[Federal Register: September 26, 2008 (Volume 73, Number 188)]
[Rules and Regulations]
[Page 55683-55704]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se08-1]
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Rules and Regulations
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DEPARTMENT OF HOMELAND SECURITY
U.S. Immigration and Customs Enforcement
8 CFR Parts 103 and 214
[DHS Docket No. ICEB-2008-0004]
RIN 1653-AA54
Adjusting Program Fees and Establishing Procedures for Out-of-
Cycle Review and Recertification of Schools Certified by the Student
and Exchange Visitor Program To Enroll F and/or M Nonimmigrant Students
AGENCY: U.S. Immigration and Customs Enforcement, DHS.
ACTION: Final rule.
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SUMMARY: This rule adjusts the Student and Exchange Visitor Program
(SEVP) school certification petition fees and the application fees for
nonimmigrants seeking to become academic (F visa) or vocational (M
visa) students, or exchange visitors (J visa). The rule sets the
following fees: $1,700 for a school certification petition and $655 for
each site visit for certification; and $200 for each F or M student.
This rule also sets a $180 fee for most J exchange visitors; however,
the $35 fee for each J exchange visitor seeking admission as an au
pair, camp counselor, or summer work/travel program participant will
remain the same. All fee payments addressed in this final rule must be
made in the amounts established by this rule beginning October 27,
2008.
The rule also establishes procedures for the oversight and
recertification of schools attended by F and/or M students, establishes
procedures for schools to submit recertification petitions, adds a
provision allowing a school to voluntarily withdraw from its
certification, and clarifies procedures for school operation with
regard to F and M students during recertification and following a
denial of recertification or a withdrawal of certification. Finally,
the rule removes obsolete provisions used prior to implementation of
the Student and Exchange Visitor Information System (SEVIS).
DATES: This final rule is effective October 27, 2008.
FOR FURTHER INFORMATION CONTACT: Louis Farrell, Director, Student and
Exchange Visitor Program; U.S. Immigration and Customs Enforcement,
Department of Homeland Security; Chester Arthur Building, 425 I St.,
NW., Suite 6034, Washington, DC 20536; telephone number (202) 305-2346.
Program information can be found at http://www.ice.gov/sevis.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Public Comments on the Proposed Rule
A. General Comments
1. Support for the Rule
2. Opposition to the Rule
3. Technical Corrections to the Proposed Rule
B. Adjustment of SEVP Fees
1. Frequency of fee review and scale of fee increase
2. Economies in efficiency
3. Fee increase for F, M and J nonimmigrants
C. Enhancements
1. Issues/Concerns before SEVIS II
2. SEVIS II
3. Improved SEVIS and SEVIS II Capabilities
4. SEVIS II and Biometrics
5. Additional CEU personnel
6. School liaison activity
D. Full Cost Information
1. Further reduced fee of $35 for au pairs, camp counselors, and
summer work travel
2. Impacts on applicant groups
3. Certification fee
4. Site-visit fee
5. Inclusion of enforcement costs
E. Certification, Out-of-Cycle Review, and Recertification
Requirements
1. Form I-17
2. Notices and communications
3. Recordkeeping, retention, and reporting requirements--Student
Record Requirements
4. SEVIS data integrity
5. Certification
6. Recertification
7. Out-of-cycle review
8. Designated school officials
9. Denial or withdrawal of SEVP certification or recertification
procedures
10. Regulatory Flexibility Act
III. Statutory and Regulatory Requirements
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866: Regulatory Review
E. Executive Order 13132: Federalism
F. Executive Order 12988: Civil Justice Reform
G. Paperwork Reduction Act
List of Subjects
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS PART 214--
NONIMMIGRANT CLASSES
Table of Abbreviations and Acronyms
ADIS Arrival and Departure Information System
CBP U.S. Customs and Border Protection
CCD Consular Consolidated Database
CEU Compliance Enforcement Unit
CFO Chief Financial Officer
CFR Code of Federal Regulations
CLAIMS Computer Linked Application Information Management System
DHS Department of Homeland Security
DMV Department of motor vehicles
DoS Department of State
DSO Designated school official
EBSVERA Enhanced Border Security and Visa Entry Reform Act of 2002,
Public Law 107-173; May 14, 2002
FASAB Federal Accounting Standards Advisory Board
FDMS Federal Docket Management System
FIN Functional identification number
FR Federal Register
FTTTF Foreign Terrorist Task Tracking Force
HSPD-2 Homeland Security Presidential Directive--2
IBIS Interagency Border Inspection System
ICE U.S. Immigration and Customs Enforcement
IEFA Immigration Examinations Fee Account
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IRFA Initial Regulatory Flexibility Analysis
NAFSA Association of International Educators
NAICS North American Industry Classification System
NIV Nonimmigrant Visa
NOIW Notice of Intent to Withdraw
NPRM Notice of Proposed Rulemaking
NSEERS National Security Entry Exit Registration System
OMB Office of Management and Budget
OPT Optional practical training
PDSO Principal designated school official
PIA Privacy Information Assessment
RFA Regulatory Flexibility Act
RO Responsible officer
RTI Real-time interface
[[Page 55684]]
SAVE Systematic Alien Verification for Entitlements
SBA Small Business Administration
SCB School Certification Branch
SEVIS Student and Exchange Visitor Information System
SEVP Student and Exchange Visitor Program
SFFAS FASAB Statement of Federal Financial Accounting Standard No.
4: Managerial Cost Accounting Concepts and Standards for the Federal
Government
UAM User Application Model
UMRA Unfunded Mandates Reform Act of 1995
USA PATRIOT Act Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001
USCIS U.S. Citizenship and Immigration Services
US-VISIT United States Visitor and Immigrant Status Indicator
Technology
VIS Verification Information System
I. Background
On April 21, 2008, the Department of Homeland Security (DHS),
through U.S. Immigration and Customs Enforcement (ICE), Student and
Exchange Visitor Program (SEVP), published a notice of proposed
rulemaking (NPRM) to amend the fees charged by SEVP and to establish a
school certification program. 73 FR 21260. This final rule implements
those changes and other legal requirements by amending DHS regulations
governing certification, oversight and recertification of schools by
SEVP for attendance by F and/or M students. The rule establishes
procedures for schools to submit recertification petitions, adds a
provision allowing a school to voluntarily withdraw from its existing
certification, clarifies procedures for school operations with regard
to F and M visa students during recertification and following a
withdrawal of certification, and removes obsolete provisions used prior
to implementation of the Student and Exchange Visitor Information
System (SEVIS). SEVP administers SEVIS as a Web-enabled database that
provides current information on F, M and J nonimmigrants in the United
States.
The rule also adjusts the SEVP school certification fee and student
application fees (Form I-901 SEVIS fee) to reflect existing program
operating costs, program requirements, and planned program
enhancements. These fee adjustments are driven by two factors: (1) The
need to comply with statutory and regulatory requirements that SEVP
review its fee structure every two years to ensure that the cost of the
services that are provided are fully captured by fees assessed on those
receiving the services; and (2) the need to enhance SEVP capability to
meet current program requirements and to achieve its mission goals in
support of homeland security and countering immigration fraud.
Once promulgated, the rule will allow SEVP to fully fund activities
and institute critical near-term program and system enhancements in a
manner that fairly allocates cost among the F, M and J visa categories,
and acknowledges defined performance goals. These enhancements include
implementation of the next generation SEVIS (i.e., SEVIS II), increased
enforcement capability, expansion of school liaison activity, and
establishment of a school recertification process.
SEVP makes these changes under a series of statutory authorities,
including, but not limited to the following immigration and homeland
security laws: sections 101(a)(15)(F)(i), 101(a)(15)(M)(i) and
101(a)(15)(J) of the Immigration and Nationality Act of 1952 (INA), as
amended; section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C, 110
Stat. 3009-546 (September 30, 1996); the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, Public Law 107-56, 115 Stat. 272
(October 26, 2001; USA PATRIOT Act); and the Enhanced Border Security
and Visa Entry Reform Act of 2002 (EBSVERA), Public Law 107-173, 116
Stat. 543 (May 14, 2002), codified at 8 U.S.C. 1762. These laws govern
the admission of foreign nationals into the United States in
nonimmigrant status to attend academic, language and vocational
schools, and to participate in foreign exchange visitor programs. They
require that DHS collect certain information about F and M students and
J exchange visitors at ports of entry. They also establish
certification and recertification requirements for schools seeking
approval for school attendance by F and/or M students.
DHS's authority to assess fees arises under IIRIRA sections
641(e)(1), 641(e)(4)(A) and 641(g)(2), as amended. In addition, section
286(m) of the INA permits the Secretary of Homeland Security to collect
fees at a level that ensures recovery of the full costs of providing
adjudication services, including the costs of providing similar
services without charge to asylum applicants and certain other
immigrants. All fees collected by ICE pursuant to this final rule are
deposited as offsetting receipts into the Immigration Examinations Fee
Account (IEFA) and remain available to the Secretary until expended for
the purposes of the program. IIRIRA section 641(e)(4)(B). The fee
assessments and collections implemented under this final rule are
consistent with Office of Management and Budget (OMB) Circular A-25,
User Charges (revised). See 58 FR 38142 (July 15, 1993). Section 6 of
OMB Circular A-25 defines ``full cost'' to include all direct and
indirect cost to any part of the federal government for providing a
good, resource, or service. The fees implemented under this final rule
also are consistent with OMB Circular A-11, Preparation, Submission and
Execution of the Budget, section 31.12 (July 2, 2007), which directs
agencies to develop user charge estimates based on the full cost
recovery policy set forth in OMB Circular A-25.
Further, this rule complies with the Federal Accounting Standards
Advisory Board (FASAB) Statement of Federal Financial Accounting
Standards (SFFAS) No 4: Managerial Cost Accounting Concepts and
Standards for the Federal Government (July 31, 1995), which provides
federal government standards regarding managerial cost accounting and
full cost recovery. The Chief Financial Officers Act of 1990 (CFO Act),
31 U.S.C. 901-903, requires each agency's Chief Financial Officer (CFO)
to ``review, on a biennial basis, the fees, royalties, rents and other
charges imposed by the agency for services and things of value it
provides, and make recommendations on revising those charges to reflect
cost incurred by it in providing those services and things of value.''
31 U.S.C. 902(a)(8). This final rule is consistent with these federal
sector financial and accounting laws, rules and standards, and reflects
fee collection recommendations made by the CFO. As such, the rule
increases funding that supports current SEVP operations; provides
funding for new initiatives critical to improving the program; funds
operations to comply with statutory requirements to implement school
recertification; and reflects the implementation of specific cost
allocation methods to segment program costs to the appropriate fee,
either F and M students, J exchange visitors, or schools, to ensure
compliance with the federal sector legal framework for fee setting.
This final rule amends the SEVP school certification petition fees
and the application fees for nonimmigrants seeking to become academic
(F visa) or vocational (M visa) students, or exchange visitors (J
visa). The rule also implements mandatory review of fees collected by
SEVP. It sets the fee for submitting a school certification petition at
$1,700 and the fee for each
[[Page 55685]]
site visit at $655. It sets the fee for each F or M student at $200.
The rule sets the fee for certain J exchange visitors at $180 and
maintains the fee for exchange visitors seeking admission as au pairs,
camp counselors, and summer work/travel program participants at $35.
All fee payments addressed in this final rule must be made in the
amounts established by this rule beginning October 27, 2008.
The rule also establishes procedures for oversight and
recertification of schools with F and/or M students. This includes
procedures for schools to submit recertification petitions as well as
procedures to allow a school to voluntarily withdraw from an existing
certification. The rule further clarifies procedures for school
operation with regard to F and M students during recertification and
following a denial of recertification or a withdrawal of certification.
Finally, the rule removes obsolete provisions used prior to
implementation of SEVIS.
II. Public Comments on the Proposed Rule
The 60-day comment period for this rulemaking action concluded on
June 20, 2008; although SEVP allowed posting of late-filed comments
through June 27, 2008. The proposed rule identified several alternative
means for submitting comments. SEVP converted all comments submitted,
regardless of means chosen for submission, to electronic format where
they may be viewed electronically through the Federal Docket Management
System (FDMS) at http://www.regulations.gov (use DHS docket number
ICEB-2008-0004 when searching). SEVP received 61 written comments to
FDMS.
In addition, in the weeks following the publication of the proposed
rule, the SEVP Director and key staff, led in several instances by the
Assistant Secretary for U.S. Immigration and Customs Enforcement,
launched a nationwide tour of educational institutions to engage the
public in a ``town hall'' format to encourage open dialogue, public
comments and understanding about the proposed rule. SEVP opened the
forums to the public at large, and specifically invited officials from
every SEVP-certified school and exchange visitor program sponsors from
a listing provided to SEVP by the Department of State (DoS). SEVP
posted the transcripts of those forums on the public docket for this
rulemaking at www.regulations.gov.
SEVP further extended outreach to the public through the home page
of the SEVP Web site, http://www.ice.gov/sevis. The site included
related press releases, ``frequently asked questions'' (FAQs), links to
documents and access to FDMS for comment submission. Although not an
official method of comment submission, SEVP received some rule-related
input through its policy guidance ``help'' e-mail address,
SEVIS.Source@dhs.gov. In these instances, SEVP asked submitters to
comply with docket submission criteria, but also added all substantive
issues related to the proposed rule raised in those e-mails to the FDMS
docket.
This final rule considered all comments received during the comment
period and has responded to those comments in this final rule. Below is
a summary of changes to the final rule text made in response to public
comment:
1. The proposed text for 8 CFR 103.7(b)(1) related to the Form I-
290B has been removed.
2. The proposed text for 8 CFR 103.7(b)(1) related to the Form I-
901 has been amended slightly to clarify fees for J visa holders by
listing the J-visa categories first and then the fees, and by
specifically listing the government sponsored program visa categories
exempt from these fees.
3. The proposed text for 8 CFR 214.3(g)(1) Student Records is
amended by adding after the first sentence the following text:
``Student information not required for entry in SEVIS may be kept in
the school's student system of records, but must be accessible to
DSOs.''
4. The proposed text for 8 CFR 214.3(g)(1)(ii) is amended by adding
a parenthetical clarification regarding the recordation of legal name
changes as follows: ``Identification of the student, to include name
while in attendance (record any legal name change), date and place of
birth, country of citizenship, school's student identification
number.''
5. The proposed text for 8 CFR 214.3(g)(1)(xi), requiring schools
to maintain record of nonimmigrant students' ``date of last entry into
the United States; most recent Form I-94 number and date of issue,''
has been deleted.
6. The proposed text for 8 CFR 214.3(g)(2)(iii)(D) Adjustment to
the program completion date is amended by adding examples in
parenthesis to read: ``Any factors that influence the student's
progress toward program completion (e.g., deferred attendance,
authorized drop below, program extension) must be reflected by making
an adjustment updating the program completion date.''
7. The proposed text for 8 CFR 214.3(h)(2) Recertification is
amended by adding after the first sentence, ``There is no
recertification petition fee.''
8. The proposed text for 8 CFR 214.4(a)(1) is amended to add the
sentence, ``No fee is required with appeals related to SEVP
certification.''
