Federal Register: May 16, 2002 (Volume 67, Number 95)
DOCID: FR Doc 02-12022
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
CFR Citation: 8 CFR Parts 103 and 214
RIN ID: RIN 1115-AG55
INS ID: [INS No. 2185-02]
NOTICE: PROPOSED RULES
ACTION: Nonimmigrant classes:
DOCUMENT ACTION: Proposed rule.
Retention and Reporting of Information for F, J, and M Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)
DATES: Written comments must be submitted on or before June 17, 2002.
This rule proposes to amend the Immigration and Naturalization Service (Service) regulations governing the retention and reporting of information regarding F, J, and M nonimmigrants. This rule will implement the Student and Exchange Visitor Information System (SEVIS), and establish a process for electronic reporting by designated school officials (DSO) of information required to be reported to the Service. This is necessary to improve and streamline the reporting and record keeping of F, J, and M nonimmigrants. This rule also proposes to amend the existing regulations relating to F and M students to improve accountability and to implement reasonable and clear standards governing the maintenance, extension and reinstatement of student status.
Student and Exchange Visitor Information System; F, J, and M nonimmigrants; information retention and reporting,
Who Are F, J, and M Nonimmigrants?
The Immigration and Nationality Act (Act) provides for the admission of various classification of 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 State determines his or her proper nonimmigrant classification.
F1 nonimmigrants, as defined in section 101(a)(15)(F) of the Act, are foreign students pursuing a full course of study in a college, university, seminary, conservatory, academic high school, private elementary school, other academic institution, or language training program in the United States that has been approved by the Service to enroll foreign students. For the purposes of this rule, the term ``school'' refers to all of these types of Serviceapproved institutions. An F2 nonimmigrant is a foreign national who is the spouse or qualifying child (under the age of 21) of an F1
J1 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 J1 classification includes, among others, aliens participating in programs under which they will receive graduate medical education or training. For purposes of this rule, ``exchange visitor program'' refers to all organizations or institutions designated by the Department of State to conduct an exchange program. A J2 nonimmigrant is a foreign national who is the spouse or qualifying child (under the age of 21) of a J1 nonimmigrant.
M1 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 school or other recognized nonacademic institution
(other than in language training programs) in the United States. The
term ``school'' for the purposes of this proposed rule also encompasses
all institutions approved for attendance by M1 students. An M2
nonimmigrant is a foreign national who is the spouse or qualifying child (under the age of 21) of an M1 nonimmigrant.
(Among the kinds of schools approved for attendance by M1 students are flight training schools. The Service notes that section 113 of the Aviation and Transportation Security Act, Public Law 10771 (Nov. 19, 2001), imposes new restrictions on providing flight training to aliens and requires a 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 M1 students. The Department of Justice has already published public notices pertaining to section 113 at 67 FR 2238 (Jan. 16, 2002) and 67 FR 6051 (Feb. 8, 2002), and the Department will be promulgating implementing rules in a separate proceeding.)
I. Description of the New Process
What Is the Student and Exchange Visitor Information System (SEVIS)?
Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104208, Div. C (Sept. 30, 1996), directs the Attorney General to develop and conduct a program to collect current information, on an ongoing basis, from schools and exchange programs relating to nonimmigrant foreign students and exchange aliens during the course of their stay in the United States, using electronic reporting technology to the fullest extent practicable.
SEVIS implements this requirement. SEVIS is an internetbased system that provides users with access to accurate and current information on nonimmigrant foreign students, exchange aliens, and their dependents. SEVIS will enable schools and exchange programs to transmit electronic information and event notifications, via the Internet, to the Service and the Department of State throughout a [[Page 34863]]
student's or exchange alien's stay in the United States.
Currently, for F1 and M1 students, schools are required to maintain local records on each nonimmigrant student, and to produce such information upon request by the Service. In order to enroll a nonimmigrant student, a school, at the time of offering acceptance, must complete and send a multicopy paper Form I20AB, Certificate of Eligibility for Nonimmigrant (F1) Student Status for Academic and Language Students, or Form I20MN, Certificate of Eligibility for Nonimmigrant (M1) Student Status For Vocational Students. A copy of the Form I20 is maintained by the school, a copy is provided to the nonimmigrant, and a copy is routed to the Service for dataentry into a mainframe database, processed, and then returned to the school for inclusion in its local record. Other than entry into a mainframe database, which is not accessible for use by the school, the current process is entirely manual and paperbased.
SEVIS creates a means for information collection and reporting via the Internet and a reduction in data latency and paper record maintenance and routing. In order to create a Form I20, the school will now access SEVIS and enter the information electronically, thus instantly collecting the data in a central database before the form is ever printed. There will no longer be a need for multiple copies of the forms, since the Service will not need a copy to be routed for data entry. Likewise, the school will no longer be required to maintain its own paper copy of the record, since it will be accessible to the school through SEVIS. Once it is fully operational and all affected schools are mandated to utilize the system, SEVIS will completely replace and aggregate the Service's existing mainframe database, the Student/School system (STSC).
Similarly, at present, an exchange visitor program admitting J1
exchange aliens currently must complete a Form DS2019 (previously Form
IAP66). Under SEVIS, exchange programs will use SEVIS to enter
information electronically and generate a Form DS2019 for their
participating exchange aliens. For clarification purposes, sections of
this text that refer specifically to a Form I20 or DS2019 issued from
SEVIS will refer to the forms as a SEVIS Form I20 or SEVIS Form DS 2019.
Must All Schools and Exchange Visitor Programs Participate in SEVIS?
Currently, SEVIS is anticipated to begin implementation for participation on a voluntary basis on July 1, 2002. Participation in SEVIS at first will be voluntary, but will become required on January 30, 2003. The Department of State will issue separate regulations establishing a compliance date for all exchange visitor programs.
Once use of SEVIS is mandatory, all schools approved by the Service
must be using SEVIS in order to continue accepting foreign students and
all exchange visitor programs must be using SEVIS to enroll exchange
aliens. Thereafter, only SEVIS Forms I20 for F1 or M1 students or
SEVIS Form DS2019 for J1 exchange aliens can be used for entry into the United States, change of nonimmigrant classification,
reinstatement, transfer, extension, or any other immigration benefit.
