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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: April 12, 2002 (Volume 67, Number 71)]
[Rules and Regulations]               
[Page 18061-18064]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12ap02-13]                         

[[Page 18061]]
-----------------------------------------------------------------------
Part II

Department of Justice
-----------------------------------------------------------------------
Immigration and Naturalization Service
-----------------------------------------------------------------------
8 CFR Parts 214, 235, and 248

Requiring Change of Status From B to F-1 or M-1 Nonimmigrant Prior to 
Pursuing a Course of Study; Final Rule

Limiting the Period of Admission for B Nonimmigrant Aliens; Proposed 
Rule

[[Page 18062]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 248

[INS No. 2195-02]
RIN 1115-AG60

Requiring Change of Status From B to F-1 or M-1 Nonimmigrant 
Prior to Pursuing a Course of Study

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends the Immigration and Naturalization 
Service (Service) regulations by eliminating the current provision 
allowing a B-1 or B-2 nonimmigrant visitor for business or pleasure to 
begin attending school without first obtaining approval of a change of 
nonimmigrant status request from the Service. This change will enhance 
the Service's ability to support the national security needs of the 
United States and is within the Service's authority under section 248 
of the Immigration and Nationality Act (Act). The amendment will ensure 
that no B nonimmigrant is allowed to enroll in school until the alien 
has applied for, and the Service has approved, a change of nonimmigrant 
status to that of F-1 or M-1 nonimmigrant student.

DATES: Effective date: This interim rule is effective April 12, 2002.
    Comment date: Written comments must be submitted on or before June 
11, 2002.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Immigration and Naturalization Service, 
425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference the INS No. 2195-02 on your correspondence. 
Comments may also be submitted electronically to the Service at 
insregs@usdoj.gov. When submitting comments electronically, please 
include INS No. 2195-02 in the subject heading. Comments are available 
for public inspection at this location by calling (202) 514-3048 to 
arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Craig Howie, Business and Trade 
Services Branch, Adjudications Division, Immigration and Naturalization 
Service, 425 I Street, NW., Room 3040, Washington, DC 20536, telephone 
(202) 353-8177.

SUPPLEMENTARY INFORMATION:

Background

What Is a B Nonimmigrant Alien?

    A B nonimmigrant is an alien whose admission to the United States 
is based on a temporary visit for business (B-1) or a temporary visit 
for pleasure (B-2). Section 101(a)(15)(B) of the Act, 8 U.S.C. 
1101(a)(15)(B), defines the visitor classification as:

    An alien (other than one coming for the purpose of study or of 
performing skilled or unskilled labor or as a representative of 
foreign press, radio, film, or other foreign information media 
coming to engage in such vocation) having a residence in a foreign 
country which he has no intention of abandoning and who is visiting 
the United States temporarily for business or temporarily for 
pleasure.
    Based on the statutory language, the Service has long held a B-1 
nonimmigrant to be one seeking admission for legitimate activities of a 
commercial or professional nature such as meetings, conferences, or 
consultations in the United States in connection with the conduct of 
international business and commerce. A B-2 nonimmigrant is one seeking 
admission for activities relating to pleasure such as touring, family 
visits, or for purposes of receiving medical treatment.

What Is the Service Changing in This Interim Rule?

    The Service is eliminating the ability of an alien admitted to the 
United States as a B-1 or B-2 nonimmigrant to begin attending classes 
without first applying to the Service, and obtaining the Service's 
prior approval, for a change of nonimmigrant status to that of an F or 
M nonimmigrant student. This rule expressly prohibits a B nonimmigrant 
from enrolling in a course of study or taking other actions 
inconsistent with B nonimmigrant status unless and until the Service 
has approved the B nonimmigrant's change to an appropriate student 
nonimmigrant status.

Why Is the Service Instituting This Change?

