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AILA Doc No. 06060869 | Dated June 5, 2006
American Immigration Lawyers Association
918 F Street, N.W
Washington, D.C. 20004
June 5, 2006
Via email: email@example.comUnited States Department of State
Re: Proposed rule on trainees - RIN: 1400-AC15
Comments to Proposed Rule "Exchange Visitor Program - Training and Internship Programs," comments due by June 6, 2006
Dear Sir or Madam:
The American Immigration Lawyers Association (AILA) is a bar association of nearly 10,000 immigration lawyers across the country and is the leading training and information-sharing organization in immigration law in the country. Among other areas of activity, our members represent individual young people seeking J-1 training opportunities in the United States as well as US organizations seeking to or willing to act as host companies to provide such training. AILA submits the following comments on the proposed rule published in the Federal Register on April 7, 2006 concerning trainee and intern exchanges.
AILA strongly supports policies that foster the expansion of international cooperation and the Department's commitment to public diplomacy. In this regard, AILA recognizes that the Department's trainee and internship proposal attempts to both reflect the United States' long standing commitment to mutual cooperation and international exchange which underlies exchange visitor programs, while also limiting the use of the exchange visitor trainee category to participants legitimately coming to the United States for training, not basic employment for hire. We hope that the Department can make some amendments to its proposal because the re-regulation of the training and internship regulations as published in the Federal Register will not foster private sector, person to person opportunities for establishing mutual understanding and respect between different cultures.
We support the Department's ongoing efforts to continue to retool the J-1 exchange visitor category to ensure that the over 200,000 J participants entering the US annually are vetted properly and are entering for the purposes the Fulbright-Hays Act envisioned. However, much of your training and internship proposal does nothing to improve compliance with Fulbright-Hays principles while simultaneously making it impossible for designated sponsors to continue to conduct private exchanges. We hope you will be willing to revise the parameters of the new intern category and the re-regulation of the training category taking into consideration the comments below.
We believe that the proposed regulation will cause more problems than it solves for the following four fundamental reasons:
Current sponsored trainees are not all covered in the new proposal. Our members report that their company clients that either have their own designated J-1 training program or use one of the umbrella training sponsors commonly sponsor young professionals as J-1 trainees who: (i) are currently enrolled students abroad, coming to the US to engage in curricular practical training and/or cooperative education stages in their degree program, (ii) have completed a degree but not in the last 12 months and possess limited professional employment since graduation and/or (iii) have not completed a degree but possess just two years of employment related to the training opportunity in the US, none of whom can be sponsored under the newly described J-1 intern or trainee classifications.
The distinction between "intern" and "trainee" in the proposed regulatory text is hard to follow. The dichotomy between "intern" and "trainee" is not adequately or consistently explained in the text of the proposed rule. The intern category should be for individuals who either just finished a degree, perhaps within the last six months, or are currently working toward a degree, and should allow for entry-level, "first job", temporary employment in the United States, which would allow cultural exchange and exposure to American business practices. The trainee category should be for individuals receiving career development training in any field, that includes young people with at least two years of either training or experience directly related to the training activities. The two categories should be regulated separately with different pre-requisites and expectations.
The proposal establishes new steps that are extraordinarily costly for sponsors without explaining the benefit to program integrity of taking such steps. The proposal requires that program sponsors interview every potential training or internship participant in-person in the participant's home country, and also requires that program sponsors visit each and every training site in the US, unnecessarily driving up program costs for in-house designated training sponsors and likely reducing if not eliminating the viability of umbrella programs. Unless the Department's intent is to (i) eliminate umbrella programs and (ii) make each in-house designated program so unwieldy as to discourage its use, which is not a stated purpose in the published preamble, AILA remains unclear as to why these additional sponsor responsibilities should be in the final rule as they achieve no apparent benefits for program integrity and have a negative impact on most if not all designated J-1 training sponsors. Our members are very concerned that both their company clients that act as host companies and their individual clients who use the J-1 training category will be unable to do so in the future, under the proposed rule.
The proposal inordinately impacts small businesses, and alternatives to reach the Department's goals do not appear to have been evaluated. Small businesses are impacted by the Department's proposed changes because of the very costly mandates to conduct site visits and in-person, home country interviews.
