cost Assessment, Designation Processing System, SEVIS & FTE Data, and Final EVP Fees FY 2013-2014. The modules are sequenced to follow the general flow of calculations performed by the model.

GS Schedule Rates

The GS Schedule Rates module contains the General Schedule (GS) pay scale figures for FY 2012-FY 2014. The figures for FY 2013 and FY 2014 are based on the 2012 General Schedule pay scale. These figures inform the Civilian Pay Cost Data FY13 and FY14 and the Activity Model Cost Pools FY2013 and FY2014 modules and are used to determine Department labor costs.

Baseline ECA Budget

The Baseline ECA Budget module contains the actual and projected Bureau of Education and Cultural Affairs (ECA) budget and budget breakdowns for FY 2012-FY 2014. These estimates inform the Other Cost Pools FY 2013 and FY 2014 modules.

This module also calculates the ancillary costs associated with Office of Exchange Coordination and Compliance, Office of Private Sector Exchange Program Administration, and ECA/EC Front Office personnel. The results of this calculation are documented in the Other Cost Pools FY 2013 and FY 2014 tabs in the ``Adjustment to Cost'' column in the ECA/EC Non-Labor Cost Pool table.

Civilian Pay Cost Data FY 2013 & FY 2014

This module pulls Civilian Pay data by General Schedule (GS) Level for ECA/EC/D personnel from the GS Schedule Rates module. The salaries of the personnel are escalated for benefits according to OMB Circular A-76. This calculation is detailed further in the Cost Accounting Model Data Sources section.

Activity Model Cost Pools FY 2013 & FY 2014

This module displays the results of the Labor Survey that was conducted by the 2012 Deloitte Fee Study to determine the time spent by ECA/EC/D personnel performing activities related to the administration of the Exchange Visitor Program. The results are displayed by personnel position in the form of percentages. This data is then multiplied by the escalated salary calculated in the Civilian Pay Cost Data module to create Activity Model Cost Pools to determine the costs associated with the time spent by ECA/EC/D personnel performing activities related to the administration of the Exchange Visitor Program. Finally, this module includes a self-check feature to verify the completeness and accuracy of user entries.

FTE Capacity Calculation

This module displays the calculation the 2012 Deloitte Fee Study performed in order to determine ECA/EC's current staffing needs related to fulfilling its mission of administering and overseeing the EVP. Local Coordinator Certification (LCC) Trainings Cost Assessment

This module displays the costs of administering the training certifications for EVP sponsors' field staff (regional and/or local coordinators) through the development of an in-house Learning Management System (LMS). The module also contains the total expenditures paid to an external LMS vendor to administer the trainings while the LMS is in development. The results of these calculations are documented in the Other Cost Pools FY 2013 & FY 2014 tabs in the ECA/EC Non-Labor Cost Pool tables.

Designation Processing System (DPS) Cost Assessment

This module displays the estimated costs of the Designation Processing System and Workflow Module designed to fully automate the designation and redesignation process in order to increase the Office of Private Sector Exchange's efficiency required for sponsor reviews and to eventually integrate with the SEVIS II. The results of this cost estimate are documented in the ECA/EC Non-Labor Cost Pool tables of the Other Cost Pools FY2013 & FY2014 modules.

Other Cost Pools FY 2013 & FY 2014

This module displays other costs associated with the Exchange Visitor Program, including the following:

Bureau of Educational and Cultural Affairs, Office of Private Sector Exchange (ECA/EC) non-labor costs including costs estimates of the Local Coordinator Training Certifications, Designation Processing System, and the value of the JASZ Technology Call Center Contract (provides call center services for the J-1 Visa Helpline).

Bureau of Educational and Cultural Affairs (ECA) labor costs.

Department of State labor costs.

Department of State non-labor costs.

Not all of the costs outlined above are allocated to the two fees since they support the Bureau of Educational and Cultural Affairs or the entire Department. The 2012 Deloitte Fee Study allocated appropriate portions of these costs to the EVP by FTE ratios. The FTE ratios are calculated from data provided by SEVIS & FTE Data module.

SEVIS & FTE Data

There is only one tab for the SEVIS & FTE Data module. It displays historical SEVIS and FTE data. It includes projected CY 2013 and CY 2014 Designation and Redesignation Applications, and Exchange Visitor Activity Counts. Data in this module also generate FTE projections for FY 2013 and FY 2014. This module contains the following specific FTE data for the following organizational areas:

Bureau of Educational and Cultural Affairs, Office of Private Sector Exchange, Office of Private Sector Designation (ECA/EC/ D) and Office of Exchange Coordination and Compliance (ECA/EC/ECC).

Human Resources.

Support Services.

IIP Budget Office (Bureau of International Information Programs).

ECA Budget Office.

Program Management Office.

Bureau of Educational and Cultural Affairs (ECA).

Department of State.

Cost Assignment & Allocation FY 2013 & FY 2014

This module pulls the data from the previous modules in order to assign direct costs or allocate indirect or G&A costs to each fee. The method in which costs are assigned or allocated varies by cost classification:

Direct costs are costs that can be specifically identified with an output. For direct costs, Deloitte followed the Direct Cost Assignment method to assign all resource cost to one cost object. In this case, the full cost of activities is assigned to the fee for which it is determined to be a direct cost.