The Service recognizes that the compulsory date of January 30, 2003, may pose challenges for schools as there may be changes to existing systems and processes required of schools in order to be in compliance. Therefore, the Service is soliciting comments from the schools regarding the amount of time the schools believe will be necessary to convert to the SEVIS system. Commenters should state specifically the steps that must be taken before being able to fully convert to SEVIS and indicate particular problems or obstacles that may be faced in trying to meet the proposed deadline. The Service will consider the information provided in the comments in the drafting of the final rule.
In the meantime, there will be schools and exchange visitor programs that continue to use the existing paperbased processes and others that begin to use SEVIS, as they choose. This phasedin approach will allow schools and exchange visitor programs sufficient time to conform their internal processes to a system that will successfully interface with SEVIS.
Accordingly, this proposed rule amends Sec. 214.2(f) and (m) of the Service's regulations to allow for different reporting processes for schools prior to the final SEVIS implementation date, depending upon whether or not they have been enrolled in SEVIS. These alternative processes are clearly distinguished in the text of this proposed rule. The Service will publish a rule when SEVIS becomes mandatory to remove all references in the regulations to paperbased processes.
The Department of State's separate rule will provide the appropriate processes for exchange visitor programs to follow with respect to J nonimmigrants, depending on whether or not those programs have been enrolled in SEVIS during the time before use of SEVIS becomes mandatory.
Although IIRIRA section 641 mandates the development of a new
information collection program, the Service is also pursuing this
system as a result of its recognition that the current reporting
process for foreign student and exchange aliens is not an effective
means to maintain timely information on F, J, and M nonimmigrants.
Under the current paperbased system, the Service is unable to provide
expedient responses to benefit requests, such as for employment
authorizations and reinstatements. By reengineering the information
reporting program from a paperbased process to one that is automated,
the Service anticipates an improved system for the Service and DOS, for
the schools and exchange visitor programs subject to their authority,
and for the foreign students and exchange aliens coming to the United States to attend them.
What Is the Monetary Impact That SEVIS Will Have on Schools?
The Service believes that SEVIS will have a positive impact on schools and will make the oversight of foreign students on their campuses and administration of international student programs easier for most DSOs. Schools using SEVIS will no longer have to print out, file, and mail as many paper forms. However, each institution is different and will have processes and systems that are unique. For schools that do not require or desire the use of batch capability, there should be little to no additional cost, and in fact, some savings may result from the efficiencies that SEVIS will provide. These schools will access SEVIS through the Internet and in all likelihood will have to make no changes or upgrades to their existing systems. As long as the school has an Internet browser, MS Internet Explorer 5.0 or better, or Netscape 4.7 or better, they can access SEVIS.
The monetary impact on schools that desire to use batch capability
may be greater. These schools may need to pay the cost of whatever
modifications are necessary to make their existing systems compatible
with that of SEVIS. However, that onetime startup cost might be
highly costeffective in the long run because, once the electronic
interface is complete, the process of maintaining student records for
purpose of SEVIS will be highly automated, thereby reducing the future
personnel costs. Moreover, these decisions as to cost/benefit tradeoffs
will be made by each school in light of their own circumstances. The use of the batch
mode will be entirely optional. Even if schools use only the Internet mode, the process should be considerably more efficient than it is at present.
In order for the Service to better gauge what monetary impact, if
any, there will be on schools, the Service is soliciting comments
specifically related to this issue. Schools are requested to comment on
what they believe will be the cost to bring their existing equipment
and systems into compliance with SEVIS and or any increases or decreases necessary for staff.
Will a School Need To Be Recertified Prior To Enrolling in SEVIS?
In order to maintain the integrity of the data that is initially
being entered into SEVIS, all schools will need to be recertified by
the Service. The Service will be publishing a separate notice in the
Federal Register to allow schools that meet a specific criteria to be
eligible for preliminary enrollment in SEVIS. In addition, the Service
will promulgate a separate rule that will require each school
authorized to accept F1 or M1 students who did not apply for or
qualify for preliminary enrollment to be reviewed and reapproved. Such
preliminary enrollment or reapproval must be completed before a school will be granted authorization to use SEVIS.
How Does a School or Exchange Program That Is Not Currently Approved by the Service or by the Department of State Enroll in SEVIS?
This rule proposes a process by which a school may use SEVIS to maintain its authorization for attendance at that school by F1 and M1 nonimmigrant students. To gain access to SEVIS, the school must first contact the SEVIS system administrator to receive a temporary User ID and password by logging onto the SEVIS Web site. The temporary ID and password will be valid for 30 days from issuance by the system administrator.
After receiving the temporary ID and password, the school will complete the Form I17 petition in SEVIS and print it for submission by mail to the appropriate Service office with supporting documentation. Upon making a decision, the Service will update SEVIS to show the status of the application as approved or denied and an email notification will be sent to the school. Every school using SEVIS must immediately update SEVIS to reflect any material modification to its name, address or curriculum for a determination of continued eligibility for approval.
As stated earlier, the Service will be promulgating a separate rule to implement the recertification process that a school needs to complete prior to being given authorization to use SEVIS. With these future rulemakings it is the Service's intention to move toward a paperless process for institutions to submit petitions for approval to the Service. In drafting these subsequent rules, the Service will consider streamlined electronic processes in use at other agencies. Where possible, the Service will make efforts to share information electronically with the Department of Education to refine the approval criteria and supporting documentation to allow for this paperless submission process.
The Department of State's separate rule will describe the process for exchange visitor programs to enroll in SEVIS.
When a School or Exchange Program Enrolls in SEVIS Prior to the Final SEVIS Implementation Date, Must All Current Students or Exchange Aliens Be Enrolled Into SEVIS at That Time?
