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SUBSCRIBE The leading Copyright |
[Federal Register: December 11, 2002 (Volume 67, Number 238)]
[Rules and Regulations]
[Page 76255-76280]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de02-10]
[[Page 76255]]
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Part III
Department of Justice
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Immigration and Naturalization Service
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8 CFR Parts 103, 214, 248 and 274a
Retention and Reporting of Information for F, J, and M Nonimmigrants;
Student and Exchange Visitor Information System (SEVIS); Final Rule
[[Page 76256]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 214, 248 and 274a
[INS No. 2185-02]
RIN 1115-AF55
Retention and Reporting of Information for F, J, and M
Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations governing the retention and reporting of
information regarding F, J, and M nonimmigrants (foreign nationals
having a residence in a foreign country which they have no intention of
abandoning, and who are seeking temporary admission to the United
States). This rule also implements the Student and Exchange Visitor
Information System (SEVIS), establishes a process for electronic
reporting by designated school officials (DSO) of information required
to be reported to the Service, and provides clear standards governing
the maintenance, extension and reinstatement of student status. This
rule is necessary to improve and streamline the reporting and
recordkeeping of F, J, and M nonimmigrants.
DATES: This final rule is effective January 1, 2003.
FOR FURTHER INFORMATION CONTACT: Maura Deadrick, Assistant Director,
Adjudications Division, Immigration and Naturalization Service, 425 I
Street NW., Room 3040, Washington, DC 20536, telephone (202) 514-3228.
SUPPLEMENTARY INFORMATION:
Background
Who Are F, J, and M Nonimmigrants?
The Immigration and Nationality Act (Act) provides for the
admission of various classes of nonimmigrants, including F, J, and M
nonimmigrants, who are foreign nationals having a residence in a
foreign country which they have no intention of abandoning, and who are
seeking temporary admission to the United States. The purpose of the
nonimmigrant's intended stay in the United States determines his or her
proper nonimmigrant classification.
F-1 nonimmigrants, as defined in section 101(a)(15)(F) of the Act,
are foreign students pursuing a full course of study in Service-
approved colleges, universities, seminaries, conservatories, academic
high schools, private elementary schools, other academic institutions,
and in language training programs in the United States. For the
purposes of this rule, the term ``school'' refers to all of these types
of Service-approved institutions. An F-2 nonimmigrant is a foreign
national who is the spouse or qualifying child of an F-1 nonimmigrant.
J-1 nonimmigrants, as defined in section 101(a)(15)(J) of the Act, are
foreign nationals who have been selected by a sponsor designated by the
United States Department of State (formerly the United States
Information Agency (USIA) to participate in an exchange visitor program
in the United States. The J-1 classification includes aliens who are
participating in programs under which they will receive graduate
medical education or training. A J-2 nonimmigrant is a foreign national
who is the spouse or qualifying child of a J-1 exchange visitor.
M-1 nonimmigrants, as defined in section 101(a)(15)(M) of the Act,
are foreign nationals pursuing a full course of study at a Service-
approved vocational or other recognized nonacademic institution (other
than in language training programs) in the United States. The term
``school'' also encompasses those institutions attended by M-1 students
for the purposes of this final rule. An M-2 nonimmigrant is a foreign
national who is the spouse or qualifying child of an M-1 student.
Congress recently amended the Act to create new F-3 and M-3
nonimmigrant classifications for certain aliens who are citizens of
Canada or Mexico who continue to reside in their home country while
commuting to the United States to attend an approved F or M school.
Public Law 107-274 (Nov. 2, 2002). Such border commuter students are
not subject to the existing requirement for F-1 and M-1 students to be
pursuing a full course of study, and are specifically permitted to
engage in either full-time or part-time studies. However, F-3 and M-3
border commuter students will not be eligible to obtain F-2 or M-2
status for their dependents. The Service recently adopted regulations
relating to border commuter students, 67 FR 54941 (August 27, 2002)
(codified at 8 CFR 214.2(f)(18) and (m)(19)), and will be amending
those regulations in the future to make the necessary conforming
amendments in response to the recent legislation. In this rule, the
Service merely notes that, except for a reduction in course load, the
new F-3 and M-3 students will be subject to the same reporting
requirements and SEVIS processes as for F-1 and M-1 students.
The Service wishes to clarify that compliance with SEVIS reporting
requirements does not exempt F, M or J nonimmigrants from requirements
or restrictions associated with other applicable statutes and
regulations. Nonimmigrant students or exchange visitors subject to such
regulations or statutes may be required to seek government approval,
and may be denied such approval, for initial enrollment in a program
and for actions that a school or program official may otherwise
authorize for a nonimmigrant in SEVIS, such as transfers, extensions
and changes to course of study. For example, among the kinds of schools
approved for attendance by M nonimmigrants are flight training schools.
The Service notes that section 113 of the Aviation and Transportation
Security Act, Public Law 107-71 (Nov. 19, 2001), imposes new
restrictions on providing flight training to aliens and requires prior
notification to the Attorney General before such training can begin.
The requirements of that law are separate from, and in addition to, the
law and regulations governing F, M and J nonimmigrants. The Department
of Justice has already published public notices and regulations
pertaining to section 113 at 67 FR 2238 (Jan. 16, 2002), 67 FR 6051
(Feb. 8, 2002), 67 FR 41140 (June 14, 2002), and 67 FR 41147 (June 14,
2002). As another example, Title II of the Public Health Security and
Bioterrorism Preparedness and Response Act, Public Law 107-188 (June
12, 2002), imposes restrictions on access to dangerous select bio-
agents and toxins.
Response to Public Comments on the Proposed Rule
On May 16, 2002, the Service published a proposed rule in the
Federal Register at 64 FR 34862, to implement the electronic collection
and reporting process mandated under section 641 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Public Law 104-208, 8 U.S.C. 1372. Specifically, the regulation sought
to improve the collection of information on nonimmigrant students by
establishing real time updates of student information. The proposed
rule also amended the current regulations to establish additional
reporting requirements based upon the USA PATRIOT Act (Public Law 107-
56) and section 501 of the Enhanced Border Security Act (Public Law
107-173). Comments were due to the Service on or before June 17, 2002.
[[Page 76257]]
The following discussion will address only those provisions about
which comments were received. Many commenters addressed identical
issues in their comments, and as a result, the number of comments
exceeds the number of issues discussed. In general, commenters
expressed their overall support for SEVIS and the improvements to be
made by electronic reporting as well as stressing the importance of
foreign students on the economy and culture of the United States.
I. Mandatory Compliance Date
The majority of comments opposed the January 30, 2003, mandatory
compliance date. Most commenters suggested that the compliance date be
established by the Service in a separate rulemaking after SEVIS becomes
fully operational. Other commenters suggested that the compliance
deadline be moved 9 to 12 months after the release of SEVIS.
The reason most often given by commenters for their belief that the
January 30, 2003 date was not feasible for schools was the
technological changes required for compliance. Commenters indicated
that they have not had sufficient time to assess the system changes
necessary to implement SEVIS at their school and expressed concern over
the short time frame to change existing business processes to meet the
new SEVIS requirements. Commenters stated that to bring schools into
compliance requires time and scarce resources to purchase software and
training from third party vendors. Several commenters stated that being
forced to comply prematurely would result in an investment in
technology that becomes obsolete once SEVIS is fully operational. These
commenters also indicated that SEVIS should be placed into full
operation only after the technology had been developed and tested and
the Service was confident the system would work.
Further, many commenters indicated that they did not want to
allocate significant investments toward the real time interactive
portion of SEVIS and would instead choose to wait for the batch
reporting capability. As the batch process will not be available until
later in 2002, commenters stated they need time to install and test the
software interface with SEVIS to determine any incompatibility and that
such installation and testing would necessitate an implementation date
after January 30, 2003. Commenters indicated that their schools must
weigh using an outside vendor against the creation of a unique system
within the school to comply with SEVIS. The commenters argued that the
deliberation necessary to determine which path to follow would take
time, especially when the schools need authse authorization from the
president or board of directors once all options have been weighed.
Many commenters point out that there was no vendor software then
available that meets the SEVIS requirements, although some vendors were
in the final stages of development. The commenters stated that the
absence of final specifications for batch processing had hampered the
schools' efforts to begin implementation. Those institutions that do
not purchase a product available in the market and who instead choose
to build their own batch system may take even more time. One commenter
estimated that it would take 4,000-5,000 hours of information
technology (IT) effort to develop the school's system. The fact that
international student and scholar data is located in various university
offices within one school was another reason cited by commenters as a
reason that it would take schools beyond January 30, 2003, to implement
new systems and processes to comply with SEVIS.
Many commenters cited cost as another prohibitive factor in being
able to be ready in time for the mandatory compliance date. The Service
was given monetary figures ranging from $15,000 to $500,000 as the cost
per school to implement SEVIS. These costs include paying contract
programming rates, buying servers, software licenses, and software from
a vendor, receiving training in new XML technology, and additional
positions for staff.
Finally, commenters stated that January 30, 2003, is not reasonable
in light of the fact that the Department of State (DOS) has not yet
published corresponding regulations with the new SEVIS requirements for
program sponsors with the new SEVIS requirements. Commenters discussed
the need for the Service regulations and the DOS regulations to be
consistent in order to reduce the burden on schools. Several commenters
expressed concern over the fact that the Service and the DOS were
publishing separate rules and felt that they will be forced to
duplicate efforts if the rules are not consistent.
While the Service is aware of the concerns that the education
community has in meeting the January 30, 2003 compliance date, the
Service believes the date can be met at little to no cost to the
schools. Other than personnel costs for data entry, there is virtually
no cost to schools as real time interactive capability only requires
that the school have Internet access and a free browser. There is no
other software necessary to use the real time interactive capability
and there are no recurring access fees. Additionally, as will be
discussed in the following section, January 30, 2003, is the date by
which all schools must use SEVIS in order to issue a new Form I-20.