Most, if not all, training programs that act as umbrella sponsors are small businesses as are each of the flight schools that operate training programs. There are certainly some large private corporations that have obtained designation to run their own in-house training program, and they are impacted as well. For all designated program sponsors, regardless of whether an in-house training or an umbrella program, the new requirement for in-person, home country interviews will require the sponsor to limit its trainee pool to countries where the sponsor can easily establish a reliable contractual relationship with an agent or can easily and economically arrange annual travel. Conducting in-person, home country interviews will likely mean that sponsors will limit themselves to countries where they can attract a high volume of trainees to warrant the agent relationship or sponsor travel, thus limiting the global reach of the J-1 intern and trainee program. This is an undesirable dynamic in exchange visitor programming. Moreover, the cost of such a requirement would appear to be an additional several hundred dollars for each trainee. Adding hundreds of thousands of cost for each private training program could very easily put many of these organizations out of business, and is certainly a "major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation" which should trigger review under the Small Business Regulatory Enforcement Fairness Act.
With respect to the new site visit requirement, any of the umbrella programs will find this difficult if not impossible to pursue as, by definition, they are in the business of acting as an 'umbrella' for hundreds if not thousands of separate host companies each year. AILA has not been able to reliably estimate how many of the approximately 27,000 trainees annually are sponsored by umbrella programs, but we have heard from our members who use any number of these programs on behalf of both host company clients and individual trainee clients. The cost of hiring sufficient staff and establishing a travel budget that would allow program sponsor staff to travel to each and every host company site would add several hundred dollars per trainee in costs, in excess of the costs for in-person, home country interviews. It seems likely the additional costs per trainee for site visits will be in the $500 to $750 range, which is quite significant and certainly a "major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation," triggering review under the Small Business Regulatory Enforcement Fairness Act.
Many of the host companies for J-1 trainees are themselves small businesses, and should the Department's proposals be implemented as drafted the J-1 trainee and intern category will decline in availability thus depriving these small businesses of the ability to participate in our country's public diplomacy efforts.
The Regulatory Flexibility Act requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis, describing the anticipated impact on small entities of the proposed rule. Nothing in the proposed rule publication suggests that the State Department has conducted this analysis. Nevertheless, the Department concluded that the economic impact of the rule would not be significant.
Without a full analysis of the impact to small businesses, we don't see how alternatives and refinements to the proposed rule will be encouraged.
Because of these four general concerns, we see the J-1 trainee and intern category as becoming greatly unused, or at least drastically reduced. We know of no reason that the US government should take steps to deprive the country of an extremely valuable public diplomacy effort which costs virtually nothing in public funds, and hope that you will either start over with a new proposed rule, or dramatically revise the proposed rule.
Below are our specific comments on specific aspects of the rule:
§62.2 Definition of Intern Excludes Enrolled Students.
For reasons that are not explained in the preamble, the Department has completely abandoned the formula it has been touting to the exchange community for several years for the new intern category. Previously, the Department has explained that the new intern category would recognize that exchanges for enrolled students pose virtually no compliance problems and should be encouraged. The proposed rule completely bars currently enrolled undergraduate and graduate students from coming to the United States for internships. Our members inform us that a large percentage, ranging from one-third to one-half of the total current J-1 trainee population, are students outside the United States coming for mostly six and twelve month, but sometimes eighteen month, training programs, and then returning abroad to complete their degree. Some such students, under the current regulations, are students enrolled in other degree granting post-secondary programs, that do not lead to diplomas equivalent to a US Bachelors or Masters, but are instead Associates degree or other technical or vocational degree programs in very specific areas of endeavor. It is increasingly common that American students also complete cooperative education (on the job internships) as part of university degree programs, but this has long been a very common requirement in foreign universities, especially in Europe. We know of no policy reason that would suggest or support eliminating these students as qualifying J-1 trainee/intern participants, and you have not articulated any such reason.
We ask that you withdraw your proposal that defines "interns" as those who have completed a degree and explicitly allow "interns" to include individuals who are currently enrolled in a degree granting program.
§62.22(d) Selection Criteria Requires 550 TOEFL Score.
