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[Federal Register: October 27, 2003 (Volume 68, Number 207)]
[Proposed Rules]               
[Page 61148-61158]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27oc03-20]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 214, and 299

[ICE No. 2297-03]
RIN 1653-AA23

 
Authorizing Collection of the Fee Levied on F, J, and M 
Nonimmigrant Classifications Under Public Law 104-208

AGENCY: Department of Homeland Security.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: On March 1, 2003, the former Immigration and Naturalization 
Service (Service) transferred from the Department of Justice to the 
Department of Homeland Security (DHS), pursuant to the Homeland 
Security Act of 2002 (HSA) (Public Law 107-296). The Service's 
adjudications functions transferred to the U.S. Citizenship and 
Immigration Services (CIS) of DHS, and the Service's Student and 
Exchange Visitor Information System (SEVIS) functions transferred to 
the Bureau of Immigrations and Customs Enforcement (ICE) of DHS. For 
the sake of simplicity, any reference to the Service has been changed 
to DHS, even when referencing events that preceded March 1, 2003. This 
rule proposes to amend the regulations of DHS to provide for the 
collection of a fee to be paid by certain aliens who are applying for 
F-1, F-3, M-1, or M-3 student visas or for a J-1 visa as an exchange 
visitor. Generally, the rule proposes a fee of $100, although 
applicants for certain J-1 exchange programs will pay a reduced fee of 
$35, and certain other aliens will be exempt from the fee altogether. 
This proposed rule explains which aliens will be required to pay the 
fee, describes the consequences that an alien seeking an F, J, or M 
nonimmigrant visa faces upon failure to pay the fee, and specifies 
which aliens are exempt from the fee. This fee is levied on students 
applying for F, J, or M nonimmigrant visas to cover the costs of 
administering and maintaining the SEVIS system and ensuring compliance 
by individuals, schools, and organizations with the system's 
requirements. The fee imposed under this proposed rule will pay for the 
continued operation of the SEVIS

[[Page 61149]]

program and will also include the funds to hire SEVIS Liaison Officers 
and other ICE officers to ensure compliance with the SEVIS 
requirements.

DATES: Written comments must be submitted on or before December 26, 
2003.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Department of Homeland Security, 425 I 
Street, NW., Room 4034, Washington, DC 20536. To ensure proper 
handling, please reference ICE No. 2297-03 on your correspondence. 
Comments may also be submitted electronically to DHS at rfs.regs@dhs.gov. When submitting comments electronically, you must 
include ICE No. 2297-03 in the subject box. Comments are available for 
public inspection at this location by calling (202) 514-3048 to arrange 
for an appointment.

FOR FURTHER INFORMATION CONTACT: Jill Drury, U.S. Immigration and 
Customs Enforcement, Department of Homeland Security, 800 K Street, NW, 
Room 1000, Washington, DC 20536, telephone (202) 514-1988.

SUPPLEMENTARY INFORMATION: 

Background

Who Are F, J, and M Nonimmigrants?

    The Immigration and Nationality Act (Act) provides for the 
admission of different classes of nonimmigrants, who are foreign 
nationals 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. Some 
classifications permit the nonimmigrant's spouse and qualifying 
child(ren) to accompany the nonimmigrant to the United States, or to 
join the nonimmigrant here. To qualify, a child must be unmarried and 
under the age of 21.
    F-1 nonimmigrants, as defined in section 101(a)(15)(F) of the Act, 
are foreign students coming to the United States to pursue a full 
course of study in DHS-approved colleges, universities, seminaries, 
conservatories, academic high schools, private elementary schools, 
other academic institutions, or in language training programs in the 
United States. For the purposes of this rule, the term ``school'' 
refers to all of these types of DHS-approved institutions. An F-2 
nonimmigrant is a foreign national who is the spouse or qualifying 
child of an F-1 student.
    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 (DOS) (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 DHS-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 rule. An M-2 nonimmigrant is a foreign national who is 
the spouse or qualifying child of an M-1 student.
    On November 2, 2002, Congress passed the Border Commuter Student 
Act of 2002, Pub. L. (107-274), which created 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. 
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. DHS 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 new legislation. In this proposed rule, DHS merely notes that the 
new F-3 and M-3 students will be subject to the same rules regarding 
the collection of the fee as for F-1 and M-1 students.

Why Is DHS Proposing This Rule?

    This rule is necessary to implement section 641 of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 8 
U.S.C. 1372, (regarding the program to collect information relating to 
nonimmigrant foreign students and other exchange program participants) 
and provides for the collection of the required fee to defray the costs 
of this program. Section 641 of IIRIRA requires DHS 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, using electronic 
reporting technology to the fullest extent practicable.
    DHS has implemented the Student and Exchange Visitor Information 
System (SEVIS) to carry out this statutory requirement. The substantive 
requirements and procedures for SEVIS have been promulgated in separate 
rulemaking proceedings. See 67 FR 34862 (May 16, 2002) (proposed rule 
implementing SEVIS); 67 FR 44343 (July 1, 2002) (interim rule for 
schools to apply for preliminary enrollment in SEVIS); 67 FR 60107 
(Sept. 25, 2002) (interim rule for certification of schools applying 
for enrollment in SEVIS); 67 FR 76256 (Dec. 11, 2002) (DHS's final rule 
implementing SEVIS); 67 FR 76307 (Dec. 12, 2002) (DOS interim rule 
implementing SEVIS).
    In accordance with section 641(e) of IIRIRA, as amended, 8 U.S.C. 
1372(e), which directs that this information collection system be self-
funded by aliens in those visa classifications, DHS proposes to set the 
amount of the fee and outline the regulatory provisions associated with 
such a fee.

What Does This Rule Propose To do?

    Based partly on a fee study of the costs of implementing SEVIS 
conducted in 2002, and upon the costs of ensuring compliance with the 
program, this rule proposes to set the regular fee at $100. Section 
641(e)(3) of IIRIRA provides that aliens applying for a J-1 visa as a 
participant in an exchange program sponsored by the Federal Government 
are exempt from the fee. Under section 641(e) of IIRIRA, as amended by 
section 110 of the Making Appropriations for the Government of the 
District of Columbia and Other Activities Chargeable in Whole or in 
Part Against the Revenues of Said District of Columbia for the Fiscal 
Year Ending September 30, 2001 and for Other Purposes, Pub. L. 106-553 
dated December 21, 2000, aliens who are applying for a J-1 visa as an 
au pair, camp counselor, or participant in a summer work travel program 
are subject to a reduced fee of not more than $35. DHS is also 
proposing in this rule that dependent aliens (F-2, J-2, and M-2) are 
exempt from paying a fee in connection with that status.
    Aliens who are subject to the fee will pay the fee prior to being 
granted an F-1, F-3, J-1, M-1 or M-3 nonimmigrant visa (or, for aliens 
who are exempt from the visa requirement under section 212(d)(4) of the 
Act, prior to their admission to the United States). Similarly, aliens 
already in the United States who apply for a change of status