9. The proposed text for 8 CFR 214.4(a)(2)(xix) is amended to
include only those changes that represent a ``material change to the
scope of the institution offerings'' as follows: ``Failure of a DSO to
notify SEVP of material changes, such as changes to the school's name,
address, or curricular changes that represent material change to the
scope of institution offerings (e.g., addition of a program, class or
course for which the school is issuing Forms I-20, but which does not
have Form I-17 approval), as required by 8 CFR 214.3(f)(1).''
10. The proposed text of 8 CFR 214.4(h) is amended by adding the
last sentence, ``No fee is required with appeals related to denial of
SEVP recertification or withdrawal of SEVP certification.''
11. The proposed text of 8 CFR 214.13 is expanded to include
paragraph (b)(1). This allows a slight technical correction--the
addition of the G-7 category.
A. General Comments
Comments submitted to the docket for this rulemaking were
distributed relatively evenly among various issues, with concerns about
the potential impact of the increased I-901 SEVIS fee on student and
exchange visitor participation in F, M and J programs and questions
about adjustments to student reporting requirements receiving the
greatest number of comments.
1. Support for the Rule
Some comments affirmed the purpose and scope of the rule,
acknowledging the need to remove DHS authorization to enroll F and/or M
students from noncompliant schools, and supporting increased
interaction and communication among federal agencies through the
development of SEVIS II and expanded SEVP liaison activity. One
commenter, in particular, applauded U.S. government policy related to
assessing fees for the cost of government programs and opined that all
costs associated with international students' presence in the United
States should be paid by students rather than by U.S. taxpayers. SEVP
agrees with and appreciates these expressions of support for the
program and, in this final rule, seeks to fulfill its legal
requirements to fully capture the costs associated with carrying out
government responsibilities
[[Page 55686]]
under the SEVP program through appropriate fee assessments.
2. Opposition to the Rule
A number of comments were not relevant to the substance of the
proposed rule; in particular those questioning the government's basis
for establishing and continuing SEVP overall and criticizing the rule
for not addressing or solving immigration issues in general. One
comment, in particular, questions the logic of focusing U.S. government
attention and public resources on foreign students and researchers as
opposed to other immigrant and nonimmigrant groups.
Other comments noted recent increases in fees for nonimmigrants by
the Department of State (DoS) for visa processing and by U.S.
Citizenship and Immigration Services (USCIS) for benefit applications,
and asked if the fees could be better coordinated and phased-in. These
comments suggested changes in substantive federal laws, USCIS
regulations and processes for implementing the immigration laws by
USCIS, U.S. Customs and Border Protection (CBP) and other agencies.
Several comments criticized the Department's law enforcement
programs for lack of collection of adequate law enforcement data
related to criminal behavior. One comment, in particular, asked that
SEVP further illuminate the scale of the problems that this regulation
purports to address and provide additional information as to how many
uninvestigated leads related to nonimmigrant student and exchange
visitor activities resulted in criminal conduct, how many institutions
are complying with SEVP requirements, and what percentage of foreign
students are represented by these institutions.
Finally, an advocacy group, endorsed by four commenters, questioned
the efficacy of U.S. international education policy and its
intersection with national immigration policy; concluding that SEVIS is
an example of government regulation ``for extraneous purposes,''
developed in the absence of comprehensive U.S. international education
policy.
All of these comments are beyond the scope of this rulemaking. The
final rule does not address comments seeking changes in statutes,
regulations, policy or processes unrelated to or not addressed by the
proposed rule. It also does not respond to requests for changes in
procedures of other DHS components or other agencies, or the resolution
of any other issues not within the scope of the rulemaking.
Several individual commenters observed that the language in the
preamble to the proposed rule regarding terrorist threats to the United
States overstated the actual terrorist threat of a relatively small
segment of the total population that visits the United States. They
believe that such language has been a deterrent to foreign nonimmigrant
participation with schools and exchange visitor programs. Some
commenters, including two advocacy groups, feel that the ``message''
that foreign nationals will perceive from the rule will be that the
United States is ``unwelcoming.''
SEVP strongly supports international education. Most non-immigrant
students have positive experiences while in the United States, and the
goodwill engendered by all that the United States has to offer will
encourage mutually beneficial international relations. SEVP, by
ensuring students' legitimacy, both reduces potential terrorist threats
and decreases the risk of discrimination in the larger community,
contributing to a safe environment for students and exchange visitors
when they attend programs in the United States.
As discussed in the proposed rule, and in sources such as The 9/11
Commission Report, a strong immigration policy, including the ability
of the U.S. government to know whether nonimmigrant visitors have
overstayed the term of their admission to the United States, is
critical to safeguarding the homeland. See 72 FR at 21266. The National
Commission on Terrorist Attacks upon the United States (the 9/11
Commission), in its seminal report, noted:
Looking back, we can see that the routine operations of our
immigration laws--that is, aspects of those laws not specifically
aimed at protecting against terrorism--inevitably shaped al Qaeda
planning and opportunities * * * had the immigration system set a
higher bar for determining whether individuals are who or what they
claim to be--and ensur[ed] routine consequences for violations--it
could potentially have excluded, removed, or come into further
contact with several hijackers who did not appear to meet the terms
for admitting short-term visitors. \1\
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\1\ The 9/11 Commission Report: Final Report of the National
Commission on Terrorist Attacks upon the United States (2004) (9/11
Commission Report).
SEVP strives to administer SEVIS and the information collection and
reporting requirements mandated by statute for F and M students and J
exchange visitors in a manner that best serves the requirements of the
law, supports the missions of DHS and the Department of State, and
facilitates the ability of foreign students and exchange visitors to
come to the United States. The fees implemented under this final rule
will support SEVP's efforts in continuing to improve all of these
purposes.
3. Technical Corrections to the Proposed Rule
SEVP identified three required technical corrections to the
proposed rule. SEVP discovered that Table 1: Summary of Requirements by
Organization and Program Category, in the section addressing Program
Expenses, the expenses for SEVIS II for 2009 and reflecting the change
of $25,100 are in error (carried over from a previous calculation). The
entry of $25,100 is corrected to $25,600. The correct entry was used
for determining the totals of the Program Expenses section, so the
totals remain unchanged.
Also, SEVP discovered that Table 12: FY 2009 SEVP Program Fees,
line 4, in the proposed rule preamble, contained a typographical error
by stating ``190'' for the I-901 SEVIS fee for most J-1 exchange
visitors. The proposed rule included and discussed the correct ``180''
figure at several points in the document, including the proposed rule
text, and no commenter expressed confusion over this proposed dollar
amount.
The proposed text of 8 CFR 214.13 did not include the G-7 visa
category, as required by law. SEVP expanded the final rule text to
include paragraph (b)(1), which corrects this oversight by adding the
G-7 category. This inclusion does not substantially change the intent
of the proposed rule but reflects a well-established and
nondiscretionary legal requirement.
B. Adjustment of SEVP Fees
1. Frequency of Fee Review and Scale of Fee Increase
An individual commenter asked how frequently the SEVP community
should expect future fee adjustments. In the same vein, an advocacy
group commented that the rule asserts DHS authority to revisit the fee
every two years, describing this authority and the possible frequency
of fee review as ``drastic and sweeping.'' Another comment suggested
that a more business-like approach, sensitive to consumers, would have
been to raise fees incrementally.
As stated in the NPRM, this is the first adjustment of fees based
upon actual operational costs to the program implemented by SEVP since
2002. Due to the lapse in time and significant increase in operating
costs for the program, SEVP had to propose, and now implement, a
substantial fee increase to cover the actual operating costs of the
[[Page 55687]]
program. ICE is required by law and Executive Order to review these
fees on a biennial basis. 31 U.S.C. 902(a)(8). SEVP will continue to
review its fees every two years and make future fee adjustments, as
necessary, at more regular intervals consistent with the biennial
review and in line with the commenters' suggestions.
2. Economies in Efficiency
Two individuals commented, without providing specific examples,
that efficiencies in SEVP and DHS operations, as well as at DoS, could
eliminate the need for fee increases. Similarly, one commenter observed
that the Departments have not yet delivered promised efficiencies and
should do so before raising fees.
SEVP is unable to respond to these comments because they are vague
and fail to identify a means of achieving the supposed efficiencies.
They also do not identify the Departments' alleged promised
efficiencies. SEVP endorses streamlining and promoting efficiencies in
its operations. This is one reason for creating the SEVIS II system,
which will provide for more efficient processing and sharing of student
data. SEVP disagrees that there remain significant unrecognized
efficiencies attainable under the current program with the current fee
levels. As described in the proposed rule, these adjusted fees are
based on expanding program operating needs; including a need for the
SEVIS II system and additional enforcement and liaison personnel to
address the existing and expanding SEVP caseload. They are based on
legal requirements, including the recertification program required by
EBSVERA (8 U.S.C. 1762) and Homeland Security Presidential Directive-2
(HSPD-2) and are not susceptible to overall reduction or elimination by
the program through leveraging additional efficiencies.
3. Fee Increase for F, M, and J Nonimmigrants
The largest volume of comments on the proposed rule voiced concern
that the increase in the I-901 SEVIS fee would adversely affect U.S.
competitiveness in the international market for foreign student
enrollment and exchange visitor participation. Some commenters expanded
this concern to emphasize the importance of foreign student enrollment
and exchange visitor participation to the U.S. culture and economy.
These comments, including a comment from a major advocacy group,
suggested that SEVP seek alternative public funding sources. Some of
the comments in this area asked if SEVP could decrease the burden on
students by having the student fee paid incrementally, part before and
part after visa issuance, to minimize the loss to those that do not
receive visas.
SEVP fully appreciates the importance of foreign student and
exchange visitor enrollment to the U.S. culture and economy, and is
firmly committed to lawful visitation of foreign nationals for this
purpose. This is reflected in recent enrollment data, which indicate
that enrollment of F, M and J nonimmigrants at higher education
institutions is at a historic high and does not indicate any
demonstrable variance in overall U.S. market share in relation to other
countries.\2\
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\2\ http://opendoors.iienetwork.org/page/113974.
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SEVP also observes that the comments neither cited to nor provided
a published study or other data supporting the suggestion that an
increase in government fees charged to international students adversely
affects their decision to choose the United States for academic or
vocational study, or exchange visits. SEVP, likewise, has been unable
to locate such a study. The program thus has no objective basis for
concluding that international students choose or reject attending
education institutions in the United States based on government fees
which, generally, are a very small portion of the overall costs of
attending these programs.
Rather, SEVP research reveals that the fees currently required for
all incoming F-1 students equates to similar fees charged in other
countries.\3\ An analysis of twelve countries (Australia, Canada,
China, France, Germany, India, Japan, Russia, South Africa, Saudi
Arabia, South Korea, and the United Kingdom) shows that the average
student visa fee is $126.58. The composite U.S. cost, after the
effective date of this rule, will be $330, which includes a visa
processing fee of $130 and the $200 I-901 SEVIS fee. This fee is
neither the most expensive nor the least expensive when compared with
these twelve countries. In fact, Australia, cited by most commenters as
the singular competitor of U.S. market share, currently charges
nonimmigrant students a total of $450. The table below lists the fees
charged by the twelve countries researched in the SEVP analysis.
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\3\ SEVP has placed these research materials in the FDMS docket
for this rulemaking.
Student Fees in Other Countries
------------------------------------------------------------------------
Country Costs
------------------------------------------------------------------------
Australia................................... $450.00
Canada...................................... 125.00
China....................................... 205.00
France...................................... 78.00
Germany..................................... 95.00
India....................................... 161.00
Japan....................................... Free
Russia...................................... $131.00
Saudi Arabia................................ Free
South Africa................................ 37.00
South Korea................................. 45.00
United Kingdom \4\.......................... 192.00
------------------------------------------------------------------------
There is also no objective evidence that this fee is the sole, or
even the most important, criterion that a student might consider while
weighing educational options. The increased I-901 SEVIS fee represents
less than 1% of the average cost of yearly expenses for students in a
four-year program, an amount that could easily be overshadowed by
changes in international currency fluctuations or changes in school
tuition amounts in foreign countries.
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\4\ On January 30, 2008, the Home Office of the United Kingdom
(UK), the UK equivalent to DHS, announced a new SEVP-like program
for students and exchange visitors that will likely include
additional fees. See http://www.ukba.homeoffice.gov/managing
borders/managing immigration/a points-based system.
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Perhaps more importantly, the United States features types of
education, such as community colleges and focused vocational
educational programs of study that are unique in the world. The United
States offers courses of study, specializations in content, and
programs that cannot be found anywhere else. Noted research facilities,
the majority of which continue to be dominated by American entities,
provide opportunities for advanced research and collaboration among an
increasingly international community of scholars. Given the many
variables that go into a decision to study abroad, and the lack of
validated data on this issue, there is no basis to conclude that United
States government fees ultimately persuade a student or exchange
visitor not to attend a school in this country. SEVP, consequently,
cannot conclude at this time that an increase in the I-901 SEVIS fee is
directly or even indirectly related to a decrease in U.S.
competitiveness for international students and exchange visitors.
But even if a rise in the cost to F and M students and J exchange
visitors were to cause a reduction in the demand by foreign students or
exchange visitors for U.S. educational or exchange opportunities, that
point would not alter this rulemaking. Current law requires
[[Page 55688]]
that DHS and DoS recoup the full costs of administering the programs
that manage F, M and J nonimmigrants from those who benefit from it.
DHS may not reduce its fees based on a desire to attract a greater
number of aliens to the program.
With respect to the suggestion of some commenters that students pay
SEVP fees incrementally, SEVP cannot implement such a payment system at
this time due to the additional administrative burden and development
costs such an incremental payment system would place on the program,
but will continue to study the idea.
C. Enhancements
1. Issues/Concerns Before SEVIS II
One commenter observed that DHS, including SEVP, tends to institute
new requirements for schools and students before either data systems or
program policy have been sufficiently developed to support them and
that, subsequently, an inordinate amount of effort is expended on
``work-around'' procedures and data fixes. The observer sought
assurance that SEVP will have a concrete plan to avoid premature
deployment of SEVIS II and to augment policy and helpdesk staffing to
support anticipated need for problem resolution. Another comment asked
how SEVIS users will transition from SEVIS I to SEVIS II and how new
functionalities in SEVIS II will be introduced.
SEVP is committed to providing the planning and support necessary
to make SEVIS II implementation a success. SEVP has already started to
engage with its stakeholders and expects to continue to engage in a
major outreach initiative for the SEVIS II rollout, including but not
limited to, meetings, brochures, e-newsletters, and Web site postings.
A commenter suggested that, with SEVIS II a year and a half from
activation, it would be very helpful if SEVP would establish a Web-
based ability for students to self-report. SEVP acknowledges the value
of such an innovation and will take the consideration under advisement.
A commenter requested that schools be given the ability in SEVIS to
print-out draft Forms I-17 for review prior to submission. It is not
likely such an enhancement will be made to SEVIS I, but SEVP will
maintain the request as a suggested system requirement for SEVIS II.
A commenter reported instances of erroneous data appearing in the
CBP port of entry data systems when compared with SEVIS information on
the applicable J-1 exchange visitors that was verified to be correct.
This comment is outside the scope of this rule.
A commenter noted instances when students' visa and passport
numbers were identical in SEVIS. Data fixes were requested but were not
completed. SEVP appreciates comments regarding its systems and will
note and investigate to determine whether a data fix can be made to
resolve such a problem.
A commenter noted degraded responsiveness in SEVIS during peak
times during the recent optional practical training (OPT) validation.