    The terrorist attacks of September 11, 2001, highlight the need of 
the Service to maintain greater control over the ability of an alien to 
change nonimmigrant status once the alien has been admitted to the 
United States. This interim rule will allow the Service to fully review 
any request from a B nonimmigrant to change nonimmigrant status to that 
of full-time student before allowing the alien to enroll in a Service-
approved school. The elimination of the ability of a B nonimmigrant to 
begin classes before receiving the Service's approval of the change of 
nonimmigrant status is also consistent with the Act's requirement in 
section 101(a)(15)(B) that a B nonimmigrant not be a person coming to 
the United States for the purpose of study.

Why Is This Change Limited to B Nonimmigrants?

    In the process of drafting this rule, the Service considered making 
its requirements (i.e., that nonimmigrants obtain a student visa before 
being able to take courses) apply to anyone in the United States not 
currently in student status. Such a requirement would be broader than 
the rule as presently drafted, which applies just to nonimmigrants in 
B-1 or B-2 visitor status.
    B nonimmigrants generally enter the United States for purposes of 
tourism or for a business trip. Pursuing a course of study is 
inconsistent with these purposes, and thus inconsistent with B status. 
However, pursuit of studies generally is consistent with most other 
nonimmigrant statuses, and thus such a broader rule could have 
unintended and overly burdensome consequences for such nonimmigrants. 
For some, such a J-1 au pair or an H-3 trainee, the courses might be an 
integral part of the program for which they obtained their status. For 
many dependent spouses, such as H-4s, derivatives of A or G diplomats, 
or NAFTA TN-2s, studies may be their only permissible pursuit while 
accompanying their spouse who is working in the United States. 
Dependent children are, in fact, expected to attend school. Even some 
principals in nonimmigrant status (e.g., H-1Bs, L-1s) may take courses 
incident to status to enhance their professional development. Requiring 
that these individuals change to F-1 or M-1 status in order to pursue 
studies would eliminate their ability to attend part-time, since by 
statute F-1s and M-1s must be pursuing a full course of study and since 
a nonimmigrant is prohibited from holding more than one nonimmigrant 
status while in the United States.

How Does This Interim Rule Affect B-1 or B-2 Nonimmigrants Previously 
Admitted to the United States?

    This interim rule will accommodate B-1 or B-2 nonimmigrants who 
have already been admitted to the United States prior to April 12, 
2002. In view of the Service's prior policy, this interim rule does not 
prevent such aliens from starting a course of study after filing an 
application for change of status, or require those aliens to stop 
taking

[[Page 18063]]

classes while the Service processes the change of nonimmigrant status 
request.
    However, this interim rule applies to all aliens who are admitted 
as, or change their status to, a B-1 or B-2 nonimmigrant, on or after 
April 12, 2002. This interim rule also applies to all current B 
visitors who apply for an extension of their B nonimmigrant status on 
or after April 12, 2002.

Request for Comments

    The Service is seeking public comments regarding this interim rule. 
The Service requests that parties interested in commenting on the 
provisions contained within this rule do so on or before June 11, 2002, 
as the Service will not extend the comment period.

Good Cause Exception

    The Service's implementation of this rule as an interim rule, with 
provisions for post-promulgation public comments, is based on the 
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The 
reason and necessity for the immediate promulgation of this rule are as 
follows: The rule is necessary to ensure the national security of the 
United States by eliminating the ability of a B nonimmigrant to enroll 
in school until the Service has approved a change of nonimmigrant 
status application filed by the prospective alien student. The previous 
rule allowing such enrollment prior to adjudication of the application 
was used by some of the September 11th terrorists to obtain flight 
training in the United States. Closing this loophole is essential to 
efforts to prevent this abuse from recurring.
    There is also reasonable concern that publication of this 
regulation as a proposed rule, one that would not take effect until 
after a final rule was promulgated, could lead to the counterproductive 
result of a surge of entries by individuals who have no intention of 
going through the consular screening process overseas and who would 
seek admission as a B nonimmigrant while having the intent of becoming 
an F or M nonimmigrant student after admission to the United States.
    However, this interim rule takes account of the interests of those 
aliens currently admitted to the United States in B nonimmigrant 
status. Such aliens will continue to be governed by the Service's prior 
policy regarding change to F or M nonimmigrant status, for the 
remainder of their currently-authorized B nonimmigrant admission.
    Accordingly, the Service believes that advance public notice and 
comment on this regulation would be impracticable and contrary to the 
public interest. Therefore, there is good cause under 5 U.S.C. 553(b) 
and (d) for dispensing with the requirements of prior notice and to 
make this rule effective upon the date of publication in the Federal 
Register.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, 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. This rule applies only to B nonimmigrants applying to 
change to either F or M nonimmigrant status. It does not affect 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 affect 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 rule has been submitted to the Office of 
Management and Budget for review.