The proposed rulemaking requires a 550 TOEFL score for participation in a training or internship program. A 550 score is typically mandated by universities for graduate students, and seems an excessive requirement for trainees and interns.
What is needed to conduct a successful program is communicative competence. The current regulatory language requires sponsors to ensure that "the exchange visitor possesses sufficient proficiency in the English language to participate in his or her program". While there may have been ongoing issues with English competency in the past, since the Department eliminated Personal Appearance Waivers for visa applications in June 2004, all J-1 visa applicants must appear in person for a visa application interview, which is conducted in English, during which Consuls are very aware of the English requirements. The GAO and IG reports which questioned English competency both occurred well before the all-interview visa environment, and it is not clear whether the English competency anecdotes in these reports actually identify a problem or trend, or small, isolated occurrences. Allowing J-1 participants to mistakenly enter the country without English competency is really not an issue currently because in an all-interview visa environment, the interview constitutes an adequate and highly effective check.
Importantly, the TOEFL creates a true burden in program administration and for many participants. The test is only administered in certain countries. Neither the paper nor internet based tests are offered in all areas of the world or at all times of the year. There is also a $140 testing cost, plus the cost to travel to the test center and overnight accommodations for those that do not live in the metropolitan areas where the test is offered.
Moreover, the English competency is already being handled by host companies. By the time a J-1 trainee application is received for screening, the host site has already identified and communicated with the potential intern or trainee. The actual training supervisor at the host site is the best person to determine if the candidate's English language ability is sufficient for the training to be accomplished.
To require TOEFL creates an unnecessary costs and unnecessarily restricts program participation, without any benefit whatsoever to ensure regulatory compliance for the English competency requirement.
We ask that you withdraw your proposal that requires TOEFL.
§62.22(f)(2) Obligation of Sponsor to Conduct In-Person Interview in Home Country
The proposed rule requires in-person interviews of all participants in their home country. At present, in-person interviews for participants are required only in the camp counselor and summer work travel categories, and while they are completely understandable given the nature of those programs, an interview for all training and intern participants appears excessive and will significantly drive up program costs. The Department does not require in-person, in-country interviews for researchers, teachers, foreign medical graduates, or others, and we see no reason in the 21st century that this would be the only or preferred way to "know your customer" except when dealing with the youngest and most vulnerable exchange visitors for whom a special duty exists. Though practices vary among sponsors, prospective trainees typically fill out detailed applications, provide evidence of academic and professional credentials, and have telephone interviews with sponsors and potential training host companies. All candidates have a mandatory visa interview at the U.S. embassy.
This proposed requirement forces sponsors to eliminate from consideration participants from smaller countries and economies where maintaining an office or the cost of travel is not economically viable. Ironically, many of these countries will be those from which opportunities for international exchange is most needed - the Middle East, Africa, the former Soviet Union, etc.
The Department's proposal encourages sponsors to contract with overseas "recruiters." It erroneously presumes that the American value of a written contract is shared by cultures world-wide. This requirement for an in-country interview has led to higher costs for participants and delegation of control to overseas agents in other categories. Why would anyone want to expand this problem unless they were an overseas recruitment agency? The existing industry practices, coupled with the required visa interview, already provide sufficient scrutiny. A required in-person interview by the designated training sponsor will add costs and usually require that the sponsor rely on a third party for interviews. These costs will ultimately be borne by participants, which will greatly reduce the scope of possible trainee or intern participants, or by program sponsors, which will ultimately reduce the number of viable sponsors.
We ask that you withdraw your proposal that requires in-person, in-country interviews of each participant.
§62.22(g)(1) Obligation of Sponsor to Conduct Site Visits at all Host Companies
The proposed rule's imposition of required inspection visits by sponsors to every training site is impractical, and again, will add very significant costs. Mandatory site visits are also unnecessary. Many large companies value the training program and have used it for years. The likelihood of encountering compliance problems at such a major firm or institution would hardly justify the cost of undertaking such a visit. The cost of visiting every training site would be very substantial, and likely would make the program cost-prohibitive both for participants and for sponsors. We believe that sponsors should be required to have a vetting process for training host organizations, and that such a process should include internet vetting, periodic program evaluations, and telephone contact with training hosts. The introduction of the DS-7002 form will ensure that all training hosts read and approved the training plan, and will further encourage an appreciation of the program's overall goals and requirements. We believe that visits to employers hosting large numbers of trainees at a single site are appropriate. At present, in-person interviews at the site of activity is required only in the au pair and high school categories, and while they are completely understandable given the nature of those programs, a site visit for all training and intern sites appears excessive and will significantly drive up program costs.
