Cite as "Posted on AILA InfoNet at Doc. No. 02121143 (Dec. 11,
2002) ."
(67 FR 76256, 12/11/02)
[Federal Register: December 11, 2002(Volume 67, Number 238)]
[Rules and Regulations]
[Page 76255-76280]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de02-10]
[[Page 76255]]
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Part III
Department of Justice
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Immigration and Naturalization Service
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8 CFR Parts 103, 214, 248 and 274a
Retention and Reporting of Information for F, J, and M Nonimmigrants;
Student and Exchange Visitor Information System (SEVIS); Final Rule
[[Page 76256]]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 214, 248 and 274a
[INS No. 2185-02]
RIN 1115-AF55
Retention and Reporting of Information for F, J, and M
Nonimmigrants; Student and Exchange Visitor Information System (SEVIS)
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations governing the retention and reporting of
information regarding F, J, and M nonimmigrants (foreign nationals
having a residence in a foreign country which they have no intention
of
abandoning, and who are seeking temporary admission to the United
States). This rule also implements the Student and Exchange Visitor
Information System (SEVIS), establishes a process for electronic
reporting by designated school officials (DSO) of information required
to be reported to the Service, and provides clear standards governing
the maintenance, extension and reinstatement of student status. This
rule is necessary to improve and streamline the reporting and
recordkeeping of F, J, and M nonimmigrants.
DATES: This final rule is effective January 1, 2003.
FOR FURTHER INFORMATION CONTACT: Maura Deadrick, Assistant Director,
Adjudications Division, Immigration and Naturalization Service, 425
I
Street NW., Room 3040, Washington, DC 20536, telephone (202) 514-3228.
SUPPLEMENTARY INFORMATION:
Background
Who Are F, J, and M Nonimmigrants?
The Immigration and Nationality Act (Act) provides for the
admission of various classes of nonimmigrants, including F, J, and M
nonimmigrants, who are foreign nationals having a residence in a
foreign country which they have no intention of abandoning, and who
are
seeking temporary admission to the United States. The purpose of the
nonimmigrant's intended stay in the United States determines his or
her
proper nonimmigrant classification.
F-1 nonimmigrants, as defined in section 101(a)(15)(F) of the Act,
are foreign students pursuing a full course of study in Service-
approved colleges, universities, seminaries, conservatories, academic
high schools, private elementary schools, other academic institutions,
and in language training programs in the United States. For the
purposes of this rule, the term ``school'' refers to all of these types
of Service-approved institutions. An F-2 nonimmigrant is a foreign
national who is the spouse or qualifying child of an F-1 nonimmigrant.
J-1 nonimmigrants, as defined in section 101(a)(15)(J) of the Act, are
foreign nationals who have been selected by a sponsor designated by
the
United States Department of State (formerly the United States
Information Agency (USIA) to participate in an exchange visitor program
in the United States. The J-1 classification includes aliens who are
participating in programs under which they will receive graduate
medical education or training. A J-2 nonimmigrant is a foreign national
who is the spouse or qualifying child of a J-1 exchange visitor.
M-1 nonimmigrants, as defined in section 101(a)(15)(M) of the Act,
are foreign nationals pursuing a full course of study at a Service-
approved vocational or other recognized nonacademic institution (other
than in language training programs) in the United States. The term
``school'' also encompasses those institutions attended by M-1 students
for the purposes of this final rule. An M-2 nonimmigrant is a foreign
national who is the spouse or qualifying child of an M-1 student.
Congress recently amended the Act to create new F-3 and M-3
nonimmigrant classifications for certain aliens who are citizens of
Canada or Mexico who continue to reside in their home country while
commuting to the United States to attend an approved F or M school.
Public Law 107-274 (Nov. 2, 2002). Such border commuter students are
not subject to the existing requirement for F-1 and M-1 students to
be
pursuing a full course of study, and are specifically permitted to
engage in either full-time or part-time studies. However, F-3 and M-3
border commuter students will not be eligible to obtain F-2 or M-2
status for their dependents. The Service recently adopted regulations
relating to border commuter students, 67 FR 54941 (August 27, 2002)
(codified at 8 CFR 214.2(f)(18) and (m)(19)), and will be amending
those regulations in the future to make the necessary conforming
amendments in response to the recent legislation. In this rule, the
Service merely notes that, except for a reduction in course load, the
new F-3 and M-3 students will be subject to the same reporting
requirements and SEVIS processes as for F-1 and M-1 students.