Although schools may choose to do so, the Service does not intend
January 30, 2003 to be the date by which schools must enter all
students into SEVIS. Moreover, a Form I-20 issued prior to January 30,
2003, will be accepted for visa issuance, admission, or change of
status prior to August 1, 2003.
The Service has been working under several statutory mandates for
the implementation of SEVIS and must balance national security concerns
against the concerns of the education community. The Service has been
working within the tight timeframes required by statutory mandate since
the inception of the Coordinated Interagency Partnership Regulating
International Students (CIPRIS) pilot program in 1997. In 2001 Congress
passed two separate laws to strengthen national security that focused
directly on the Service's foreign student program. In addition, the
Service has been involved with working groups on student issues as
directed by the President in Presidential Directive Number 2. These
working groups, led by the Office of Science and Technology Policy
(OSTP) and Office of Homeland Security (OHS), included representatives
from the National Institute of Standards and Technology (NIST),
National Science Foundation (NSF), National Institute of Health (NIH),
and other federal agencies. Several open meetings hosted by National
Academy of Science (NAS) included representatives from NAFSA-
Association of International Educators, American Council on Education
(ACE), and universities such as MIT and UCLA. The January 30, 2003
compliance date evolved from the security concerns of Congress and the
Administration. It was not a date chosen at random, but was a date
chosen as the most reasonable balance between national security
concerns and the education community's ability to comply. The sooner
that all schools and students are in the SEVIS database, the sooner the
Service will have the ability to more fully monitor them.
Furthermore, the Service and the DOS have been working
collaboratively since the inception of SEVIS to ensure that similar
requirements were being proposed in areas as appropriate. From the
beginning of the CIPRIS pilot program, the DOS has committed a full-
time staff person to SEVIS to develop
[[Page 76258]]
the SEVIS requirements with the Service and to incorporate such
requirements in the DOS regulations. On numerous occasions both
agencies have come together to discuss SEVIS requirements with the
education community. The fact that two separate rules are being
promulgated setting out SEVIS requirements is a matter of the federal
rulemaking process, and does not indicate that the two agencies are not
working together.
Although the Attorney General has the primary responsibility for
implementing SEVIS, the DOS must promulgate a rule setting forth SEVIS
requirements that specifically pertain to J-1 program sponsors.
Furthermore, in areas where the Service has responsibility over J-1
nonimmigrants (e.g., admission and duration of status), the Service has
addressed those areas in this rule. The DOS has addressed in their
separate rule those areas in which the Service does not have
responsibility over the J-1 exchange visitor (e.g., eligibility for
employment, change of category, transfer, or reinstatement). For more
information on SEVIS as it relates to DOS authority over program
sponsors and J exchange visitors, see the DOS rule. By the time the
SEVIS mandatory compliance date is reached, the batch SEVIS technical
requirements will have been available for approximately 18 months. It
was the intent of the Service to provide schools and programs access to
such technical requirements as early as possible in order to assist in
the transition to SEVIS especially under the narrow timeframe as
mandated by Congress. The Service began notification and publication of
the batch technical specifications of the F, M and J data requirements
in August 2001. The Service also published an announcement in the
Commerce Business Daily and sponsored multiple vendor conferences
specifically to release the SEVIS technical specifications for batch-
interface. Nine vendor conferences were held on the east and west
coasts during the months of August and September 2001. The technical
specifications for the Service and the DOS were posted on the Internet
at that time and were subsequently updated with a revised draft version
on November 21, 2001. In response to a number of requests from the
education community, the Service sponsored an additional technical
conference in the Washington, DC metropolitan area on June 13, 2002, to
continue to discuss XML technical specifications and to begin release
of a finalized version of the Interface Control Document. The final
Interface Control Document was published on the Service's Web site on
August 14, 2002.
Finally, while the Service understands the time and monetary
concerns expressed by those schools interested in utilizing the batch
capability of SEVIS, the Service notes that the real time interactive
capability of SEVIS remains available to such schools. The use of batch
processing is a choice to be made voluntarily by each individual
school. Therefore, the fact that a school may not be technologically or
financially ready to use batch processing does not mean that the school
is not able to comply with the new SEVIS reporting requirements and
processes on January 30, 2003, by utilizing the real time interactive
capability of SEVIS. The real time interactive portion of SEVIS is
currently available to enrolled schools. The additional benefit to
schools using real time interactive capability is that these schools
may begin use of SEVIS through real time interactive now and enter
students on a phased-in basis. By doing so, the school would
essentially have all students already entered in SEVIS and could then
switch over to batch processing at the first registration after the
mandatory compliance date. By entering these students over time,
schools will be able to gain system familiarity and requirement
familiarity while still meeting the mandatory date.
II. Form I-20, Certificate of Eligibility for Nonimmigrant (F-1)/(M-1)
Student Status--For Academic and Language Students/Vocational Students
Many comments were received regarding the SEVIS Form I-20. The
majority of commenters requested that the Service clarify the
responsibilities of those schools that begin using SEVIS prior to the
mandatory compliance date. Commenters urged the Service to allow
schools sufficient time to enter all current students in SEVIS and
suggested several alternative dates by which all current students
should be entered in SEVIS.
While the proposed rule indicated that all schools were required to
report the registration of all current students by the next academic
term after mandatory compliance, the Service believes the final rule
should impose one date upon all schools by which all current students
must be entered in SEVIS. The Service agrees with the commenters that
many schools with large student populations would be forced to input
all current students in SEVIS in a very short time frame in order to
meet the terms of the proposed rule. In response to the commenters and
the Service's desire to allow schools sufficient time to ensure that
the information entered in SEVIS is accurate, the Service believes that
a specific date is an equitable solution that leads to less confusion
among schools as to when all of their current students must be entered
into SEVIS. As such, the Service has determined August 1, 2003, to be
the date upon which all current or continuing students must be entered
into SEVIS.
To clarify, schools that begin using SEVIS prior to the mandatory
compliance date must issue a SEVIS Form I-20 to any new student.
Additionally, these schools must issue a SEVIS Form I-20 to any current
student requiring a new Form I-20 because of a reportable action (e.g.,
extension of status, practical training, or employment authorization,
or for a new F-1, F-3, M-1, M-3 nonimmigrant visa). A current student
with a previously issued non-SEVIS Form I-20 and a current nonimmigrant
F or M visa will not be required to obtain a SEVIS Form I-20 for travel
purposes and may use his or her current non-SEVIS Form I-20 with proper
annotation for reentry until the date that all students must be entered
in SEVIS. In order to comport with the required update events of Sec.
214.2(f) and Sec. 214.2(m) and the reporting requirements of Sec.
214.3, including registration, schools need only update SEVIS as to
those students whose information has been entered into SEVIS. These
schools are not required to enter any of their current students into
SEVIS or report on these students in SEVIS prior to the mandatory
compliance date except for those current students who need a new Form
I-20 for a reportable action or other reason.
After the mandatory compliance date is reached, schools must issue
SEVIS Forms I-20 to all new students and all provisions and processes
related to non-SEVIS schools will become void. At that time, schools
must issue SEVIS Forms I-20 to current students requiring a reportable
event. For students whose records have not been entered into SEVIS,
schools are still required to comply with the recordkeeping and
reporting requirements contained in section 214.3(g)(1) and (2).
Lastly, schools must enter the record of all F or M students that are
currently enrolled as of August 1, 2003, in SEVIS and report the
enrollment for such nonimmigrants by August 1, 2003.
On a related topic, many commenters requested that the Service
continue to accept, for a reasonable period of time, Forms I-20A-B,
Certificate of Eligibility For Nonimmigrant (F-1) Student Status, For
Academic and Language Students,
[[Page 76259]]
Forms I-20M-N, Certificate of Eligibility for Nonimmigrant (M-1)
Student Status, For Vocational Students, and Form DS-2019, Certificate
of Eligibility for Exchange Visitor (J-1) Status, that were issued
prior to the mandatory compliance date. In response to this request,
the Service has added provisions in Sec. 214.2(f), (j) and (m) of this
rule to allow F, J, and M nonimmigrants who were issued such documents
prior to the mandatory SEVIS compliance date, to continue to be
admitted to the United States using these documents for a limited
period of time. As of August 1, 2003, however, all non-SEVIS Forms I-20
and DS-2019 will no longer be acceptable, and F, J, and M nonimmigrants
must be in possession of a SEVIS Form I-20 or DS-2019.
Additionally, commenters stated that the proposed rule did not
address the process by which the dependents of F-1 or M-1 students are
to be issued the SEVIS Form I-20. The Service notes that section IV of
the supplementary information in the proposed rule contains a
discussion of this process. However, the Service agrees that the
process as described in the proposed rule should be codified in the
pertinent provisions of Sec. 214.2 (f) and (m) and Sec. 214.3(k).
Additionally, prior to August 1, 2003, if exigent circumstances can
be demonstrated, the Service will allow the dependents of F-1, J-1, and
M-1 nonimmigrants in possession of a SEVIS document to enter with a
copy of the principal's SEVIS document.
The Service notes that passage of the Enhanced Border Security and
Visa Entry Reform Act of 2002, Pub. L. 107-173 (Border Security Act),
necessitates changes to the disposition of the SEVIS Form I-20 at
ports-of-entry. The Border Security Act requires the Service to notify
approved schools and exchange programs that the F or M nonimmigrant has
been admitted to the United States. By on, or about January 1, 2003,
the Service anticipates that it will accomplish this notification to
schools electronically through SEVIS.
However, for a short period of time, the Service will accomplish
this notification to schools and exchange programs using a paper
process. Upon the initial admission of the F or M student, the
inspector at a port-of-entry will take the SEVIS Form I-20 from the
student. The SEVIS Form I-20 will be returned to the school within
approximately 10 days of the student's arrival. The school will be
responsible for returning the SEVIS Form I-20 to the student or
notifying the Service that the student has failed to register. In the
case of a non-SEVIS Form I-20, the student's copy and the school's copy
will be appropriately annotated with the admission information. The
student's copy will be returned to the student at the port-of-entry and
the school copy will be forwarded to the Service's data processing
center to be forwarded to the school listed on the Form I-20.