Indirect costs are costs of resources that are jointly or commonly used to produce two or more outputs but are not specifically identifiable with any one output. For indirect costs, Deloitte followed the Prorated Cost Allocation method to allocate indirect costs to all cost objects based on percentage of total direct cost of the destination cost objects. In this case, the full cost in each indirect cost pool is split and each portion is then assigned to the appropriate fee. Indirect costs were split based on the labor survey allocations to each activity type (i.e., Application or Administrative).

G&A costs are the costs of support services that an office or segment receives from other segments or entities. G&A costs calculated and apportioned in Other Cost Pools FY2013 and FY2014 are allocated to each of the fees in the same way indirect costs are allocated.

This method for allocating indirect and general and administrative (G&A) cost is fully consistent with cost allocation guidance found in Sections 133 and 134 of Federal Accounting Standards Advisory Board (FASAB) Statement of Federal Financial Accounting Standards (SFFAS) No. 4 as follows:

``133. Sometimes, it might not be economically feasible to directly trace or assign costs on a cause-and-effect basis. These may include general management and support costs, depreciation, rent, maintenance, security, and utilities associated with facilities that are commonly used by various segments.''

``134. These supporting costs can be allocated to segments and outputs on a prorated basis. The cost allocations may involve two steps. The first step allocates the costs of support services to segments, and the second step allocates those costs to the outputs of each segment. The cost allocations are usually based on a relevant common denominator such as the number of employees, square footage of office space, or the amount of direct costs incurred in segments.''

Fee Cost Pools FY 2013 & FY 2014

This module pulls data from the Cost Assignment and Allocation module and groups it into total direct, indirect, and G&A cost pools. It then divides each of those cost pool amounts by the total projected SEVIS activity units to determine each fee's direct, indirect, and G&A components. It also sums each of these cost components to provide the total for each fee for FY 2013 and FY 2014. Finally, this module includes a self-check feature to verify the completeness and accuracy of user entries.

Final EVP Fees FY 2013-2014

This module adds the total costs and SEVIS Activity Units for FY 2013 and FY2014 from the Fee Cost Pool module in order to provide fees that are based on a two-year fee lifecycle consistent with the guidelines set forth in OMB Circular A-25 requiring current Program Sponsors to apply for Redesignation status every two years. It also includes a self-check feature to verify the completeness and accuracy of user entries.

Cost Accounting Model Data Sources

GS Schedule Rates

The 2009, 2010, 2011, and 2012 General Schedule Pay Tables and the 2011 SES Pay Rates for the Washington-Baltimore-Northern Virginia Locality were obtained from the U.S. Office of Personnel Management.

Baseline ECA Budget

Bureau of Educational and Cultural Affairs (ECA) provided the actual Educational and Cultural Exchange Programs budgetary data for FY 2011, and projected budgetary data for FY 2012, FY 2013, and FY 2014.

Civilian Pay Cost Data

For the data in the Civilian Pay Cost Data module, ECA provided Deloitte with each ECA/EC/D employee's GS level, and then Deloitte used the Step 5 salary assumption for each level to determine the salary to be entered for each employee. This figure was then escalated by 36.25% to capture benefits. This percentage is the guidance given for average benefits escalation in OMB Circular A-76 Performance of Commercial Activities, Attachment C--Calculating Public-Private Competition Costs.

Activity Model Cost Pools

The only data in the Activity Model Cost Pools module is the Labor Survey results. This input was accomplished by converting the hours each respondent recorded for their position and for each activity they performed during the Labor Survey into percentages of FTEs. Local Coordinator Certification (LCC) Trainings Cost Assessment

ECA provided the expenditures to date spent on external Learning Management System (LMS) vendor. The cost estimate for the in-house LMS was based on Deloitte's own estimate using interviews, training system requirements, subject-matter experts, and industry standards.

Designation Processing System (DPS) Cost Assessment

The cost estimates for the development of the Designation Processing System, Electronic File Conversion, and Complaint Management Workflow Module were based on Deloitte's own estimate using interviews, ECA/EC system requirements, subject-matter experts, and industry standards.

Other Cost Pools

The data from Other Cost Pools is derived from the GS Schedule Rates, Baseline ECA Budget, LCC Cost Assessment, DPS Cost Assessment, and SEVIS & FTE Data modules.

Deloitte used the following methods to derive ECA/EC non- labor cost data:

--The FY2013 and FY2014 budgetary data has been taken from ECA projected data found in the Baseline ECA Budget module.

--The Local Coordinator Certification Training Cost Assessment and the Designation Processing Cost Assessment are derived from the calculations in LCC Cost Assessment and DPS Cost Assessment modules, respectively.

--JASZ Technology Call Center contract value was provided by ECA/EC.

All ECA labor cost data is derived from the FY 2012 Employment Compensation and Benefits figure in the ECA Budget module. This figure is pro-rated by the respective ECA organizational area's FTEs, and based on the FY 2012 Employment Compensation and Benefits figure for FY 2013 and FY 2014 estimates.

For Department non-labor costs, Deloitte obtained the Total Department-wide GSA Rents from the Department of State Congressional Budget Justification--Fiscal Year 2012.