[[Page 61150]]

to one of those classifications (for example, an alien admitted as an 
F-2 dependent or a B-2 visitor for pleasure who seeks to pursue full-
time study as an F-1 college student) also will pay the fee prior to 
applying for the change of status. However, an alien who has already 
paid the $100 or $35 fee, prior to obtaining F, J, or M nonimmigrant 
status, is not required to pay the fee again at the time of applying 
for an extension of status in the same classification as an F, J or M 
nonimmigrant. DHS has sought to build in as much flexibility as 
possible for the payment of the fee, recognizing that aliens abroad 
will be required to pay the fee prior to seeking an F, J or M visa at a 
U.S. embassy or consulate. Accordingly, DHS proposes two options for 
aliens to pay the fee:
    (1) The alien may pay the fee by mail, by submitting Form I-901, 
Fee Remittance for Certain F, M, and J Nonimmigrants, together with a 
check or money order drawn on a U.S. bank and payable in U.S. dollars 
to ``I-901 Student/Exchange Visitor Processing Fee;'' or
    (2) The alien may submit the fee electronically, by completing Form 
I-901 through the Internet and using a credit card.
    These options are similar to the usual means that any student or 
exchange visitor abroad would use to pay fees and expenses to the 
school or exchange program. The requirement that a check or money order 
be drawn on an U.S. bank does not necessarily mean that the student 
living abroad must approach an U.S. bank to make a payment. As provided 
in 8 CFR 103.7(a)(1), an application fee submitted from outside the 
U.S. ``may be made by bank international money order or foreign draft 
drawn on a financial institution in the United States'' and payable in 
U.S. currency. Many foreign banks are able to issue checks or money 
orders drawn on a U.S. bank. Accordingly, students may obtain checks 
from banks chartered or operated in the U.S., from foreign subsidiaries 
of U.S. banks, or from foreign banks that have an arrangement with a 
U.S. bank to issue a check, money order, or foreign draft that is drawn 
on a U.S. bank.
    DHS will issue a paper receipt to the alien in each case 
acknowledging the payment. As discussed further below in response to 
the public comments on the December 21, 1999 proposed rule, an alien 
who submits the fee electronically will be able to print out an 
immediate electronic receipt. Finally, DHS intends to incorporate the 
fee payment information electronically into SEVIS, which will then be 
passed in a data share arrangement to the Department of State so that a 
consular officer abroad will be able to confirm that the fee has been 
paid at the time the alien applies for an F, J, or M visa.
    To accommodate multiple options for payment, DHS intends to 
continue to consider alternate means for payment where available. Such 
options may include other companies that have products and services 
that facilitate fee payment and fee receipt abroad or collection of the 
fee payment by another federal agency.

How Has Congress Amended the Law as It Relates to the Collection of the 
Fee?

    The provisions in this proposed rule have taken into account 
amendments to section 641 of IIRIRA contained in section 404 of the 
Visa Waiver Permanent Program Act of 2002, Pub. L. 106-396 dated 
October 20, 2000, and section 416 of the Uniting and Strengthening 
America by Providing Appropriate Tools Required to Intercept and 
Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Pub. L. 107-56, dated 
October 26, 2001.
    As initially enacted by Congress, section 641(e) of IIRIRA required 
the schools and exchange programs to collect the fee. Because of the 
many concerns presented by that approach, DHS, working in cooperation 
with other governmental agencies and members of the regulated 
community, submitted to Congress amendatory language to section 641(e) 
of IIRIRA, removing the schools and exchange visitor programs from the 
role of fee collectors. Congress adopted this language with 
modifications in section 404 of the Pub. L. 106-396. The fee will now 
be collected from the alien directly by DHS.
    The USA PATRIOT Act expanded the class of nonimmigrants subject to 
the fee. Section 416 of the USA PATRIOT Act provided that the SEVIS 
program and the applicable fee cover all F and M students attending an 
approved educational institution, not merely those attending an 
institution of higher education. It also specifically required that 
flight schools be included in both the fee requirement and the 
underlying tracking system.

Was a Previous Proposed Rule Published Prior to the Issuance of This 
Proposed Rule?

    On December 21, 1999, a proposed rule was published in the Federal 
Register at 64 FR 71323, proposing to implement the fee collection 
process pursuant to section 641(e) of the IIRIRA. Specifically, the 
proposed rule sought to establish a $95 fee that schools and exchange 
visitor programs would collect and remit on behalf of qualifying F-1, 
J-1, and M-1 nonimmigrants upon the occurrence of certain events during 
the course of the student's or exchange visitor's stay in the United 
States. The proposed rule also calculated the basis for the user fee 
population base and outlined the associated program costs from which 
the fee amount was derived. Written comments were due by February 22, 
2000.
    A total of 4,617 comments were received on the proposed rule.
    Since the receipt of comments on the initial proposed rule, the HSA 
abolished the Service. Likewise, there have been several statutory 
changes relating to the collection of fees. SEVIS, a concept at the 
time of the proposed rule, has been implemented and I-20's and DS-
2019's not issued through the SEVIS system are no longer valid. In 
light of these factors, DHS is issuing this proposed rule, in lieu of 
implementing a final rule.
    The following is a discussion of differences between this proposed 
rule and the rule proposed in 1999, as well as comments received 
regarding the 1999 proposed rule and DHS's response. Many commenters to 
the 1999 proposed rule addressed identical issues in their comments, 
and as a result, the number of comments exceeds the number of issues 
discussed here. This proposed rule also responds to legislative 
enactments affecting the collection and the fee amount that occurred 
after publication of the 1999 proposed rule. Taking into consideration 
both the comments received and the passage of the new legislation, DHS 
proposes the resulting regulatory provisions set forth herein.

Significant Differences Between This Proposed Rule and the Rule 
Proposed in 1999

    On December 21, 1999, a fee of $95 was proposed in the Federal 
Register to support SEVIS (64 FR 71323). After careful evaluation of 
the costs to design, develop, and maintain the statutorily mandated 
information collection system, DHS now proposes the fee as $100 for 
nonimmigrant students and exchange visitors, and $35 for exchange 
visitors admitted as au pairs, camp counselors, or participants in a 
summer work/travel program, initially arriving or continuing a program 
in the United States. In addition, DHS proposes to collect the fee from 
the student or exchange visitor directly, rather than placing the 
burden on the school or exchange program to collect or remit the fee.
    Additionally, DHS now has specifically authorized an exemption

[[Page 61151]]

from fee payment for aliens who initially paid a SEVIS fee and applied 
for an F-1, F-3, J-1, M-1, or M-3 visa, but whose initial application 
was denied by the consular officer abroad. DHS has provided that such 
an alien will not have to pay a new SEVIS fee if the new application 
for a visa is made within nine months of the notice of denial. This 
length of time was selected as consistent with exceptions for payment 
of duplicative fees. DHS acknowledges that this policy may 
differentiate in treatment between aliens present in the United States 
and aliens who are outside the United States. However, DHS believes it 
is imperative for aliens to be extended the benefit of only paying one 
fee for a limited time period, to take into account changes in program 
upkeep and maintenance as well as individual circumstances.
    DHS seeks comments from the public regarding the length of time 
provided in the exception for aliens re-applying after a denial of a 
visa by a consular officer.