This rule proposes that schools that enroll in SEVIS prior to the final SEVIS compliance date may utilize SEVIS initially only for newly enrolled students; they will not be required to enter all data for their current students into the SEVIS system at the same time, but may do so. However, if a current student needs a new Form I20, the school must enter the student into SEVIS at that time in order to issue a SEVIS Form I20 to the alien. The current student is entered into SEVIS as a ``continuing'' student to transition from a paper to a SEVIS record and is thereafter under SEVIS processes. Such a ``continuing'' indicator will eventually be deactivated in SEVIS since all students will be included in SEVIS within the next academic cycle after the compliance date and there will not be any nonSEVIS students that would require a ``continuing'' functionality for the DSO to convert. Moreover, once a school is utilizing SEVIS, the school will be required to report the enrollment of any F1 or M1 nonimmigrant every semester, term or session thereafter. In addition, the school will be required to report, in SEVIS, the current students that fail to enroll, maintain status, or complete his or her program.
The substantive regulations governing the approval of exchange
visitor programs and the granting of J nonimmigrant visas are
promulgated by the Department of State, and will be addressed in a
separate rule. Accordingly, much of the following discussion in this
preamble focuses specifically on the F and M nonimmigrants who are
subject to the Service's authority, and the Serviceapproved schools authorized to enroll them.
II. Issues Relating to F and M Nonimmigrants
What Does 8 CFR 214.3 Currently Require a School to Report?
Section 214.3(g) requires that the school maintain records of the student's name, date and place of birth, country of citizenship, address, status, date of commencement of studies, degree program and field of study, practical training, termination date and reason, documents related to the student's admission, the number of credits completed per semester, and a photocopy of the student's Form I20. A school is responsible for maintaining this information on every student to whom it has issued a Form I20 while the student is attending the school and until the Designated School Official (DSO) notifies the Service that the student is no longer attending the school. Schools are also required to furnish the information to the Service upon request. Under the current process, a DSO is only required to notify the Service if a student is no longer attending the school when the Service sends a list of all F1 and M1 students who, according to Service records, and attending the school.
SEVIS, as implemented by this rule, will alleviate some of the problems faced by the DSO by facilitating the process of notifying the Service of a change in information in a timely way. It will also assist the Service by providing access to current data. All of the information that the DSO is currently required to maintain will still be required. However, the information will now also reside in SEVIS rather than at each individual school.
The maintenance of the information in SEVIS begins with the creation of the student's SEVIS Form I20. Any subsequent updates to the SEVIS Form I20, or other changes of information pertaining to the student, will also be captured in SEVIS. This will reduce the DSO's workload and the need for a Service officer to contact the school for access to these records.
What Are the New Reporting Requirements for Schools?
The Service has incorporated the requirements of Section 641 of
IIRIRA, which mandates collecting the current address and current
academic status of the student, as well as any disciplinary action
taken by the school against the student as a result of the student being convicted of a crime. Schools will use
SEVIS for issuance of SEVIS Form I20, and tracking extensions, transfers, authorized employment, and reduced course loads. In addition, schools will not be specifically required to update the Service through SEVIS of the occurrence of the following events:
Additionally, within 21 days of a change in the name, address, or curriculum of a school, this rule requires that a DSO update SEVIS with the current information. In certain instances SEVIS will send a ``tickler'' to a DSO when a student's record has not received any action for an extended length of time. When a DSO receives such a notification request by SEVIS with regard to the current status of the student, the DSO must review the student's record and update SEVIS to indicate that the student is enrolled or take other appropriate action.
The Service also notes that legislation currently pending before the Congress, section 501 of H.R. 1885 (as passed by the House of Representatives on March 12, 2002), would impose a requirement for schools and exchange visitor programs to report additional items of information with respect to students and exchange aliens, namely:
Although not identical, all of these data elements are reflected in
the current SEVIS requirements. If this legislation is enacted, the
Service will review it to determine what, if any new statutory
reporting requirements are created. If necessary, the Service will
impose any such additional requirements after this proposed rule is
published by incorporating those statutory requirements (without
further rulemaking notice) into any interim or final rule implementing SEVIS.
What Changes Would This Rule Make With Respect to Designated School Officials?
Currently, 8 CFR 214.3 allows a school (or each campus of the school) to have up to five Designated School Officials. This rule proposes to create a new category of Designated School Official, the Principal Designated School Official (PDSO), and a new support position, the Administrative School Official (ASO). Each school may have five DSOs, one of which is the PDSO, and up to five ASOs. In a multicampus school, each campus may have up to five designated officials at any one time, one of which is the PDSO, and up to five ASOs. In an elementary or secondary school system, however, the entire school system is limited to five designated officials at any one time, one of which is the PDSO, and up to five ASOs.
Another alternative that the Service is considering is to correlate the number of DSOs allowed to the size of the school's F1 and M1 student population. Comment is invited on the general feasibility of such an approach, particularly with respect to the proportion of DSOs to international students currently existing and the proportion that would be optimal for schools.
In SEVIS, the PDSO will be the contact person for the original submission of the Form I17. The PDSO will also be the responsible party for any updates to the PDSO, DSO or ASO information. In all other respects, the PDSO will have the same responsibilities as the other DSOs.
The functions of the ASO will be limited to clerical duties and data entry. The ASO may not sign or issue either a current or SEVIS Form I20, authorize curricular practical training, or provide any update to SEVIS. The access of the ASO will be limited in SEVIS to purely data entry of SEVIS Form I20 information which must then be reviewed and submitted to SEVIS by a PDSO or DSO.
This rule also proposes a new requirement that any DSO, including the PDSO, must be a United States citizen or Lawful Permanent Resident (LPR) of the United States.
This rule proposes to require that an approved school update SEVIS for any changes in PDSO, DSO or ASO within 21 days of such change. The update of the new official must include the name and title of the new official, as well as the official's certification of compliance with the regulations. This update can be made only by the PDSO.
This rule also proposes to clarify that, as part of the Service's authority over a school's ability to enroll foreign students, the Service has authority to reject the submission of a particular individual as a DSO, PDSO, or ASO as well as to withdraw an individual's designation as a DSO, PDSO, or ASO. Examples of when the Service would exercise this authority include situations in which a DSO is not a U.S. citizen or LPR, or in which a PDSO, DSO or ASO is not complying with the relevant regulations and program requirements as attested to on Form I17A, Designated School Officials.