In the case of a SEVIS Form DS-2019, SEVIS will generate an
original SEVIS Form DS-2019 and a watermark version of the Form DS-
2019. Upon the initial admission of the J-1 exchange visitor, the
inspector at the port-of-entry will properly annotate both the original
SEVIS Form DS-2019 and the watermark draft copy. The inspector will
return the original SEVIS Form DS-2019 to the exchange visitor and the
watermark version will be forwarded by the inspector to the Service's
data processing center. The watermark version will be returned to the
program sponsor within approximately 10 days of the exchange visitor's
arrival. The program sponsor will be responsible for notifying the
Service and DOS that the exchange visitor has failed to commence
program participation by updating the record in SEVIS within 30 days of
the program commencement date. Upon the initial admission of a J-1
nonimmigrant, the Service will continue to process the non-SEVIS Form
DS-2019 as it has done in the past.
While this paper-based process remains in effect, the Service's
data processing center will attach a cover letter to all Forms I-20 and
SEVIS Forms I-20 forwarded to schools, indicating that the student has
entered the United States using the school's form. Such notification by
the Service allows schools to be able to comply with the requirement
that they report to the Service any students who fail to register.
SEVIS schools must report such ``no shows'' in SEVIS. Non-SEVIS schools
are required to report these ``no shows'' through the Service's
National Customer Service Center at 1-800-892-4829. In accordance with
the DOS regulations, program sponsors are also required to report in
SEVIS if an exchange visitor has failed to commence participation in
his or her program. A ``no-show'' is a student or exchange visitor who
has been issued a Form I-20 or Form DS-2019 by an approved school or
designated program, and has been admitted to the United States, but who
fails to register at his or her school or commence participation in his
or her program within 30 days of the institution's registration
deadline. Comments were also received requesting the Service to clarify
whether changes could be made in SEVIS to a student's Form I-20
information prior to the student's registration at the school. Although
this is not specifically addressed in the regulations, the DSO may
update all Form I-20 information in SEVIS prior to registration, with
the exception of major for a student with M nonimmigrant status who is
not authorized to change educational objective.
However, once the Service fully implements a data share with the
Department of State's consular systems, the DSO will no longer be
permitted to update biographic information after visa issuance until
after the school has indicated the student has registered.
Additionally, after a student has entered the country, the DSO will no
longer be permitted to change a student's program start date. Schools
will be permitted, however, to update SEVIS to indicate that a Form I-
20 has been terminated at any time.
III. Roles and Responsibilities of School Officials
The Service received many comments on the creation of the two new
categories of designated school official, the principal designated
school official (PDSO) and the administrative school official (ASO).
While some commenters expressed the opinion that the creation of the
ASO was helpful, others indicated that the three-tiered proposal
imposes another layer of personnel, thereby limiting accountability.
Several commenters were also opposed to the requirement that PDSOs and
DSOs be United States citizens or lawful permanent residents. A primary
source of concern for the majority of these commenters was the
limitation on the number of DSOs per school or campus, citing the need
for more personnel resources to input data in SEVIS. Commenters viewed
the Service's limitation as arbitrary and suggested that schools should
be left to determine the number of DSOs necessary to carry out their
responsibilities. Others suggested that the number of DSOs be based
upon the number of F-1, M-1, and J-1 nonimmigrants at a particular
school.
The primary purpose of SEVIS is to provide access to current,
accurate information to schools and the Service on all F, J, and M
nonimmigrants. The information maintained in the system is only as
reliable as those who are entering it. The Service's ability to control
access is a customary and critical means of ensuring the integrity of
the system. In order to maintain the integrity of the data in SEVIS,
the Service has determined, in accordance with applicable Department of
Justice
[[Page 76260]]
policies governing access to Departmental systems, that PDSOs and DSOs
must be either a citizen or lawful permanent resident of the United
States.
In response to the comments received, the Service will not adopt
the three-tiered category PDSO, DSO and ASO as proposed. The Service
finds merit in the commenters' arguments that this is an unnecessary
layer that would not improve accountability. As such, once the
necessary programming changes have been made to SEVIS, the Service will
remove the ASO category. The category of PDSO will remain.
The Service will maintain numeric limits on the number of DSOs per
school or campus in order to control access to SEVIS. Under this rule,
each school or campus will be allotted one position for the PDSO and up
to nine positions for DSOs. However, the Service does find merit in the
comments suggesting that the number of DSOs be proportional to the
number of nonimmigrant students. Once SEVIS is fully operational and
schools have entered all current students in the system, the Service
may reconsider the numerical limits on the number of DSOs.
On a related issue, in response to the Service's request, many
comments discussed the feasibility of a DSO certification program. A
certification process for DSOs was supported by most commenters as a
way to strengthen the reliability of the data retained in SEVIS.
However, several commenters urged the Service to hold off on
establishing a certification program until after SEVIS was fully
implemented in order to enable DSOs to focus fully on adjustment to
SEVIS. Other commenters stated they did not want the Service to
institute another mandatory program and that the Service should leave
such training up to schools on a voluntary basis. The Service
appreciates the responses received and will review and consider all
comments again before making a decision whether to establish a DSO
certification program. If a certification program is pursued, the
Service may revisit the DSO limitations based on immigration status
once such a certification process (including background checks) is in
place.
One commenter suggested that the Service make clear that
institutions have a right to seek legal counsel in establishing
appropriate SEVIS compliance systems. The commenter contended that the
Service's use of the PDSO as the point of contact for SEVIS serves to
contravene the Agency Practice Act, 5 U.S.C. 500(b). The Service has no
intention of denying a school's right to be represented by legal
counsel. In fact, for many years there have been institutions that have
designated a legal advisor as a designated school official. This rule
does not prohibit a school from choosing to place counsel in the PDSO
or DSO position or from conferring with counsel regarding the
implementation of SEVIS requirements.
IV. Reduction in a Student's Course Load
Many comments were submitted regarding the proposed rule's
treatment of a reduction in a student's course load. Some commenters
suggested that the Service remove the word ``prior'' in the sentence,
``A student who drops below a full course of study without the prior
approval of the DSO will be considered out of status.'' Additionally,
commenters asserted that the Service should not consider a student to
be out of status due to a reduced course load until the end of the
semester or until the DSO is notified.
The Service cannot adopt these suggestions. With the implementation
of SEVIS, the Service expects to have accurate, real time, information
on all students. To allow a student to act, without first receiving
approval from the DSO, undermines the most basic concept of SEVIS. As
it is the responsibility of the student to maintain a full course of
study in order to remain in compliance with his or her nonimmigrant
status, it is reasonable to expect a student to understand this
responsibility. Accordingly, the student should consult with, and
receive the necessary permission from the designated school official
prior to performing an act that affects status.
The Service understands that there may be situations in which a
student is unable to maintain a full course load and has made
allowances for such situations, provided the student receives
permission first. The Service also understands there may be some
situations in which a student's incapacitation may render it impossible
for the student to request permission from the DSO prior to reducing
his or her course load (e.g., a student who is hospitalized for an
extended period of time as the result of an accident). In such cases,
the student will not be considered out of status.
Many commenters stated that the Service did not clearly indicate in
the proposed rule whether DSOs could authorize a nonimmigrant student
to drop below a full course of study more than once during his or her
course of study. To clarify, during the course of study within one
program level, an F-1 nonimmigrant can only be authorized on one
occasion to reduce his or her course load due to academic difficulties,
and must resume a full course at the start of the next available term
or session, excluding a summer session. An F-1 student taking a reduced
course load for academic reasons must still be taking at least one
class or half the clock hours required for a full course of study. A
DSO may not authorize an M-1 student to reduce his or her course load
based on academic difficulties.
Commenters also argued that the Service's requirement allowing an
F-1 student to drop below a full course of study only where he or she
faces ``initial'' difficulties should be expanded to include other
legitimate reasons as determined by the DSO. The Service does not adopt
this suggestion to permit the DSO to make a determination based on
personal or academic reasons. Such a determination is extremely vague
and is open to abuse.
Several commenters also suggest that the Service allow a DSO to
authorize a reduced course load if students are unprepared or in
jeopardy of failing a course. The Service notes that the current
regulations already provide for this situation. For example, a student
may be authorized to drop below full time study due to improper course
level placement.
In the case of an illness or medical condition, an F-1 student may
be authorized to reduce course load for a period not to exceed 12
months in aggregate. The DSO may also authorize a student to refrain
from taking any courses due to medical condition or illness if the
severity of the condition warrants such authorization. Although a
student may be authorized for up to 12 total months of a reduced course
load in this case, a school official must re-authorize the reduction
each term or session, and must update this authorization in SEVIS. The
12 month limit on authorization to reduce course load for illness or
medical condition is applied per each particular program level. If the
student completes one program, and advances to a different program
level, the student will be allowed a second aggregate 12-month period
in which he or she may be authorized to reduce course load.
An F-1 nonimmigrant who has already received authorization to
reduce course load for academic difficulties remains eligible for the
aggregate 12-month period to reduce his or her course load due to
illness or medical condition.
A student who is unable to resume a full course of study within the
time limits previously specified will either have to leave the U.S. and
reapply when
[[Page 76261]]
he or she is able to resume a full course of study, or change to a more
appropriate nonimmigrant classification to continue medical treatment
in the U.S.
The Service recognizes that there may be cases in which an F-1
student may need authorization to reduce his or her course load for
more than 12 months while pursuing a single program level (for example,
while studying for an undergraduate college degree). However, to allow
a student to pursue less than full time study for an extended period of
time with no limits opens the student program to a greater possibility
for abuse. Furthermore, such extended authorization would run counter
to the definition of a student as set forth in section 101(a)(15)(F) of
the Act which requires that a student pursue full-time study.