SEVP acknowledges that response time can be adversely affected by
circumstances beyond its control.
2. SEVIS II
Commenters included SEVP stakeholders who had participated in SEVIS
II development meetings held by SEVP in Washington D.C. last summer, at
which they identified several requested system requirements for SEVIS
II. They commended SEVP on the inclusion of all user communities in
SEVIS II development.
Two commenters questioned whether SEVIS II becoming ``paperless,''
as proposed, is a realistic expectation and whether this paperless
process is a move away from faxing. SEVIS II is certainly a move away
from faxing. SEVP anticipates that, with improved access to data
systems, and with the incorporation of electronic signature capability
and availability of biometric information coming in the near future,
U.S. government processes related to F, M and J nonimmigrants will
become paperless. For example, in SEVIS II the DSO will electronically
sign the equivalent to the Form I-20, Certificate of Eligibility for
Nonimmigrant Student Status. SEVIS II will be paperless in implementing
its processes but will also have the ability to generate paper forms.
As needs are identified by State and local governments and the private
sector, SEVP will consider modifying the format and content of paper
Forms I-20 to better serve their processes.
Another commenter asked how SEVIS II paperless processes will
interact with the requirements of the Real ID Act of 2005. We
understand that students and exchange visitors are likely to need paper
documentation of their F, M or J status in the United States to obtain
driver's licenses, establish bank accounts and other similar
activities. As discussed above, SEVIS II will allow for the generation
of paper forms as needed by students and exchange visitors. As the
States move forward developing their processes for verifying documents
presented by individuals seeking REAL ID-compliant driver's licenses or
identification cards as required under the REAL ID Act \5\ and DHS REAL
ID regulations, DHS will work with the States to ensure that DMVs are
able to verify the immigration status of foreign students and exchange
visitors through DHS's Systematic Alien Verification for Entitlements
program (SAVE).\6\
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\5\ See Pub. L. 109-13, 119 Stat. 231, 302 (May 11, 2005)
(codified at 49 U.S.C. 30301 note), also 73 FR 5271 (Jan. 29, 2008),
codified at 6 CFR part 37.
\6\ The SAVE Program allows Federal, State and local government
benefit-granting agencies, as well as licensing bureaus, to check
the immigration status of non-citizens and citizen applicants
requesting benefits or entitlements.
---------------------------------------------------------------------------
A commenter asked how a Form I-20 generated out of SEVIS II for
identification purposes will meet State DMV and/or Social Security
Administration (SSA) requirements that necessitate the form having a
port of entry stamp. This comment points to a training problem and not
a SEVIS II data system concern. While some port of entry officials
stamp Forms I-20 as a courtesy, there is no requirement for them to do
so. A related misconception is the expectation that Forms I-94,
Arrival/Departure Record, will be stamped. Forms I-94 should be stamped
when their issuance is related to entry into the United States. Forms
I-94 issued in conjunction with approval of a benefit are not stamped.
SEVP continues to conduct outreach among government agencies to correct
areas of misinformation like these that negatively impact
nonimmigrants.
Two commenters asked if Form I-290, Notice of Appeal or Motion, and
USCIS Form I-134, Affidavit of Support Information, were being
incorporated in the transition to paperless processes.
The Form I-290 will be entirely paperless. SEVP, with USCIS, is in
the process of deciding whether the Form I-134 will be included in the
paperless process.
A commenter asked if the elimination of paper Forms I-20 will
extend to border commuter students. The answer is yes, the elimination
of paper Forms I-20 will extend to border commuter students.
3. Improved SEVIS and SEVIS II Capabilities
A few commenters asked about SEVP's efforts to improve SEVIS
interface and interoperability with other government databases, in
general. SEVP recognizes that the value of SEVIS to the United States,
its citizens and the nonimmigrants it tracks is multiplied by
increasing appropriate access to all potential, legitimate users. Since
the inception of SEVP, the program has entered into agreements and
developed
[[Page 55689]]
interfaces with several governmental agencies. SEVIS currently
interfaces with: Foreign Terrorist Task Tracking Force (FTTTF), U.S.
Bank I-901, United States Visitor and Immigrant Status Indicator
Technology (US-VISIT), CBP Arrival & Departure Information System
(ADIS), USCIS Computer Linked Application Information Management System
(CLAIMS), DoS Nonimmigrant Visa, and DoS Consular Consolidated Database
(CCD). SEVP, through the U.S. Immigration and Customs Enforcement (ICE)
Office of the Chief Information Officer, is currently brokering
agreements for SEVIS II to interface with: Pay.gov--I-17, ICE--Business
Compliance Enforcement--National Security Entry Exit Registration
System (NSEERS), CBP Interagency Border Inspection System (IBIS), User
Application Module (UAM)--single sign-on, Non-Immigrant Visa Interface
(NIV) and the USCIS Verification Information System (VIS). The
developing interface between SEVIS and VIS, the database of the SAVE
program, will be a significant benefit. This interface alone will
significantly relieve problem areas for nonimmigrants interacting with
SSA and the State DMVs, or seeking authorized employment.
Two commenters asked if SEVIS II would ameliorate tracking problems
USCIS seems to have in keeping up with student benefit petitions.
SEVP has an active partnership with USCIS and both agencies are
strongly committed to developing the best possible interface between
their tracking systems, SEVIS and CLAIMS. SEVP acknowledges room for
improvement, but significant progress has been made.
A commenter observed that a lot of unnecessary enforcement actions
are occurring because DHS and other government data systems do not
adequately share information and interfaces do not always send the
intended data. As discussed above, SEVP is fully aware of the
importance of effective interfacing and places a high priority on
improving and increasing interfaces with SEVIS II. The fees implemented
by this final rule will, in part, be used to address these interfacing
issues. In recognition of the current situation, SEVP has a staff
member that serves as a full-time liaison with the ICE Compliance
Enforcement Unit (CEU). When data anomalies are identified or there are
indications that a student may have violated status, this individual is
the first responder. Through search of the relevant data systems and
telephone consultations with school officials, most of these concerns
are resolved through a desk audit, requiring no further action. CEU
investigators are assigned to follow up with that small number of
situations that the liaison is unable to explain. Of these, greater
than 70% result in finding substantive issues that warrant
investigation. Again, SEVP will use a portion of the fees collected
from this final rule to improve this system.
Commenters asked about their capability to extract information from
SEVIS II, especially to support the Open Door census.
Enhancing the ability of SEVIS users to extract and use information
from SEVIS was one of the biggest reasons SEVP sought SEVIS II, and
will be a key purpose for which SEVP uses fees assessed by this rule.
The new system will provide users additional history information on
individuals and will vastly improve reporting and search functionality.
Several commenters asked about the impact of SEVIS II on J exchange
visitor programs. An advocacy group suggested that J program interests
have not been met in SEVIS development.
SEVP does not concur. Officials from DoS have had an active role in
SEVIS development. Since the inception of SEVIS through SEVIS release
5.10, released in August 2008, 99 system upgrades (approximately one
third of all system upgrades in that period) have been directed towards
meeting exchange visitor program needs. Of these, twenty-five percent
of the upgrades dealt directly with refining the redesignation process.
Regarding SEVIS II, of the more than 1,300 functional requirements that
were developed from stakeholder input, including input from the DoS and
exchange visitor program sponsors, approximately 416 are exclusively
for use by the exchange visitor community. Among the remaining system
requirements, approximately fifty percent are shared commonly by the F,
M and J visa categories. Academic representatives from the exchange
visitor program sponsors were involved from the beginning of SEVIS II
development and some of these individuals made particular note of the
significant improvements they had observed and of the high level of
interagency cooperation. As is reflected in the transcripts on the
docket for this rulemaking, senior leadership and staff from DoS
participated both during the development meetings that collected SEVIS
II requirements and during the recent town hall meetings. While the
specific needs of F, M and J schools and programs may differ, it has
been a priority for SEVIS program developers to ensure that new
capabilities are available to all SEVIS users. This rule, and the fees
collected pursuant to the rule, will enhance the exchange visitor
programs as well as F and M programs.
One commenter cited the significant cost to his school in modifying
data systems to interface and support batch-feeding of data to SEVIS.
He raised concern that SEVIS II would pass a similar, uncompensated
cost on to schools and exchange visitor program sponsors.
SEVIS II is being designed to be fully compatible with SEVIS I and
consistent with industry standards. All data currently in SEVIS will be
migrated by SEVP into SEVIS II. Further, while changes in data
requirements are a natural part of program evolution, there are very
few added fields beyond those already in SEVIS. (Adding new fields,
historically, has been the biggest recurring problem with batch
interfaces.) As discussed in the proposed rule, SEVIS II enhancements
are a key part of these fee increases, which are calculated to include
conversion costs. Consequently, SEVP anticipates that any added costs
to SEVIS users for conversion to SEVIS II will be negligible.
A commenter voiced concern that schools which rely on the feeding
of data to SEVIS by batch do not have the flexibility that real-time
interface (RTI) reliant schools have in responding to SEVP changes. The
commenter noted that batch users must often use RTI procedures to be
able to meet SEVP requirements. The commenter asked that SEVP be
mindful of this in initiating changes.
SEVP will do so. Batch providers were invited to attend SEVIS II
development workshops, at which they voiced concerns and provided
insights into the amelioration of these concerns.
4. SEVIS II and Biometrics
Commenters asked about SEVIS II's use of biometrics.
SEVIS II, scheduled for deployment in October 2009, will include a
data field to record a biometric identifier (i.e., functional
identification number: FIN) for nonimmigrant records. SEVIS II will,
however, have no functions related to the acquisition or storage of
biometric information. SEVP will have access to biometric information,
as needed, and will incorporate the use of biometrics in its tracking
processes. The costs related to these processes are included in the
fees assessed by the rule.
Commenters also asked for a description of how a biometric
identifier will impact recordkeeping processes and management.
The biometric identifier will be ``person-centric,'' meaning that
it will
[[Page 55690]]
remain with the person for life whenever they seek entry into the
United States or seek immigration related benefits. The SEVIS
identifier is a record of a particular period of time that an
individual has been in F, M or J status. The biometric identifier will
tie all SEVIS identifiers to an individual. This will enable
government, school officials or exchange visitor program sponsors to
see all pertinent information on a nonimmigrant in deciding whether or
not to grant benefits or accept that individual for enrollment. For
example, if a student is terminated at one school and chooses to seek
reinstatement ``by travel,'' the CBP inspector will see the previous
termination and assess the situation in more depth than for a normal
``initial'' student arriving for entry into the United States. A
biometric identification will streamline all government systems.
Currently these systems identify individuals through consistencies in
personal identification information (e.g., name, birth date, address).
These fields are subject to mistakes, such as entry errors and
variations in spelling, and are often difficult to match from one
system to another. By having access to the common biometric identifier,
government users can bypass less reliable search fields and can readily
identify and correct data mistakes. As discussed in the proposed rule,
funding these types of enhancements are part of the purpose of these
increased fee assessments.
A commenter asked if the biometric identifier and its ability to
connect an individual's SEVIS records will have any impact on the
payment of the I-901 SEVIS fee when a student decides to reinstate by
travel.
The answer is no. If a student is out of status and seeks to return
to status by leaving the United States and re-entering, he or she must
pay the I-901 SEVIS fee.
5. Additional CEU personnel
A commenter questioned the legal authority of using the I-901 SEVIS
fee to support hiring of enforcement officers, suggesting they should
be funded by appropriated monies.
As was discussed in the proposed rule, 8 U.S.C. 1372(e)(4)(A),
(g)(2), 8 U.S.C. 1372(e)(4)(B) and 8 U.S.C. 1356(m) provide the
Secretary with authority to establish, revise, collect, retain and
expend fees to operate SEVP. This authority provides that fees be set
at a level that will ensure recovery of the full costs of providing all
services for the program. The full cost concept addresses the
activities associated with the continuum of providing services under
the program, from accepting applications, to developing policy, to
enforcement of program regulations and associated laws. Full cost
includes the direct and indirect costs to any part of the federal
government of providing a good, resource, or service and these costs
include, but are not limited to, an appropriate share of direct and
indirect personnel costs, including salaries and fringe benefits such
as medical insurance and retirement; physical overhead, consulting, and
other indirect costs including material and supply costs, utilities,
insurance, travel, and rents or imputed rents on land, buildings, and
equipment; the management and supervisory costs; and the costs of
enforcement, collection, research, establishment of standards, and
regulation. See OMB Circular A-25, User Charges (revised), section
6(d)(1). As such, ``enforcement costs'' are part of a continuum of
program services and are to be considered as part of the full cost of
program services chargeable as user fees.
In addition, SEVP currently funds only 79 CEU personnel. ICE is
spending much more than 79 agent full-time hours investigating school
and student issues. There are hundreds of issues and cases that arise
in SEVIS and in the student and academic institution area. Those are
categorized by high, medium and low risk cases. Currently, the 79
positions SEVP funds do not cover all of the cases identified as the
high risk cases, much less all cases. The additional 155 positions
funded by this rule are meant to close this gap.
A commenter questioned whether the increased funding for CEU
personnel would result in the hiring of employees with greater
specialized knowledge and training, observing that some investigators
seem to have very little knowledge of school and/or student
requirements.
SEVP does intend to use this increased funding to hire additional
CEU personnel and to support specialized training for CEU personnel
related to SEVP-certified schools, DoS exchange visitor sponsors and F,
M and J nonimmigrants. Federal law enforcement officers receive
extensive, standardized training at the Federal Law Enforcement
Training Facility (FLETC) in Glynco, Georgia. SEVP continues to work
with the appropriate authorities within ICE and at FLETC to provide
training content for this curriculum. SEVP also intends to hire
liaisons whose duties will include collateral support of CEU
investigators. This should further help CEU personnel understand school
and exchange visitor sponsor, as well as student and exchange visitor
requirements.
6. School liaison activity
One commenter nominated a person to become an SEVP liaison. SEVP
does not accept nominations for SEVP liaison positions, but urges
interested individuals to monitor www.usajobs.opm.gov for vacancy
announcements related to these and other SEVP positions.
More than one commenter noted a general lack of knowledge in both
DHS and DoS about the structure of higher education, particularly the
unique needs of research facilities and the critical importance of not
impeding foreign scholar participation in their programs. These
commenters cited examples of misunderstanding about the applicability
of accreditation to research facilities seeking redesignation or
recertification and at least one comment pointed to a research
institute that is having difficulty becoming accredited because there
are no qualified U.S. candidates for enrollment and accreditation
requires that the program be previously in operation. (Redesignation by
DoS requires accreditation. SEVP certification requires the program to
have been previously in operation.) Hope was raised that the SEVP
liaisons would overcome this knowledge shortcoming.
SEVP appreciates these observations and will follow-up with the
commenters. A ``provisional certification'' status is under
consideration by SEVP but will not be implemented with this rule due to
the additional cost and administrative burden related to establishing
such a program.
A commenter asked if SEVP liaisons would be able to assist schools
and students in determining the status of benefit applications pending
with USCIS. SEVP is taking this suggestion under consideration and will
discuss it with USCIS representatives.
An advocacy group and a concurring commenter feel the need for
liaisons is created by SEVIS requirements being ``cumbersome and
complicated.''