SEVIS & FTE Data

ECA/EC provided Deloitte with historical SEVIS activity counts associated with each fee for calendar years (CY) 2007-2011. ECA/EC also provided Deloitte with actual Department, ECA, and ECA/EC FTE levels for FY 2009 through FY 2011 and projected levels for FY 2012. Using these figures, Deloitte projected for FY 2013 and FY 2014 SEVIS and FTE data in the following manner:

[ssquf] For SEVIS data projections:

--ECA/EC provided CY 2007 through CY 2011 data.

--ECA/EC directed the use of constant CY 2011 counts for CY 2012-CY 2014.

[ssquf] For FTE data projections:

--ECA/EC provided actual FY2009 through FY2011 data.

--ECA/EC provided projected FY2012 data.

--ECA/EC/D FY 2013 and FY 2014 data were projected at FY 2012 levels with the additional nine FTEs calculated from the FTE Capacity Calculation (Section 3.5) and four additional FTEs that joined ECA/EC/D after the Labor Survey was conducted.

Regulatory Findings

Administrative Procedure Act

The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from Sec 553 (Rulemaking) and Sec 554 (Adjudications) of the Administrative Procedure Act (APA). The U.S. Government supervises programs that invite foreign nationals to come to the United States to participate in exchange visitor programs, either directly or through private sector program sponsors or grantees. When problems occur, the U.S. Government often has been, and likely will be, held accountable by foreign governments for the treatment of their nationals, regardless of who is responsible for the problems.

The purpose of this rule is to set the fees that will fund services provided by the Exchange Visitor Program Office of Designation to more than 1,400 sponsor organizations and 300,000 Exchange Visitor Program participants. These services include oversight and compliance with program requirements as well as the monitoring of programs to ensure the health, safety and well-being of foreign nationals entering the United States (many of these exchange programs and participants are often funded by the U.S. Government) under the aegis of the Exchange Visitor Program and in furtherance of its foreign relations mission. The Department of State represents that failure to protect the health and well-being of these foreign nationals and their appropriate placement with reputable organizations will have direct and substantial adverse effects on the foreign affairs of the United States.

Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule as a proposed rule, with a 60-day provision for public comment and without prejudice to its determination that the Exchange Visitor Program is a foreign affairs function.

Regulatory Flexibility Act/Executive Order 13272: Small Business

As discussed above, the Department believes that this proposed rule is exempt from the provisions of 5 U.S.C. 553, and that no other law requires the Department to give notice of proposed rulemaking. Accordingly the Department believes that this proposed rule is not subject to the requirements of the Regulatory Flexibility Act (5 U.S.C.601, et seq.) or Executive Order 13272, Sec. 3 (b).

Unfunded Mandates Reform Act of 1995

This proposed rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Executive Order 13175--Consultation and Coordination With Indian Tribal Governments

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the provisions of Executive Order 13175 do not apply to this rulemaking.

Small Business Regulatory Enforcement Fairness Act of 1996

This proposed rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Executive Order 13563 and Executive Order 12866

As discussed above, the Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has nevertheless reviewed this proposed regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

The Department has examined the economic benefits, costs, and transfers associated with this proposed rule, and declare that educational and cultural exchanges are both the cornerstone of U.S. public diplomacy and an integral component of American foreign policy. The benefits of these exchanges to the United States and its people are invaluable and cannot be monetized; in the same way, even one instance of an exchange visitor having a bad experience or, worse, being mistreated, could result in embarrassment and incalculable harm to the foreign policy of the United States. Therefore, the Department is of the opinion that these benefits of this rulemaking outweigh its costs.

Executive Order 12988

The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

Executive Orders 12372 and Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

Paperwork Reduction Act

The information collection requirements contained in this rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 and OMB Control Number 1405-0147, expiring on November 30, 2013.

List of Subjects in 22 CFR Part 62

Cultural Exchange Program.

Accordingly, 22 CFR part 62 is proposed to be amended as follows:

PART 62--EXCHANGE VISITOR PROGRAM

1. The authority citation for part 62 continues to read as follows:

Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451 et seq.; Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. 105-277, Div. G, 112 Stat. 2681 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT ACT), Pub. L. 107-56, Sec. 416, 115 Stat. 354; and the Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 107-173, 116 Stat. 543.

2. Revise Sec. 62.17 to read as follows:

Sec. 62.17 Fees and charges.

(a) Remittances. Fees prescribed within the framework of 31 U.S.C. 9701 must be submitted as directed by the Department and must be in the amount prescribed by law or regulation.

(b) Amounts of fees. The following fees are prescribed.

(1) For filing an application for program designation and/or redesignation (Form DS-3036)--$3,982.00.

(2) For filing an application for exchange visitor status changes (i.e., extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship authorization, and permission to issue)--$367.00.

Dated: January 22, 2013.
Robin J. Lerner,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of Educational and Cultural Affairs, Department of State.
[FR Doc. 2013-01555 Filed 1-29-13; 8:45 am]
BILLING CODE 4710-05-P

Immigrant Intent in Issuance of J Visas

Immigrant intent is definitely a consideration for issuance of J visas. As to whether or not you may have a problem is impossible to predict. If you can have a safety net of an H-1 (if needed), you would be better off.

Home Residency Requirement for Second Visa

If I remember correctly, 212(e), the HRR, does not apply till you actually use the visa.