As specified in the proposed rule, an M-1 student may only be
authorized to reduce course load for a reason of illness or medical
condition, and such authorization may not exceed an aggregate of 5
months. A school official must verify the continuation of the
authorization at each term or session by updating the authorization in
SEVIS. However, as previously noted, the Service cannot permit an
institution to authorize a student to pursue less than full-time study
for an extended period of time.
On a related topic, many commenters suggested that the
documentation required to support authorization to drop below a full
course of study for illness or medical condition be expanded to include
documentation submitted by counselors, psychologists, and other
alternative medical practitioners. The Service adopts this suggestion
and will allow DSOs to accept medical documentation provided by
licensed medical doctors, doctors of osteopathy, or licensed clinical
psychologists to substantiate a student's reason for dropping below a
full course of study for illness or medical condition.
Some comments contended that students with long-term medical
conditions, chronic illnesses, or learning disabilities may require a
longer-term reduction in course load. The Service cannot, however,
permit an unlimited reduction in course load, as this would undermine
the premise of the F-1 and M-1 nonimmigrant student program. The
Service believes that the existing minimum requirements for defining a
``full course of study'' are broad enough to accommodate students that
may not be able to take a rigorous course load.
Finally, one commenter suggested that the Service include a
specific provision in Sec. 214.2(f)(6)(iii) to allow a DSO to
authorize a reduced course load for graduate students enrolled in less
than full time coursework. The Service does not believe that such a
provision is necessary. The current regulation at Sec.
214.2(f)(6)(i)(A) allows the DSO to make the determination of whether
the graduate student is pursuing a full course of study. The
determination is left to the DSO in this case because even though
graduate students may not be enrolled in full-time classes, the school
may still consider them to be a full-time student while they conduct
research or work on their dissertation, for instance. As long as the
student is pursuing what the institution considers to be a full time
graduate program, the student is maintaining a full course of study. If
the student is not pursuing full time study as determined by the DSO,
then the student would not be maintaining lawful student status unless
the DSO has authorized a reduced course load in accordance with the
provisions of Sec. 214.2(f)(6)(iii).
V. Transfers
Several commenters suggested that the Service permit F-1 students
to transfer schools during the 60-day grace period following completion
of studies or after completion of optional practical training. Although
not explicitly authorized in previous regulations, the Service has
accommodated school transfers within the 60-day period and has designed
SEVIS to continue this practice. The final rule explicitly permits the
transfer of student records in SEVIS during this 60-day period in Sec.
214.2(f)(5)(iv). However, to clarify, the DSO must indicate the school
to which the student intends to transfer in SEVIS. Therefore, the
initiation of a student record transfer in SEVIS can only be carried
out after the student has completed the application and acceptance
process and has determined the school to which he or she is
transferring.
The Service is also limiting the length of time a student may
remain in the U.S. while transferring between schools. The student may
not remain in the U.S. between programs if the student will not resume
classes within 5 months of transferring out of the current school, or
within 5 months of the program completion date as indicated on the Form
I-20 issued by the current school, whichever date is earlier. In the
case of a student authorized to engage in post-completion optional
practical training (OPT), the student must be able to resume classes
within 5 months of transferring out of the current school that
recommended OPT or the date the OPT authorization ends, whichever is
earlier. For example, in instances where a DSO initiates a transfer
within the 60-day period following completion of studies, in order to
remain in the United States between transfer of programs or schools,
the 5 month period begins tolling on the date the program was
completed, not the date the DSO initiated the transfer. The initiation
of a transfer out date occurs when the DSO enters a date for the
release of the student's record to the transfer school. While the DSO
may enter any date reasonable and appropriate for a student's
circumstances, in most instances, the DSO will want to enter the
release date as the date the student completes the last day of the
academic term at the current school.
The Service also received many comments stating that SEVIS should
not prevent transferring F-1 students from applying to more than one
school. In response to these comments, the Service wishes to clarify
that this final rule does not place any limit on the number of schools
to which a transferring F or M student may apply. The transferring
student may apply to and be accepted by any number of schools. However,
the rule restricts the number of SEVIS Forms I-20 that may be issued to
a transferring student. For purposes of fraud prevention, as well as
privacy and paperwork reduction concerns, SEVIS will allow a student's
record to be available only to one school at a time. Once the student
decides which school he or she intends to transfer, the DSO of his or
her current school will update SEVIS to reflect this choice and will
enter the release date for the student. The student's name will then
appear in SEVIS at the transfer school as an ``alert'' containing the
student's name and release date. When the release date is reached, the
transfer school will be able to issue the transferring student a new
SEVIS Form I-20. In most cases, schools will be not be sending the
acceptance letter and the SEVIS Form I-20 at the same time. If the
student changes his or her mind prior to the release date, the DSO at
the current school may cancel the transfer request. If the transfer
request is cancelled the student may continue studies at the current
school or make a new request to be transferred to another school.
However, once the release date has been reached, the DSO at the current
school may no longer access the student's record in SEVIS. Therefore, a
student who changes his or her mind after the release date must work
with the DSO of
[[Page 76262]]
the transfer school to accomplish a second transfer to another Service-
approved school. In such cases, the DSO of the transfer school must
complete the transfer process for the student in SEVIS and then
initiate any subsequent transfer that the student may request.
The transfer process for M students differs from that of F
students, in that M students must apply directly to the Service in
order to transfer schools. In order to ensure that the M transfer
student may continue in his or her studies without significant
interruption, the M nonimmigrant transfer process allows the M transfer
school to issue a SEVIS Form I-20 prior to the transfer student's
release date. The initiation of the SEVIS student transfer process
still requires that the current school enter the name of the M transfer
school, and it is only the transfer school indicated in the system that
can issue the SEVIS Form I-20 prior to the release date. The M student
may then apply to the Service for a transfer without having to wait for
the release date, which will most likely be at the end of the academic
term. However, the transfer school will not have complete access to the
student's SEVIS record until the release date is reached.
The M student may begin attending the transfer school pending the
adjudication of his or her transfer request. However, if the transfer
request is denied by the Service after the student has begun his/her
program at the transfer school, the SEVIS student record will be
automatically terminated and the student will be considered out of
status. Therefore, students are strongly encouraged to file their
applications for transfer approval with the Service Center as soon as
they are able. As stated above, the initial SEVIS Form I-20 from the
transfer school can be issued as soon as the current school indicates
in SEVIS that the student intends to transfer to that school. The
student will be notified by mail of the Service's decision. The DSO
will be notified of the Service's decision on an M transfer via a
system alert. Additionally, the DSO may view the status of any transfer
request by either accessing the student's record or by viewing the list
provided of pending/adjudicated applications in SEVIS. The process for
a SEVIS transfer for both F and M students allows the students to apply
to multiple schools but places the burden on the students to weigh
their options and decide on one particular school before the issuance
of a new SEVIS Form I-20 by the transfer school.
Several commenters stated that the limited time frame imposed by
the SEVIS transfer process will adversely affect current business
practices at some schools. Commenters indicated that, because a
transfer school can only issue a new SEVIS Form I-20 on the student's
release date, there will not be enough time for the transfer school to
issue a SEVIS Form I-20 prior to the start of the new semester,
especially in instances where the transfer student is returning home
for a vacation.
In response, the Service notes that a transfer student who is
traveling abroad for a vacation and who plans to attend a different
school upon his or her return must make arrangements with the transfer
school to ensure that all necessary documentation is received in a
timely manner. For example, the student may obtain his or her SEVIS
Form I-20 prior to departure, or request that the transfer school
forward the SEVIS Form I-20 to his or her address abroad (just as the
schools now do for newly-applying students).
Some commenters suggested that the Service allow the student's
SEVIS record to be accessible by both the current and transfer schools
until the transfer is complete.
The Service cannot adopt this suggestion. In its outreach efforts,
the Service found that privacy was of the utmost concern to the
education community. Schools did not want other schools to have access
to any of their students' school information. The SEVIS transfer
process was designed with such concerns in mind. To allow students'
records to be open to both schools would allow one school to have
access to another school's data. One commenter noted that the reporting
time frames for transfer for non-SEVIS schools were different from
those for SEVIS schools and suggested that the Service use a standard
30-day reporting time period. For the sake of consistency in the
transfer process, the Service adopts this suggestion in the final rule
and allows non-SEVIS schools to send notification of transfer to the
Service data processing center within 30 days.
Finally, commenters suggested that the Service use consistent
terminology in its description of schools. The Service agrees with the
comment and in the final rule adopts the terms ``current school'' and
``transfer school.''
VI. Thirty-day Advance Admission
Many commenters stated that the 30-day limit prior to the program
start date is unreasonable. Commenters cited a student's need to find
adequate housing, attend orientation, and begin research projects as
reasons why a student might need additional time prior to the program
start date.
The Service, however, does not agree with the commenters. The DSO
is already able to take account of a student's obligations pertaining
to orientation, research projects, etc., prior to the start of classes.
Form I-20 states, ``The student is expected to report to the school not
later than (date) and complete studies not later than (date).'' A DSO
may enter a date that would accommodate the beginning of research
projects or allow a student to attend an orientation session. The DSO
is permitted to set a program start date that accommodates the need for
students to be in attendance at the school for such required
activities.
Information pertaining to student housing is readily available to
prospective students and in many cases housing is arranged by the
school. Although the Service recognizes that students need some time to
find suitable housing, the Service does not believe that the advance
admission period needs to be extended beyond 30 days for this reason. A
period of 30 days prior to the time the student is expected to be in
attendance at the school, as provided by this rule, should be adequate
for students to make arrangements for housing.
Finally, the Service is considering a change to the SEVIS Form I-20
to capture two distinct dates: (1) the date by which the student is
expected to enter the country (e.g., to begin research or on-campus
employment, attend orientation), and (2) the date that classes will
commence.
VII. Grace Periods
Many comments were received on the proposed rule's effect on
students who fail to maintain status by withdrawing from classes.
Commenters suggested that the Service consider reasons other than
medical conditions as a legitimate basis for withdrawing from classes,
thereby entitling students to a reasonable grace period.