SEVP disagrees and notes that no such comments were received in the
nationwide town hall meetings. To the contrary, the introduction of
liaison support was received enthusiastically. As discussed in the
proposed rule, liaison activity will be much more than mere
troubleshooting, but will also provide timely information regarding
program enhancements, support CEU activities and offer greater feedback
to SEVP on positive and negative user comments and suggestions. Simply
[[Page 55691]]
making SEVIS more user friendly, which is a key goal of SEVIS II, would
not eliminate the need for liaisons.
D. Full Cost Information
1. Further reduced fee of $35 for au pairs, camp counselors, and summer
work travel
One commenter asked why the $35 fee for au pairs, camp counselors,
and summer work/travel programs was not included in the funding
increase.
Congress established the $35 fee for au pairs, camp counselors and
summer work/travel program participants by law and did not provide a
similar set fee for other categories of the J-visa for exchange
visitors. 8 U.S.C. 1372(e)(4)(A). This indicates a strong Congressional
intent that the fee for au pairs, camp counselors and summer work/
travel programs remain set at $35. Thus, SEVP did not adjust that fee.
2. Impacts on applicant groups
Several commenters voiced concern about the negative impact of the
increased fee on all F, M and J nonimmigrants, but particularly on
students and exchange visitors in short-term status or individuals with
limited means (e.g., teachers and high school students; those from poor
countries; language study). Commenters asked if SEVP could establish a
lower fee for particular groups through regulation suggesting, for
example, a tiered fee of $35 for exchange visitor programs currently
identified and for F/M programs of study six months or less in
duration; $200 fee for F/M programs more than six months; $180 for
exchange visitor programs other than government sponsored. In a similar
request other comments, including those from two major advocacy groups,
expressed support for the SEVP initiative furthering the institution of
a short-term visa category. In fact, over 250 participants at a May 28,
2008, town hall forum at the NAFSA national conference were supportive
of this idea.
SEVP cannot establish a lower fee as requested. As discussed above
and in the proposed rule in relation to OMB Circular A-25, User Charges
(revised), applicable laws, regulations and directives prohibit SEVP
from establishing fees below program costs. Any preference given by
SEVP to a select group would result in a penalty to the participants at
large. By allowing a select group the same benefit as others in the
population at a fee below cost, the fee for the majority of the
population must increase in order to fully cover program costs. SEVP
has reviewed its program costs for processing students in short-term
status versus those in long-term status and can find no basis for
charging a lower fee for students on short-term status. The government
would also incur additional administrative costs associated with
separate processing of these fees. Accordingly, and as was discussed in
the town hall meetings, SEVP is constrained at this time to charge a
single set fee for each individual group.
A commenter noted that most scholarships and assistance given to
students of limited means is directed to costs after the student enters
the United States and that, consequently, the various government fees
can pose an insurmountable burden on a student since they are levied
before entry and, generally, not compensated.
Although SEVP appreciates identification of this problem,
government agencies must collect fees at the time services are
provided. We welcome further input from students and schools at
SEVIS.Source@dhs.gov as to how they handle this situation.
One commenter questioned the timing for implementation of the rule.
SEVP timed implementation of the final rule for October 1, 2008,
the beginning of fiscal year 2009. This is the date when the student
enrollment is completed for the largest population; therefore, the
fewest number of students will be involved in initiation of the new fee
levels. By implementing the fee for the beginning of the government
fiscal year, SEVP is able to better simplify and reduce costs related
to government accounting. Further, as noted in the NPRM and this final
rule, SEVP has been underfunded for many years since the program has
not implemented a fee increase for several years. By implementing the
fees at the start of SEVP's fiscal year, the program funding will be
better aligned with its budgetary and operational needs for the full
fiscal year and thus allow SEVP to better serve its constituents.
3. Certification fee
A commenter noted that it was unclear in the proposed text for 8
CFR 214.3(h)(2) whether or not schools must submit a fee for
recertification.
SEVP appreciates the observation and has clarified the text
accordingly, inserting final rule text at 8 CFR 214.4(a)(1) and 8 CFR
214.4(h) that expressly provides that no fee is required with appeals
related to SEVP certification, recertification or withdrawal of SEVP
certification.
Two commenters, including a high school administrator, suggested
that the increased SEVP certification fee may be a disincentive to
small schools to seek certification and cited the cultural value of
international students in these settings. SEVP appreciates and agrees
with the observation of the cultural value of having international
students in all settings. SEVP does not have the authority, however, to
identify and designate specific groups of schools for a lower fee
because its costs are not lower for small schools. SEVP welcomes any
additional suggestions for potentially decreasing burdens on small
businesses.
4. Site-visit fee
A commenter from an SEVP-certified school observed that the $655
site visit fee would cut into its programming funds.
The site-visit fee pertains only to initial SEVP certification (or
initial events, such as approving a new location or campus). Should a
school require an on-site review as a part of an out-of-cycle review or
recertification, the expense of that visit will be borne by SEVP as
part of its compliance funding. Accordingly, SEVP anticipates that the
site visit fee will have minimal impact on programming funds for
certified schools.
5. Inclusion of enforcement costs
A professional association and an advocacy group comment that fee
assessments should be limited to visa application costs, and that costs
related to national security and anti-fraud are benefits to the public
that should be borne by appropriated, taxpayer funds. Another advocacy
group commented that, beyond visa application costs, SEVP legal
authorities allow for data collection, but not for assessment of
enforcement costs.
SEVP agrees in part and disagrees in part with these comments. SEVP
agrees that agency fees cannot be charged based upon perceived
furthering of public policy goals if those fees are unrelated to a
specific service provided by the agency to an identifiable recipient.
If, however, the agency does confer a specific benefit upon an
identifiable beneficiary, then the fact that the service may
incidentally confer a benefit upon the general public as well does not
preclude assessing a user fee. See, e.g., Seafarers International Union
of North America v. United States Coast Guard, 81 F.3d 179, 184 (DC
Cir. 1996) (interpreting Coast Guard user fees established under the
Independent Offices Appropriations Act); quoting Engine Manufacturers
Ass'n v. EPA, 20 F.3d 1177, 1180 (DC Cir. 1994).
The direct benefits of the SEVP program inure to F and M students
and J exchange visitors. The benefit
[[Page 55692]]
conferred is admission into and lawful presence in the United States,
which permits F and M students, and J exchange visitors to receive
academic, vocational and exchange opportunities and experiences not
enjoyed by the public-at-large. SEVP enforcement activities create
public confidence and consistency within the program which perpetuates
and enables these visa categories for the direct benefit of F and M
students, and J exchange visitors. Homeland security and anti-fraud
benefits are incidental public benefits of the program. These
incidental public benefits do not diminish SEVP's authority to assess
fees against identifiable beneficiaries.
In addition, as discussed above, 8 U.S.C. 1372 and 8 U.S.C.
1356(m), authorize a full range of SEVP program activities and
collection of fees related thereto, and not merely data collection. Use
of the I-901 SEVIS fee to fund the activities of additional enforcement
officers to perform these activities is thus authorized under 8 U.S.C.
1372(e)(4)(A), (g)(2), 8 U.S.C. 1372(e)(4)(B) and 8 U.S.C. 1356(m).
Pursuant to OMB Circular A-25, User Fees (revised), Section 6(d)(1),
``enforcement costs'' are part of a continuum of program services that
must be included as part of the full cost of program services when
assessing user fees. Accordingly, inclusion of these costs within the
full cost of the program is appropriate and congruent with the full
cost concept as outlined in federal cost accounting guidance, federal
policy for user charges and legal precedent.
Another advocacy group commented that charging J visa holders for
enforcement costs of DHS is redundant, since DoS has its own compliance
unit, and ``beyond the mandate of the rule.''
SEVP does not concur. DHS is mandated by the INA to enforce
immigration law for all nonimmigrants and has done so historically for
all nonimmigrant populations, including the J visa category. The
compliance unit at DoS reviews DoS designated sponsors for their
statutory and regulatory compliance--not the immigration-related
violations of exchange visitors. The law enforcement programs of DHS
and DoS are separate and distinct, not redundant.
E. Certification, Out-of-Cycle Review, and Recertification Requirements
1. Form I-17
A few participants in the town hall meetings had questions about
submitting updates to school information. Individuals should address
additional questions about submitting these updates to
SEVIS.source@dhs.gov. As stated at the forums and as presented at
numerous conferences over the last several months, it is important that
school updates be timely. Updates to this information are the single
most beneficial step most schools can take to prepare for
recertification.
2. Notices and communications
Two comments, respectively, questioned whether electronic notices
and communications meet due process requirements and whether schools
would need to obtain software to transmit electronic signatures.
Various laws, rules and regulations govern the use of electronic
systems in relation to the provision of government services, and permit
and encourage government agencies to use electronic notices. As such,
these processes have been found to satisfy due process requirements.
SEVP, as a program, and SEVIS, as a Web-based data platform, are
inherently reliant on electronic communication. For this reason,
notices and alerts are sent to multiple addressees, as listed on the
school's Form I-17. Capability to submit electronic signatures will be
a SEVIS II design feature.
3. Recordkeeping, retention and reporting requirements--Student Record
Requirements
Several commenters, including three advocacy groups, opposed the
proposed text on recordkeeping, retention and reporting as establishing
new and unnecessary requirements.
SEVP has deleted rule text in response to these comments.
Specifically, SEVP proposed a new requirement at 8 CFR 214.3(g)(1)(xi)
that the DSOs enter ``date of last entry into the United States; most
recent Form I-94 number and date of issue,'' into SEVIS, items which
are normally entered through SEVIS interface with the CBP ADIS
database. This interface is not yet fully reliable and many DSOs have
found that inputting this arrival information, like keeping copies of
Forms I-20, can be useful in helping students expedite benefit
applications. Keeping this information is not required, however, and
the final rule deletes proposed 8 CFR 214.3(g)(1)(xi). Other SEVIS
entries in the regulatory text are not new, but have been clarified
with this rule.
One commenter suggested that, because SEVIS is the only tracking
system of its kind, it is subject to misuse and overuse.
SEVP does not concur and views the proper use of SEVIS very
differently. SEVP is obligated to U.S. taxpayers to maximize the
effective utilization of the data it collects. SEVP thus seeks every
opportunity to share SEVIS data with appropriate, authorized users not
only for law enforcement purposes, but also to facilitate validation of
benefit eligibility. This sharing benefits F, M and J nonimmigrants by
providing more efficient delivery of benefits from various agencies of
the federal government.
An individual commented that SEVP needs to make better use of the
data it has in SEVIS.
While the comment did not provide sufficient detail to prompt a
response, SEVP concurs and is committed to developing data-driven
management and compliance processes.
A commenter asked whether records review procedures require hard
copy. Not necessarily; records review will be of the system that is in
place at the school, electronic or hard copy.
A commenter asked for clarification that the ``unabridged academic
history of the student at the institution'' refers to the institution's
primary student recordkeeping system, not a duplication of that system.
Several commenters presumed that SEVP was proposing duplication of
records. SEVP has edited the final rule text in response to these
comments. The proposed text for 8 CFR 214.3(g)(1) Student Records is
amended by adding, after the first sentence: ``Student information not
required for entry in SEVIS may be kept in the school's student system
of records, but must be accessible to DSOs.'' This clarification should
eliminate any unintended presumption about duplication of records.
Several commenters also questioned why DHS needed the information
introduced in 8 CFR 214.3(g)(1)(iv) and thought SEVP was trying to do
the job of the schools. As many commenters noted, the items introduced
in 8 CFR 214.3(g)(1)(iv) are already included in the recordkeeping
processes and systems of most bona fide institutions, and many
institutions go well beyond these requirements. SEVP has identified
these as minimums that a bona fide school should maintain in order to
set a standard for compliance. The absence of effective recordkeeping
is a strong indicator that an institution is not suited for SEVP
certification (i.e., DSOs must be able to explain how they obtain this
information, which is essential to determining that a student is
maintaining status).
A commenter noted that their school records policy did not require
transcripts with as much information as required by this rule for
transcripts received from a transfer-out school (e.g.,
[[Page 55693]]
course numbers and credits are required but grades are not).
SEVP responds that the institution must be able to demonstrate how
it determined that the student was eligible and met its requirements
for transfer to their institution. This may not be as extensive as the
records required by the institution that conferred the credits.
One privacy advocate voiced privacy concerns with respect to DHS
access to student records.
SEVP is diligent in its compliance with individual privacy
protections. Examination of student records as part of an institution's
audit is done solely in support of that audit. Record access is
strictly limited to appropriate authorized users. SEVP policy on
privacy issues is codified in the SEVP Privacy Information Assessment
(PIA), available on its Web site.
Several comments questioned the need for extending the student
records retention requirement from one to three years.
SEVP responds that this is necessary to support the two-year
recertification cycle and is consistent with the current exchange
visitor program standard. Most schools and many states have much more
stringent records retention schedules.
Similarly, a commenter asked how the extended records retention
requirement will be implemented.
The requirement begins with implementation of this rule and is not
retroactive (i.e., if a school's records were reviewed on that day, the
reviewer could not require records from further back than the current
requirement of one year).
A comment noted the need for improved entry and exit data in SEVIS
and observed that the rule makes no mention of this in the
recordkeeping section.
SEVP strongly concurs on the importance of this information. This
information is received from other DHS agencies and points to a
recognized need to improve the SEVIS interface with their systems,
which is a key goal of SEVIS II, as funded by this final rule.
An advocacy group suggested that the rule unnecessarily broadens
records access beyond SEVP to include DHS.
The statutes authorizing this rule and establishing DHS, including
8 U.S.C. 1372 and the Homeland Security Act of 2002, Public Law 107-296
(November 25, 2002), section 102(b), permit the Secretary of Homeland
Security, in his discretion, to exercise these authorities utilizing
the various DHS resources at his disposal. Moreover, blocking records
access to other components of DHS would run directly counter to the
lessons our Nation learned after 9/11. See, e.g., The 9/11 Commission
Report at pp. 416-19.
An advocacy group and a commenter stated that the proposed text at
8 CFR 214.3(g)(2)(ii)(E), requiring a school to respond to a
notification request by DHS, is overly broad and that the existing
regulation limits such a request to SEVIS.
SEVP does not concur. The replacement of ``SEVIS'' in this text
updates the context of the existing regulation. Since the current text
was approved (67 FR 76256, December 11, 2002), DHS instituted SEVP to
administer SEVIS. SEVIS, being a database, can only distribute
notification requests from SEVP. However, SEVP exists to support the
DHS enforcement agencies in tracking F, M and J nonimmigrants. SEVP
investigatory activities are limited and, as warranted, result in a
hand-off to more extensive investigation by other DHS agencies,
highlighting the transition from internal compliance related activities
to law enforcement activities that can only be rendered by those
immigration officers so authorized. The text, consistent also with 8
CFR 214.3(g)(1), facilitates cooperation between SEVP-certified schools
and DHS. Notification requests from these agencies may come outside of
SEVIS. Just as SEVP is limited in its information collection by law,
these enforcement agencies have laws restricting their information
collection. Any request for information from these agencies will be
governed by the laws that apply to them respectively.
An advocacy group commented that the use of the term ``student,''
rather than ``students,'' to describe reporting requirements limits DHS
to requiring reports on just individuals, not groups.
SEVP does not concur. As is consistent with SEVP past practice, the
term ``student'' is expansive of individual students and/or larger
populations of students depending on the nature of the reporting
request.
An advocacy group questions DHS and SEVP authority to conduct
validation studies.