Discussion of Comments Received Regarding the 1999 Proposed Rule

    There was a total 4,617 comments regarding the collection of the 
required fee as set forth in the 1999 proposed rule. The following 
paragraphs will address each issue raised in comments received. This 
discussion will not describe in detail the provisions outlined in the 
1999 regulation, but rather will address only those provisions relevant 
to the comments received. In general, commenters opposed imposition of 
this fee. Many commenters felt the fee itself was excessive. Many 
commenters also discussed various aspects of the fee collection 
process. The vast majority of commenters suggested that the fee should 
not be collected by educational institutions or exchange visitor 
programs, but should instead be collected by the Federal Government. As 
previously stated in the summary to this proposed rule, all reference 
to the Service has been changed to DHS even though the events may have 
preceded March 1, 2003.

I. Fee Amount

    A primary issue of concern cited by the majority of commenters was 
that the proposed $95 fee was excessive and that the imposition of this 
fee disproportionately would affect students who stay in the United 
States for shorter periods than a full 4-year course of study. 
Commenters further stated that the proposed regulation outlining the 
collection and remittance of the fee was based on inaccurate and 
outdated data.
    As discussed in the 1999 proposed rule, at 64 FR 71323, an 
extensive fee study was conducted to arrive at the fee amount 
authorized by the proposed rule, utilizing the enrollment figures for 
foreign students and exchange visitors on the best available data. The 
proposed $95 fee as indicated in the 1999 proposed rule was necessary 
to cover the design and development costs of carrying out section 641 
of IIRIRA.
    To address the concerns raised by the education community and to 
reassess the amount of the fee based on changes in the student program 
and project funding since publication of the proposed rule, DHS decided 
to undertake a new fee review. KPMG Consulting was hired to conduct an 
objective fee review and ensure that applicable federal law and fee 
guidance were adhered to. The fee review included the recovery of 
historical costs and costs over the FY 2003/2004 time period, as well 
as the appropriated monies received. The fee review also included costs 
for increased staffing and training for DHS personnel involved in the 
student program at DHS headquarters, district offices, service centers 
and regional offices as well as the DOS.
    The fee study methodologies for the initial fee study and the 
second fee study were essentially the same. The basic change between 
the two studies is the assumptions that went into the calculation of 
the fee. The second fee study took into account changes resulting from 
the $36.8 million in counter-terrorism funding to expedite development 
of SEVIS and the legislation that identified the $35 fee for certain J 
nonimmigrants. DHS has determined that the student fee should also 
provide for the resources necessary to ensure compliance with 
regulations. The need to pay for these additional resources was not 
included in the KPMG study, but is now factored into the determination 
of the calculation of the fee amount in these regulations.
    SEVIS Liaison Officers will be a local resource for schools and 
students, providing timely and accurate information or assistance in 
meeting the requirements of the program. SEVIS Liaison Officers may 
visit schools, interview school officials, review records, compare 
system information to school information, and assist schools with 
system security issues. They will also coordinate with local school 
representatives and work on local training programs. Finally, SEVIS 
Liaison Officers will be available to assist immigration and other law 
enforcement officials who may have a need for information derived from 
SEVIS. Other ICE officers will conduct investigations to ensure 
compliance with these regulations. In addition, these officers will 
work in conjunction with SEVIS Liaison Officers for school reviews and 
re-certifications.
    This initial fee as authorized by IIRIRA is not to exceed $100. 
Further, the fee for exchange visitors admitted as au pairs, camp 
counselors, or participants in a summer work/travel program is not to 
exceed $35. However, IIRIRA also provides that the Secretary of 
Homeland Security may, on a periodic basis, revise the amount of the 
fee imposed and collected to take into account changes in the cost of 
carrying out this program. Pursuant to the Chief Financial Officers Act 
of 1990, DHS will review this fee every two years. Upon review, if it 
is found that the fee is either too high or too low, a new fee may be 
requested.
    This fee proposed in this rule will support personnel costs, 
ongoing system operation and maintenance costs, training costs, and 
other costs related to the program. Based on prior data, approximately 
362,400 F-1 students are expected to enter the United State in Fiscal 
Year 2004. Another 312,000 J-11 exchange visitors are also expected to 
enter the United States. In order to ensure that the personnel, system 
operations and maintenance, and training costs are supported, as well 
as providing compliance resources for the program on a sustained basis, 
and to remain within the initial $100 limitation on the fee amount, DHS 
recalculated the fee to cover the costs of 61 SEVIS Liaison Officers 
and 182 other ICE officers in the field. Based upon estimates of the 
total foreign student population and estimates of the total man-hours 
that will be needed to ensure compliance with the SEVIS requirements, 
DHS has estimated that this number of officers will constitute 
approximately 60% of the personnel resources needed for compliance 
efforts. DHS intends to staff 100% of the necessary SEVIS Liaison 
Officers and ICE Officers necessary to ensure compliance efforts, even 
if the costs of staffing exceed the funds generated by this proposed 
fee. Because of the initial $100 fee limitation, however, the fee 
proposed in this rule is now determined to be $100, and $35 for certain 
J nonimmigrants.
    The application of user fees as a funding source for compliance 
activities has been widely used and permitted since the introduction of 
user fees in the early 1980's. A federal agency is allowed to recoup 
the ``full cost'' of providing special benefits, including the costs of 
enforcement, collection,

[[Page 61152]]

research, establishment of standards, and regulation, when calculating 
its fees. Indeed, DHS currently recoups the cost of detecting and 
deterring fraud and protecting the integrity of benefits and documents 
through its immigration benefit application fees.
    Commenters objected both to the concept of a fee, as well as the 
fee level proposed. Many commenters to the 1999 proposed rule stated 
that the imposition of a fee would adversely affect the position of the 
United States in the international student market, and that the 
regulations authorizing collection of such a fee will interfere with 
important cultural exchanges. Additionally, many commenters noted that 
the imposition of the fee would affect the availability of seasonal and 
short-term foreign employees. DHS understands these concerns; however, 
collection of a fee of up to $100 associated with the student and 
exchange visitor data collection system was mandated by Congress. Thus, 
DHS is required, by statute, to impose a fee on the system's 
participants and, as noted above, DHS has taken into account the 
program costs in setting the fee. Finally, no supporting documentation 
was provided by the commenters to demonstrate that the imposition of a 
fee will have the adverse effects suggested in the comments.