The Service wishes to clarify that compliance with SEVIS reporting
requirements does not exempt F, M or J nonimmigrants from requirements
or restrictions associated with other applicable statutes and
regulations. Nonimmigrant students or exchange visitors subject to such
regulations or statutes may be required to seek government approval,
and may be denied such approval, for initial enrollment in a program
and for actions that a school or program official may otherwise
authorize for a nonimmigrant in SEVIS, such as transfers, extensions
and changes to course of study. For example, among the kinds of schools
approved for attendance by M nonimmigrants are flight training schools.
The Service notes that section 113 of the Aviation and Transportation
Security Act, Public Law 107-71 (Nov. 19, 2001), imposes new
restrictions on providing flight training to aliens and requires prior
notification to the Attorney General before such training can begin.
The requirements of that law are separate from, and in addition to,
the
law and regulations governing F, M and J nonimmigrants. The Department
of Justice has already published public notices and regulations
pertaining to section 113 at 67 FR 2238 (Jan. 16, 2002), 67 FR 6051
(Feb. 8, 2002), 67 FR 41140 (June 14, 2002), and 67 FR 41147 (June 14,
2002). As another example, Title II of the Public Health Security and
Bioterrorism Preparedness and Response Act, Public Law 107-188 (June
12, 2002), imposes restrictions on access to dangerous select bio-
agents and toxins.
Response to Public Comments on the Proposed Rule
On May 16, 2002, the Service published a proposed rule in the
Federal Register at 64 FR 34862, to implement the electronic collection
and reporting process mandated under section 641 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Public Law 104-208, 8 U.S.C. 1372. Specifically, the regulation sought
to improve the collection of information on nonimmigrant students by
establishing real time updates of student information. The proposed
rule also amended the current regulations to establish additional
reporting requirements based upon the USA PATRIOT Act (Public Law 107-
56) and section 501 of the Enhanced Border Security Act (Public Law
107-173). Comments were due to the Service on or before June 17, 2002.
[[Page 76257]]
The following discussion will address only those provisions about
which comments were received. Many commenters addressed identical
issues in their comments, and as a result, the number of comments
exceeds the number of issues discussed. In general, commenters
expressed their overall support for SEVIS and the improvements to be
made by electronic reporting as well as stressing the importance of
foreign students on the economy and culture of the United States.
I. Mandatory Compliance Date
The majority of comments opposed the January 30, 2003, mandatory
compliance date. Most commenters suggested that the compliance date
be
established by the Service in a separate rulemaking after SEVIS becomes
fully operational. Other commenters suggested that the compliance
deadline be moved 9 to 12 months after the release of SEVIS.
The reason most often given by commenters for their belief that the
January 30, 2003 date was not feasible for schools was the
technological changes required for compliance. Commenters indicated
that they have not had sufficient time to assess the system changes
necessary to implement SEVIS at their school and expressed concern over
the short time frame to change existing business processes to meet the
new SEVIS requirements. Commenters stated that to bring schools into
compliance requires time and scarce resources to purchase software and
training from third party vendors. Several commenters stated that being
forced to comply prematurely would result in an investment in
technology that becomes obsolete once SEVIS is fully operational. These
commenters also indicated that SEVIS should be placed into full
operation only after the technology had been developed and tested and
the Service was confident the system would work.
Further, many commenters indicated that they did not want to
allocate significant investments toward the real time interactive
portion of SEVIS and would instead choose to wait for the batch
reporting capability. As the batch process will not be available until
later in 2002, commenters stated they need time to install and test
the
software interface with SEVIS to determine any incompatibility and that
such installation and testing would necessitate an implementation date
after January 30, 2003. Commenters indicated that their schools must
weigh using an outside vendor against the creation of a unique system
within the school to comply with SEVIS. The commenters argued that the
deliberation necessary to determine which path to follow would take
time, especially when the schools need authse authorization from the
president or board of directors once all options have been weighed.
Many commenters point out that there was no vendor software then
available that meets the SEVIS requirements, although some vendors were
in the final stages of development. The commenters stated that the
absence of final specifications for batch processing had hampered the
schools' efforts to begin implementation. Those institutions that do
not purchase a product available in the market and who instead choose
to build their own batch system may take even more time. One commenter
estimated that it would take 4,000-5,000 hours of information
technology (IT) effort to develop the school's system. The fact that
international student and scholar data is located in various university
offices within one school was another reason cited by commenters as
a
reason that it would take schools beyond January 30, 2003, to implement
new systems and processes to comply with SEVIS.