SEVP does not concur. On-going validation of certified schools is
inherent in the out-of-cycle and recertification processes. Validation
studies are one of many administrative tools that SEVP uses to ensure
that issues are identified and corrected before they become problems.
SEVIS data are examined through a variety of filters to determine
whether issues exist across and among schools. Only when data cannot be
verified through existing information does SEVP ask schools to validate
information, reducing the burden on their reporting. SEVIS II will
enhance this capability for SEVP, further eliminating the burden on
schools.
A commenter asked for clarification of proposed text in
214.3(g)(2)(iii)(D), regarding factors impacting the adjustment of
program completion dates.
SEVP has changed the rule text in response to this comment by
adding examples in parentheses. The proposed text for 8 CFR
214.3(g)(2)(iii)(D) Adjustment to the program completion date is
amended and clarified to read: ``Any factors that influence the
student's progress toward program completion (e.g., deferred
attendance, authorized drop below, program extension) must be reflected
by making an adjustment updating the program completion date.'' This
clarification should resolve any misunderstanding regarding factors
impacting the adjustment of program completion dates.
A commenter suggested that CFR text giving records and information
access to DHS representatives be limited to ICE representatives, since
they are specifically tasked with student tracking and compliance.
SEVP disagrees. While this reflects the current practice, agencies
and tasking within DHS are subject to realignment at the Secretary's
discretion. SEVP appreciates the suggestion, but concludes that ``DHS''
appropriately encompasses all possibilities and reflects the legal
authorities underpinning the program and the operation of the DHS.
4. SEVIS Data Integrity
A few commenters asked about possible future innovations enabling
F, M and J nonimmigrants to access SEVIS data.
SEVP appreciates the comment and will explore these possibilities.
Several commenters asked if, as interfaces with other data systems
and SEVIS increase and become more reliable, mistakes from other
systems couldn't be corrected electronically by DSOs (e.g., Form I-94
errors with CBP and SAVE errors, as they affect Social Security and DMV
applications). The current priority with systems interfaces is on
accurate and complete data sharing. It is reasonable to assume that
upgrading data integrity along the lines of the comments will be
considered and is one of the reasons for the fee increases implemented
by this rule.
[[Page 55694]]
5. Certification
An advocacy group and a commenter supported the requirement of
accreditation for SEVP certification.
SEVP acknowledges the value of accreditation as an indicator of
institution bona fides and compliance, but also has excellent
experience with many non-accredited schools. For non-accredited
schools, the SEVP School Certification Branch has instituted and
continually refines measures of school bona fides ``in lieu'' of
accreditation.
A commenter requested amplification of the ``basic competencies for
DSOs'' that the site visit seeks to promote.
SEVP responds that unlike the majority of schools already certified
in SEVIS that have extensive experience and knowledge with enrolling F
and/or M nonimmigrants, schools seeking initial SEVP certification
today lack a similar background. In compliance with SEVP requirements
and support of these students, however, these schools must be held to
the same standard as all other SEVP-certified schools. In recognition
of this, SEVP views the on-site visit for initial certification as an
outreach instrument, an opportunity for intensive training and
familiarization. While details of this outreach are evolving, they
include but are not limited to the following topics: maneuvering in
SEVIS; becoming aware of pertinent regulations and where to find them;
complying with recordkeeping, retention and reporting requirements;
Internet resources; and contingency planning. These are potential uses
for the fees generated by this rule.
Three comments requested that SEVP better define what a campus is
and what is required of schools when a campus is added (e.g., when is a
fee required).
SEVP agrees with the comments but does not intend to make this
clarification in this rule. SEVP, in the meantime, provides
individualized guidance to schools on this issue. SEVP intends to
propose a rule amending 8 CFR 214.3 to be in place when recertification
begins and anticipates addressing this issue in more detail in that
rulemaking.
6. Recertification
A commenter asked how SEVP will determine the order in which
schools will become eligible for recertification.
A few factors that come into consideration in determining the order
in which schools will become eligible for recertification include, but
are not limited to: the amount of time since the school's previous
certification; the anticipated processing time for the school (e.g.,
non-accredited schools take longer than accredited schools); whether
the school is of special interest, either by type of school or
compliance questions; and the anticipated School Certification Branch
(SCB) workload. The order of processing will be chosen to create a
balanced workload.
A commenter asked if recertification could be every five years,
instead of every two years.
SEVP cannot implement this proposal because two-year certification
is mandated under EBSVERA and HSPD-2. With out-of-cycle review on-going
and continuous from the time of initial certification forward, the
frequency of recertification should be less of a concern to schools.
SEVP intends that noncompliance be identified as soon as possible after
its occurrence and appropriate action be taken immediately. As the
proposed rule describes, recertification is an affirmation of
performance, not the reopening of a school's file for the first time.
An advocacy group commented that institutions should not be charged
for enforcement costs related to certification and recertification.
SEVP notes, as was presented in the proposed rule, fees charged to
institutions for certification and certification site visits are not
used for enforcement costs. As described in the NPRM, these costs are
covered by other fees.
One comment asked about the reasoning for reviewing DSO compliance
even when a DSO is no longer employed by the school. SEVP responds that
an employer (i.e., school) is responsible for oversight of all of its
employees and the consequences of their actions. Termination of
employment, in and of itself, does not absolve the employer of that
responsibility.
A commenter asked for more detail about text stating that
institutions must have adequate qualified personnel to perform DSO
responsibilities.
SEVP has decided to leave this as an area of institutional
discretion for the moment. Larger schools have asked if the limit of
ten DSOs at a campus could be increased and/or if an associate DSO
position, with no advisory role but ability to enter data, couldn't be
established. SEVP is actively considering both of these
recommendations. Some schools have appointed senior management, whose
primary functions do not relate to providing service to students, as
DSOs. SEVP discourages this practice. Smaller schools have, on
occasion, appointed only one DSO. This makes full-time and continuous
adequate service of foreign students nearly impossible.
A commenter asked what will be the focus of recertification.
Recertification will focus primarily on how well a school updates
records on school information and student records. For schools that are
not accredited, bona fides will need to be reconfirmed with
documentation ``in lieu of accreditation.'' SEVP will develop and send
schools guidance on the submission of petitions along with their
notification that entering the six-month period of eligibility to
submit a recertification petition.
A commenter asked if SEVP-certified schools for public school
(grades 9-12) and private school (grades kindergarten-12) in a district
or system could file for recertification with a single petition.
SEVP responds that, yes, these schools may file for recertification
with a single petition.
A commenter asked if an institution with more than one SEVIS
identifier (i.e., a number for the main campus and each other campus)
could file for recertification with a single petition.
SEVP responds that, yes, this is permitted.
Commenters were unclear about the distinction between on-site
visits and on-site reviews.
As stated during the town hall meetings, few schools would receive
an on-site review during SEVP recertification. On-site review in
recertification is distinguished from an on-site visit given during
initial certification. The purposes of an on-site visit include
confirmation of a school's eligibility for SEVP certification,
promoting basic competencies for DSOs, and providing outreach to better
familiarize the school with the roles and responsibilities that come
with the benefit of SEVP certification. The purpose of an on-site
review is, generally, to address compliance. While a few random on-site
reviews may be conducted to maintain a performance baseline for all
schools and to explore potential performance benchmarks, the primary
reason an on-site review is conducted is to resolve questions or
concerns about school performance. Optional visits to schools by SEVP
personnel prior to the implementation of the liaison program will be
available within SEVP resource constraints and by invitation from the
school. To offset operational limitations in providing these visits,
comprehensive resources on recertification will be provided on the SEVP
Web site.
A few comments included questions on fees related to on-site visits
and on-site reviews.
[[Page 55695]]
For initial SEVP certification petitions, a petition fee ($1,700)
is required for each institution and an on-site visit fee ($655) is
required for each campus. School systems (limited to public schools
grades 9-12, private schools grades K-12) require a petition fee and a
single on-site visit fee. SEVP-certified institutions that have a
change of ownership must pay a petition fee. SEVP-certified
institutions seeking approval for change of location must pay an on-
site visit fee. SEVP-certified institutions seeking approval for a new
campus must pay an on-site visit fee. No fee is charged of institutions
either petitioning for recertification or selected to receive an on-
site review.
One comment asked how accreditation might be a factor in
determining selection of a school for on-site review. To the extent
that accreditation provides an impartial affirmation of school bona
fides and performance, it is less likely that an accredited school will
receive an on-site review.
7. Out-of-Cycle Review
A few individual commenters and an advocacy group felt out-of-cycle
review, as presented in the proposed rule, is too broad.
SEVP disagrees. At the simplest level, out-of-cycle review is
nothing more than maintaining the data integrity of SEVIS, and
describes a process that exists with all data systems. Changes are
reviewed for accuracy and reasonableness. Most out-of-cycle reviews
constitute nothing more than a desk audit conducted from the SEVP
offices. For example, a routine update changing a zip code may result
in SEVP asking other schools impacted by the change to update their
information. This sort of audit is not invasive; rather, it is
responsible.
An advocacy group commented that audits of schools for other than
changes to SEVIS information identified as material should be delayed
until recertification.
SEVP, again, does not concur. Compliance management requires
resolution of anomalies in performance when they are identified and
before potential problems escalate.
A commenter voiced concern about unscheduled and large data
requests of schools from SEVP (e.g., the validation study and OPT
updating).
SEVP regrets the difficulties placed on schools by these requests
and appreciates the patience and understanding of SEVIS users in
explaining the obstacles they impose. As a maturing program, SEVP is
committed to improving the administration of future requests and
minimizing their frequency. SEVIS users should realize that their
outstanding responsiveness on these requests is noted by key decision
makers. Additionally, as SEVIS II is developed and implemented, SEVP
looks forward to improved capability to validate SEVIS information
through alternative means.
An individual commented that out-of-cycle review is a waste of SEVP
and school time for compliant schools. SEVP is required to perform
these out-of-cycle reviews for due diligence. SEVP's review also allows
the program to monitor changes outside of the control of SEVP or the
schools (for example, the zip code change referenced above).
One comment suggested that text describing the events that trigger
out-of-cycle review should be qualified with ``may.''
SEVP does not occur with this comment. Introduction of this text
into the CFR only formalizes what has been published in the SEVIS User
Manual and reviewed by SEVP for years. It clarifies language currently
found at 8 CFR 214.3(e)(3) and parallels the explicitness that has to
date only been found in operational instructions. Specifically, it
identifies that SEVP conducts a desk review of each of these changes,
determines what additional information is required, requests that
information and then adjudicates the petition update. This is not an
elective process that could be characterized by ``may,'' but a
prescriptive process directed by current regulation. With many of these
changes, a cursory review is adequate and little or no direct follow-up
with the school is needed; the out-of-cycle review has been transparent
to the school.
An individual commented that the time period should be extended
from 10 to 30 days.
SEVP does not agree. Schools are required to keep school
information in SEVIS current at all times. A request for an update of
this information should require nothing more than a few moments of
review and submission. Because this relates to SEVP-certified schools,
supporting documentation requested pertains only to changes since
certification. Presuming changes are submitted to SEVP timely,
authorizing documentation for the changes should be readily available.
8. Designated School Officials
A commenter questioned whether all DSOs must be knowledgeable of
regulations.
Yes, the individual certifies to knowledge of SEVP regulations when
they sign the Form I-17 accepting appointment to become a DSO. SEVP is
considering future personnel alignment (e.g., positions with limited
data entry access to accommodate school administrative processes) and
will likely adjust knowledge and training needs accordingly to sustain
role-related SEVIS responsibilities.
A commenter questioned the expectation that an individual be
knowledgeable of regulatory requirements and SEVIS operation when first
appointed as a DSO.
When first appointed as DSOs, individuals should have a basic
knowledge of SEVP regulatory requirements and SEVIS operations. As a
practical matter SEVP does not expect an entry level DSO to have
detailed regulatory knowledge but the individual should be able to
identify pertinent regulations and demonstrate where they can be found.
SEVP has and is developing resources to assist new DSOs in getting up
to speed as quickly as possible. PDSOs should anticipate the need for
mentoring newly appointed DSOs to assist in bringing them up to an
acceptable standard as quickly as possible.
A commenter asked what documentation must be submitted when a new
DSO is appointed and who must sign the documentation.
SEVP responds that in addition to submitting the identification of
newly appointed DSOs in SEVIS, the principal designated school official
(PDSO) of an SEVP-certified institution must submit copies of the
school's Form I-17 with the PDSO and new appointee signatures, as well
as be able to provide documentation certifying that the new individual
is a U.S. citizen or lawful permanent resident to SEVP.
A commenter recommended establishment of an alternate PDSO
position.
SEVP appreciates this recommendation and is considering it as one
of many recommendations in the realignment of personnel with SEVIS
roles and SEVP responsibilities.
A commenter asked for clarification of the need for DSOs at
locations other than the main campus.
If students can complete a program of study solely at the alternate
location, that location is a campus and must meet DSO requirements. If
students receive part of their program of study at an alternate
location, but must receive the remainder at another campus that meets
DSO requirements, this alternate location is a satellite facility and
does not require DSOs. The underlying purpose of this regulation is to
ensure proper monitoring of student activity and to provide counsel to
students. If a
[[Page 55696]]
school is uncertain of their need for DSOs, they should contact SEVP.
Note that DSOs can serve on multiple campuses, as long as the
institution can assure that DSO responsibilities are being met at each
campus.
9. Denial or Withdrawal of SEVP Certification or Recertification
Procedures
A commenter suggested that the text citing reasons for withdrawal
of SEVP certification be expanded to include a ``pattern'' of such
behavior, not limited to a single violation.
It is unclear, based on the comment, what would constitute a
pattern and what threshold of violation would be permissible. SEVP
believes the suggestion opens the regulation to ambiguity, and chooses
to retain the proposed text.
A commenter noted that, as used in the proposed rule at 8 CFR
214.4(a)(2)(xix), the term ``curriculum'' was too broad and did not
convey the intended meaning.
SEVP appreciates the recommendation and has modified the text
accordingly with an explanatory parenthetical. Specifically, the
proposed text for 8 CFR 214.4(a)(2)(xix) is amended to read as follows:
``Failure of a DSO to notify SEVP of material changes, such as changes
to the school's name, address, or curricular changes that represent
material change to the scope of institution offerings (e.g., addition
of a program, class or course for which the school is issuing Forms I-
20, but which does not have Form I-17 approval), as required by 8 CFR
214.3(f)(1).'' Addition of this text clarifies the aspects of
curriculum change that must be reported.
10. Regulatory Flexibility Act
An individual commented that the I-901 SEVIS fee will be a
deterrent to foreign student/exchange visitor participation and,
subsequently, will place a strain on small to mid-sized educational
institutions.
As is discussed above and in more detail in the Regulatory
Flexibility Act section below, SEVP does not concur that the I-901
SEVIS fee will be a deterrent to foreign student/exchange visitor
participation, nor does SEVP see a disproportionate impact on smaller
schools.
III. Statutory and Regulatory Requirements
A. Regulatory Flexibility Act
DHS is amending regulations governing SEVP found in 8 CFR parts 103
and 214 to adjust the school certification fee and the application fee
for nonimmigrants seeking to become academic (F visa) or vocational (M
visa) students, or exchange visitors (J visa). The final rule will
increase the fees for submitting a SEVP school certification petition
to $1,700, plus $655 for each site visit; set the fee for each F or M
student at $200; set the fee for most J exchange visitors at $180; and
maintains the fee for J exchange visitors seeking admission as au
pairs, camp counselors, and summer work/travel program participants at
$35. In addition, this final rule will establish procedures for
recertification of schools with F and/or M students. The rule will
become effective October 1, 2008.