II. The Collection and Remittance Process

    Most commenters to the 1999 proposed rule expressed strong 
opposition over the proposed rule's designation of educational 
institutions and exchange visitor programs as fee collectors. Comments 
stemming from this primary topic included: the lack of resources and 
infrastructure at educational institutions and exchange visitor 
programs to collect and remit the fee; the inappropriateness of 
requiring such groups to serve as enforcers of federal law in instances 
where the student or exchange visitor failed to pay the fee; and the 
absence of any financial assistance from the government to help defray 
the cost of setting up a fee collection system. Rather, commenters 
suggested that the Federal Government should directly collect the 
proposed fee without involving these institutions and programs in the 
collection and remittance process.
    As previously discussed, subsequent to the publication of the 1999 
proposed rule, Congress revised the law to provide that DHS itself will 
collect the fee directly from the alien prior to the alien's 
classification as an F-1, F-3, J-1, M-1, or M-3 nonimmigrant, and this 
revised proposed rule incorporates this statutory change. The schools 
and exchange visitor programs in which such aliens wish to participate 
will not need to have any role whatsoever in the collection of the 
required fees. Additionally, consistent with comments made to the 1999 
proposed rule and with section 641 of IIRIRA, which directs that the 
design and development of the student/exchange visitor information 
collection system be electronic. DHS now proposes a fee payment process 
that utilizes both electronic and paper-based methods. Aliens with 
access to the Internet will be able to complete the Form I-901 and 
remit payment through a website sponsored by the Federal Government. 
Given that some students and exchange visitors may not have access to 
the Internet, the Form I-901 will also be available on paper, and those 
aliens may remit payment to DHS by mail to the address listed on Form 
I-901. DHS also solicits suggestions as to whether there might be 
alternative payment methods offered to facilitate fee payment and 
receipt.
    Aliens who apply for their nonimmigrant visas while abroad will be 
required to pay the fee prior to submitting their visa application to 
the U.S. embassy or consulate with jurisdiction over their place of 
residence. Aliens who are already located in the United States will be 
required to pay the fee prior to submitting their request to DHS for 
change of classification as an F or M student or a J-1 exchange 
visitor. Aliens who are exempt from the visa requirement described in 
section 212(d)(4) of the Act will be required to pay the fee prior to 
the granting of admission to the United States. Upon payment in each of 
these situations, DHS will provide the alien with a paper receipt to be 
used by the alien to demonstrate that he or she has complied with the 
fee requirement.
    DHS and the DOS are also working on integrating a data share 
arrangement in order to provide consular officers electronic access to 
an F, J, or M nonimmigrant's fee payment information. For those 
nonimmigrants who are unable to receive the paper receipt, in the 
future, the consular officer will be able to verify fee payment 
information when verifying the electronic Form I-20 or DS-2019 
information. Such an arrangement will ensure that in instances where 
paper receipts sent by mail are either not received in a timely manner 
or not at all, the issuance of the nonimmigrant visa will not be 
delayed unnecessarily.

III. Aliens Exempt From the Fee

    The law provides that an alien seeking J-1 status to participate in 
an exchange program that is sponsored by the U.S. government is exempt 
from paying a fee.

IV. The Frequency of the Fee

    Many commenters to the 1999 proposed rule suggested that the fee 
should not be required each time a student or exchange visitor changes 
institutions or programs. DHS agrees with this suggestion and therefore 
proposes in this rule that students and exchange visitors will not have 
to pay a new fee upon each transfer to a new school or exchange program 
or upon commencement of a new program immediately following completion 
of the initial program. Rather, students and exchange visitors will 
only be required to pay the fee prior to being classified into the F, 
J, or M visa category. Thus, aliens seeking either initial enrollment 
at a school or initial participation in an exchange visitor program 
will be required to pay the fee prior to applying for their visas. As a 
result, many aliens will be paying the fee while abroad. As stated in 
section 641(e) of IIRIRA, as amended, such aliens will be required to 
present proof of fee payment, as part of their visa application, to the 
U.S. embassy or consulate prior to the granting of the visa. In the 
future, as part of a data share arrangement between SEVIS and DOS, 
consular officers will have electronic access to an alien's fee payment 
information. At that time, DOS may use the electronic information to 
verify whether the fee has been paid by the alien and may not require 
the alien to present the actual paper receipt as proof of payment. 
However, until such a data share arrangement is in place, if the alien 
does not submit the paper receipt as proof of payment, the consular 
officer will be required to deny the visa application. Similarly, 
aliens already located in the United States will be required to pay the 
fee prior to applying to DHS for change of classification to an F, J, 
or M visa category. It is important to note that under this proposed 
rule, the alien will be required to pay the fee only one time prior to 
being classified as an F, J, or M nonimmigrant. Students or exchange 
visitors whose initial visa applications are denied by a United States 
consular officer will not be required to pay the fee again when 
reapplying for the same status for which the alien originally applied 
within nine months of the notice of denial.
    Students and exchange visitors who have already paid the SEVIS fee 
would

[[Page 61153]]

only be required to pay a new SEVIS fee if they are applying for a new 
nonimmigrant visa to begin a new course of study or new program or for 
change of status in order to begin a new nonimmigrant status, not if 
they are merely extending an existing course of study or transferring 
to a new school or program level. Many commenters to the 1999 proposed 
rule suggested that the fee should be imposed one time only or should 
be an annual fee. DHS cannot adopt these suggestions. To collect a fee 
for each student and exchange visitor on an annual basis would be 
overly burdensome to the government as well as the affected parties, 
and would result in more money being collected than is necessary to 
fund the program. However, to collect the fee only once, for the 
lifetime of each student or exchange visitor, would be insufficient to 
cover program costs. With each event that occurs during the course of a 
student's or exchange visitor's stay in the United States, the data 
collection system mandated by section 641 of IIRIRA, will require 
updates by the school official or program officer and/or require 
adjudication by a government official, all of which require resources 
to be expended and funded. Where an F or M nonimmigrant is applying for 
reinstatement of student status because of a violation of status more 
than 5 months in duration, the nonimmigrant will be required to pay a 
new fee to DHS prior to the application for reinstatement in order to 
be granted a return to valid status. Similarly, pursuant to 22 CFR 
62.45, where an exchange visitor applies for reinstatement after a 
substantive violation or after falling out of his or her J program 
status for longer than 120 days, the exchange visitor will be subject 
to paying a new fee prior to applying for reinstatement. The new fee 
amount may be $35 or $100, depending on the type of exchange visitor 
program to which the J-1 nonimmigrant is seeking to be reinstated.
    The following chart outlines who is required to pay a fee under the 
proposed rule and when fee payment is required:

------------------------------------------------------------------------

-------------------------------------------------------------------------
Fee payment not required if applicant is:
  An F-2, J-2 or M-2 dependent.
  A J-1 participant in an exchange program sponsored by the Federal
   government.
  An F-1, F-3, J-1, M-1, or M-3 nonimmigrant transferring between
   schools, programs or program categories.
  An F-1, F-3, J-1, M-1, or M-3 nonimmigrant requesting/applying for an
   extension of course of study or program.
  An alien who paid an initial fee when seeking an F-1, F-3, J-1, M-1,
   or M-3 visa from a consular official abroad for initial attendance at
   an approved school or exchange program, who was denied a visa by the
   consular officer, and is re-applying for the same status within nine
   months of the denial.
  Applying for a change of classification between an F-1 and F-3
   nonimmigrant or between M-1 or M-3 nonimmigrant.
Fee payment is required if the applicant is:
  An alien seeking an F-1, F-3, J-1, M-1, or M-3 visa from a consular
   officer abroad for initial attendance at a DHS-approved school or
   initial participation in a Department of State-designated exchange
   program.
  An alien exempt from the visa requirement described in section
   212(d)(4) of the Act, applying for admission to the United States to
   begin initial attendance at a DHS-approved school or initial
   participation in a Department of State-designated exchange program.
  An alien in the United States seeking a change of status to F-1, F-3,
   J-1, M-1, or M-3 (except in the case of change classification between
   F-1 and F-3 or between M-1 or M-3).
  A J-1 nonimmigrant who is applying for reinstatement after a
   substantive violation, or who has been out of program status for
   longer than 120 days but less than 270 days during the course of his
   or her program.
  An F or M nonimmigrant applying for reinstatement of student status
   because of a violation of status more than 5 months in duration.
Fee payment is reduced if applicant is:
  A J-1 nonimmigrant participating in a summer work/travel, au pair, or
   camp counselor program.
------------------------------------------------------------------------

V. Applicability of the Fee Requirement

    Many commenters to the 1999 proposed rule stated that the fee 
should not be retroactive to August 1, 1999, and should only be 
collected once the student and exchange visitor information system is 
fully operational. Congress mandated in section 641 of the IIRIRA that 
the student/exchange visitor information collection program be funded 
by those aliens included in the program. This system is currently 
operational and DHS is incurring associated costs. As such, while the 
fee is not being imposed retroactively, this fee must be collected as 
soon as feasibly possible. This proposed rule therefore anticipates 
collection of fees upon implementation of a final rule.
    Many commenters to the 1999 proposed rule suggested that F-1 
nonimmigrant students participating in intensive English programs 
should be exempt from the fee requirement, that the fee should be 
waived for all short-term J-1 or F-1 nonimmigrants, or that the fee 
should be limited to F-1 students who are in a degree-seeking program. 
The language of section 641 of IIRIRA does not limit the application of 
the fee requirement to students in this specific category. Rather, the 
statute (as amended by Public Law 106-396) directs the Secretary of 
Homeland Security to impose a fee on all F and M students and J 
exchange visitors, with the sole exception of J-1 exchange visitors who 
have come to the United States as participants in an exchange program 
sponsored by the Federal Government.
    Many commenters stated that the language of the proposed fee rule 
published in December 1999 was ambiguous as to whether or not the fee 
requirement applied to F-1 nonimmigrants attending private high 
schools. Section 641(e)(1) of IIRIRA as amended by Public Law 107-56, 
now directs the Secretary of Homeland Security to collect this fee from 
students enrolled in other approved educational institutions as well. 
As a result of this statutory change, the proposed rule subjects F-1, 
F-3, J-1, M-1, and M-3 nonimmigrants enrolled in public and private 
high schools or private elementary schools to fee payment. Many 
commenters stated that the language in section 641(e) of IIRIRA, 
``sponsored by the Federal Government,'' is ambiguous, and suggested 
that, because all J-1 nonimmigrants are in some way sponsored by the 
Federal Government, all J-1 nonimmigrants should be exempt from paying 
the fee. DHS cannot adopt this suggestion. In determining who should be 
exempt from the fee, Congress specifically exempted J-1 nonimmigrants 
who are participating in an exchange program sponsored by the Federal 
Government. If Congress intended all J-1 nonimmigrants to be exempt 
from the fee, it would not have provided for this express exemption. In 
fact, Congress provided for a reduced fee of $35 for three other 
specific categories of J-1 programs. Thus, this provision falls under 
the principle of expressio unius: when one or more things of a class 
are expressly mentioned, others of the same class are necessarily 
excluded. That is, by expressly noting that those J-1 nonimmigrants 
sponsored by the Federal Government are exempt from the fee, other J-1 
program participants must therefore not be exempted.

VI. Miscellaneous Comments and Concerns

    Many commenters stated that the 1999 proposed rule allows the fee 
money remitted to DHS to be used for purposes outside the scope of 
section

[[Page 61154]]

641(e) of IIRIRA. The commenters stated that revenue generated from 
collection of the fee should be deposited in an account separate from 
the general Examinations Fee Account. In response to these comments, 
and in recognition that section 641(e) of IIRIRA specifies that the fee 
be imposed for the specific purpose of designing, developing, and 
maintaining the F, J, and M nonimmigrant monitoring system, DHS will 
establish a sub-account under the general Examinations Fee Account, 
into which revenue generated by the fee will be placed. Only costs 
associated with the F, J, and M nonimmigrant monitoring system and 
program mandated by section 641(e) of IIRIRA will be supported by the 
funds in this account.
    Several commenters noted that the 1999 proposed rule imposed yet 
another fee on international students, and that foreign countries will 
respond to the fee by imposing fees on U.S. students studying abroad. 
DHS is statutorily mandated by section 641(e) of IIRIRA to impose and 
collect a fee from each student and exchange visitor identified under 
section 641(e)(3) of IIRIRA. Additionally, under 31 U.S.C. 9701, DHS 
must assess a fee for the participation in any program that affords a 
particular benefit to an identifiable recipient.
    In converting the older paper-based process to one that is 
automated, DHS intends the reengineered student and exchange visitor 
information collection program to benefit all F, J, and M nonimmigrants 
by creating a more effective and timely process for verifying their 
compliance with the conditions of their status.
    Several commenters to the 1999 proposed rule suggested that those 
F, J, and M nonimmigrants subject to the fee should be refunded or 
credited for fees that are paid in error. DHS agrees with this 
suggestion. As with all fees imposed by DHS, students and exchange 
visitors will be refunded any amount of the fee that is erroneously 
remitted on the part of the alien to DHS.