Finally, although the Service is not making a specific proposal at this time, the Service is seeking public suggestions and input on how a program for educating and certifying DSOs might be structured, and whether such certification should be a requirement for all PDSOs, DSOs, and/or ASOs. DSOs are the link between the Service and the nonimmigrant student population for which the Service is responsible. It is not practical or feasible for the Service to have a presence at all schools. These factors, along with the Service's desire to preserve the integrity of data submitted through the SEVIS system, have highlighted the need for a process that can certify DSOs.
Will the Form I20 Continue To Be Used?
This proposed rule discusses the differences in the Form I20ID, Form I20AB, and Form I20MN that are currently in use and the Form I20 that will be issued by SEVIS. The current Form I20 has two copies, one for the student, and one for the school. Currently, the entire Form I20AB/I20ID or Form I20MN/I20ID is referred to as the Form I20AB or Form I20MN, and the student copy is referred to as the Form I20ID.
The SEVIS Form I20 will eliminate the need for the school copy, as
the information will be retained in SEVIS and easily accessible by the
school or by the Service for updating and record keeping purposes. The
student will retain his or her copy in the same manner as the process
currently in use for travel and employment purposes. The SEVIS Form I
20 will also maintain the distinction between the Form I20AB that is
issued to F1 students and the Form I20MN that is issued to M1
students. The SEVIS Form I20 can be further identified by the word SEVIS
located in the upper right hand corner of the document and by a two dimensional barcode on the right hand side of the document. What Is the SEVIS ID Number?
Each SEVIS Form I20 that is issued by a school to a student will contain a systemgenerated identification number. This number is referred to as the SEVIS ID number. The SEVIS ID number will remain the same as long as the student maintains his or her valid, original nonimmigrant status. This number will remain the same regardless of any changes or updates made by the DSO to the student's record.
When a student is inspected for admission, he or she will show the SEVIS Form I20 to the inspecting officer. Once SEVIS is fully operational, the inspecting officer will record the number for transition to SEVIS. The inspector will then return the student's copy to the student with the appropriate entry stamp. The officer will have not to forward a copy on to the Service's data processing center for data entry, as the information will already be transmitted to SEVIS. How Will SEVIS Track the Issuance of Multiple Forms I20 and Deter Misuse of Form I20?
SEVIS will decrease the potential for the fraudulent misuse of the SEVIS Form I20. Prior to issuance of a student visa to a prospective student, it is not uncommon for an alien to have been accepted at more than one school, and therefore to have been issued a Form I20 from each of those schools offering acceptance. However, a student can obtain an F1 or M1 student visa, and be admitted to the United States, under only one Form I20. The alien must present one Form I20 to the consular officer, reflecting the student's decision as to which school to attend.
To help avoid the risk of having the remaining Forms I20 fall into the hands of someone who might use them fraudulently, SEVIS will be able to track the issuance of multiple SEVIS Forms I20 based upon numerous data elements in order to link the multiple forms to the same individual. SEVIS will then cancel the other SEVIS Forms I20 issued by other schools with respect to the same individual once the student uses one of the forms to obtain student status.
As an additional deterrent to misuse, once a Form I20 is used to a
prospective student for initial eligibility, the DSO may not modify the
Form I20 until the DSO updates SEVIS to verify that the student's
registration has been completed. However, a DSO may cancel or terminate
a Form I20 at any time. Furthermore, the Form I20 is issued for a
specific program start date. SEVIS will automatically terminate any
Form I20 that has not been used as the basis for issuance of a student
visa, or for change of status to F or M status, by the program start date.
How Does This Rule Address Distance Education or OnLine Programs?
While online and distance education programs can be highly innovative means to augment or even conduct an educational program, the entry of a foreign student into the United States becomes unnecessary if the bulk of the program does not require the student's physical presence. Therefore, this rule proposes to limit the enrollment of F1 and M1 students in courses that are online or through distance education programs and do not require the student's actual presence. The rule also provides a definition of online courses and distance education programs that is similar to the definition provided by the Department of Education for telecommunications courses.
Under proposed Sec. 214.2(f)(6)(i)(F), those students for whom on
line or distance education credits can be counted toward the obligation
to maintain a full course of study will be limited to counting one
class or three credits per semester toward the obligation, provided
that the class is accepted for credit at the school that the student is
currently attending. No online or distance education classes taken by
an M1 student, or by an F1 student in a language program or
elementary or secondary school program, can be counted as being part of
the student's full course of study, given the limited duration or focus of those programs.
What Other Changes Are Being Made Regarding a Full Course of Study?
This rule proposes to limit the amount of time during which an F1 or M1 student who is authorized to drop below a full course of study because of illness or medical condition, the current requirement is only that the student resume a full course of study when he or she recovers. Such an openended standard can invite abuse.
Therefore, this proposed rule allows a DSO to authorize an F1
student, who is currently in status, to drop below a full course of study only for the periods of time set forth in proposed
Sec. 214.2(f)(6)(iii) and (M)(6)(vi). Except for students experiencing illness or other medical condition, the DSO cannot authorize an F1 student to drop below a full course of study for more than one semester or term (excluding a summer session). A DSO may not authorize a reduced course load for an M1 student for more than 5 months. In any event, a DSO may not authorize a student, other than one experiencing illness or other medical condition, to completely withdraw from all classes; the student's reduced course load must include at least some classes in order for the DSO to grant authorization.
A student who is unable to resume a full course of study within the
allowable time period will not be able to continue that status and will
either have to leave the United States or apply for a change of nonimmigrant status to a more appropriate category.
What Are the Reporting Requirements When the DSO Authorizes a Student To Drop Below a Full Course of Study?