Many commenters cited cost as another prohibitive factor in being
able to be ready in time for the mandatory compliance date. The Service
was given monetary figures ranging from $15,000 to $500,000 as the cost
per school to implement SEVIS. These costs include paying contract
programming rates, buying servers, software licenses, and software from
a vendor, receiving training in new XML technology, and additional
positions for staff.
Finally, commenters stated that January 30, 2003, is not reasonable
in light of the fact that the Department of State (DOS) has not yet
published corresponding regulations with the new SEVIS requirements
for
program sponsors with the new SEVIS requirements. Commenters discussed
the need for the Service regulations and the DOS regulations to be
consistent in order to reduce the burden on schools. Several commenters
expressed concern over the fact that the Service and the DOS were
publishing separate rules and felt that they will be forced to
duplicate efforts if the rules are not consistent.
While the Service is aware of the concerns that the education
community has in meeting the January 30, 2003 compliance date, the
Service believes the date can be met at little to no cost to the
schools. Other than personnel costs for data entry, there is virtually
no cost to schools as real time interactive capability only requires
that the school have Internet access and a free browser. There is no
other software necessary to use the real time interactive capability
and there are no recurring access fees. Additionally, as will be
discussed in the following section, January 30, 2003, is the date by
which all schools must use SEVIS in order to issue a new Form I-20.
Although schools may choose to do so, the Service does not intend
January 30, 2003 to be the date by which schools must enter all
students into SEVIS. Moreover, a Form I-20 issued prior to January 30,
2003, will be accepted for visa issuance, admission, or change of
status prior to August 1, 2003.
The Service has been working under several statutory mandates for
the implementation of SEVIS and must balance national security concerns
against the concerns of the education community. The Service has been
working within the tight timeframes required by statutory mandate since
the inception of the Coordinated Interagency Partnership Regulating
International Students (CIPRIS) pilot program in 1997. In 2001 Congress
passed two separate laws to strengthen national security that focused
directly on the Service's foreign student program. In addition, the
Service has been involved with working groups on student issues as
directed by the President in Presidential Directive Number 2. These
working groups, led by the Office of Science and Technology Policy
(OSTP) and Office of Homeland Security (OHS), included representatives
from the National Institute of Standards and Technology (NIST),
National Science Foundation (NSF), National Institute of Health (NIH),
and other federal agencies. Several open meetings hosted by National
Academy of Science (NAS) included representatives from NAFSA-
Association of International Educators, American Council on Education
(ACE), and universities such as MIT and UCLA. The January 30, 2003
compliance date evolved from the security concerns of Congress and the
Administration. It was not a date chosen at random, but was a date
chosen as the most reasonable balance between national security
concerns and the education community's ability to comply. The sooner
that all schools and students are in the SEVIS database, the sooner
the
Service will have the ability to more fully monitor them.
Furthermore, the Service and the DOS have been working
collaboratively since the inception of SEVIS to ensure that similar
requirements were being proposed in areas as appropriate. From the
beginning of the CIPRIS pilot program, the DOS has committed a full-
time staff person to SEVIS to develop
[[Page 76258]]
the SEVIS requirements with the Service and to incorporate such
requirements in the DOS regulations. On numerous occasions both
agencies have come together to discuss SEVIS requirements with the
education community. The fact that two separate rules are being
promulgated setting out SEVIS requirements is a matter of the federal
rulemaking process, and does not indicate that the two agencies are
not
working together.
Although the Attorney General has the primary responsibility for
implementing SEVIS, the DOS must promulgate a rule setting forth SEVIS
requirements that specifically pertain to J-1 program sponsors.
Furthermore, in areas where the Service has responsibility over J-1
nonimmigrants (e.g., admission and duration of status), the Service
has
addressed those areas in this rule. The DOS has addressed in their
separate rule those areas in which the Service does not have
responsibility over the J-1 exchange visitor (e.g., eligibility for
employment, change of category, transfer, or reinstatement). For more
information on SEVIS as it relates to DOS authority over program
sponsors and J exchange visitors, see the DOS rule. By the time the
SEVIS mandatory compliance date is reached, the batch SEVIS technical
requirements will have been available for approximately 18 months. It
was the intent of the Service to provide schools and programs access
to
such technical requirements as early as possible in order to assist
in
the transition to SEVIS especially under the narrow timeframe as
mandated by Congress. The Service began notification and publication
of
the batch technical specifications of the F, M and J data requirements
in August 2001. The Service also published an announcement in the
Commerce Business Daily and sponsored multiple vendor conferences
specifically to release the SEVIS technical specifications for batch-
interface. Nine vendor conferences were held on the east and west
coasts during the months of August and September 2001. The technical
specifications for the Service and the DOS were posted on the Internet
at that time and were subsequently updated with a revised draft version
on November 21, 2001. In response to a number of requests from the
education community, the Service sponsored an additional technical
conference in the Washington, DC metropolitan area on June 13, 2002,
to
continue to discuss XML technical specifications and to begin release
of a finalized version of the Interface Control Document. The final
Interface Control Document was published on the Service's Web site on
August 14, 2002.