VII. Description of Fee Payment Process

    Several commenters stated that the 1999 proposed rule did not 
address the process by which the fee will be collected from students/
exchange visitors who obtain their visas through a change of status. As 
previously discussed, nonimmigrants who are seeking a change of status 
to F-1, F-3, J-1, M-1, or M-3 status will be required to pay the fee 
prior to the granting of their new status. Under this proposed rule, 
payment of the fee may be remitted either electronically or by paper 
prior to the nonimmigrant's application for a change of classification. 
The nonimmigrant will be required to provide evidence of payment as 
part of his or her application for change of status. Absence of proof 
of fee payment will result in a denial of the application request. In 
the future, the officers will also have access to the electronic fee 
payment information in SEVIS to verify payment in instances where the 
paper receipt is lost or never received by the nonimmigrant.
    DHS is cognizant of the fact that many prospective students and 
exchange visitors are from developing countries that may have delays in 
mail delivery and may lack easy access to the Internet. For this 
reason, DHS has designed the fee payment process to provide several 
methods for payment and for timely receipt of payment confirmation. The 
fee payment process will begin after the student receives his or her 
Form I-20 from a DHS-approved school or after the exchange visitor 
receives the Form DS-2019 from an exchange visitor program authorized 
by the DOS. The fee may be paid either by: (1) submitting payment using 
Form I-901, Fee Remittance for Certain F, J, and M Nonimmigrants, by 
mail or (2) completing Form I-901 and making payment electronically 
over the Internet.
    The fee payment may be completed by schools, programs, family 
members, or friends on behalf of the applicant. If the Internet is used 
to complete the Form I-901 and payment, the applicant will be required 
to use a credit card. The form will be accessible at http://www.FMJfee.com or 
through DHS SEVIS Web page. In the future, applicants may have the 
added capability of payment by electronic funds transfers through an 
ACH (Alternate Clearinghouse) debit transaction. The Form I-901 will 
also be available by calling the Forms Center at 1-800-870-3676.
    If the Form I-901 and payment are completed by mail, the applicant 
will be required to pay by using either a check, money order, or 
foreign draft drawn on a U.S. bank, in U.S. dollars, and to submit the 
form and payment to the P.O. box address listed on the Form I-901. The 
check or money order must be made payable to ``The Department of 
Homeland Security, Immigration and Customs Enforcement.'' DHS does not 
allow applicants to pay any of DHS fees with foreign currency due to 
fluctuations in currency rates. Furthermore, DHS does not allow 
applicants to pay fees with checks drawn on foreign banks as the 
collection process is slow and expensive and there is no guarantee on 
these funds as there is with funds drawn on U.S. banks.
    After the completed Form I-901 and accompanying fee payment have 
been received by DHS, a receipt will be issued on the Form I-797, 
Notice of Action, to the prospective student or exchange visitor, by 
mail. All fee receipts will be printed and mailed to the applicant 
within 3 days of the fee payment being processed. Applicants will also 
have the option to have the receipt sent to them in an expedited 
manner. If this option is chosen, the receipt will be delivered by a 
courier for an additional fee. If the applicant pays the fee over the 
Internet, the applicant will be able to print and retain an electronic 
receipt at that time, in addition to the receipt that will be received 
by mail.
    Once the student or exchange visitor has received the Form I-797 as 
proof of payment of the fee, either electronically or via mail, he or 
she will submit the Form I-797 in conjunction with either the 
application for a visa abroad, admission to the United States, if 
exempt from visa requirements, or a change of status if in the United 
States. As previously stated, in the future, in instances where the 
receipt is not received or is lost by the applicant, the consular 
officer or DHS officer will have access to the fee payment information 
in SEVIS to verify that a fee has been paid for a particular 
individual.

Regulatory Flexibility Act

    The Secretary of Homeland Security, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
proposed rule and, by approving it, preliminarily certifies that this 
rule will not have a significant economic impact on a substantial 
number of small entities. Although this rule levies a fee on 
nonimmigrant students and exchange visitors initially arriving or 
continuing a program in the United States, and this fee will have an 
impact on these nonimmigrants, DHS is required by statute to collect a 
fee to support an electronic information collection system on foreign 
students and exchange visitors. The fees were arrived at after careful 
evaluation of the costs to design, develop, and maintain the 
statutorily-mandated information collection system.
    Since Congress has changed the law to provide that DHS will collect 
the fee directly from the student or exchange visitor, rather than 
having the school or exchange program collect and remit the fee, the 
schools and exchange programs will no longer need to be involved in any 
way with respect to the collection of the fee, although they are free 
to offer

[[Page 61155]]

assistance to their prospective students or exchange visitors if they 
choose to do so. The students and exchange visitors impacted by this 
rule are not considered 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. This rule levies a fee 
in the amount of $100 on nonimmigrant students and exchange visitors 
and a fee in the amount of $35 for exchange visitors admitted as au 
pairs, camp counselors, or participants in a summer work/travel 
program, initially arriving or continuing a program in the United 
States.