DHS recognizes that the final rule will result in economic impacts
on F, M, and J nonimmigrants, as well as programs and schools seeking
to become SEVP-certified or recertified. In this section of the final
rule we will focus only on the economic impact of the regulation on
small entities, as defined and required by the Regulatory Flexibility
Act.\7\ In addition, we will address significant comments submitted by
the public on the economic analysis and the Initial Regulatory
Flexibility Analysis (IRFA) \8\ which accompanied the proposed rule.
DHS has determined that the final rule amending the initial SEVP school
certification fee and establishing procedures for recertification of
schools with F and/or M students will not have a significant impact on
a substantial number of small entities; therefore, a Final Regulatory
Flexibility Analysis was not necessary. The factual basis for
certification is presented in the following analysis of the economic
effects of the final rule.
---------------------------------------------------------------------------
\7\ According to the RFA, a small entity may be (1) a small
business, defined as any independently owned and operated business
not dominant in its field; (2) a small not-for-profit organization;
or (3) a small governmental jurisdiction, defined as a locality with
a population of less than 50,000 persons.
\8\ ``Regulatory Flexibility Act Analysis: Impact on Small
Schools of the Change in Fees for Certification and Institution of
Recertification by the Student and Exchange Visitor Program.''
---------------------------------------------------------------------------
Currently, the fee for schools seeking initial certification is
$230, plus a $350 fee for each campus receiving a site visit. These
fees have not changed since 2002, prior to the reorganization of the
INS into DHS. Both the processes and costs for adjudicating school
petitions for initial certification have changed substantially since
that time. SEVP is statutorily required to regularly review the fee
level to ensure that the cost of services provided by the program are
fully captured by fees assessed on those receiving the services.\9\ The
increased fee schedule set by this rule will recover the full cost of
SEVP operations with fee-generated revenue, and align fees with
currently planned costs and processes that have been redesigned and
refined as the program has expanded over the years. Moreover, SEVP
examined three alternatives to the rule, which are detailed in the
economic analysis to the proposed rule, all of which were rejected
because they did not accomplish stated goals of the regulation.
---------------------------------------------------------------------------
\9\ As mandated by 31 U.S.C. 902(a)(8); OMB Circular A-25.
---------------------------------------------------------------------------
Accordingly, the final rule will increase the initial certification
fee for schools seeking to admit F and/or M students to $1700, plus an
additional fee of $655 per site visit. In addition, the final rule will
set procedures by which SEVP-certified schools are recertified every
two years. The cost burden to the schools associated with
recertification entail the time and effort associated with filing the
petition rather than direct monetary outlays. It is important to note
that schools applying for SEVP certification and recertification are
making a voluntary decision based on their desire to admit nonimmigrant
students into their program. Likewise, schools that have already been
SEVP-certified, but have no F and/or M students and no concrete plans
to enroll any have little incentive to recertify. As such, the
compliance requirements of this rule only affect those schools wishing
to become SEVP-certified, or those that wish to maintain their approval
to admit nonimmigrant students, by undergoing recertification.
SEVP conducted an analysis of the potential impact of the increased
certification fee using data drawn from SEVIS in May 2007. All SEVP-
certified schools self-report average enrollment and average tuition
costs for students. Therefore, SEVP did not need to use publicly
available information or use sampling to gather data on the finances of
the type of schools applying for certification. The reported number of
F and/or M students and the tuition costs per F and/or M student were
used to estimate annual total tuition income. The tuition cost per
student was determined by the data in the school's Form I-17, Petition
for Approval of School for Attendance by Nonimmigrant Student,
available in SEVIS.
While tuition revenue may underestimate the actual school revenue,
this is the best information available. It is the most significant
source of income for most schools and
[[Page 55697]]
is a reasonable approach to measuring the impact of this fee rule.
As detailed in the economic analysis and IRFA to the proposed rule,
SEVP developed a profile of schools applying for certification for the
last three years using current SEVIS enrollment data. Based on this
developed profile, SEVP projects that 700 new schools will certify
annually. Of these, we expect about 575, or approximately 82% of the
schools seeking certification in the future to be small schools by U.S.
Small Business Administration (SBA) standards.\10\ SBA's size standard
for all schools, except flight schools and public high schools, is $6
million or less in annual receipts. The SBA small business definition
for flight schools is $21.5 million or less in annual receipts. The
analysis uses the definition of a small government jurisdiction as
defined in the Regulatory Flexibility Analysis (RFA) to determine the
small entity threshold of public high schools. Size classifications of
SEVP-certified public school districts were determined using the
figures from the National Center for Education Statistics on the
Department of Education Web site. Schools in districts serving
populations of 50,000 or less were designated as small schools for the
purposes of this analysis.
---------------------------------------------------------------------------
\10\ SBA's small business size standards are matched to
industries described in the North American Industry Classification
System (NAICS). All types of SEVP-certified schools are described in
the NAICS codes for the Educational Sector (611).
---------------------------------------------------------------------------
Of the 575 small schools expected to apply for certification, only
47 are expected to have a compliance impact of 1% or more. That is, the
certification fee is 1% or more of the total earnings of the school, as
calculated by the tuition collected from F and/or M students. The 47
small schools comprise about 7% of all schools expected to certify
annually, and about 8% of all small schools expected to certify
annually. Table 1 provides the projected number of small schools at
each level of impact.
Table 1--Projected Number of Small Schools Expected To Certify by Level
of Impact
------------------------------------------------------------------------
Projected
Level of impact number of
small schools
------------------------------------------------------------------------
Under 0.5%............................................. 469
0.5% to under 1%....................................... 59
1% to under 2%......................................... 29
2% to under 3%......................................... 7
3% to under 4%......................................... 1
4% to under 5%......................................... 5
5% to under 6%......................................... 1
6% to under 7%......................................... 2
7% to under 8%......................................... 0
10% to under 11%....................................... 0
12% to under 13%....................................... 1
23% to under 24%....................................... 1
------------------------------------------------------------------------
As evidenced from the table above, the overwhelming majority,
approximately 91.8%, of small schools expected to apply for
certification will have compliance costs of less than 1% of their
annual earnings. Furthermore, only 18 schools (about 3% of small school
certification applicants) will have impact costs of 2% or more, and
only 11 schools (about 2%) will have impact costs of 3% or more. Only 5
small schools (about 0.9%) are expected to have compliance impacts of
5% or more of their annual earnings.
Public Comments on the Economic Analysis and IRFA to the Proposed Rule
The RFA requires agencies to address all significant public
comments raised in regard to the expected economic impact of the
regulation. SEVP received two comments directly referencing the
economic impacts of the rule. One commenter expressed concern over the
increase in the I-901 SEVIS fee, stating that the increased fee coupled
with immigration laws would result in decreased enrollment among small
to mid-sized educational institutions in the United States. While SEVP
recognizes that the increased nonimmigrant student application fee will
place an additional cost burden on those students wishing to study in
the United States, we do not believe it will result in significant
decreases in enrollment among U.S. small to mid-size educational
institutions. Prior to implementing this rule, SEVP compared the new
fee schedule for nonimmigrant students with that of our top 12 global
competitors and discovered that the new fees would place the United
States firmly in the upper-middle of this group. Furthermore, SEVP is
under statutory requirement to regularly review and adjust fees
collected so as to capture the true operating costs of the program.
Another commenter expressed concern over the increase in the
certification fee, and stated the increase is a disincentive for
schools, especially small schools, to seek certification. Based on our
review of current SEVP-certification schools, especially those
classified as small entities, we have found that a significantly larger
number of the schools certified since 2004 were small schools. In
addition, we anticipate that the overwhelming majority (over 90%) of
potential small schools applying for certification in the future will
have compliance costs of 1% or less of the annual tuition earnings
collected from nonimmigrant students. As such, we believe the increased
school certification fee will not prove to be a major disincentive for
those schools wishing to admit nonimmigrant students.
We did not receive public comments in opposition of our belief that
the rule will not cause a significant economic impact to a substantial
number of affected businesses, as stated in the analysis accompanying
the proposed rule. In light of public comments received, combined with
our analysis of the expected compliance costs impacts of certification,
DHS certifies that this rule will not have a significant economic
impact on a substantial number of small entities.
B. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain
actions to be taken by an agency before ``promulgation of any rule that
includes any federal mandate that may result in the expenditure by
State, Local and Tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any 1 year.'' 2 U.S.C. 1532(a). This rulemaking is not a
``Federal mandate,'' as defined for UMRA purposes, 2 U.S.C. 658(6), as
the payment of an SEVP certification fee by individuals, Local
governments or other private sector entities is (to the extent it could
be termed an enforceable duty) one that arises from participation in a
voluntary federal program (i.e., applying for status as F-1, F-3, M-1,
or M-3 students or as J-1 exchange visitor in the United States or
seeking approval from the United States for attendance by certain
aliens seeking status as F-1, F-3, M-1 students). 2 U.S.C.
658(7)(A)(ii). Therefore, no actions were deemed necessary under the
provisions of the UMRA.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rulemaking is not a major rule, as defined by 5 U.S.C. 804,
for purposes of Congressional review of agency rulemaking under the
Small Business Regulatory Enforcement Act of 1996, Public Law 104-121.
This rulemaking would not result in an annual effect on the economy of
more than $100 million;
[[Page 55698]]
a major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of U.S.-based companies to compete with foreign-based
companies in domestic and export markets.
D. Executive Order 12866: Regulatory Review
This proposed rule is not considered by DHS to be an economically
significant regulatory action under Executive Order 12866, section
3(f), Regulatory Planning and Review, since it would not have an annual
effect on the U.S. economy of $100 million. The implementation of this
proposed rule would provide ICE with additional fee revenue of $58.538
million in FY 2009 and $62.581 million in FY 2010. It is, however, a
significant rulemaking under the Executive order and therefore has been
reviewed by OMB.
E. Executive Order 13132: Federalism
This rulemaking would not have substantial direct effects on the
States, or on the relationship between the federal government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Consequently, DHS has determined that
this rulemaking does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement, in
accordance with section 6 of Executive Order 13132.
F. Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
All Departments are required to submit to OMB for review and
approval, any reporting or recordkeeping requirements inherent in a
rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), 44 U.S.C. 3501, et seq. Schools will be using SEVIS
to petition for recertification. The recertification process requires
schools to input data into SEVIS, print the Form I-17 and sign the
form. The electronic data captured for the Form I-17 have been
previously approved for use by OMB as one component of the data
captured in SEVIS. The OMB Control Number for this collection is 1615-
0066 (changed to 1653-0038). With the implementation of SEVIS under 67
FR 60107 (September 25, 2002), most schools enrolled in SEVIS were
petitioning for DHS recertification, rather than initial certification
(i.e., enrolling F or M nonimmigrant students for the first time). The
workload for both certification and recertification was included under
OMB 1615-0066.
The changes to the fees require changes to SEVIS and the I-901
software to reflect the updated fee amounts, as these systems generate
the pertinent petition and application forms. SEVP would submit a
revision to OMB with respect to any changes to existing information
collection approvals.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
0
Accordingly, Chapter I of Title 8 of the Code of Federal Regulations is
amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
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.
0
2. Section 103.7(b)(1) is amended by revising the entries for Forms I-
17, I-290B, and I-901 in the listing of fees, to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-17. For filing a petition for school certification--$1,700,
plus a site visit fee of $655 for each location listed on the form.
* * * * *
Form I-901. For remittance of the I-901 SEVIS fee for F and M
students--$200. For remittance of the I-901 SEVIS fee for certain J
exchange visitors--$180. For remittance of the I-901 SEVIS fee for J-1
au pairs, camp counselors, and participants in a summer work/travel
program--$35. There is no I-901 SEVIS fee remittance obligation for J
exchange visitors in federally-funded programs with a program
identifier designation prefix that begins with G-1, G-2, G-3 or G-7.
* * * * *
PART 214--NONIMMIGRANT CLASSES
0
3. The authority citation for part 214 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187,
1221, 1281, 1282, 1301-1305, 1356, 1372, 1379, 1731-32; section 643,
Public Law 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.
0
4. Section 214.3 is amended by:
0
a. Revising paragraph (a)(1);
0
b. Adding paragraph (a)(3);
0
c. Revising the first sentence in paragraph (b) introductory text;
0
d. Revising the first sentence in paragraph (c);
0
e. Revising paragraphs (d), (e), and (f);
0
f. Revising paragraph (g)(1);
0
g. Removing paragraph (g)(2);
0
h. Redesignating paragraphs (g)(3) and (g)(4) as paragraphs (g)(2) and
(g)(3) respectively;
0
i. Revising newly designated paragraph (g)(2) heading, and by revising
newly designated paragraphs (g)(2)(i), (g)(2)(ii) introductory text,
(g)(2)(ii)(E), and (g)(2)(iii)(C);
0
j. Adding paragraph (g)(2)(iii)(D);
0
k. Revising paragraph (h);
0
l. Revising paragraph (i);
0
m. Revising the introductory text of paragraph (k);
0
n. Revising paragraph (l)(1)(ii);
0
o. Revising paragraph (l)(2).
The revisions and additions read as follows:
Sec. 214.3 Approval of schools for enrollment of F and M
nonimmigrants.
(a) * * *
(1) General. A school or school system seeking initial or continued
authorization for attendance by nonimmigrant students under sections
101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act, or both, must file a
petition for certification or recertification with SEVP, using the
Student and Exchange Visitor Information System (SEVIS), in accordance
with the procedures at paragraph (h) of this section. The petition must
state whether the school or school system is seeking certification or
recertification for attendance of nonimmigrant students under section
[[Page 55699]]
101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act or both. The petition
must identify by name and address each location of the school that is
included in the petition for certification or recertification,
specifically including any physical location in which a nonimmigrant
can attend classes through the school (i.e., campus, extension
campuses, satellite campuses, etc.).
(i) School systems. A school system, as used in this section, means
public school (grades 9-12) or private school (grades kindergarten-12).
A petition by a school system must include a list of the names and
addresses of those schools included in the petition with the supporting
documents.
(ii) Submission requirements. Certification and recertification
petitions require that a complete Form I-17, Petition for Approval of
School for Attendance by Nonimmigrant Student, including supplements A
and B and bearing original signatures, be included with the school's
submission of supporting documentation. In submitting the Form I-17, a
school certifies that the designated school officials (DSOs) signing
the form have read and understand DHS regulations relating to:
Nonimmigrant students at 8 CFR 214.1, 214.2(f), and/or 214.2(m); change
of nonimmigrant classification for students at 8 CFR 248; school
certification and recertification under this section; withdrawal of
school certification under this section and 8 CFR 214.4; that both the
school and its DSOs intend to comply with these regulations at all
times; and that, to the best of its knowledge, the school is eligible
for SEVP certification. Willful misstatements may constitute perjury
(18 U.S.C. 1621).
* * * * *
(3) Eligibility. (i) The petitioner, to be eligible for
certification, must establish at the time of filing that it:
(A) Is a bona fide school;
(B) Is an established institution of learning or other recognized
place of study;
(C) Possesses the necessary facilities, personnel, and finances to
conduct instruction in recognized courses; and
(D) Is, in fact, engaged in instruction in those courses.