This rule will create an interim reporting requirement for non SEVIS schools to report to the Service for cases in which the DSO has authorized an F1 or M1 student to drop below a full course of study. Within 21 days of the authorization, the DSO must send to the STSC a photocopy of the student's Form I20 with Form I538, indicating the reason for the drop to STSC. DSOs are further required to report to the STSC not more than 21 days after the student has resumed his or her full course of study with Form I20, reflecting the new program completion date, if applicable, and Form I538 certifying that the student has resumed a full course of study.
For schools enrolled in SEVIS, this rule requires the electronic updating of SEVIS whenever a student is authorized to drop below a full course of study or has resumed a full course of study. A DSO must immediately update SEVIS when a student has been authorized to drop below a full course of study with the current date, the start date of the next term or session, and the reason for the authorization. The DSO must also update SEVIS within 21 days of the student's recommencement of a full course of study in accordance with the new registration reporting requirement of 8 CFR 214.3(g)(3). If an extension is necessary, the DSO must also use SEVIS to update the SEVIS Form I20 with the new completion date.
How Are F1 Student Transfers Handled Using SEVIS?
This rule makes clear that, prior to issuance of any Form I20, the
DSO at the school to which the student is transferring is responsible
for determining that the student has been maintaining status at his or
her previous school and is eligible for transfer to the new school.
This includes cases in which the student graduates from one [[Page 34867]]
educational level (e.g., bachelors to masters or masters to doctorate) at the same school, as well as transfers to a different school.
The student must notify his or her current school of the intent to
transfer and indicate the school to which he or she intends to
transfer. Upon notification by the student, the current school's DSO
will update the student as a ``transfer out'' to the intended new
school in SEVIS. The DSO will indicate in SEVIS a release date, which
would usually be the current semester or session completion date, or
the date of expected transfer if earlier than the established academic
cycle. The current school will retain access to and will remain
responsible for the student in SEVIS until the release date. The
student must then notify the school to which the student intends to
transfer of the student's intent to enroll in the transfer school. Upon
reaching the release date, the new school will be granted full access
to the student's SEVIS record and may then issue a new SEVIS Form I20,
becoming responsible for that student's record. The current school
conveys authority and responsibility over that student to the new
school, and will no longer have full SEVIS access to that student's
record. The new school may not issue a new SEVIS Form I20 until after
the release date, thus managing the issuance of multiple SEVIS Form I
20 within the United States. The student is then required to report his
or her presence to the new school within 15 days of the program start
date indicated on SEVIS Form I20, so that the DSO at the transfer
school can acknowledge the student's attendance, obtain the student's
current address, and confirm that the student has completed the
transfer process. The transfer is effected when the transfer school notifies SEVIS, within 30 days, in accordance with 8 CFR
214.3(g)(3)(iii), that the student has enrolled in classes. What Are the Changes for M1 Student Transfer?
This rule proposes to amend the current regulations in several ways:
This rule proposes a process for the electronic update of SEVIS for the transfer of an M1 student that is generally similar to the process for F1 student transfer. The process differs, however, because the Service must approve all M1 student transfers, based on the recommendation of the DSO.
After the transfer school issues a SEVIS Form I20 to the student, the M1 student must then submit Form I539 to the Service Center with jurisdiction over the school which the student is currently authorized to attend. Upon submission to the Service of the application for transfer, the student may enroll in the transfer school at the next available term or session, but must notify the transfer school within 15 days of beginning attendance so that the school can obtain the necessary information for its records. The transfer school will then update SEVIS to indicate that the student has enrolled in classes in accordance with the new reporting requirement.
Once SEVIS is fully operational and interfaced with INS' CLAIMS 3 benefit processing system, the Service officer will transmit to SEVIS the approval of the transfer and endorse the name of the school to which transfer is authorized on the student's SEVIS Form I20 and return it to the student. As a transitional process until that time, the student is required to notify the DSO at the transfer school of Service's decision within 15 days of the receipt of the adjudication by the Service. Upon notification by the student, the DSO must immediately update the student's record in SEVIS to reflect the proper decision of the Service Center. If approved, the DSO will update SEVIS to indicate the approval and print an updated SEVIS Form I20 for the student indicating that the transfer has been completed. If denied, the DSO shall terminate the student's status in SEVIS indicating the transfer denial as the termination reason.
Finally, the Service notes that current Sec. 214.2(m)(6), (7), and
(8) relate to students who converted form F1 status to M1 status,
prior to June 1, 1982, and are therefore no longer applicable to any
current M1 student. Accordingly, this rule proposes to remove these
provisions as well as the reference to the school code suffix in Sec. 214.2(m).
What Changes Does This Rule Make With Regard to Practical Training?
This rule proposes to clarify several issues with regard to practical training. First, this rule clarifies that practical training is available to F1 students who were involved in a study abroad program during their course of study at an approved school. Although part of the alien's study in such a case was conducted outside the United States, these students remain enrolled at their school and have earned credits toward their degree. The Service believes that the time spent abroad, after the student has begun attendance at the school, should count towards the 9 consecutive months required to apply for practical training under 8 CFR 214.2(f)(10).
The rule also proposes to amend Sec. 214.2(f)(10) to clarify that an F1 student may be authorized for up to 12 months of practical training for each program level that he or she undertakes. For example, a student who has engaged in 12 months of practical training during study for an undergraduate degree becomes eligible for another 12 months of practical training when he or she changes to a higher educational level, such as a master's degree.
Curricular practical training. This rule requires that schools using SEVIS update SEVIS any time that DSO authorizes a student's request for curricular practical training (CPT), that is, a work/study program, internship or practicum that is an integral part of an established curriculum. The DSO must verify that the student meets the eligibility requirements and must also update SEVIS to show whether the work is full or parttime, the start and end date of the employment, and the name and location of the employer. The DSO will then print SEVIS Form I20 that indicates that curricular practical training authorization has been granted, and sign, date and return the SEVIS Form I20 to the student prior to the student's commencement of employment. A student is not eligible to begin work until the DSO has updated SEVIS to show that curricular practical training is authorized and has printed the SEVIS Form I20 for the student to provide to the employer. Schools using SEVIS will no longer need to send Form I538 to STSC when authorizing an F1 for curricular practical training.