Executive Order 12866

    This rule is considered by the Department of Homeland Security 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. 
In particular, the Department has assessed both the costs and benefits 
of this rule as required by Executive Order 12866, section 1(b)(6) and 
has made a reasoned determination that the benefits of this regulation 
justify its costs.
    The costs to the public that this rule imposes are primarily the 
fees that must be paid by nonimmigrant students and exchange visitors 
that will be processed through the SEVIS system and admitted to the 
United States. DHS is required by section 641 of Public Law 104-208 to 
collect a fee to recover the cost of collecting student information 
electronically. On December 21, 1999, a fee of $95 was proposed in the 
Federal Register to support the SEVIS (64 FR 71323). After careful 
evaluation of the costs to design, develop, and maintain the 
statutorily mandated information collection system, DHS is now 
proposing a fee of $100 for nonimmigrant students and exchange 
visitors, and $35 for exchange visitors admitted as au pairs, camp 
counselors, or participants in a summer work/travel program, initially 
arriving or continuing a program in the United States. The fees imposed 
under this proposed rule will support personnel costs, ongoing system 
operation and maintenance costs, training costs, and other costs 
related to the program as well as provide for the resources necessary 
to ensure compliance with the regulations.
    As discussed previously in the introductory section of this rule, 
approximately 362,400 F-1 students are expected to enter the United 
States in Fiscal Year 2004. Another 312,400 J-1 exchange visitors are 
also expected to enter the United States. Based upon historical trends, 
it is further estimated that as many as 10% may subsequently violate 
the terms of their non-immigrant status each year. However, in an 
effort to compensate for the possible inaccuracies of earlier systems 
and data the estimated number of violators has been reduced to 5%. 
Using this percentage, DHS estimates 33,750 foreign students and 
exchange visitors might be subject to enforcement actions on an annual 
basis although no actual measure of the number of student and exchange 
visitors who have violated their immigration status has ever been 
conducted. In addition to the personnel, system operations and 
maintenance, and training costs that these fees will support, and while 
remaining within the initial $100 statutory limitation on the fee 
amount, DHS has recalculated the fee to cover the costs of 61 SEVIS 
liaison officers and 182 other ICE officers in the field. Based upon 
estimates of the total foreign student population and estimates of the 
total man-hours that will be needed to ensure compliance with the SEVIS 
requirements, DHS has estimated that this number of officers will 
constitute approximately 60% of the personnel resources needed for 
compliance efforts.
    The costs to DHS of either not assessing the fees under this rule 
or assessing the fees at a lesser amount would be the inability to 
continue to implement and operate the SEVIS system, if no fees were 
imposed, or at a minimum, a more limited ability to ensure compliance 
with by foreign students and exchange visitors with the requirements of 
the SEVIS system. Additionally, if the fees are not imposed or are 
imposed at a lesser amount the public could incur the intangible cost 
of reduced security as a result of a more limited ability to ensure 
compliance. The imposition of this fee also shifts the burden of 
funding program operating and compliance efforts to the population 
actually utilizing the SEVIS system. If the fees are not imposed or are 
imposed at a lesser amount, the general public, rather than the 
population of SEVIS users, would be responsible for bearing the cost of 
program implementation and conformity; this would be explicitly 
contrary to the directive of section 641 of Public Law 104-208, to 
collect a fee to recover the costs of SEVIS to the government.
    The costs of this rule, the fees imposed on foreign students and 
exchange visitors, are outweighed by the overall benefits to the public 
that SEVIS provides. SEVIS is a vital tool in furthering the protection 
of the public by: (1) Enhancing the process by which foreign students 
and exchange visitors gain admission to the United States; and (2) 
increasing the ability of DHS 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.
    In addition, DHS will collect the fee directly from the student or 
exchange visitor, rather than placing the burden on the school or 
exchange program to collect and remit the fee. Thus, this will lessen 
the burden on schools and exchange programs who will no longer need to 
take part in the collection of the fee, although they are free to offer 
assistance to their prospective students or exchange visitors if they 
choose to do so.
    SEVIS provides a proper balance between openness to international 
students and exchange visitors and the security obtained by enforcing 
the law. Balanced against the costs and the requirements to collect 
information electronically, the burden imposed by this regulation 
appears to DHS to be justified by the benefits.

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

[[Page 61156]]

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

    The information required by the Form I-901, Fee Remittance Form for 
Certain F, J, and M Nonimmigrants, is considered an information 
collection and subject to review and clearance under the Paperwork 
Reduction Act procedures. Accordingly, DHS has submitted this 
information collection requirement to OMB for emergency clearance under 
the Paperwork Reduction Act.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of Information, Privacy, Reporting and 
record keeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and record keeping requirements, Students.

8 CFR Part 299

    Immigration, Reporting and record keeping requirements.
    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a: 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296 116 Stat. 2135 (6 U.S.C. 1 
et. seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 
166; 8 CFR part 2.

    2. Section 103.7(b)(1) is proposed to be amended by adding the 
entry for Form I-901 to the listing of fees, in proper alpha/numeric 
sequence, to read as follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
    Form I-901. For remittance of the SEVIS fee levied on certain F, J, 
and M nonimmigrant aliens--$100 ($35 for J-1 au pairs, camp counselors, 
and participants in a summer work/travel program).
* * * * *

PART 214--NONIMMIGRANT CLASSES

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

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305; 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 214.2 is amended by:
    a. Adding a new paragraph (f)(19);
    b. Adding a new paragraph (j)(5); and
    c. Adding a new paragraph (m)(20).
    The additions read as follows:


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

* * * * *
    (f) * * *
    (19) Remittance of the fee. An alien who applies for F-1 or F-3 
nonimmigrant status in order to enroll in a program of study at a 
Department of Homeland Security (DHS)-approved educational institution 
is required to pay the SEVIS fee to DHS in advance, pursuant to Sec.  
214.13(c), except as otherwise provided in that section.
* * * * *
    (j) * * *
    (5) Remittance of the fee. An alien who applies for J-1 
nonimmigrant status in order to commence participation in a Department 
of State (DOS)-designated exchange visitor program is required to pay 
the SEVIS fee to DHS in advance, pursuant to Sec.  214.13(c), except as 
otherwise provided in that section.
* * * * *
    (m) * * *
    (20) Remittance of the fee. An alien who applies for M-1 or M-3 
nonimmigrant status in order to enroll in a program of study at a DHS-
approved vocational educational institution is required to pay the 
SEVIS fee to DHS in advance, pursuant to Sec.  214.13(c), except as 
otherwise provided in that section.
* * * * *
    5. Section 214.13 is added to read as follows:


Sec.  214.13  SEVIS fee for certain F, J, and M nonimmigrants.

    (a) Applicability. Except as otherwise provided in this section, 
the following aliens are required to submit a payment of a $100 fee to 
the Department of Homeland Security (DHS), in advance, in connection 
with obtaining nonimmigrant status as a student or exchange visitor, in 
addition to any other applicable fees:
    (1) An alien who applies for F-1 or F-3 nonimmigrant status in 
order to enroll in a program of study at a DHS-approved institution of 
higher education, as defined in section 101(a) of the Higher Education 
Act of 1965, as amended, or in a program of study at any other DHS-
approved academic or language-training institution including private 
elementary and secondary schools and public secondary schools;
    (2) An alien who applies for J-1 nonimmigrant status in order to 
commence participation in an exchange visitor program designated by the 
Department of State (DOS) (with a reduced fee for certain exchange 
visitors as provided in paragraph (e) of this section); and
    (3) An alien who applies for M-1 or M-3 nonimmigrant status in 
order to enroll in a program of study at a DHS-approved vocational 
educational institution, including a flight school.
    (b) Aliens not subject to a fee. No SEVIS fee is due with respect 
to: (1) A J-1 exchange visitor who is coming to the United States as a 
participant in an exchange program sponsored by the Federal Government.
    (2) Dependents. The principal alien must pay the fee, when required 
under this section, in order to obtain F-2, J-2, or M-2 status for his 
or her dependents. However, an F-2, J-2, or M-2 dependent is not 
required to pay a separate fee under this section in order to obtain 
that status or during the time they remain in that status.
    (c) Time for payment of SEVIS fee. An alien who is subject to 
payment of the SEVIS fee must remit the fee directly to DHS as follows:
    (1) An alien seeking an F-1, F-3, J-1, M-1, or M-3 visa from a 
consular officer abroad for initial attendance at a DHS-approved school 
or to commence participation in a Department of State-approved program, 
must pay the fee to DHS before applying for the visa.
    (2) An alien who is exempt from the visa requirement described in 
section 212(d)(4) of the Act must pay the fee to DHS before the alien 
applies for admission to the United States to begin initial attendance 
at a DHS-approved school or initial participation in a Department of 
State-approved program.
    (3) A nonimmigrant alien in the United States seeking a change of 
status to F-1, F-3, J-1, M-1, or M-3 must pay the fee to DHS before the 
alien submits the application for change of nonimmigrant status, except 
as