J-1 Visa Waivers for Physicians to Work in Medically Underserved Areas

A J-1 exchange visa holder who received graduate medical education or training in the U.S. (a J-1 medical doctor) is generally ineligible to apply for a Green Card or nonimmigrant visa unless he or she resides in his or her home country for at least two years upon completion of the J-1 exchange visitor program.  This requirement of returning to home country (to be more precise, the country of last permanent residence at the time of obtaining the J-1 classification/visa) is referred to as “Home Residency Requirement,” (“HRR,”) and is also known as the 212(e) requirement, based upon the section of the law that contains it.<<dfn title="Immigration and Naturalization Service (now called USCIS) ">/p>

This two-year HRR can be waived through four methods [three for Foreign Medical Graduates (“FMG’s”)].  We are highlighting here the most commonly used waiver options used by FMG’s. 

The most commonly used waiver options rely upon an FMG’s undertaking to serve a certain amount of time in a designated medical facility or area.  Information on each state’s programs is below.

Here is general information about the J-1 Visa program:

http://www.immigration.com/visa/j-1j-2-visa

The applyying physician must begin the process with the U.S. Department of State and obtain a case number.  Here is the website for beginning the process and obtaining a case number:

https://j1visawaiverrecommendation.state.gov/

The applyying physician needs to have employment lined up to participate in the program and agree to begin employment at the health care facility within 90 days of receipt of the waiver, not the date his or her J-1 visa expires.  The employment offer needs to be for full-time employment in H-1B nonimmigrant status at a health care facility located in an area designated by U.S. Department of Health and Human Services (HHS) as a Health Professional Shortage Area (HPSA), Medically Underserved Area (MUA), or Medically Underserved Population (MUP). 

The U.S. Department of Health and Human Services maintains a database of openings in shortage areas:

http://bhpr.hrsa.gov/shortage/shortageareas/index.html

In additiion, there is another national database of available placements for this and similar programs, the 3RNet website, from which those interested should check “Search Only Health Professional Shortage Areas – HPSAs” in order to search rural areas that are eligible for the program:

https://www.3rnet.org/opportunities/

The applicant mmust obtain a “no objection” letter from his or her home country if the home government funded his or her exchange program.

The four most commonly used programs are as follows:

1)     The largest program is the Conrad-30 J-1 Waiver program.  Each state is entitled to 30 waivers per year.  Below are links to each state’s Conrad-30 program. 

 

2)     The U.S. Department of Health and Human Services (HHS) manages health the research and clinical care portion of the U.S. Exchange Visitor Program.  This program accepts applications for two types of waivers--research performed in an area of priority or significant interest to the agency, and

health care services needed in a Health Professional Shortage Area (HPSA) in the United States.  Here is more information about this program:

 

http://www.globalhealth.gov/global-programs-and-initiatives/exchange-visitor-program/index.html

 

3)&nbspp;    The Appalachian Regional Commission (ARC) is administered in the 13 states in the Appalachian region.  The ARC includes all of West Virginia and parts of 12 other states:  Alabama, Georgia, Kentucky, Maryland, Mississippi, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia.  The links below for each state provide information about that state’s program.  Here is general information:

http://www.arc.gov/j1visawaiver

4)   &nbbsp; The Delta Doctors program is administered in parts of eight states:  Alabama, Arkansas, Illinois, Kentucky, Louisiana, Mississippi, Missouri, and Tennessee.  Information about most of these state programs is in the links below.  Here is general information about the Delta Doctors program:

 

http://www.dra.gov/delta-doctors/default.aspx

 

Below is a link for each state, including individual state contact information.  In addition, the U.S. State Department maintains a list of state contacts.  Should the state website not be clear about the contact person for that state, you may wish to consult this list:

 

http://travel.state.gov/visa/temp/info/info_1292.html

STATE BY STATE SUMMARY OF J-1 Waiver Programs

Alabama

Alabama has two main J-1 Waiver programs, the Conrad State 30 program and the Appalachian Regional Commission.  Alabama also participates in the Delta Regional Authority’s Delta Doctors program.  Here is information on Alabama’s programs:

http://adph.org/ruralhealth/index.asp?id=882 

Alaska

Here is information on Alaska’s Conrad-30 program:

http://www.hss.state.ak.us/dhcs/Healthplanning/workforce/assets/akPandP.pdf

Arizona

>

The 2012 deadline for applications for Arizona’s Conrad-30 program was June 15, 2012.  Here is information for next year’s program:

http://azdhs.gov/hsd/visa_waiver.htm

Arkansas

>The deadline for Arkansas’s Conrad-30 program is September 15, 2012.  Here is information:

http://www.healthy.arkansas.gov/programsServices/hsLicensingRegulation/HealthFacilityServices/Pages/J-1WaiverProgram.aspxansas   