This proposed regulation erroneously assumes that on-site visits prior to the arrival of the trainee or intern will be able to determine the intent of the third party to provide training. It erroneously assumes that on-site visits are the only way, or even the best way, to ensure third parties are capable of providing training. While visiting an annual sampling of host sites should be central to program administration during the exchange experience, and could be documented as part of an annual audit, visiting all host sites prior to the commencement of the experience will eliminate, due to cost considerations, the more valuable visit during the experience. Program sponsors should be required to visit some, but not all, sites of activity and should be required to do so during the training period. The proposed regulation does not reflect good risk management or auditing standards. Good auditing standards would use a sample of host site visits to measure compliance with training obligations. The sample size would change depending on the volume of training or internship programs active under a given sponsor. If a general percentage of visits needs to be included in the regulations, our auditors have advised us that an 8% review pool would meet risk management standards. Visiting 8% of all third party sites every year would usually produce a large enough sample to reflect activity trends across all sites.
The language of this provision seems to indicate the need to visit third party overseas recruiting organizations as well. This further limits the geographic regions of the world from participants may originate due to the additional excessive costs involved. We ask that you eliminate the requirement for site visits, substituting a requirement for careful vetting and oversight as described above. Visits should be mandatory only for sites with 20 or more trainees.
§62.22(k), (o) Duration of Programs and No Extensions
The proposed rule prohibits any extensions of program once the DS-2019 form has been issued. This restriction runs counter to decades of practice, and appears to the exchange community to be overly restrictive. Sponsors commonly receive extension requests. The most typical case would be a trainee who comes to the U.S. for 12 months, experiences very valuable training, and determines that an additional six months would allow him or her to reach significantly higher levels of proficiency. We see no policy rationale for eliminating this practice.
We are unclear as to why flight training programs are being reduced to M-1 18 month standards, since it is our understanding that individuals who come for M-1 flight training and J-1 flight training come to the U.S. for very different purposes and that full flight training requires 24 months. Since the United States is the leading pilot training location for European commercial pilots, as well as private and commercial pilots worldwide, it would seem that the Department should justify this dramatic shortening of available program duration, which will eliminate the viability of J-1 flight schools altogether (since full pilot training requires 24 not 18 months). The Department has proposed that agriculture, hospitality and tourism programs be limited to 12 months based on its assertion that these categories are problematic but has provided no data or details to support its conclusions. We know of no GAO or IG report that makes a finding about widespread abuse in these fields. While a small number of individual problem cases have been identified, our understanding from our members is that there is not widespread abuse in agriculture, hospitality or tourism programs.
We ask that the final rule establish that the Responsible Officer be fully authorized to issue extensions, up to the maximum allowed for the trainee or intern. Extensions should require a revised DS-7002 form, signed by the trainee, the training host, and the sponsor, that specifies a revised training plan to cover the period of the extension. We strongly oppose the imposition of significant restrictions on such major sectors as flight training, agriculture, hospitality and tourism without a factual, data-driven basis for doing so.
§62.22(n) Ban on Repeat Participation
The Department proposes a ban on repeat participation but the proposed text is not understandable. How can an intern participate more than once as an intern unless they acquire a second degree? If the intent of this provision is to establish a two year gap between participation in an internship program and participation in a training program, this language does not establish that intent.
We propose that the intern category be available for currently enrolled students. An individual should be able to participate once as an intern and once as a trainee, since these should be conceived as different types of activities in the U.S. at different junctures in one's career development.
We thank the Department of State for the opportunity to be heard on these important issues and again reiterate our support for the Department's efforts to increase training program integrity. We hope that important revisions to the proposed rule can be made, in accordance with our above comments.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION
Cite as AILA Doc. No. 06060869.