The Service agrees with these comments, in part, but must
distinguish between instances where a student notifies the DSO and
receives authorization to withdraw versus those where a student never
attends or stops attending classes without DSO authorization. In
instances such as a death in the family, unforeseen financial hardship,
or a determination that the educational program is not appropriate for
the student, a DSO may authorize the student to withdraw from classes.
In such cases, the student will be afforded a 15-day grace period in
which he or she may make and complete arrangements for travel and
departure. In instances where the student has never registered
[[Page 76263]]
at the school or withdraws without DSO authorization, the student may
not be afforded the 15-day grace period.
The importance of notifying the DSO and obtaining permission for
withdrawal from classes cannot be overemphasized. A solid relationship
and line of communication must be established between the student and
the DSO to avoid adverse consequences to a student affecting his or her
nonimmigrant status.
VIII. Concurrent Enrollment
Several commenters requested that the Service clarify the language
for concurrent enrollment. The commenters indicated that it was common
for a student to be enrolled in an English language program as well as
a university program. In such instances, the requirements for
maintaining a full course of study vary. For English language programs,
the Service definition requires clock hours, while for university
programs the requirement is for credit hours. The commenters requested
the Service allow the DSO to make the determination as to what
constitutes a full course of study in such cases. The Service agrees
with the commenters and has added clarifying language to the rule
allowing the DSO to make these determinations.
IX. On-line and Distance Education Courses
Some commenters suggested that the Service's proposed restriction
of one class or three credits per semester of on-line or distance
education courses is a restriction that should be made by schools, not
by the Service. Other commenters stated that eliminating any distance
education or on-line courses for English language programs or
elementary and secondary students is too restrictive. Additional
commenters stated that the Service's intended restriction will have a
negative impact on their programs as more programs add on-line courses.
Service finds merit in the argument against prohibiting distance
education and on-line courses for elementary and secondary students.
Accordingly, the Service has removed the restriction and will allow
elementary and secondary students to count distance education and on-
line courses in their determination of a full course of study.
The Service does not agree with the commenters that this rule
restricts schools from enrolling any student they wish in an on-line or
distance education course. The rule does restrict a student in the
United States in an F-1 nonimmigrant status from being able to consider
more than one distance education or on-line class or three credits per
semester towards his or her full course of study requirements.
Furthermore, the rule restricts vocational students and English
language students from being able to consider any on-line or distance
education courses toward the full course of study requirements. Such
restrictions do not prohibit international students from completing
programs that are offered on-line, as the students can enroll in the
course without being admitted to the United States.
To clarify, the restriction that this rule places upon distance
education or on-line courses is that no more than one course or three
credits can be counted toward the full course of study requirements. A
student currently pursuing a full course of study may add as many
distance education or on-line courses as he or she wishes in addition
to the courses counting toward the full course of study. In the case of
M-1 students and English language students, although these courses
cannot be counted toward the full course of study requirement, these
students are not prohibited from taking additional courses on-line or
through distance education.
X. Practical Training
Several commenters requested that the Service change the language
in the optional practical training provision from ``9 consecutive
months'' to ``one full academic year.'' The commenters stated that many
schools do not operate on a 9-month calendar and, therefore, the
Service's 9-month requirement does not adequately address their needs.
The Service agrees with the commenters and notes that the term ``one
full academic year'' is already used in other parts of the Service
regulations pertaining to practical training. The final rule will,
therefore, incorporate the term ``one full academic year'' throughout
the appropriate sections of Sec. 214.2(f) and Sec. 274a.12.
Although commenters were generally supportive of the Service
allowing students involved in a study abroad program to use that time
toward the 9-month requirement (now ``one full academic year'') for
practical training, the Service must make one point of clarification to
the rule. For a student to use the time spent studying abroad toward
the one full academic year requirement, the student must have spent at
least one full academic term in a full course of study in the United
States prior to going abroad to study.
Some commenters requested that the Service broaden the provision
even further to allow graduate students conducting research abroad the
same benefit. The Service cannot adopt this suggestion at this time. In
the case of students involved in a study abroad program, there is a
defined curriculum with courses that must be taken. However, the
Service is not satisfied that the same is true for graduate students
conducting research abroad. The Service may consider this in a future
rulemaking.
Several commenters pointed out that the proposed rule eliminated
Sec. 214.2(f)(10)(ii)(A) (3) and (4). The Service notes that this was
an unintentional error. This final rule combines those two clauses and
revises the language for clarity.
Many commenters suggested that the Service allow students to apply
for practical training prior to fulfilling the 9-month limit (now one
``full academic year'') but not be allowed to commence practical
training prior to that time. The commenters indicated that such a
provision is necessary for those students who want to participate in
practical training in the summer following their first academic year
but whose requests for practical training cannot be adjudicated in time
for the students to begin in the summer. Other commenters made similar
suggestions for students enrolled in one-year programs who, due to the
new limitation that optional practical training be applied for prior to
the completion of studies, would be unable to apply.
Although the Service believes that changing the term ``9 months''
to ``one full academic year'' will resolve most of the problems cited
by the commenters, the Service will allow F students requesting
optional practical training to submit their application up to 90 days
prior to completing ``one full academic year.'' In such cases, the DSO
must indicate on the Form I-20 and/or update SEVIS to show that the
``from date'' in which the DSO is certifying is the date that the
student completes a full academic year of enrollment. While the Service
may adjudicate the request prior to the student's completion of one
full academic year, employment authorization will only be granted from
the date that the student actually completes a full academic year. The
student may not begin working until the date specified on the
employment authorization document. The Service, therefore, does not
adopt the commenters' suggestion that the Service allow DSOs to approve
optional practical training or give a type of interim employment
authorization until the student completes one full academic year of
enrollment.
[[Page 76264]]
Several commenters also requested that the Service clarify whether
students, other than F-1 nonimmigrants, who have been lawfully enrolled
in a Service-approved school for one full academic year, could also be
eligible for optional practical training. However, while the Service
agrees that this issue needs clarification, this was not an issue
addressed in the proposed rule and the Service needs more time to
consider these issues. The Service may consider such clarification in a
future rulemaking.
One commenter requested that the Service clarify the responsibility
of a DSO with regard to a student to whom the DSO has issued a Form I-
20 and certified for optional practical training following completion
of studies. The Service appreciates the opportunity to clarify these
responsibilities in the final rule. Section 214.2(f)(10)(ii)(E)
provides that a DSO who recommends a student for optional practical
training remains responsible for maintaining the student's records in
SEVIS during the time that training is authorized. During the period in
which a student is authorized by the Service to engage in optional
practical training following completion of studies, a student must
notify the DSO if his or her name or address changes, or if the student
wishes to discontinue training. Similar to the provision in current
regulations that a student engaged in optional practical training have
a Form I-20 endorsed within the last 6 months by the DSO for reentry,
the DSO is responsible for updating the SEVIS record of any student
participating in post-completion practical training. The DSO and
student must continue to communicate in order to ensure that the
student does not take any action that would adversely affect his or her
nonimmigrant status. For example, if the student indicates that he or
she has changed address or terminated employment for any reason prior
to the period authorized by the employment authorization document and
does not intend to resume employment, the DSO must notify the Service
by updating SEVIS.
Finally, one commenter requested that the Service allow students to
use a school's address for purposes of receiving employment
authorization documents. While this practice will not be authorized by
this final rule, the Service is considering incorporating this practice
into the operating procedures of the Service centers.
XI. Employment
Commenters also noted that the Service did not include a
description of the process for endorsing employment in SEVIS other than
practical training. In response, the Service has added language to the
final rule incorporating procedures for the endorsement in SEVIS of
employment authorization based upon severe economic hardship and
internships with an international organization. At this time there are
no such update requirements for on-campus employment.
Another commenter requested that the Service clarify when an F-1
student may begin working on-campus incident to status prior to the
beginning of classes. The commenter suggested that the Service
distinguish between work associated with being a Teacher's Assistant or
Resident Assistant and, for example, working in the campus bookstore.
The Service agrees that this provision needs clarification. The
Service will permit an F-1 student to begin on-campus employment prior
to the start of classes. While it is the responsibility of the DSO to
indicate a program start date that accommodates the student's
particular needs for employment, the DSO is not permitted to indicate a
program start date more than 30 days prior to the start of classes for
the purpose of on campus employment. However, the Service does not
impose any limitation on the type of on-campus employment in which a
student may engage prior to the start of classes.
For off-campus employment based on severe economic hardship, the
current rules require that the student apply to the Service based on a
favorable recommendation of the DSO. Some commenters requested that the
Service allow DSOs to grant F-1 students permission to work based on
severe economic hardship without any review by the Service. That
suggestion is beyond the scope of the proposed rule, and the Service is
not prepared to change existing processes at this time to allow a DSO
to grant such a benefit. However, the Service may consider this
suggestion when it reviews student employment issues at a future date.
Finally, this final rule makes conforming amendments to Sec.
214.2(f)(9) and Sec. 274a.12 to remove the reference to filing a wage
and labor attestation for off-campus employment. As indicated in the
proposed rule, the requirement for a wage and labor attestation was
part of a pilot program that has sunset. The final rule also amends
references in Sec. 274a.12 to include the current DOS Certificate of
Eligibility, Form DS-2019 and to cite to current exchange visitor
program designation regulations.
XII. Extensions
Several commenters requested that the Service amend the language of
Sec. 214.2(f)(7)(i) to remove the reference to a student being
``unable to complete a full course of study in a timely manner,''
indicating that this phrase implies that a student has done something
wrong. Commenters cited illness and family emergencies as possible
reasons why a student may take longer to complete his or her program,
but should still be considered to be pursuing his or her program in a
timely way. The Service has no objection to the removal of this
language and has included a more neutral description in the final rule.
XIII. Reinstatement
Many commenters contended that the provisions in the proposed rule
for reinstatement were unnecessarily strict. Commenters urged the
Service to provide relief for students who are adversely affected by
``technical or computer errors'' in SEVIS, and suggest that the Service
adopt provisions similar to the provisions in DOS regulations that
allow for a correction of ``minor or technical infractions.''