Arkansas also particippates in the Delta Doctors Program of the Delta Regional Authority:

http://www.dra.gov/delta-doctors/apply.aspx?print=true

California

The deadline for Conrad-30 applications to California is September 30, 2012.  Here is information:

http://www.dhcs.ca.gov/services/rural/Pages/J-1VisaWaiver.aspx

Colorado

CColorado accepts Conrad-30 applications until it has filled the 30 slots.  Here is information:

http://www.cdphe.state.co.us/pp/primarycare/img/j1.html

Connecticut

<<p>The Connecticut Conrad-30 deadline of April 1 is extended if all 30 slots have not been filled.  Here is information:

http://www.ct.gov/dph/cwp/view.asp?a=3121&q=453806

Delaware

DDelaware’s Conrad-30 June 30 deadline is extended if all 30 slots have not been filled.  Here is information:

http://dhss.delaware.gov/dhss/dph/hsm/j1visahome.html

Florida

Florrida’s Conrad-30 deadline for fiscal year 2013, which starts October 1, 2013, is November, 2012.  Here is information:

http://www.doh.state.fl.us/Workforce/recruit1/Waivers.html

Georgia

Georgiia’s administers two programs, the Conrad-30 and the Appalachian Regional Commission programs.  Both receive applications year-round.  Here is information:

http://dch.georgia.gov/00/article/0,2086,31446711_40949889_154114565,00.htm

Hawaii

Here is iinformation about Hawaii’s Conrad-30 program:

http://hawaii.gov/health/family-child-health/rural-health/j1visa.html

Idaho

Here is infoormation on Idaho’s Conrad-30 program:

http://www.healthandwelfare.idaho.gov/Health/RuralHealthandPrimaryCare/J1VisaWaiverNationalInterestWaiver/tabid/413/Default.aspx

Illinois

Here is infformation about the Illinois Conrad-30 program:

http://www.idph.state.il.us/about/rural_health/rural_home.htm

Indiana

The Indiana Conrad-30 program is closed for 2012.  Here is information for next year:

http://www.indianapca.org/programs/j1waiver.html

Iowa

Iowa receives CConrad-30 applications until the program is full.  Here is information:

http://www.idph.state.ia.us/hpcdp/primary_care.asp

Kansas

As of July, KKansas had several Conrad-30 slots still available.  Here is information:

http://www.kdheks.gov/olrh/j-1visa_waiver_overview.htm

Kentucky

Kentucky paarticipates in three programs—the Conrad-30, the Appalachian Regional Commission, and the Delta Regional Authority programs.  Here is information:

http://chfs.ky.gov/dph/info/dpqi/ky+j1+visa+waiver+program.htm

Louisiana

Louisiana reeceives Conrad-30 applications until all slots are full.  Here is information:

http://new.dhh.louisiana.gov/index.cfm/page/792

Maine

Here is informattion on Maine’s Conrad-30 program:

http://www.maine.gov/dhhs/mecdc/local-public-health/orhpc/j1.shtml

Maryland

Maryland has fiilled its Conrad-30 slots for 2012, but is compiling a waiting list.  Here is information:

http://fha.dhmh.maryland.gov/ohpp/SitePages/pco-j1visa.aspx

Massachusetts

Here is innformation on the Massachusetts program:

http://www.mass.gov/eohhs/provider/guidelines-resources/services-planning/workforce-development/workforce-help/j1/

Michigan

Michigan is sennding out Conrad-30 applications for next year:

http://www.mimom.org/mi_conrad_30.php

Minnesota

Here is informmation on Minnesota’s Conrad-30 program:

http://www.health.state.mn.us/divs/orhpc/workforce/j1/index.html

Mississippi

Mississippi haas a Conrad-30 program, an Appalachian Regional Commission program, and a Delta Regional
Authority program.  Here is information:

http://www.msdh.state.ms.us/msdhsite/_static/44,0,112,181.html

Missouri

Here is informatiion on Missouri’s Conrad-30 program:

http://health.mo.gov/living/families/primarycare/j1visa/index.php

Missouri is also a member of the Delta Regional Authoority, which administers the Delta Doctor program:

http://www.dra.gov/delta-doctors/

Montana

Here is information on Montana’s Conrad 30 program:

http://www.dphhs.mt.gov/publichealth/primarycare/

Nebraska

Here is information oon Nebraska’s Conrad 30 program:

http://dhhs.ne.gov/publichealth/Pages/hew_orh_j1.aspx

Nevada

Here is information on Nevvada’s Conrad 30 program:

http://health.nv.gov/PrimaryCare_Conrad_J-1.htm

New Hampshire

Here is information oon New Hampshire’s Conrad 30 program:

http://www.dhhs.nh.gov/dphs/bchs/rhpc/visa.htm

New Jersey

Here is information about New Jersey’s Conrad 30 program:

http://www.state.nj.us/health/fhs/j1/index.shtml

New Mexico

Here is information about Neew Mexico’s Conrad 30 program:

http://nmhealth.org/PHD/OPRH.shtml

New York

This year’s deadline for New Yorrk’s Conrad 30 program has passed.  2013 applications are now being accepted.  Here is information:

http://www.health.ny.gov/professionals/j-1_visa_waivers/

North Carolina

For information about North Caarolina’s Conrad 30 program, contact the N.C. Department of Health and Human Services.  Here is contact information:

http://www.ncdhhs.gov/orhcc/recruitment/medical.htm

North Dakota

Here is information about North Daakota’s Conrad 30 program:

http://www.ndhealth.gov/pco/

Ohio

Here is information on Ohio’s Conrad 30 proggram:

http://www.odh.ohio.gov/odhPrograms/chss/PCRH_Programs/recruitment/jvisa.aspx

Oklahoma

Here is Oklahoma’s Conrad 30 program contaact:

http://www.ok.gov/health/Community_Health/Community_Development_Service/Primary_Care_&_Rural_Health_Development/Oklahoma_Volunteer_Charitable_Healthcare_Provider_Program/index.html