Optional practical training. This rule proposes to require a SEVIS
update for an F1 student who requests optional practical training,
that is, temporary employment for practical training directly related
to the student's major area of study. Unlike curricular practical
training, which is approved by the DSO, optional practical training is
approved by the Service, based on the recommendation of the DSO, and the student must also file Form I765,
Application for Employment Authorization.
Under this rule, the DSO will recommend the student for optional practical training in SEVIS and print the SEVIS Form I20 with the recommendation to be sent to the appropriate Service Center in conjunction with a completed Form I765. A DSO using SEVIS will no longer need to submit a copy of Form I538 to STSC in cases where optional practical training is recommended, since the SEVIS update will accomplish the necessary notification.
This rule also proposes to amend the period of time in which an F1 may apply for optional practical training. Under the current rules, an F1 student must apply for postcompletion optional practical training no later than 60 days after completion of their full course of study, with the training to be completed within 14 months following completion of study. The requirement that the training be completed in a 14month period often is problematic for students who wait to apply for optional practical training until close to the end of the 60day period, since they must then wait for receipt of the Form I766, Employment Authorization Document (EAD), before they can begin work. This process often results in the student not being able to receive the full 12 months of training.
The current rules also provide, in some cases, that an F1 student may receive an extra 60 days of authorized stay in the United States. For example, a student can wait to apply for optional practical training until the 60th day after completion of studies, and, at the end of the training period, the student is entitled to a second period of 60 days to prepare to depart the United States. This rule proposes to amend Sec. 214.2(f)(10)(ii) to require that F1 students must apply for optional practical training prior to completion of all course requirements or completion of studies, thereby allowing only one 60day period for departure. The students have only a limited period of time after the program end date in which to complete their training, and cannot begin the training until they have received an EAD from the Service Center. The student must apply before the program end date to ensure that the student will have received his or her EAD in time to commence optional practical training immediately after completion of study. This requirement will ensure that the students can continue to pursue the purpose for which they were admitted, without a gap, for the entire amount of time for which they are eligible.
Similarly, this rule will require that an M1 student must apply for practical training prior to the completion date of his or her program. However, the request cannot be made more than 90 days prior to the program completion date shown on the Form I20.
Finally, this rule provides that authorization to engage in
practical training is terminated when the student changes to another
educational level. The current regulations provide for automatic
termination of such authorization for an F1 or M1 student only when the student transfers schools.
What Change Does This Rule Make With Respect to Internships With International Organizations?
This rule proposes to amend Sec. 214.2(f)(9)(iii) to specify that an F1 student who has been offered employment by a recognized international organization submit must apply for employment authorization to the Service Center having jurisdiction over his or her place of residence, rather than applying in person at a local Service office. Also, to make this provision consistent with the other practical training processes, the requirement for DSO endorsement of the Form I20 ID within the last 30 days is being removed.
This rule also deletes obsolete references in Sec. 214.2(f)(9)(ii)
for filing a wageandlabor attestation with the Department of Labor
for offcampus employment, since the pilot program sunset on September
30, 1996. Under the current rules, F1 students seeking offcampus
employment (other than an internship with an international organization
as discussed above) must satisfy the requirements for demonstrating
severe economic hardship caused by unforeseen circumstsances beyond the student's control.
What Changes Does This Rule Make With Respect To Extension of Student Status?
This proposed rule amends the existing regulations to state explicitly the requirement that an F1 or M1 student must currently be in lawful status at an approved school in order to apply for an extension of status. A student who is no longer in current statusfor example, a student who has dropped out of the school during a current term without authorization, or who remains in the United States after completion of his or her educational programwould not be eligible for an extension of status (although, in some limited circumstances, the student may be eligible for reinstatemennt of status, as discussed below).
Implementation of SEVIS. Under current procedures, to apply for an extension, an F1 student must obtain a new Form I20 from the authorized school and submit Form I538 for certification by the DSO. The DSO must then submit Form I538 to STSC. If the extension is accomplished by the student's reentry into the United States, the DSO does not need to send Form I538 to STSC as the inspector will submit the Form I20 to STSC when the student enters the country.
Under SEVIS, the DSO will update SEVIS any time the DSO grants an extension for an F1 nonimmigrant, and will then enter the new program end date. The DSO will then print the new SEVIS Form I20 for the F1 nonimmigrant reflecting the new program end date. SEVIS will eliminate the need for the DSO to submit Form I538 to STSC.
Unlike extensions of status for F1 students of status for M1 students are adjudicated by the Service based on the recommendation of the DSO. This rule also provides for the electronic updating of SEVIS in the event of an M1 program extension request and requires the DSO to update SEVIS to recommend that a student be approved for extensions. The SEVIS Form I20 must be printed with the recommendation and new program end date for submission by mail to the Service Center, with Forms I94 and I539. Once the Service grants an extension the DSO will print out a new Form I20 for the student.
Other changes with respect to F1 students. This rule also proposes several changes to the rules for extension of status for F1 students.
First, the rule would eliminate the existing limitation that the student must file for an extension of status during the 30day period prior to the program end date. Instead, an F1 student would be allowed to apply for a program extension at any point prior to the program end date listed on the Form I20.
Second, this rule would eliminate the provision in
Sec. 214.2(f)(7)(ii) which allows a DSO to add up to a oneyear grace
period in addition to the period of time the DSO estimates will be
needed for each F1 student to complete his or her program of study.
Instead, the DSO will issue a Form I20 to each F1 student for the
period of time reasonably necessary to complete the particular program
of study. If additional time is needed, then the DSO will be able to
authorize an extension of status through the regular process, which does not
require any adjudication by the Service. This regulatory change is particularly appropriate with the use of SEVIS, which will reduce the paperwork burdens on DSOs at the time they authorize extensions of status.
Third, the rule will make clear that an F1 student attending a public high school cannot apply for an extension with his or her DSO for continued attendance at his or her current school or to transfer to another public high school. Section 214(m) of the Act prohibits an F1 student from attending a public high school for more than 12 months in the aggregate, and requires that the alien, prior to being issued the F1 visa, demonstrate that he or she has reimbursed the local school district for the full, unsubsidized per capita cost of providing the education for the period of the alien's attendance. Because of the statutory limitation, an F1 student at a public high school can only be admitted for an aggregate of 12 months of study and is not admitted for duration of status, as is the case for other F1 students.