(ii) The petitioner, to be eligible for recertification, must
establish at the time of filing that it:
(A) Remains eligible for certification in accordance with paragraph
(a)(3)(i) of this section;
(B) Has complied during its previous period of certification or
recertification with recordkeeping, retention, and reporting
requirements and all other requirements of paragraphs (g), (j), (k),
and (l) of this section.
(b) * * * Institutions petitioning for certification or
recertification must submit certain supporting documents as follows,
pursuant to sections 101(a)(15)(F) and (M) of the Act. * * *
* * * * *
(c) * * * If the petitioner is a vocational, business, or language
school, or American institution of research recognized as such by the
Secretary of Homeland Security, it must submit evidence that its
courses of study are accepted as fulfilling the requirements for the
attainment of an educational, professional, or vocational objective,
and are not avocational or recreational in character. * * *
(d) Interview of petitioner. The petitioner or an authorized
representative of the petitioner may be required to appear in person
before or be interviewed by telephone by a DHS representative prior to
the adjudication of a petition for certification or recertification.
The interview will be conducted under oath.
(e) Notices to schools related to certification or recertification
petitions or to out-of-cycle review--(1) General. All notices from SEVP
to schools or school systems related to school certification,
recertification, or out-of-cycle review (including, but not limited to,
notices related to the collection of evidence, testimony, and
appearance pertaining to petitions for recertification encompassing
compliance with the recordkeeping, retention and reporting, and other
requirements of paragraphs (f), (g), (j), (k), and (l) of this section,
as well as to eligibility) will be served in accordance with the
procedures at 8 CFR 103.2(b)(1), (4)-(16), (18) and (19), with the
exception that all procedures will be conducted by SEVP, the SEVP
Director, and the Assistant Secretary, ICE, as appropriate, and except
as provided in this section. All such notices will be served (i.e.,
generated and transmitted) through SEVIS and/or by e-mail. The date of
service is the date of transmission of the e-mail notice. DSOs must
maintain current contact information, including current e-mail
addresses, at all times. Failure of a school to receive SEVP notices
due to inaccurate DSO e-mail addresses in SEVIS or blockages of the
school's e-mail system caused by spam filters is not grounds for appeal
of a denial or withdrawal. The term ``in writing'' means either a paper
copy bearing original signatures or an electronic copy bearing
electronic signatures.
(2) SEVP approval notification and SEVIS updating by certified
schools. SEVP will notify the petitioner by updating SEVIS to reflect
approval of the petition and by e-mail upon approval of a certification
or recertification petition. The certification or recertification is
valid only for the type of program and nonimmigrant classification
specified in the certification or recertification approval notice. The
certification must be recertified every two years and may be subject to
out-of-cycle review at any time. Approval may be withdrawn in
accordance with 8 CFR 214.4.
(3) Modifications to Form I-17 while a school is SEVP-certified.
Any modification made by an SEVP-certified school on the Form I-17 at
any time after certification and for the duration of a school's
authorization to enroll F and/or M students must be reported to SEVP
and will be processed by SEVP in accordance with the provisions of
paragraphs (f)(1), (g)(2) and (h)(3)(i) of this section.
(4) Notice of Intent to Withdraw (NOIW) SEVP certification--(i)
Automatic withdrawal. SEVP will serve the school with an NOIW 30 days
prior to a school's SEVP certification expiration date if the school
has not submitted to SEVP a completed recertification petition, in
accordance with paragraph (h)(2) of this section. The school will be
automatically withdrawn immediately, in accordance with 8 CFR
214.4(a)(3), if it has not submitted a completed recertification
petition by the school's certification expiration date.
(ii) Withdrawal on notice. SEVP will serve a Withdrawal on Notice,
in accordance with 8 CFR 214.4(b), if SEVP determines that a school
reviewed out-of-cycle has failed to sustain eligibility or has failed
to comply with the recordkeeping, retention, reporting and other
requirements of paragraphs (f), (g), (j), (k), and (l) of this section.
When a school fails to file an answer to an NOIW within the 30-day
period, SEVP will withdraw the school's certification and notify the
DSOs of the decision, in accordance with 8 CFR 214.4(d). Such
withdrawal of certification may not be appealed.
(5) Notice of Denial. A Notice of Denial will be served to a school
when SEVP denies a petition for initial certification or
recertification. The notice will address appeals options. Schools
denied recertification must comply with 8 CFR 214.4(i).
(6) Notice of Automatic Withdrawal. Schools that relinquish SEVP
certification for any of the reasons cited in 8 CFR 214.4(a)(3) will be
served a Notice of Automatic Withdrawal.
[[Page 55700]]
(7) Notice of Withdrawal. A school found to be ineligible for
continued SEVP certification as a result of an out-of-cycle review will
receive a Notice of Withdrawal. Schools withdrawn must comply with 8
CFR 214.4(i).
(8) Notice of SEVIS Access Termination Date. The Notice of SEVIS
Access Termination Date gives the official date for the school's denial
or withdrawal to be final and SEVIS access to be terminated. In most
situations, SEVP will not determine a SEVIS access termination date for
that school until the appeals process has concluded and the initial
denial or withdrawal has been upheld, in accordance with 8 CFR
214.4(i)(3). The school will no longer be able to access SEVIS and SEVP
will automatically terminate any remaining Active SEVIS records for
that school on that date.
(f) Adjudication of a petition for SEVP certification or
recertification--(1) Approval. The school is required to immediately
report through SEVIS any change to its school information upon approval
of a petition for SEVP certification or recertification. Modification
to school information listed in paragraph (h)(3) of this section will
require a determination of continued eligibility for certification. The
certification or recertification is valid only for the type of program
and student specified in the approval notice. The certification may be
withdrawn in accordance with the provisions of 8 CFR 214.4, is subject
to review at any time, and will be reviewed every two years.
(2) Denial. The petitioner will be notified of the reasons for the
denial and appeal rights, in accordance with the provisions of 8 CFR
part 103 and 8 CFR 214.4, if SEVP denies a petition for certification
or recertification.
(g) * * *
(1) Student records. An SEVP-certified school must keep records
containing certain specific information and documents relating to each
F-1 or M-1 student to whom it has issued a Form I-20, while the student
is attending the school and until the school notifies SEVP, in
accordance with the requirements of paragraphs (g)(1) and (2) of this
section, that the student is not pursuing a full course of study.
Student information not required for entry in SEVIS may be kept in the
school's student system of records, but must be accessible to DSOs. The
school must keep a record of having complied with the reporting
requirements for at least three years after the student is no longer
pursuing a full course of study. The school must maintain records on
the student in accordance with paragraphs (g)(1) and (2) of this
section if a school recommends reinstatement for a student who is out
of status. The school must maintain records on the student for three
years from the date of the denial if the reinstatement is denied. The
DSO must make the information and documents required by this paragraph
available, including academic transcripts, and must furnish them to DHS
representatives upon request. Schools must maintain and be able to
provide an academic transcript or other routinely maintained student
records that reflect the total, unabridged academic history of the
student at the institution, in accordance with paragraph (g)(1)(iv) of
this section. All courses must be recorded in the academic period in
which the course was taken and graded. The information and documents
that the school must keep on each student are as follows:
(i) Identification of the school, to include name and full address.
(ii) Identification of the student, to include name while in
attendance (record any legal name change), date and place of birth,
country of citizenship, and school's student identification number.
(iii) Current address where the student and his or her dependents
physically reside. In the event the student or his or her dependents
cannot receive mail at such physical residence, the school must provide
a mailing address in SEVIS. If the mailing address and the physical
address are not the same, the school must maintain a record of both
mailing and physical addresses and provide the physical location of
residence of the student and his or her dependents to DHS upon request.
(iv) Record of coursework. Identify the student's degree program
and field of study. For each course, give the periods of enrollment,
course identification code and course title; the number of credits or
contact hours, and the grade; the number of credits or clock hours, and
for credit hour courses the credit unit; the term unit (semester hour,
quarter hour, etc.). Include the date of withdrawal if the student
withdrew from a course. Show the grade point average for each session
or term. Show the cumulative credits or clock hours and cumulative
grade point average. Narrative evaluation will be accepted in lieu of
grades when the school uses no other type of grading.
(v) Record of transfer credit or clock hours accepted. Type of
hours, course identification, grades.
(vi) Academic status. Include the effective date or period if
suspended, dismissed, placed on probation, or withdrawn.
(vii) Whether the student has been certified for practical
training, and the beginning and end dates of certification.
(viii) Statement of graduation (if applicable). Title of degree or
credential received, date conferred, program of study or major.
(ix) Termination date and reason.
(x) The documents referred to in paragraph (k) of this section.
Note to paragraph (g)(1): A DHS officer may request any or all
of the data in paragraphs (g)(1)(i) through (x) of this section on
any individual student or class of students upon notice. This notice
will be in writing if requested by the school. The school will have
three work days to respond to any request for information concerning
an individual student, and ten work days to respond to any request
for information concerning a class of students. The school will
respond orally on the same day the request for information is made
if DHS requests information on a student who is being held in
custody, and DHS will provide a written notification that the
request was made after the fact, if the school so desires. DHS will
first attempt to gain information concerning a class of students
from DHS record systems.
(2) Reporting changes in student and school information. (i)
Schools must update SEVIS with the current information within 21 days
of a change in any of the information contained in paragraphs (f)(1)
and (h)(3) of this section.
(ii) Schools are also required to report within 21 days any change
of the information contained in paragraph (g)(1) or the occurrence of
the following events:
* * * * *
(E) Any other notification request not covered by paragraph (g)(1)
of this section made by DHS with respect to the current status of the
student.
(iii) * * *
(C) The start date of the student's next session, term, semester,
trimester, or quarter. For initial students, the start date is the
``program start date'' or ``report date.'' (These terms are used
interchangeably.) The DSO may choose a reasonable date to accommodate a
student's need to be in attendance for required activities at the
school prior to the actual start of classes when determining the report
date on the Form I-20. Such required activities may include, but are
not limited to, research projects and orientation sessions. The DSO may
not, however, indicate a report date more than 30 days prior to the
start of classes. The next session start date is the start of classes
for continuing students.
(D) Adjustment to the program completion date. Any factors that
influence the student's progress toward
[[Page 55701]]
program completion (e.g., deferred attendance, authorized drop below,
program extension) must be reflected by making an adjustment updating
the program completion date.
* * * * *
(h) SEVP certification, recertification, out-of-cycle review, and
oversight of schools.
(1) Certification. A school seeking SEVP certification for
attendance by nonimmigrants under section 101(a)(15)(F)(i) or
101(a)(15)(m)(i) of the Act must use SEVIS to file an electronic
petition (which compiles the data for the Form I-17) and must submit
the nonrefundable certification petition fee on-line.
(i) Filing a petition. The school must access the SEVP Web site at
http://www.ice.gov/sevis to file a certification petition in SEVIS. The
school will be issued a temporary ID and password in order to access
SEVIS to complete and submit an electronic Form I-17. The school must
submit the proper nonrefundable certification petition fee as provided
in 8 CFR 103.7(b)(1).
(ii) Site visit, petition adjudication and school notification.
SEVP will conduct a site visit for each petitioning school and its
additional schools or campuses. SEVP will contact the school to arrange
the site visit. The school must comply with and complete the visit
within 30 days after the date SEVP contacts the school to arrange the
visit, or the petition for certification will be denied as abandoned.
DSOs and school officials that have signed the school's Form I-17
petition must be able to demonstrate to DHS representatives how they
obtain access to the regulations cited in the certification as part of
the site visit. Paper or electronic access is acceptable. DSOs must be
able to extract pertinent citations within the regulations related to
their requirements and responsibilities. SEVP will serve a notice of
approval and SEVIS will be updated to reflect the school's
certification if SEVP approves the school's certification petition.
(iii) Certification denial. SEVP will serve a notice of denial in
accordance with paragraph (f)(2) of this section if a school's petition
for certification is denied.
(2) Recertification. Schools are required to file a completed
petition for SEVP recertification before the school's certification
expiration date, which is two years from the date of their previous
SEVP certification or recertification expiration date, except for the
first recertification cycle after publication of the recertification
rule. There is no recertification petition fee. SEVP will review a
petitioning school's compliance with the recordkeeping, retention and
reporting, and other requirements of paragraphs (f), (g), (j), (k), and
(l) of this section, as well as continued eligibility for
certification, pursuant to paragraph (a)(3) of this section.
(i) Filing of petition for recertification. Schools must submit a
completed Form I-17 (including supplements A and B) using SEVIS, and
submit a paper copy of the Form I-17 bearing original signatures of all
officials. SEVP will notify all DSOs of a previously certified school
180 days prior to the school's certification expiration date that the
school may submit a petition for recertification. A school may file its
recertification petition at any time after receipt of this
notification. A school must submit a complete recertification petition
package, as outlined in the submission guidelines, by its certification
expiration date. SEVP will send a notice of confirmation of complete
filing or rejection to the school upon receipt of any filing of a
petition for recertification.
(A) Notice of confirmation assures a school of uninterrupted access
to SEVIS while SEVP adjudicates the school's petition for
recertification. A school that has complied with the petition
submission requirements will continue to have SEVIS access after its
certification expiration date while the adjudication for
recertification is pending. The school is required to comply with all
regulatory recordkeeping, retention and reporting, and other
requirements of paragraphs (f), (g), (j), (k), and (l) of this section
during the period the petition is pending.
(B) Notice of rejection informs a school that it must take prompt
corrective action in regard to its recertification petition prior to
its certification expiration date to ensure that its SEVIS access will
not be terminated and its petition for recertification will be accepted
for adjudication.
(ii) Consequence of failure to petition. SEVP will serve an NOIW to
the school 30 days prior to a school's certification expiration date.
SEVP will no longer accept a petition for recertification from the
school and will immediately withdraw the school's certification if the
school does not petition for recertification, abandons its petition, or
does not submit a complete recertification petition package by the
certification expiration date, in accordance with the automatic
withdrawal criteria in 8 CFR 214.4(a)(3). The school must comply with 8
CFR 214.4(i) upon withdrawal.
(iii) School recertification process-- (A) General. School
recertification reaffirms the petitioning school's eligibility for SEVP
certification and the school's compliance with recordkeeping,
retention, reporting and other requirements of paragraphs (f), (g),
(j), (k), and (l) of this section since its previous certification.
(B) Compliance. Assessment by SEVP of a school petitioning for
recertification will focus primarily on overall school compliance, but
may also include examination of individual DSO compliance as data and
circumstances warrant. Past performance of these individuals, whether
or not they continue to serve as principal designated school officials
(PDSOs) or DSOs, will be considered in any petition for recertification
of the school.
(C) On-site review for recertification. All schools are subject to
on-site review, at the discretion of SEVP, in conjunction with
recertification. The school must comply with and complete an on-site
review within 30 days of the notification by a DHS representative of a
school that it has been selected for an on-site review for
recertification, or the petition for recertification will be denied as
abandoned, resulting in the school's withdrawal from SEVIS.
(iv) Recertification approval. SEVP will serve a notice of approval
if a school's petition for recertification is approved. The date of the
subsequent recertification review will be two years after the school's
certification expiration date from this petition cycle.