Here is Oklahoma’s Conrad 30 application:

http://www.oumedicine.com/docs/college-of-medicine-workfiles/com-visa_waiver_request.pdf?sfvrsn=2

Oregon

Here is information about Oregon’s Conrad 30 proogram:

http://www.oregon.gov/OHA/OHPR/PCO/index.shtml#Physician_Visa_Waiver_Program

Pennsylvania

Here is information on Pennsylvania’s Conradd-30 program:

State 30 J-1 Visa Waiver Program Policy 8-1-11.pdf

Rhode Island

Here is information on Rhode Island’s Conrad-330 program:

http://www.health.ri.gov/programs/physicianvisawaiver/index.php

South Carolina

Here is information on South Carolina’s Conradd-30 program:

http://www.dhec.sc.gov/health/opc/j1.htm

South Dakota

Here is information on South Dakota’s Conrad-30 prrogram:

http://doh.sd.gov/RuralHealth/J1.aspx  

Tennessee

Here is information on Tennessee’s Conrad-330 program:

http://health.state.tn.us/rural/j1visa0.html

Texas

Texas does not have any Conrad-30 slots available this year, but is accepting applications for 2013.  Here is information:

http://www.dshs.state.tx.us/chpr/j1info.shtm

Utah

Here is information on Utah’s Conrad-30 program:

http://health.utah.gov/primarycare/employment.html

Vermont

Here is information on Vermont’s Conrad-30 program:

http://healthvermont.gov/rural/programs.aspx

Virginia

Virginia’s slots in this year’s Conrad-30 program are full, annd will begin accepting applications for next year on October 1.  Here is information:

http://www.vdh.state.va.us/healthpolicy/primarycare/incentives/j1visa/index.htm

Washington

The State of Washington may still have slots available for this year’s Conrad-30 program.  Here is information:

http://www.doh.wa.gov/PublicHealthandHealthcareProviders/RuralHealth/HealthProfessionalSupportPrograms/J1VisaWaiverProgram.aspx

West Virginia

West Virginia participates in the Conrad-30 and Appalachian Reggional Commission programs.  Here is information:

http://www.wvochs.org/dr/j-1.aspx

Wisconsin

Here is information on Wisconsin’s Conrad-30 program:

http://www.dhs.wisconsin.gov/health/PrimaryCare/J_1Visa/index.htm

Wyoming

Here is information on Wyoming’s Conrad-30 program:

http://www.health.wyo.gov/rfhd/rural/Primary_Care_Office.html

Visa denial based upon immigrant intent, Section 214(b) of Immigration and Nationality Act

 

Substantial transcription:
7th July 2012 at 05:16 PM
9.59 Minutes

What do we do when our visa gets denied under section 214(b) of the Immigration and Nationality Act?   Basically, this means that if the consulate doesn’t believe you are going to come back, they deny the visa, saying that you have an immigrant intent which you have not been able to rebut.   So the idea is whenever somebody goes for a visa stamping, they actually are presumed to have immigrant intent unless they prove otherwise.   Of all the visas A, B, C, D, E, F, G, H all the way to V, some visas are immune to this problem.

What are the visas that are immune?

H-1 as well as H-4, L-1 as well as L-2, and O-1 and O-1 derivative visas are immune by law almost.  H and L are clearly immune by law and O by implication.  With these visas, if you have a green card going, the consulate is not going to deny your visa for that reason.

On the other hand, there are notorious visas that are very susceptible to this problem:

B-1, B-2, F-1 as well as F-2 (which are for students), and J-1 as well as J-2 are susceptible.  A lot of physicians on J-1’s have had a visa denial on 214(b).

TN visa holders strictly not going for visa stamping but can be stopped at the border if their green card has been filed.  So bear in mind that when TN holders apply for a green card, they should be careful about this particular factor.

The biggest problem with 214(b) is it is extremely difficult to fight it.  I have recently taken a case in which an F visa was denied on 214(b), and I think we have a fighting chance because the visa applicant has come to the U.S. many times and she has left within her time permitted.  So she’s been a frequent traveler on a B visa.  Her F visa denial is extremely unjustified, in my opinion.

Let me just very quickly go through the visa alphabets.

A visa (diplomats) will have no problem.  They have no issues of a green card being denied.

B visa will have a problem.

C, D, and E visas will usually not have a problem.

The only thing you have to establish for E-3, especially for Australians (E-3 is kind of equivalent of H-1), is that you do have an intention to come back but not to the same degree.   In other words, if you have a home in Australia, the degree of proof is not very high so it is very easy to meet that degree of proof.

G visa is ok.

H visa is ok.

By the way, H-2B visas can have a major problem with immigrant intent.  These are people who are coming to U.S. for to perform skilled labor.

I, which is international journalists/media representatives, may or may not be ok.

J visa will definitely be a problem.

K -1 and K-3 are no problem because they are fiancés or spouses of U.S. citizens and are obviously meant to go into green card.

L visa is no problem.

M, which is folks who are doing vocational training, can have this problem.

P visa (performers, athletes, etc.) can have a problem but usually won’t.

Q visa (exchange visitors) can have a problem.

R visa usually won’t.