Commenters stressed that DSOs will make mistakes occasionally,
especially when dealing with a new computer system. Other commenters
stated that to punish students for mistakes on the part of the DSO is
overly punitive.
The Service agrees that there may be a possibility that errors on
the part of SEVIS or other technological failures may cause a student
to fall out of status. Therefore, the Service has added Sec.
214.3(g)(4) to allow for a student's record to be administratively
corrected in situations where the error in question resulted from
technological errors or errors on the part of SEVIS. To
administratively correct a student's record in instances of SEVIS error
or technological failure, the DSO must contact the SEVIS system
administrator to explain the circumstances that caused the correction
to be requested, with documentation if necessary, as provided in Sec.
214.3(g)(4). An administrative correction by the system administrator
will be completed without fee.
However, while the Service recognizes that a DSO may make a mistake
in a student's record that causes the student to fall out of status,
the Service does not believe that such errors merit an administrative
correction. Ultimately, it is the student's responsibility to ensure
that he or she remains in status and is in compliance with the
regulations at all times. That is not to say that the student will not
be
[[Page 76265]]
afforded a remedy in these situations. On the contrary, in instances
where the DSO was neglectful or inadvertently failed to update or
extend a student's status, the student is permitted to file for
reinstatement and establish that the actions on the part of the DSO
were beyond his or her control. Where the Service finds that a DSO has
repeated violations of Service regulations or finds malfeasance on the
part of a DSO, the Service may withdraw the approval of the designated
school official.
Other commenters stated that the Service should abandon the
proposed 5-month period as the demarcation of the outer limit for
reinstatement and instead consider the overall record of the student.
While the Service believes that 5 months is generally sufficient time
for a student who has fallen out of status, unintentionally or
otherwise, to become cognizant of this fact and to attempt to remedy
the situation, the Service also recognizes that there may be legitimate
situations in which this is not possible. In fairness to these
students, the Service has created a provision in the final rule for a
rebuttable presumption that a student who has been out of status for
more than 5 months is ineligible for reinstatement unless the student
can provide a substantial reason for the delay and an explanation of
how the student filed the request for reinstatement as promptly as
possible under the circumstances. If the student provides sufficient
documentation, the presumption of ineligibility may be rebutted. Such a
provision strikes a balance between the Service's desire to establish a
limit on reinstatement requests while still accommodating those
students with extenuating circumstances.
XIV. Reporting Current Name and Address
Several commenters requested that the Service consider allowing
students who live on-campus to list a mailing address in place of a
physical address. Commenters noted that many students living on-campus,
including boarding students in secondary schools, may only be able to
receive mail via a mailing address. The Service agrees with the
commenters, and has made a provision permitting students who physically
reside on campus, but cannot receive their mail at a campus address, to
list a mailing address that they use at the school rather than a
physical address, provided that the school maintains a record of and,
upon request, provides the exact location of the alien's residence.
Likewise, in order to accommodate limited situations where similar
circumstances might exist for students living off-campus, or for
exchange visitors, a student's or exchange visitor's mailing address
may be listed. The school or exchange visitor program, however, must
maintain a record of and, upon request, provide the exact location of
the alien's residence. The Service intends to modify SEVIS to accept
both a mailing address and physical address. Once SEVIS is modified, in
cases where the mailing and physical address are not the same, the
school will be required to report both the current mailing and current
physical address in SEVIS.
Additionally, commenters stated that requiring students to report
changes of address to their DSO rather than directly to the Service on
Form AR-11 may result in the DSO being accused of failing to update a
student's SEVIS record when, in fact, the student failed to report his
or her address change to the DSO. The commenters suggested that
students be required to report address changes directly to the Service.
The Service, however, cannot adopt this suggestion. To do so would
undermine the primary purpose of SEVIS; namely, to maintain current,
accurate information on all F and M nonimmigrants. Currently, all
nonimmigrants are required to report a change of address to the Service
by submitting Form AR-11. The notification of the change of address is
submitted by the nonimmigrant through the mail. The Service is not
stipulating what interaction must take place between the student and
the DSO to document notification of address change by the student. To
avoid the type of situation cited by the commenters, schools may
establish business processes to document when a student reports a
change of address. For example, a school may require students to submit
a completed Form AR-11 to be kept on file in the international office,
in addition to the school updating SEVIS as required.
Finally, the Service wishes to clarify that, while the timely
reporting and update of a student's address in SEVIS satisfies the
alien student's requirement to notify the Service of a change of
address as specified in 8 CFR 265.1, such notification does not
necessarily exempt the student from reporting a change of address as
required by other applicable regulations, statutes or programs.
Specifically, a nonimmigrant student required to report under the
National Security Entry-Exit Registration System (NSEERS), 8 CFR
264.1(f), must report a change of address as mandated by that program,
in addition to complying with SEVIS reporting requirements.
XV. Relating to Reporting Requirements of Sec. 214.3(g)(3)
One commenter requested that the requirement in section Sec.
214.3(g)(3) for schools to report, ``any other notification request
made by SEVIS to the DSO with respect to the current status of the
student,'' be removed based on the assertion that the requirement is
overly broad.
The Service does not adopt this suggestion. The primary purpose of
SEVIS is to maintain complete and up-to-date information on all foreign
students. For this reason, the DSO needs to respond in a timely fashion
to requests from the Service relating to the current status of any
particular student.
Another commenter associated with independent, secondary schools
asked the Service to consider allowing such schools to report on
students only one time per year. The commenter stated that it is time-
consuming to update student records each term because students at such
schools register only once a year.
The Service does not adopt this suggestion. The requirement in
question applies only to academic terms that run longer than 6 months.
The DSO for such schools will be sent an electronic message from SEVIS
requesting the DSO to verify that the students are still enrolled. To
allow the DSO in such schools to update student records only at the
time of initial registration would undermine the effectiveness of
SEVIS.
Another commenter stated that the requirement of Sec.
214.3(g)(3)(iii)(C), which requires schools to report the start date of
the student's next term, is burdensome and inherently impossible
because it requires the DSO to know the student's intent. The Service
does not agree with this commenter. The Border Security Act requires
that all schools to report in SEVIS each academic term as to whether a
student has registered or not registered. This requirement is one of
the most essential requirements in SEVIS because it enables SEVIS to
identify those students who have failed to return to school following a
term or vacation.
Finally, one commenter questioned the effect, if any, that the
Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (FERPA) has
on the information collected and reported in SEVIS. Although FERPA
restricts the ability of an educational agency or institution that
accepts certain Federal funding to disclose personal information
contained in a student's educational record, this final rule makes
clear that FERPA does not relieve any approved school or designated
exchange
[[Page 76266]]
program of the duty to comply with the SEVIS reporting requirements.
Section 641 of IIRIRA requires approved schools and designated
exchange visitor programs to collect the information specified in
section 641(c). Section 641(d) makes it clear that schools may not
enroll F or M nonimmigrant students and that exchange visitor programs
may not accept J nonimmigrants unless the school or exchange program
collects the information and reports it to SEVIS as required.
The general rule is that two statutes that relate to the same issue
must be read so as to give effect to both. Thus, section 641 of IIRIRA
can properly be considered an exception to FERPA, such that an
educational agency or institution does not violate FERPA by disclosing
only so much as section 641 of IIRIRA requires the agency or
institution to disclose. Section 641(c)(2) of IIRIRA expressly provides
that FERPA does not apply to F, J, or M nonimmigrants, to the extent
that the Attorney General determines that waiving FERPA is necessary to
implement SEVIS. The Commissioner has authority to make this
determination on the Attorney General's behalf. That the Commissioner
has made this determination was implicit in the proposed rule since the
proposed rule required approved schools and designated exchange
programs to provide the information, or risk the loss of ability to
enroll or accept F, J, or M nonimmigrants. The final rule includes new
language in 8 CFR 214.1 to make this determination explicit. This new
provision is stated in Sec. 214.1, rather than Sec. 214.3 to make
clear that the FERPA waiver applies to J nonimmigrants as well as to F
and M nonimmigrants.
XVI. Dependents of F-1 and M-1 Nonimmigrants
Many commenters stated that F-2, J-2, and M-2 nonimmigrants should
be allowed to enroll in full-time study, without being required to
change status. The Service does not adopt this suggestion. The need to
monitor nonimmigrants being educated and trained in the United States
is of vital importance to the national security of the United States.
The value of SEVIS would be undermined if the Service were to adopt the
commenters' suggestion.
Other commenters suggested that the Service remove the language
``avocational or recreational'' from the types of study that may be
permitted by F-2 and M-2 dependents as DSOs may have difficultly
determining what study is avocational or recreational and what is not.
While the Service will not remove such language from the rule, the
Service provides the following clarification. If a student engages in
study to pursue a hobby or if the study is that of an occasional,
casual, or recreational nature, such study may be considered as
avocational or recreational. The concept of avocational or recreational
is not new, but is a long-standing policy applied by both the DOS and
the Service for the interpretation of the B-1/B-2 nonimmigrant visa.
It should be noted that this regulation permits F-2 and M-2
nonimmigrants to attend elementary, middle and high school on a full-
time basis. Furthermore, if a dependent of an F-1 or M-1 wishes to
pursue his or her education full time, beyond what is avocational or
recreational, or at the elementary, middle, or high school level, he or
she has the option to change status to that of an F-1 or M-1
nonimmigrant.
One commenter requested that the Service clarify the status of
those F-2 or M-2 dependents enrolled in a school in a full course of
study prior to the effective date of this final rule. In response, the
Service will allow an F-2 or M-2 dependent enrolled in a full course of
study prior to January 1, 2003, to continue studies provided they apply
for a change of status on or before March 11, 2003.
Finally, many commenters stated that the Service should allow F-2
and M-2 nonimmigrants to be authorized for employment. The existing
regulations, Sec. 214.2(f)(15) and (m)(13), prohibit employment for F-
2 and M-2 dependents. The Service did not propose any change relating
to employment authorization for dependents in the proposed rule and,
therefore, this suggestion is beyond the scope of this rulemaking
proceeding. The Service will not incorporate any changes relating to
this issue in the final rule.