(v) Recertification denial. SEVP will serve a notice of denial if a
school's petition for recertification is denied, in accordance with 8
CFR 103.3(a)(1)(i).
(vi) Adjustment of certification expiration date. Schools eligible
for recertification before March 25, 2009 will, at a minimum, have
their certification expiration date extended to March 25, 2009. SEVP
may extend the certification expiration date beyond this date during
the first cycle of recertification.
(3) Out-of-cycle review and oversight of SEVP-certified schools.
(i) SEVP will determine if out-of-cycle review is required upon receipt
in SEVIS of any changes from an SEVP-certified school to its Form I-17
information. The Form I-17 information that requires out-of-cycle
review when changed includes:
(A) Approval for attendance of students (F/M/both);
(B) Name of school system; name of main campus;
(C) Mailing address of the school;
(D) Location of the school;
[[Page 55702]]
(E) School type;
(F) Public/private school indicator;
(G) Private school owner name;
(H) The school is engaged in;
(I) The school operates under the following Federal, State, Local
or other authorization;
(J) The school has been approved by the following national,
regional, or state accrediting association or agency;
(K) Areas of study;
(L) Degrees available from the school;
(M) If the school is engaged in elementary or secondary education;
(N) If the school is engaged in higher education;
(O) If the school is engaged in vocational or technical education;
(P) If the school is engaged in English language training;
(Q) Adding or deleting campuses;
(R) Campus name;
(S) Campus mailing address; and
(T) Campus location address.
(ii) SEVP may request a school to electronically update all Form I-
17 fields in SEVIS and provide SEVP with documentation supporting the
update. The school must complete such updates in SEVIS and submit the
supporting documentation to SEVP within 10 business days of the request
from SEVP.
(iii) SEVP may review a school's certification at any time to
verify the school's compliance with the recordkeeping, retention,
reporting and other requirements of paragraphs (f), (g), (j), (k), and
(l) of this section to verify the school's continued eligibility for
SEVP certification pursuant to paragraph (a)(3) of this section. SEVP
may initiate remedial action with the school, as appropriate, and may
initiate withdrawal proceedings against the school pursuant to 8 CFR
214.4(b) if noncompliance or ineligibility of a school is identified.
(iv) On-site review. SEVP-certified schools are subject to on-site
review at any time. SEVP will initiate withdrawal proceedings against a
certified school, pursuant to 8 CFR 214.4(b), if the certified school
selected for on-site review prior to its certification expiration date
fails to comply with and complete the review within 30 days of the date
SEVP contacted the school to arrange the review.
(v) Notice of Continued Eligibility. SEVP will serve the school a
notice of continued eligibility if, upon completion of an out-of-cycle
review, SEVP determines that the school remains eligible for
certification. Such notice will not change the school's previously-
determined certification expiration date unless specifically notified
by SEVP.
(vi) Withdrawal of certification. SEVP will institute withdrawal
proceedings in accordance with 8 CFR 214.4(b) if, upon completion of an
out-of-cycle review, SEVP determines that a school or its programs are
no longer eligible for certification.
(vii) Voluntary withdrawal. A school can voluntarily withdraw from
SEVP certification at any time or in lieu of complying with an out-of-
cycle review or request. Failure of a school to comply with an out-of-
cycle review or request by SEVP will be treated as a voluntary
withdrawal. A school must initiate voluntary withdrawal by sending a
request for withdrawal on official school letterhead to SEVP.
(i) Administration of student regulations. DHS officials may
conduct out-of-cycle, on-site reviews on the campuses of SEVP-certified
schools to determine whether nonimmigrant students on those campuses
are complying with DHS regulations pertaining to them, including the
requirement that each maintains a valid passport. DHS officers will
take appropriate action regarding violations of the regulations by
nonimmigrant students.
* * * * *
(k) Issuance of Certificate of Eligibility. A DSO of an SEVP-
certified school must sign any completed Form I-20 issued for either a
prospective or continuing student or a dependent. A Form I-20 issued by
a certified school system must state which school within the system the
student will attend. Only a DSO of an SEVP-certified school may issue a
Form I-20 to a prospective student and his or her dependents, and only
after the following conditions are met:
* * * * *
(l) * * *
(1) * * *
(ii) Each campus must have one PDSO. The PDSO is responsible for
updating SEVIS to reflect the addition or deletion of any DSO on his or
her associated campus. SEVP will use the PDSO as the point of contact
on any issues that relate to the school's compliance with the
regulations, as well as any system alerts generated by SEVIS. SEVP may
also designate certain functions in SEVIS for use by the PDSO only. The
PDSO of the main campus is the only DSO authorized to submit a Form I-
17 for recertification. The PDSO and DSO will share the same
responsibilities in all other respects.
* * * * *
(2) Name, title, and sample signature. Petitions for SEVP
certification, review and recertification must include the names,
titles, and sample signatures of designated officials. An SEVP-
certified school must update SEVIS upon any changes to the persons who
are principal or designated officials, and furnish the name, title and
e-mail address of any new official within 21 days of the change. Any
changes to the PDSO or DSO must be made by the PDSO within 21 days of
the change. DHS may, at its discretion, reject the submission of any
individual as a DSO or withdraw a previous submission by a school of an
individual.
* * * * *
0
5. Section 214.4 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (a)(1);
0
c. Redesignating paragraphs (a)(2) and (a)(3) as paragraphs (a)(3) and
(a)(4) respectively;
0
d. Adding a new paragraph (a)(2);
0
e. Revising newly designated paragraph (a)(3);
0
f. Revising paragraph (b);
0
g. Revising paragraphs (g) and (h); and by
0
h. Adding paragraph (i).
The revisions and addition read as follows:
Sec. 214.4 Denial of certification, denial of recertification or
withdrawal of SEVP certification.
(a) * * *
(1) Denial of certification. The petitioning school will be
notified of the reasons and appeal rights if a petition for
certification is denied, in accordance with the provisions of 8 CFR
103.3(a)(1)(iii). No fee is required with appeals related to SEVP
certification. A petitioning school denied certification may file a new
petition for certification at any time.
(2) Denial of recertification or withdrawal on notice. The school
must wait at least one calendar year from the date of denial of
recertification or withdrawal on notice before being eligible to
petition again for SEVP certification if a school's petition for
recertification is denied by SEVP pursuant to 8 CFR 214.3(h)(3)(v), or
its certification is withdrawn on notice pursuant to paragraph (b) of
this section. Eligibility to re-petition will be at the discretion of
the Director of SEVP. SEVP certification of a school or school system
for the attendance of nonimmigrant students, pursuant to sections
101(a)(15)(F)(i) and/or 101(a)(15)(M)(i) of the Immigration and
Nationality Act, will be withdrawn on notice subsequent to out-of-cycle
review, or recertification denied, if the school or school system is
determined to no longer be entitled to certification for any valid and
substantive reason including, but not limited to, the following:
[[Page 55703]]
(i) Failure to comply with 8 CFR 214.3(g)(1) without a subpoena.
(ii) Failure to comply with 8 CFR 214.3(g)(2).
(iii) Failure of a DSO to notify SEVP of the attendance of an F-1
transfer student as required by 8 CFR 214.2(f)(8)(ii).
(iv) Failure of a DSO to identify on the Form I-20 which school
within the system the student must attend, in compliance with 8 CFR
214.3(k).
(v) Willful issuance by a DSO of a false statement, including
wrongful certification of a statement by signature, in connection with
a student's school transfer or application for employment or practical
training.
(vi) Conduct on the part of a DSO that does not comply with the
regulations.
(vii) The designation as a DSO of an individual who does not meet
the requirements of 8 CFR 214.3(l)(1).
(viii) Failure to provide SEVP paper copies of the school's Form I-
17 bearing the names, titles, and signatures of DSOs as required by 8
CFR 214.3(l)(2).
(ix) Failure to submit statements of DSOs as required by 8 CFR
214.3(l)(3).
(x) Issuance of Forms I-20 to students without receipt of proof
that the students have met scholastic, language, or financial
requirements as required by 8 CFR 214.3(k)(2).
(xi) Issuance of Forms I-20 to aliens who will not be enrolled in
or carry full courses of study, as defined in 8 CFR 214.2(f)(6) or
214.2(m)(9).
(xii) Failure to operate as a bona fide institution of learning.
(xiii) Failure to employ adequate qualified professional personnel.
(xiv) Failure to limit advertising in the manner prescribed in 8
CFR 214.3(j).
(xv) Failure to maintain proper facilities for instruction.
(xvi) Failure to maintain accreditation or licensing necessary to
qualify graduates as represented in the school's Form I-17.
(xvii) Failure to maintain the physical plant, curriculum, and
teaching staff in the manner represented in the Form I-17.
(xviii) Failure to comply with the procedures for issuance of Forms
I-20 as set forth in 8 CFR 214.3(k).
(xix) Failure of a DSO to notify SEVP of material changes, such as
changes to the school's name, address, or curricular changes that
represent material change to the scope of institution offerings (e.g.,
addition of a program, class or course for which the school is issuing
Forms I-20, but which does not have Form I-17 approval), as required by
8 CFR 214.3(f)(1).
(3) Automatic withdrawal. A school that is automatically withdrawn
and subsequently wishes to enroll nonimmigrant students in the future
may file a new petition for SEVP certification at any time. The school
must use the certification petition procedures described in 8 CFR
214.3(h)(1) to gain access to SEVIS for submitting its petition. Past
compliance with the recordkeeping, retention, reporting and other
requirements of 8 CFR 214.3(f), (g), (j), (k), and (l), and with the
requirements for transition of students under paragraph (i) of this
section will be considered in the evaluation of a school's subsequent
petition for certification. SEVP certification will be automatically
withdrawn:
(i) As of the date of termination of operations, if an SEVP-
certified school terminates its operations.
(ii) As of a school's certification expiration date, if an SEVP-
certified school does not submit a completed recertification petition
in the manner required by 8 CFR 214.3(h)(2).
(iii) Sixty days after the change of ownership if an SEVP-certified
school changes ownership, unless the school files a new petition for
SEVP certification, in accordance with the procedures at 8 CFR
214.3(h)(1), within 60 days of the change of ownership. SEVP will
review the petition if the school properly files such petition to
determine whether the school still meets the eligibility requirements
of 8 CFR 214.3(a)(3) and is still in compliance with the recordkeeping,
retention, reporting and other requirements of 8 CFR 214.3(f), (g),
(j), (k), and (l). SEVP will institute withdrawal proceedings in
accordance with paragraph (b) of this section if, upon completion of
the review, SEVP finds that the school is no longer eligible for
certification, or is not in compliance with the recordkeeping,
retention, reporting and other requirements of 8 CFR 214.3(f), (g),
(j), (k), and (l).
(iv) If an SEVP-certified school voluntarily withdraws from its
certification.
* * * * *
(b) Withdrawal on notice. SEVP will initiate an out-of-cycle review
and serve the school with an NOIW if SEVP has information that a school
or school system may no longer be entitled to SEVP certification prior
to the school being due for its two-year recertification. The NOIW will
inform the school of:
(1) The grounds for withdrawing SEVP certification.
(2) The 30-day deadline from the date of the service of the NOIW
for the school to submit sworn statements, and documentary or other
evidence, to rebut the grounds for withdrawal of certification in the
NOIW. An NOIW is not a means for the school to submit evidence that it
should have previously submitted as a part of its established reporting
requirements.
(3) The school's right to submit a written request (including e-
mail) within 30 days of the date of service of the NOIW for a
telephonic interview in support of its response to the NOIW.
* * * * *
(g) Decision. The decision of SEVP will be in accordance with 8 CFR
103.3(a)(1).
(h) Appeals. Notices of denial or withdrawal of SEVP certification
will include appeal alternatives and filing instructions. Any appeal
must be taken within 15 days after the service of the decision by
stating the reasons for the appeal in the notice of appeal provided
with the instructions, and supported by a statement or brief
specifically setting forth the grounds for contesting the withdrawal of
the approval. No fee is required with appeals related to denial of SEVP
recertification or withdrawal of SEVP certification.
(i) Operations at a school when SEVP certification is relinquished
or withdrawn, or whose recertification is denied and on the SEVIS
access termination date.
(1) General. A school whose certification is relinquished or
withdrawn, or whose recertification is denied may, at SEVP discretion,
no longer be able to create Initial student records or issue new Forms
I-20, Certificate of Eligibility for Nonimmigrant Student, for initial
attendance. Schools must comply with the instructions given in the
notice of withdrawal or denial with regard to management of status for
their Initial and continuing F and/or M students. All other SEVIS
functionality, including event reporting for students, will remain
unchanged until the school's SEVIS access termination date. The school
must continue to comply with the recordkeeping, retention, reporting
and other requirements of 8 CFR 214.3(f), (g), (j), (k), and (l) until
its SEVIS access termination date.
(2) SEVIS access termination. In determining the SEVIS access
termination date, SEVP will consider the impact that such date will
have upon SEVP, the school, and the school's nonimmigrant students in
determining the SEVIS access termination date. In most situations, SEVP
will not determine a SEVIS access termination date for that school
until the appeals
[[Page 55704]]
process has concluded and the initial denial or withdrawal has been
upheld unless a school whose certification is withdrawn or whose
recertification is denied is suspected of criminal activity or poses a
potential national security threat. The school will no longer be able
to access SEVIS, and SEVP will automatically terminate any remaining
Active SEVIS records for that school on the SEVIS access termination
date.
(3) Legal obligations and ramifications for a school and its DSOs
when a school is having SEVP certification denied or withdrawn. Schools
are obligated to their students to provide the programs of study to
which they have committed themselves in the students' application for
enrollment and acceptance process. Schools are obligated to the U.S.
government to comply with the recordkeeping, retention, reporting and
other requirements contained in 8 CFR 214.3. With any new petition for
SEVP certification, SEVP will consider the extent to which a school has
fulfilled these obligations to students and the U.S. government during
any previous period of SEVP certification.
0
6. Section 214.13 is amended by revising paragraphs (a) and (b)(1), to
read as follows:
Sec. 214.13 SEVIS fee for certain F, J, and M nonimmigrants.
(a) Applicability. The following aliens are required to submit a
payment in the amount indicated for their status to the Student and
Exchange Visitor Program (SEVP) in advance of obtaining nonimmigrant
status as an F or M student or J exchange visitor, in addition to any
other applicable fees, except as otherwise provided for in this
section:
(1) An alien who applies for F-1 or F-3 status in order to enroll
in a program of study at an SEVP-certified 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 SEVP-certified
academic or language-training institution including private elementary
and secondary schools and public secondary schools, the amount of $200;
(2) An alien who applies for J-1 status in order to commence
participation in an exchange visitor program designated by the
Department of State (DoS), the amount of $180, with a reduced fee for
certain exchange visitor categories as provided in paragraphs (b)(1)
and (c) of this section; and
(3) An alien who applies for M-1 or M-3 status in order to enroll
in a program of study at an SEVP-certified vocational educational
institution, including a flight school, in the amount of $200.
(b) Aliens not subject to a fee. No SEVIS fee is required with
respect to:
(1) A J-1 exchange visitor who is coming to the United States as a
participant in an exchange visitor program sponsored by the Federal
government, identified by a program identifier designation prefix of G-
1, G-2, G-3, or G-7;
* * * * *
Michael Chertoff,
Secretary.
[FR Doc. E8-22786 Filed 9-25-08; 8:45 am]
BILLING CODE 9111-28-P