 S, T, and U visas won’t usually have a problem because they are done within the USA and are usually either victims of crime or people who are assisting in criminal investigations.

So what do you do if you get a 214(b) denial?
Normally there isn’t much we can do but, if you have been to USA before or else there is something unique in your case, we can ask the consulate to reconsider and if they are not willing and able, then we can ask the visa office in Washington, D.C. to intervene.  You can also contact your family or employer in the U.S. to contact the local Congressmen to seek their intervention.  This typically is not helpful but you can try.  If anybody from the bar or a lawyer tells you he or she can fix it, be mindful because they may not be able to.  Especially be careful when you talk with lawyers in your own country.  This makes me very nervous because we have had some cases where local lawyers in other countries did some strange stuff.  They had some hook ups with consulates and ultimately got caught.

The biggest problem is with fraud or misrepresentation.  If you make a misrepresentation in attempting to get any immigration benefit, you can be barred from entering USA forever.

Going back to 214(b) denials, you can ask the consulate to reconsider.  Reapply if you have a case that begs for a special consideration, like you’ve been to the U.S. many times.  For example, one of my friends asked me that, if his girlfriend is refused a B visa, is it okay to bring the lady in on a K-1 (fiancé visa)?  My take is do not use the fiancé visa in lieu of B-1 or B-2 visa, because if you do not have the intention to get married, the government can consider it to be fraud.  So make sure you want to get married within 90 days after they enter the U.S.

One more point -- there is a legal fiction created in U.S. immigration law about ties to your home country that says you can overcome 214(b) denial if you have ties to your home country.  That in my mind is a legal fiction.  To demonstrate ties is very difficult.  Of course, if you have family in your home country, that’s a good example of ties but to say you have property, but property can be sold, so I don’t think that’s really ties.  Having business is also not really a tie as a business can be sold.  Hence demonstrating ties to your home country is usually a difficult thing to do.

This issue has come up several times recently.  Feel free to ask me specific questions on the website, in a forum, or on a community conference call.

Can You Do Business in USA on your current Visa?

Can You Do Business In the USA on Your Current Visa?

Hello, everyone.  This is Rajiv S. Khanna for the Law Offices of Rajiv S. Khanna, P.C, immigration.com

You can post comments and questions on immigration.com.  I usually respond within three or four days, sometimes a week.  I’m going to answer one of the questions someone asked us on immigration.com. 

Can I start a business on an H-1 visa?

The bottom line is yes, as long as you are in a situation where, even though you are working for your own company, somebody in the company can file.  It must be a true employer/employee relationship.  How does that work?  What if you have a board of directors or if you have a CEO to whom you report, even though you are a stockholder or maybe even you even have majority of stock in the company, but somebody in the company can file, you’re okay.  USCIS has indicated that is their present stance.  You must have an employer/employee relationship if you want to be able to start your own business on H-1.

In addition to that, remember H-1 is for a specific employer.  So if you want to have a concurrent employment with your own company or you want to change companies and go over full time to your own company, you can do that, but you have to process a H-1, either a concurrent H-1 or a successive H-1.  One of the things you need to remember is, if you own majority stock in the company, or if you have influence over the management of the company, it will be very difficult if not impossible for you to do a Green Card through PERM through your own company.

Where does that leave us?  There’s a whole history behind this H-1.  I won’t go through the history.  USCIS has gone up and down.  “You can do it.”  “You cannot do it.”  There is a whole history behind this.  But the bottom line today is, you can do it, but it definitely requires some in-depth consulting with a lawyer.  Make sure you are not getting into a situation which is going to hurt your stance.

Here is another question I get asked. 

I have an EAD through 485.  Can I now start my business?

Sure.  On the side, you can, as long as you don’t leave your current job.  But, remember, you will then no longer be on H-1.  You will be on EAD if you start working for your own company.

I actually have a whole list of visas.

Can I do business on E-2?

Yes, of course.  E-2 visas, which are treaty investor visas, are meant to do business.  E-1, treaty trader, the same thing.  But only a few countries in the world have a treaty with the United States to do E-1/E-2 visas, so you have to make sure that the country you come from has that.

If I’m here on a tourist visa or a B-1, which is called a business visa, can I do business?

The answer is, you can negotiate contracts, you can shake hands, and you can even set up a company, but, if you actively participate in business, you are violating the terms of B visa.  B-1, which is the business visa, is a misnomer.  You start thinking, I have business visa; maybe I can start a business.  But you can’t do it on B-1.

Can I start a business on F-1 visa?

Of course not.  You are a student.

What if I am on my optional practical training and I have my F-1 EAD? 

Maybe, but only for the time you have the EAD.  Again, that is something to be explored.  Don’t just jump into it.  Make sure you understand the ramifications of what you’re doing.

What about on a G visa?

On G-4, of course, the primary applicant of G-4 is engaged in working for a multinational organization such as the World Bank or the IMF.  They cannot do business, but what about their dependents?  I haven’t looked into it specifically.  I suspect that they can, because they do get an EAD and that EAD is not confined to a specific purpose, but I would have to check on that.  I’m just speaking off the top of my head.  I was primarily answering the H-1 question, but I want to share with you what I know.  So, G-4, probably yes. 

H-4?  Absolutely not. 

H-1?  As long as you can be fired. 

I visa?  No. 

J-2 visa?  Yes, as long as you have an EAD.  