XVII. Electronic Filing Issues
The Service incorporates many processes electronically into SEVIS
and that are addressed in this final rule. For example, the requirement
to complete and submit a paper Form I-538 attached to paper copies of
the Form I-20 for updates has been completely eliminated. Furthermore,
the Form I-17 is filed electronically in SEVIS and fee payment is made
through Pay.gov on the Internet.
While SEVIS is a significant step forward in the transformation to
e-Gov, there remain certain processes related to nonimmigrant students
that are not incorporated into SEVIS, primarily because such processes
are in regard to a broader range of nonimmigrants, not specific to F,
M, or J visa classifications. As noted in this final rule, the Form I-
765, Application for Employment Authorization, utilized for application
for Optional Practical Training and other work authorization by a
nonimmigrant student, is a hybrid process that includes SEVIS, but also
the Service's benefit application process. Likewise, the Form I-539,
Application to Extend/Change Nonimmigrant Status, is utilized for the
M-1 transfer, M-1 extension, and the reinstatement processes. These are
also hybrid processes that are used not merely in connection with
SEVIS, but also for other Service processes.
The Service is currently in the process of establishing and
implementing a new enterprise architecture to its information
technology systems and business processes Service-wide. In order to
further adjust business processes and fully take advantage of e-Gov
systems and efficiencies, the Service will promote the electronic
filing of applications. The Service wishes to take advantage of e-Gov
and the Internet, while remaining flexible in order to best utilize
emerging and future technologies to better serve the public.
Accordingly, the Service hopes to be able to offer e-filing of the Form
I-765 in fiscal year 2003, and e-filing of the Form I-539 by fiscal
year 2005.
Currently the Form I-17 is filed electronically, but in accordance
with the Service's full certification rule for SEVIS (67 FR 60107)
there are certain supporting documents and signatures physically
collected during an on-site visit to the school. The Service is looking
at the potential to enhance SEVIS to accommodate electronic attachments
of supporting documentation to the electronic Form I-17. In addition,
the Service will be examining the issue of electronic signatures.
The Service also wishes to note that SEVIS addresses more than just
the collection of data for monitoring and tracking of foreign students.
In addition to providing efficiency to the Service's processes for the
review and adjudication of items such as Form I-17 educational
institution application and reinstatement, the system also provides
value-added features that should prove useful to the school user. For
example, SEVIS provides ``ticklers'' and system alerts to the school,
such as when a foreign student is issued a visa (once data share with
DOS Consular Affairs is in effect), or when a nonimmigrant student
enters through a port-of-entry (once data share with entry data is in
[[Page 76267]]
effect). There are also system alerts for when a student is coming to
the end of their program, as well as a selection of numerous reports
available to the school user. Furthermore, the system provides a search
engine functionality to enable direct queries based upon the SEVIS
ID from the Form I-20 issued by the school, as well as
enhanced search capability to search by multiple parameters and data
elements.
Good Cause Exception
This rule is effective on January 1, 2003. The Service finds that
good cause exists, under 5 U.S.C 553(d), for making this rule effective
with less than the usual 30-day effective date. The USA PATRIOT Act,
Public Law 107-56, mandates that SEVIS be fully implemented and
expanded prior to January 1, 2003. Because of vital national security
concerns that underpin the USA PATRIOT Act, and the Enhanced Border
Security Act, Public Law 107-173, promulgation of this rule with a 30-
day delayed effective date would be contrary to the public interest.
This final rule does not vary greatly from the proposed rule published
on May 16, 2002. Many of the changes in this final rule were made at
the request of the affected community. As such the final rule provides
more flexibility and imposes less of a burden upon the affected
community. While the Service will not give the entire 30-day period
prior to the effective date of this rule, the difference in the amount
of time between the date of publication of this rule and the effective
date of this rule still affords the affected community with sufficient
notice for compliance.
Regulatory Flexibility Act
The Commissioner, in accordance with the Regulatory Flexibility Act
(5 U.S.C. 605(b)), has reviewed this regulation and, by approving it,
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. Although some schools may be
considered small entities, the use of SEVIS as a means for
recordkeeping and reporting will streamline the processes currently in
existence.
SEVIS uses technology already in place at most schools, and has
been designed for use over the Internet. Institutions need only have
access to a web-browser to gain access to the Internet and will not
require any software to download. The Service will not charge a
subscriber or user fee in order to use SEVIS. However, while there is
no charge for access to SEVIS, there might be undetermined, individual,
organizational costs to upgrade vendor software or campus information
technology systems to use the batch-method interface with SEVIS.
The Service has taken this cost into account and has developed
SEVIS to utilize common standards. As previously discussed in the
supplementary information, schools using SEVIS will no longer have to
print out, file, and mail as many paper forms. Indeed, there should be
little to no additional cost for schools that do not choose to use the
optional batch processing capability. In fact, these schools may
experience some savings as a result of the efficiencies that SEVIS will
provide. Moreover, while the initial monetary impact on schools that
choose to use batch capability may be greater, those schools might
experience long-term savings because the automated process of
maintaining student records for purposes of SEVIS would likely reduce
future personnel costs. These decisions as to cost/benefit tradeoffs
will be up to the discretion of each school. Accordingly, this rule
will not have a significant economic impact on a substantial number of
small entities as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely effect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. 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 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget (OMB) for review.
1. Purpose for Regulation
For close to twenty years, Service regulations have required the
use of the Form I-20 and have required schools to maintain records on
nonimmigrant students enrolled at their institution. These regulations
also have required schools to furnish such information to the Service
upon request. Schools have been required to maintain records and
updates on student information such as the student's name, date and
place of birth, country of citizenship, address, status, date of
commencement of studies, and a photocopy of the student's Form I-20.
This final rule incorporates similar collection and reporting
requirements, with some additional information collection and reporting
procedures that are mandated by IIRIRA, the USA PATRIOT Act, and the
Enhanced Border Security Act. This rule is necessary to improve and
streamline the reporting and recordkeeping of F, J, and M nonimmigrants
by establishing a process for the electronic reporting DSOs of
information required to be reported to the Service, and providing clear
standards governing the maintenance, extension and reinstatement of
student status.
Schools will be required to report some additional information that
they were not required to maintain in the past, and there are changes
to reporting requirements as a result of the above statutory authority
and this final rule. However, the implementation of SEVIS (an
electronic and e-Gov system) mitigates the new elements and frequency
of reporting. In order to create or update any student or exchange
visitor related form (e.g., Form I-20, Form DS-2019), the school or
sponsor will now access SEVIS and enter the information electronically.
Thus, the data is instantly collected in a central database before the
form is ever printed. Because the information will be collected
electronically, there will no longer be a need for multiple copies of
forms. Neither the Service nor the DOS will need a separate paper copy
for data entry because both agencies can access SEVIS in real time.
Likewise, schools and sponsors will no longer be required to maintain
their own paper copy of the record, because it will be accessible
through SEVIS.
2. Assessment of Costs
a. One-time transition costs associated with continuing students
and exchange visitors.
The Service has set January 30, 2003, as the date by which all
schools must use SEVIS in order to issue a new Form
[[Page 76268]]
I-20. However, in order to allow schools sufficient time to enter all
current students in SEVIS, the Service has determined August 1, 2003,
to be the date upon which all current or continuing students must be
entered into SEVIS, unless such students require a new Form I-20
because of a reportable action such as new visa issuance.
While some percentage of current or continuing students may
graduate or complete their programs prior to August 1, 2003, those
students that are continuing a course of study as of August 1, 2003,
must be entered into SEVIS by that date and issued a SEVIS Form I-20.
This requirement for schools to input all current or continuing
students will be a one-time event in the first year for transition to
SEVIS.
The following estimate is based upon the amount of time it would
take to complete a Form I-20 in order to enter a continuing student in
SEVIS.
------------------------------------------------------------------------
Continuing student reporting burden
------------------------------------------------------------------------
a. Number of Continuing Students........................... 625,000
b. Number of Continuing Exchange Visitors.................. 275,000
c. Number of Responses per Respondent...................... 1
d. Hours per Response...................................... .52
e. Total One-time Reporting Burden......................... 468,000
------------
f. Total Public Cost................................... $4,680,000
------------------------------------------------------------------------
The following estimate is based upon the amount of time it would
take to complete a SEVIS Form I-20. This one-time reporting burden for
continuing students and exchange visitors is based upon a standard
requirement and process for each response. As such, the school or
exchange program should not require much time to familiarize or refresh
themselves on the relevant regulatory provision and process. The
projected hours per response were derived by breaking the process into
two basic components:
------------------------------------------------------------------------
Minutes
------------------------------------------------------------------------
Learning about the Law and the Program..................... 1
Data Collection and Input.................................. 30
Total Hours per Response............................... \1\ 31
------------------------------------------------------------------------
\1\ .52 hours.
The total one-time reporting burden was derived by multiplying the
number of applicant respondents (estimated continuing student plus
estimated continuing exchange visitors = 900,000) x frequency of
response (1) x average response time of 31 minutes (.52 hours) per
response. The estimated one-time public cost estimation is based on the
number of respondents (900,000) x 31 minutes (.52 hours) per response x
$10 (average hourly rate).
The number of applicant respondents, 625,000 students, is the
Service's best estimate based upon experience, statistics, and industry
sources such as the 2001 Open Doors Report on International Educational
Exchange produced by the Institute of International Education. The
number of applicant respondents, 275,000 exchange visitors, is the best
estimate provided by the Department of State, Office of Exchange
Coordination and Designation, Bureau of Educational and Cultural
Affairs.
b. Operational costs.
The Service has worked closely with the Department of State as well
as the American Council on Education (ACE), NAFSA-Association of
International Educators, and others to obtain their views on the
availability of data, frequency of collection, clarity of instructions,
disclosure and the data elements to be reported. In addition, the
educational community has attended several working group sessions and
high-level policy discussions. As a result of these consultations, the
Service has incorporated many suggestions in the SEVIS requirements.