[[Page 61157]]

provided in paragraph (d) of this section.
    (4) A J-1 nonimmigrant who is applying for reinstatement after a 
substantive violation, or who has been out of program status for longer 
than 120 days during the course of his or her program, must pay the 
applicable fee to DHS prior to applying for reinstatement to valid J-1 
status.
    (5) An F or M student who is applying for reinstatement of student 
status because of a violation of status more than 5 months in duration, 
must pay a new fee to DHS in connection with the application for 
reinstatement in order to be granted a return to valid status.
    (d) Circumstances where no new fee is required. (1) Extension of 
stay or transfer. An alien who has previously paid the fee prior to 
obtaining his or her current status, as a student or exchange visitor 
is not required to pay a new fee in connection with:
    (i) An application for an extension of stay as provided in Sec.  
214.2(f)(7) or (m)(10);
    (ii) An application for transfer as provided in Sec.  214.2(f)(8) 
or (m)(11); or
    (iii) An application for post-completion practical training as 
provided in Sec.  214.2(f)(10)(ii) or (m)(14).
    (2) New program in the same classification. An F-1, F-3, M-1, or M-
3 nonimmigrant who has previously paid the fee is not required to pay a 
new fee for an extension of status in connection with enrollment in a 
new course of study in the same nonimmigrant status. For purposes of 
the preceding sentence, no fee is required for changes between the F-1 
and F-3 classifications, and no fee is required for changes between the 
M-1 and M-3 classifications.
    (3) Re-application following denial of application by consular 
officer. An alien who fully paid a SEVIS fee in conjunction with an 
initial application for an F-1, F-3, J-1, M-1, or M-3 visa from a 
consular officer and whose initial application was denied, who is 
reapplying for the same status within 9 months following the notice of 
denial.
    (e) Special rules for J-1 exchange visitors. (1) A J-1 exchange 
visitor coming to the United States as an au pair, camp counselor, or 
participant in a summer work/travel program is subject to a reduced fee 
of $35.
    (2) A J-1 exchange visitor applying for a change of category as 
provided in 22 CFR 62.41 is not required to pay the fee.
    (3) A J-1 exchange visitor applying for transfer of program as 
provided in 22 CFR 62.42 is not required to pay the fee.
    (4) A J-1 exchange visitor applying for an extension of program as 
provided in 22 CFR 62.43 is not required to pay the fee.
    (f) Reserved.
    (g) Procedures for payment of the SEVIS fee. (1) Options for 
payment. An alien subject to payment of a fee under this section may 
pay the fee by any procedure approved by DHS, including:
    (i) Submission of Form I-901, to DHS by mail, along with the proper 
fee paid by check, money order, or foreign draft drawn on a financial 
institution in the United States and payable in United States currency, 
as provided by Sec.  103.7(a)(1) of this chapter;
    (ii) Electronic submission of Form I-901 to DHS using a credit 
card, or other electronic means of payment accepted by DHS; or
    (iii) Any other designated payment service and receipt mechanism 
approved by DHS.
    (2) Receipts. DHS will generate and mail a receipt for each fee 
payment under this section.
    (i) If the payment was made by mail, DHS may provide for an 
expedited delivery of the receipt, upon request, for an additional fee.
    (ii) If payment was made electronically or through a DHS-designated 
payment service and receipt mechanism, DHS will accept a properly 
completed receipt that is printed out electronically or provided by the 
payment service's mechanism in lieu of the receipt generated by DHS.
    (3) Recording electronic fee payment. DHS will maintain an 
electronic record of payment for the alien to reflect the receipt of 
the required fee under this section. If the alien's record indicates 
that the fee has been paid, an alien who has lost or did not receive a 
receipt for a fee payment under this section will not be denied an 
immigration benefit solely because of a failure to submit proof of 
payment of the fee.
    (4) Third-party payments. DHS may accept payment of the required 
fee for an alien from an approved school or a designated exchange 
program, or from another appropriate source, in accordance with 
procedures approved by DHS.
    (h) Reinstatement. (1) In certain instances, the alien must pay the 
initial required fee in order to be eligible to apply for 
reinstatement. An F or M student who has been out of status for more 
than 5 months at the time of seeking reinstatement of student status 
pursuant to Sec.  214.2(f)(16) or (m)(16) must pay a new fee in 
connection with the application for reinstatement. A J-1 nonimmigrant 
who has a substantial violation or who has been out of program status 
for longer than 120 days but less than 270 days during the course of 
his or her program must pay a new fee to DHS, if applicable, before 
applying for reinstatement to valid J-1 status. Approval of 
reinstatement also reinstates the status of any dependents.
    (2) The failure by an F or M student or a J-1 exchange alien to pay 
the required fee is a violation of status for the principal alien and 
his or her dependents. For purposes of reinstatement, the principal 
alien and his or her dependents will not be considered to have gone out 
of status ``through no fault of his or her own'' or ``for minor or 
technical infractions.'' Payment of the fee does not, however, preserve 
the lawful status of any F, J, or M nonimmigrant who has violated his 
or her status in some other way.

PART 299--IMMIGRATION FORMS

    6. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
    7. Section 299.1 is amended in the table by adding, in proper 
alpha/numeric sequence, the entry for [Ldquo]Form I-901'' to read as 
follows:


Sec.  299.1  Prescribed forms.

* * * * *

----------------------------------------------------------------------------------------------------------------
        Form No.                  Edition date                                    Title
----------------------------------------------------------------------------------------------------------------

                                                    * * * * *
I-901...................  ............................     Fee Remittance for Certain F, J, and M Nonimmigrants.

                                                    * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 61158]]

    8. Section 299.5 is amended in the table heading by revising the 
term ``INS form No.'' to read ``Form No,'' and in the table by adding, 
in proper alpha/numeric sequence, the entry for Form ``I-901'' to read 
as follows:


Sec.  299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                Currently  assigned  OMB
      Form No.               Form title                control No.
------------------------------------------------------------------------

                                * * * * *
I-901...............  Fee Remittance For        1115-
                       Centain F, J, and M
                       Nonimmigrants.

                                * * * * *
------------------------------------------------------------------------


    Dated: October 21, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-26970 Filed 10-24-03; 8:45 am]
BILLING CODE 4410-10-P



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