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.

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

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB), for review and approval, any reporting or recordkeeping 
requirements inherent in a rule. This rule does not impose any new 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

List of Subjects

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
officials, Health professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 248

    Aliens, Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1101 note, 1103, 1182, 1184, 1186a, 
1187, 1221, 1281, 1282; 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.


    2. Section 214.2 is amended by adding and reserving paragraph 
(b)(6) and by adding new paragraph (b)(7) to read as follows:


Sec. 214.2  Special requirements for admission, extension and 
maintenance of status.

* * * * *
    (b) * * *
    (6) [Reserved]
    (7) Enrollment in a course of study prohibited. An alien who is 
admitted as, or changes status to, a B-1 or B-2

[[Page 18064]]

nonimmigrant on or after April 12, 2002, or who files a request to 
extend the period of authorized stay in B-1 or B-2 nonimmigrant status 
on or after such date, violates the conditions of his or her B-1 or B-2 
status if the alien enrolls in a course of study. Such an alien who 
desires to enroll in a course of study must either obtain an F-1 or M-1 
nonimmigrant visa from a consular officer abroad and seek readmission 
to the United States, or apply for and obtain a change of status under 
section 248 of the Act and 8 CFR part 248. The alien may not enroll in 
the course of study until the Service has admitted the alien as an F-1 
or M-1 nonimmigrant or has approved the alien's application under part 
248 of this chapter and changed the alien's status to that of an F-1 or 
M-1 nonimmigrant.
* * * * *

PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION

    3. The authority citation for part 248 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1184; 1258; 8 CFR part 2.


    4. Section 248.1 is amended by revising paragraph (c) to read as 
follows:


Sec. 248.1  Eligibility.

* * * * *
    (c) Change of nonimmigrant classification to that of a nonimmigrant 
student.
    (1) Except as provided in paragraph (c)(3) of this section, a 
nonimmigrant applying for a change of classification as an F-1 or M-1 
student is not considered ineligible for such a change solely because 
the applicant may have started attendance at school before the 
application was submitted. The district director or service center 
director shall deny an application for a change to classification as an 
M-1 student if the applicant intends to pursue the course of study 
solely in order to qualify for a subsequent change of nonimmigrant 
classification to that of an alien temporary worker under section 
101(a)(15)(H) of the Act. Furthermore, an alien may not change from 
classification as an M-1 student to that of an F-1 student.
    (2) [Reserved]
    (3) A nonimmigrant who is admitted as, or changes status to, a B-1 
or B-2 nonimmigrant on or after April 12, 2002, or who files a request 
to extend the period of authorized stay as a B-1 or B-2 nonimmigrant on 
or after such date, may not pursue a course of study at an approved 
school unless the Service has approved his or her application for 
change of status to a classification as an F-1 or M-1 student. The 
district director or service center director will deny the change of 
status if the B-1 or B-2 nonimmigrant enrolled in a course of study 
before filing the application for change of status or while the 
application is pending before the Service.
* * * * *

    Dated: April 9, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-8926 Filed 4-9-02; 1:54 pm]
BILLING CODE 4410-10-P


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