The following estimate is based upon the amount of time it would
take to complete a SEVIS Form I-20. As the information being collected
by SEVIS will differ for each individual depending on the event being
updated, the data required for entry into SEVIS cannot be determined on
a consistent basis. As such, the Service is using the SEVIS Form I-20
as the standard, and averaging the amount of data entry in SEVIS per
response across initial SEVIS Form I-20 entry and subsequent update
response.
------------------------------------------------------------------------
Annual reporting burden
------------------------------------------------------------------------
Number of Students...................................... 625,000
Number of Exchange Visitors............................. 275,000
Number of Responses per Respondent...................... 5
Hours per Response...................................... .333
Total Annual Reporting Burden....................... 1,498,500
Total Public Cost................................... $14,985,000
------------------------------------------------------------------------
The projected hours per response for this collection of information
were derived by first breaking the process into three basic components:
------------------------------------------------------------------------
Minutes
------------------------------------------------------------------------
Learning about the Law and the Program........................ 10
Data Collection and Updates................................... 5
Adjudication, notification, reports........................... 5
---------
Total Hours per Response.................................. 20
------------------------------------------------------------------------
The Service anticipates that the initial data entry may require 30
minutes. However, once the records are uploaded into SEVIS, the updates
and maintenance of the information will require considerably less time.
Included in this estimate is time associated with each response for the
school or exchange program to familiarize or refresh themselves as to
the relevant regulatory provision and process. Unlike section (a)
above, updates and other processes beyond the initial data entry of a
Form I-20 (or Form DS-2019) may be varied, and as such may require a
small amount of time to learn about the law. We estimate approximately
10 minutes for the update of these records. In calculating the hours
per response, we considered both the initial data entry of the Form I-
20 and the update of information and estimated an average of 20 minutes
per response. The Services estimates 5 responses per year for each
respondent based upon a generalization that each student will require
an initial Form I-20, the school will likely need to report
registration of the student twice a year, and there may be one or two
further responses such as a change of address, change of major, or
request for employment.
The total annual reporting burden hours was derived by multiplying
the number of applicant respondents (900,000) x frequency of response
(5) x average response time of 20 minutes (.333 hours) per response.
The estimated annual public cost estimation is based on the number of
respondents (900,000) x 20 minutes (.333 hours) per response x $10
(average hourly rate).
c. SEVIS Batch functionality.
The use of SEVIS batch processing is a choice to be made
voluntarily by each individual school. Therefore, any school cost to
create, purchase, or upgrade technology to use batch processing is a
business decision to be made by each school in context with their
business processes, infrastructure, and cost/benefit assessment. Batch
functionality is an optional method made available to schools and is
not a requirement for SEVIS compliance.
Other than personnel costs to input and update student records in
SEVIS, there is virtually no cost to schools as real time interactive
capability only requires that the school have Internet access and a
free browser. There is no other software necessary to use the real time
interactive capability and there are
[[Page 76269]]
no recurring access fees. Therefore, for real-time interactive, there
is no programming costs, server costs, and no software required to
download or provide via CD-ROM, since SEVIS is accessed through the
Internet similar to many commonly used Web sites.
In addition, those schools that do elect to incur any costs to
create or purchase software to take advantage of SEVIS batch
functionality would likely then not incur personnel costs and burden as
described in section (a) above. Batch functionality entails school
technology systems uploading larger amounts of data directly to SEVIS.
As such, the cost of the one-time requirement of entering all
continuing students in SEVIS may be substantially reduced since
existing electronic records would be entered into SEVIS via a batch
system-to-system upload. Furthermore, any start-up and maintenance
costs incurred by schools using the SEVIS batch functionality might be
highly cost effective in the longer term because, once the electronic
interface is complete, the process of maintaining student records for
purposes of SEVIS would be highly automated, thereby likely reducing
the future personnel costs.
d. Estimation of Total Cost
The Service estimates that the total cost to implement and operate
SEVIS the first year will be approximately $20 million. After the
initial implementation costs are incurred, the Service estimates that
the schools will incur yearly costs of less than $15 million to fulfill
their ongoing SEVIS requirements. As schools become more adept at
fulfilling these requirements, the Service expects that these costs may
drop.
3. Assessment of Benefits
SEVIS implements IIRIRA, which requires the INS to collect current
information, on an ongoing basis, from schools and exchange programs
relating to nonimmigrant foreign students and exchange visitors during
the course of their stay in the United States. Furthermore, the
President issued Homeland Security Directive No. 2 (HS PDD-02) that, in
part, directs an end to the abuse of international student status. In
addition, the USA PATRIOT Act amended IIRIRA to require full
implementation and expansion of SEVIS prior to January 1, 2003.
Furthermore, the Enhanced Border Security Act adds to and clarifies the
collection of information and specifically requires an educational
institution to report any failure of an alien to enroll not later than
30 days after registration deadline.
SEVIS enables schools and exchange program sponsors to transmit
electronic information and event notifications, via the Internet, to
the Service and DOS throughout a student or exchange visitor's stay in
the United States. SEVIS will be informed of status events for students
and exchange visitors including, but not limited to, entry/exit data,
changes of address, program extensions, employment notifications, and
changes in program of study. SEVIS will also provide system alerts,
event notifications, and reports to the schools and exchange programs,
as well as for Service and DOS offices.
Implementation of SEVIS will revise and enhance the process by
which foreign students and exchange visitors gain admission to the
United States. SEVIS will increase the Service's ability to track and
monitor foreign students and exchange visitors in order to ensure that
they arrive in the United States, show up and register at the school or
exchange program, and properly maintain their status during their stay
as valued guests in this country. SEVIS provides a proper balance
between openness to international students and exchange visitors and
the security obtained by enforcing the law.
SEVIS addresses more than the collection of data for monitoring and
tracking of foreign students. In addition to providing efficiency to
Service processes for the review and adjudication of items such as Form
I-17 educational institution application and reinstatement, the system
also provides value-added features that are useful to the school. For
example, SEVIS provides ``ticklers'' and system alerts to the school,
such as when a foreign student is issued a visa (once data share with
DOS Consular Affairs is in effect), or when a nonimmigrant student
enters through a port-of-entry (once data share with entry data is in
effect). There are also system alerts for when a student is coming to
the end of their program, as well as a selection of numerous reports
available to the school user. Furthermore, the system provides a search
engine functionality to enable direct queries based upon the SEVIS
ID from the Form I-20 issued by the school, as well as
enhanced search capability to search by multiple parameters and data
elements. SEVIS itself includes many self-help features for the end-
user. Elements include an online tutorial, frequently asked questions,
and system help and index.
This rule also increases the number of DSOs that a school is
authorized from five to ten per school or campus. This increase in the
number of SEVIS authorized DSOs is intended to provide schools with
greater flexibility to address needs for personnel in the short or
longer term for managing their international student programs and for
properly reporting and updating records in SEVIS.
Another benefit and a Paperwork Reduction Act element is that SEVIS
will eliminate the need for and use of the Form I-538 that formerly was
used by schools to notify the Service in cases of the approval of an F-
1 for extension or curricular practical training. The former process
required a school to mail the Form I-538 to a Service contractor in
London, KY for data entry. With SEVIS this notification can be made in
real-time, through the update of the student's record in SEVIS.
Ultimately, it is the intent of the Service and DOS to phase out the
paper submission of all student and exchange visitor related forms in
favor of completely electronic submissions, updates, and reporting.
4. Conclusion
The Service believes that the benefits of this rule far outweigh
its costs. SEVIS will benefit both the approved schools and the Service
by implementing an effective e-Gov system to replace what is currently
a poorly performing paper-based reporting system. This rule improves
and streamlines the reporting and recordkeeping of F, J, and M
nonimmigrants and provides clear standards governing the maintenance,
extension and reinstatement of student status. SEVIS also will be used
as a tool for ensuring that F, J, and M nonimmigrant students are
complying with their applicable regulatory requirements. This rule will
provide the Service a means of determining whether nonimmigrant
students and exchange visitors are currently enrolled in an approved
course of study or exchange visitor program. Thus, SEVIS will serve as
means of protecting both the public and national security. Therefore,
the benefits of this rule outweigh any economic costs that will be
incurred during its implementation and operation.
Executive Order 13132
This rule 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 warrant the preparation of a
federalism summary impact statement.
[[Page 76270]]
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The Service is adding new electronic reporting requirements using
SEVIS which is considered an information collection under the Paperwork
Reduction Act. Accordingly, this information collection requirement has
been approved by the Office of Management and Budget. The OMB control
number for this information collection is 1115-0252.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements, Students.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS: AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356;
31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp.,
p. 166; 8 CFR part 2.
Sec. 103.7 [Amended]
2. Section 103.7(b)(1) is amended by removing the entry for ``Form
I-538'' from the listing of fees.
PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; section 141 of the Compacts of Free Association with
the Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and
1931 note, respectively; 8 CFR part 2.
4. Section 214.1 is amended by adding a new paragraph (h) to read
as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(h) Education privacy and F, J, and M nonimmigrants. As authorized
by section 641(c)(2) of Division C of Pub. L. 104-208, 8 U.S.C. 1372,
and Sec. 2.1(a) of this chapter, the Service has determined that, with
respect to F and M nonimmigrant students and J nonimmigrant exchange
visitors, waiving the provisions of the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. 1232g, is necessary for the proper
implementation of 8 U.S.C. 1372. An educational agency or institution
may not refuse to report information concerning an F or M nonimmigrant
student or a J nonimmigrant exchange visitor that the educational
agency or institution is required to report under 8 U.S.C. 1372 and
Sec. 214.3(g) (or any corresponding Department of State regulation
concerning J nonimmigrants) on the basis of FERPA and any regulation
implementing FERPA. The waiver of FERPA under this paragraph authorizes
and requires an educational agency or institution to report information
concerning an F, J or M nonimmigrant that would ordinarily be protected |
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