Fourth, the rule provides that such a public high school student is eligible to apply to the Service for an extension of status if he or she is accepted for attendance at a private high school or at a post secondary school. The student must use Form I539 and apply to the Service Center with jurisdiction over the school the student is currently attending.
Other changes with respect to M1 students. The rule proposes to add the requirement that an M1 student show a compelling academic or medical reason which resulted in a delay to his or her course of study in order to be eligible for extension of status. Additionally, the rule will propose to amend the language of the current regulations to indicate that an M1 student requesting an extension should file a Form I539 at the Service Center with jurisdiction over the school the student is currently attending.
Finally, the Service proposes to place a limit on the extensions that may be granted to an M1 student. There is currently no limit on the number of extensions for which an M1 is eligible, nor a limit on the cumulative amount of time that can be granted under extensions.
This rule proposes to limit the cumulative time that extensions can
be granted to an M1 student to a period of 3 years from the Social
Security student's original start date, plus 30 days. Thus, no
extension could be granted to an M1 student if he or she is unable to
complete the course of study within 3 years of the original program
start date, plus 30 days. This limit includes extensions that have been
granted due to a drop below full course of study, a transfer of schools, or reinstatement.
What Are the Changes to Eligibility for Reinstatement of Student Status?
Under the current rules, Sec. 214.2(f)(15) and (m)(16), upon demonstrating eligibility for attendance at an approved school, and F1 or M1 student who is out of status may apply to the Service for reinstatement, with no specified limit on the length of time the student has remained in the United States out of status. A student can lose current student status in several ways, for example, by remaining in the United States beyond the authorized period after completion of his or her course of study, engaging in employment without authorization, or dropping out of school.
It is important that nonimmigrant students in the United States remain cognizant of their obligations to maintain their status. Past rules, designed to maintain flexibility for the academic community and to make allowance for the youth of some of the individuals in question, appear to have resulted in an atmosphere that could have led some to believe that they could violate their status with impunity. In fact, such violations can and do have serious consequences.
Accordingly, this rule proposes to amend the regulations to provide that an F1 or M1 student will not be eligible to apply for reinstatement unless he or she applies for reinstatement within five months of being out of status.
Moreover, the rule also proposes to limit the circumstances under which reinstatement is available. Unless the violation of status relates to a reduction in the student's course load that would have been within a DSO's power to authorize, and the student can demonstrate that failure to receive reinstatement would result in extreme hardship, the student must establish that the need for reinstatement resulted from circumstances beyond the student's control. Such circumstances may include circumstances such as serious injury or illness, closure of the institution, or a natural disaster. Circumstances beyond the student's control would NOT include cases where inadvertence, oversight, neglect, or a willful failure on the part of the student or the DSO resulted in the need for reinstatement.
The Service has drawn the general timeframe from Sec. 214.2(f)(4), which allows an F1 student who has been temporarily absent from the United States for no more than five months to be readmitted in F1 status to continue his or her course of study. Of course, the situation of an alien who has violated his or her student status and remains in the United States is not the same as a student in lawful F1 status who is temporarily absent from the United States. On the other hand, the Service recognizes that there may be reasons why a student may violate nonimmigrant student status without necessarily abandoning his or her educational plans.
Reinstatement of student status is distinct from processes for a current student to transfer from one school to another, or for an F1 student to temporarily maintain a reduced course load, while remaining in status. Since transfers or reduced course loads will only be available for students who obtain approval from their school's DSO, the reinstatement rule will cover those students who have recently lost their student status but desire to continue their education (either at their prior school or another school) in the immediate future.
An F1 or M1 student who is ineligible for reinstatement cannot remain in the United States unless he or she has some other lawful immigration status. Such an alien would be free, if eligible to do so, to apply for a new nonimmigrant student visa at a consular office abroad to resume his or her studies in the United States. The Service wishes to emphasize the importance of complying with academic requirements and wishes to emphasize that reasons for reinstatement will be closely scrutinized. Reinstatement is intended to be a rare benefit for exceptional cases and is not intended to remedy situations within the student's control.
In the case of a student seeking reinstatement at a SEVIS school, the school that the student most recently attended will update the student's record in SEVIS and print out a new SEVIS Form I20 which indicates that the student is requesting to be reinstated. The student should then submit the new SEVIS Form I20 and Form I539, by mail, to the district director. Once the request has been adjudicated, the student will receive his or her SEVIS Form I20 with the decision of the district director. The district office will also update SEVIS to indicate the decision on the request for reinstatement. SEVIS will provide notification to the school of the reinstatement decision.
This rule also makes technical corrections in the regulations
governing F1 and M1 reinstatement to reflect the redesignation of section 241 of the Act as section 237 of the Act.
What Other Provisions of IIRIRA Have Been Incorporated Into This Rule?
Section 214(m) of the Act, as amended by sections 625 and 107(e)(2) of IIRIRA, Public Law 106386, Div. C (Sept. 30, 1996), states that a nonimmigrant may not be accorded status as an F1 student to pursue a course of study at a public elementary school or a publicly funded adult education program.
Accordingly, 8 CFR 214.3 is proposed to be amended to clarify that in no case will a public elementary school, a publicly funded adult education program, or a home school be approved for attendance by a nonimmigrant student. The proposed rule would also amend 8 CFR 214.2(f)(6) to make clear that an alien may not be admitted as an F1 student to enroll in a course of study at a school or program that is not approved by the Service as provided in Sec. 214.3.