K visa?  K visas are all work authorized, so, yes, you can do business. 

L-1?  No, because you’re working for a company.   

L-2?  Yes, because you get an EAD. 

M Visa?  No.

I went through the whole gamut, just to give you a rough idea; more so, to sensitize you to who can and who cannot do business.

Thank you for listening.

WRD (Waiver Review Division) and Waiver Application Issues

Certain exchange visitors<</a> (J-1) are subject to a two-year home-country physical presence requirement which requires you to return to your home country for at least two years at the end of your exchange visitor program. This is also known as the foreign residence requirement under U.S. law, Immigration and Nationality Act, section 212(e). If you are unable to return to your home country to fulfill the two-year requirement, you must obtain a waiver approved by the Department of Homeland Security prior to changing status in the U.S. or being issued a visa in certain categories for travel to the U.S.    

 

Below are some issues and updates with regards to WRD and waiver applications.  

 

WRD and waiver application issues

 

An email has to be sent to WRD via FMJvisas [at] state [dot] gov with a request to withdraw the pending case. The applicants case file and withdrawal requests will be updated by WRD on its online status checking system which is available on http://travel.state.gov<</a>.

On the other hand a successful withdrawal of a J-1 waiver application is posted on the WRD’s online status checking system which again is available on http://travel.state.gov. Request for Application Withdrawn, the date of the request, the type of waiver(Conrad, Hardship, IGA etc) request, the waiver case file number and the Department of State Decision: Withdrawn Per Request are posted by the system.

As for WRD coordinating waiver withdrawal with USCIS WRD makes a recommendation in a 212(e) waiver case and forwards its recommendation to DHS/USCIS. However further action on the case falls under the jurisdiction of USCIS. The applicant or attorney should contact USCIS and request that the waiver be withdrawn if WRD has recommended the waiver to USCIS. If a waiver application has been successfully withdrawn and WRD is notified by USCIS then the withdrawal information is entered in the database system by WRD. This information is available to the applicant or attorney on the website.

 

WRD’s procedure for restoring the Conrad number

 

If the state has not surpassed its allotted 30 Conrad waivers for the fiscal year a state Department of Health that requests withdrawal of a pending Conrad waiver application, and restoration of the Conrad number may reuse the number. A successful withdrawal can be checked online.

 

Applying for another J-1 waiver application

 

Applicants can apply for another waiver application in the future if the waiver has been applied and then withdrawn. However if WRD has recommended the waiver and forwarded its recommendation to USCIS then the applicant should contact USCIS regarding the withdrawal.

Regardless how many times the applicant applied for a waiver or an advisory opinion the exchange visitor should use the same case file.

 

Previously granted waiver and applying for new waiver

 

Exchange visitors who participated in a new program that re-subjected the applicant to the INA 212(e) requirement may apply for a waiver again. But the visitor should have a previously granted waiver. The WRD adjudicates the first application that is complete and ready for adjudication if the exchange visitor submits multiple waiver applications. Waiver processing fee is non-refundable and for more details on fee one can visit the DOS website.
 

Twoyear home residence requirement

 

The waiver will cover the J-2 derivative if the J-1 exchange visitor receives a waiver of the two-year home residence requirement. But a separate waiver is required to cover the J program in cases where J-2 changes status to principal J-1 exchange visitor and is subject independently to 212(e) based on the applicants J‐1 exchange program activity.
 

Information sent to USCIS when WRD favorably recommends a J1 waiver application

The WRD sends the waiver recommendation letter, DS‐3035 and G‐28 information to USCIS for no objection statements, interested government agency and state department of health applications.
Forms I‐612 and I‐613 are also sent for exceptional hardship and persecution cases.

The intent and purpose of the Mutual Educational and Cultural Exchange Act

The aim of the Mutual Educational and Cultural Exchange Act is to exchange ideas and persons and to bring about an understanding among people of different cultures. Exchange visitors are allowed to practice a program objective and upon completion of their goal are required to return to their home country with the acquired knowledge and skills.

No Objection Statement

Your home country government may issue a No Objection Statement through its embassy in Washington, DC directly to the Waiver Review Division that it has no objection to you not returning to your home country to satisfy the two-year home-country physical presence requirement and no objection to the possibility of you becoming a lawful permanent resident of the U.S. The No Objection Statement may also be issued by a designated ministry in your home country’s government and sent to the U.S. Chief of Mission, Consular Section at the U.S. Embassy within that country. The U.S. Embassy would then forward it directly to the Waiver Review Division.

Important Notice: U.S. law does not permit foreign medical physicians who acquired exchange visitor (J-1) visa status on or after January 10, 1977, for the purpose of receiving graduate medical education or training to use this option. For more information about the relevant U.S. law, see References – U.S. Laws, number 1.

For more information on Waiver issues please visit these links below

http://travel.state.gov/visa/temp/info/info_1296.html

Eligibility Information - Waiver of the Exchange Visitor Two-Year...

https://j1visawaiverrecommendation.state.gov/

 

Canadian with J-2 visa

You can switch back to TN from J-2. What you do has no effect on the children. They derive their status directly from your J-1 spouse.

J-1 extension beyond 5 years

Extension is possible only if the program rules permit it. The worst case scenario in extension or new 2019 as I see it can be only that you have to go get a new via stamp.

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