Section 214(m) of the Act does not define ``a publicly funded adult
education program.'' The proposed rule adopts a definition based on
section 203(f) of the Adult Education and Family Literacy Act, Public
Law 105220, 20 U.S.C. 9202(l) Section 203(l) of Public Law 105200 defines an adult education program as:
``services or instruction below the postsecondary level for individuals
``(A) who have attained 16 years of age;
``(B) who are not enrolled or required to be enrolled in secondary school under State law; and
``(i) lack sufficient mastery of basic educational skills to enable the individuals to function effectively in society;
``(ii) do not have a secondary school diploma or its recognized equivalent, and have not achieved an equivalent level of education; or ``(iii) are unable to speak, read, or write the English language.''
Under the proposed rule, an F1 nonimmigrant may not enroll in such
a program if the program is funded in whole or in part by a grant under
the Adult Education and Family Literacy Act, or by any other Federal, State, county or municipal funding.
Why Will the Service Remove the $70 Fee Associated With the Form I538?
This rule proposes to remove the fee for the Form I538,
Certification by Designated School Official, from 8 CFR 103.7(b)(1).
the Form I538 is currently used by DSOs to notify the Service of
updates to the student's record in the case of approved curricular
practical training or extensions for F1 students. The Form I538 is
also used in conjunction with applications for Form I765, Employment
Authorization Document (EAD). As the form is used simply for the
purpose of certification by the DSO as to the current record of the
student, a fee should not be required to accompany the form. Form I538
will continue to be used until all schools enrolling foreign students are enrolled in SEVIS.
III. Issues Relating to All F1, J1 and M1 Nonimmigrants
What Are the Requirements for Reporting Changes of Address by F1 and M1 Students and J1 Exchange Aliens?
IIRIRA mandates collection of the current name and address of the students in the United States. Moreover, section 265(a) of the Act requires that all aliens who are subject to registration requirements (including all students and exchange aliens and their dependents who remain in the United States for 30 days or more) are required to provide a current name and address to the Attorney General within 10 days. The obligation to notify the Service of each change of address applies to all F, M or J nonimmigrants (indeed, all nonimmigrants other than those in A or G status) who remain in the United States for more than 30 days, regardless of whether their continue stay is pursuant to their initial admission or as a result of change or extension of status.
Although the change of address requirements are already set forth in 8 CFR 265.1, the Service is amending the rules relating to F, J, and M nonimmigrants regarding the relationship with SEVIS. This rule requires that each student must inform the Service and the DSO of any legal changes to his or her name or of any change of address, within 10 days of the change. The address provided by the student or dependent must be the actual physical location where the student or dependent resides. In no case may the address of the DSO at the school be used as the address of the student. Similar rules are provided for exchange alien to provide notice to the Service and the responsible officer at the exchange visitor program.
A student enrolled at a SEVIS school will satisfy the requirement of section 265(a) of the Act by providing a notice of a change of address within 10 days to the DSO. As with other changes the DSO is required to report under Sec. 214.3(g)(3), the DSO must then update SEVIS to reflect the change in the student's or dependent's address within 21 days of notification by the student. For schools enrolled in SEVIS, the students will not need to provide a separate notice of change of address to the Service. Similarly, a J1 exchange alien can satisfy the legal requirements by providing a change of address within 10 days to the responsible officer at an exchange visitor program that is enrolled in SEVIS.
An F, M, or J nonimmigrant enrolled at a nonSEVIS institution must
submit Form AR11, Alien's Change of Address Card, to the Service
within 10 days of the change. Moreover, any nonimmigrant student or
exchange alien, or a dependent, who fails to report a change of address
within 10 days to the DSO or to the responsible officer, in the case of
a J1 nonimmigrant, is obligated to file Form AR11 with the Service within 10 days.
What Are the Limits on Advance Admission of F, J or M Nonimmigrants Prior to the Beginning of Their Attendance at an Approved School or Exchange Visitor Program?
The present Service regulations, Sec. 214.2(f)(3) and (m)(3), suggest that an F1 or M1 student with a valid Form I20, and his or her F2 or M2 dependents, may be admitted to the United States up to 60 days prior to the beginning of the course of study, as noted on the Form I20. The rules governing J nonimmigrants do not specify a maximum period of advance admission.
The Service believes that a long period of admission, prior to the
beginning of the approved course of studies or program for an F, J, or
M nonimmigrant, and his or her dependents, is not consistent with the
national interest, is not necessary to meet the needs of such aliens in
coming to the United States, and is subject to abuse. However, some
advance period is necessary so that the student or exchange alien has
time to find a place to live and prepare for the studies or program
ahead. Accordingly, this rule proposes to limit the period of advance admission to an ``advance grace period'' of 30 days.
When Are ``Grace Periods'' Available to F1, M1, and J1 Nonimmigrants at the Conclusion of Their Course of Studies?
This rule will clarify that an F1 student's duration of status
only includes an additional 60 days to depart the country when the F1
student has completed his or her course of study or after completion of
authorized practical training after completion of studies. The 60day
``grace period'' does not apply to an F1 student who does not complete [[Page 34871]]
his or her program, who fails to maintain a full course of study, or who falls out of status for any other reason.
Similarly, the authorization for an M1 or a J1 to remain in the United States only includes an additional 30 days to depart the country when the M1 or J1 student has successfully completed his or her course of study or authorized practical training following completion of studies. The 30day ``grace period'' does not apply to an M1 student or J1 exchange alien who does not complete his or her program, who fails to maintain a full course of study, or who falls out of status for any other reason.
Note that allowing a 60day grace period for F1 students, but only 30 days for M1 students, is consistent with the current regulations at 8 CFR 214.2(f)(5)(i) and 214.2(m)(5). Allowing a longer grace period for F1 students recognizes the fact that, in most cases, F1 students remain in the United States longer than most M1 students. A longer sojourn makes it reasonable to assume that F1 students, generally, would need a longer period at the conclusion of their program to wind up their affairs and leave the United States in an orderly manner. What Continuing Obligations do all F, M, and J Nonimmigrants Have During the Time They Remain in the United States?
The Service notes that an existing law, section 222(g) of the Act, provides for the automatic voidance of a nonimmigrant visa at the conclusion of an authorized period of stay if the alien remains in the United States longer than the period of authorized admission. All F, J and M nonimmigrants should be aware of this provision of the law and are responsibl
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) 5143228.