Finally, while the Service understands the time and monetary
concerns expressed by those schools interested in utilizing the batch
capability of SEVIS, the Service notes that the real time interactive
capability of SEVIS remains available to such schools. The use of batch
processing is a choice to be made voluntarily by each individual
school. Therefore, the fact that a school may not be technologically
or
financially ready to use batch processing does not mean that the school
is not able to comply with the new SEVIS reporting requirements and
processes on January 30, 2003, by utilizing the real time interactive
capability of SEVIS. The real time interactive portion of SEVIS is
currently available to enrolled schools. The additional benefit to
schools using real time interactive capability is that these schools
may begin use of SEVIS through real time interactive now and enter
students on a phased-in basis. By doing so, the school would
essentially have all students already entered in SEVIS and could then
switch over to batch processing at the first registration after the
mandatory compliance date. By entering these students over time,
schools will be able to gain system familiarity and requirement
familiarity while still meeting the mandatory date.
II. Form I-20, Certificate of Eligibility for Nonimmigrant (F-1)/(M-1)
Student Status--For Academic and Language Students/Vocational Students
Many comments were received regarding the SEVIS Form I-20. The
majority of commenters requested that the Service clarify the
responsibilities of those schools that begin using SEVIS prior to the
mandatory compliance date. Commenters urged the Service to allow
schools sufficient time to enter all current students in SEVIS and
suggested several alternative dates by which all current students
should be entered in SEVIS.
While the proposed rule indicated that all schools were required to
report the registration of all current students by the next academic
term after mandatory compliance, the Service believes the final rule
should impose one date upon all schools by which all current students
must be entered in SEVIS. The Service agrees with the commenters that
many schools with large student populations would be forced to input
all current students in SEVIS in a very short time frame in order to
meet the terms of the proposed rule. In response to the commenters and
the Service's desire to allow schools sufficient time to ensure that
the information entered in SEVIS is accurate, the Service believes that
a specific date is an equitable solution that leads to less confusion
among schools as to when all of their current students must be entered
into SEVIS. As such, the Service has determined August 1, 2003, to be
the date upon which all current or continuing students must be entered
into SEVIS.
To clarify, schools that begin using SEVIS prior to the mandatory
compliance date must issue a SEVIS Form I-20 to any new student.
Additionally, these schools must issue a SEVIS Form I-20 to any current
student requiring a new Form I-20 because of a reportable action (e.g.,
extension of status, practical training, or employment authorization,
or for a new F-1, F-3, M-1, M-3 nonimmigrant visa). A current student
with a previously issued non-SEVIS Form I-20 and a current nonimmigrant
F or M visa will not be required to obtain a SEVIS Form I-20 for travel
purposes and may use his or her current non-SEVIS Form I-20 with proper
annotation for reentry until the date that all students must be entered
in SEVIS. In order to comport with the required update events of Sec.
214.2(f) and Sec. 214.2(m) and the reporting requirements of Sec.
214.3, including registration, schools need only update SEVIS as to
those students whose information has been entered into SEVIS. These
schools are not required to enter any of their current students into
SEVIS or report on these students in SEVIS prior to the mandatory
compliance date except for those current students who need a new Form
I-20 for a reportable action or other reason.
After the mandatory compliance date is reached, schools must issue
SEVIS Forms I-20 to all new students and all provisions and processes
related to non-SEVIS schools will become void. At that time, schools
must issue SEVIS Forms I-20 to current students requiring a reportable
event. For students whose records have not been entered into SEVIS,
schools are still required to comply with the recordkeeping and
reporting requirements contained in section 214.3(g)(1) and (2).
Lastly, schools must enter the record of all F or M students that are
currently enrolled as of August 1, 2003, in SEVIS and report the
enrollment for such nonimmigrants by August 1, 2003.
On a related topic, many commenters requested that the Service
continue to accept, for a reasonable period of time, Forms I-20A-B,
Certificate of Eligibility For Nonimmigrant (F-1) Student Status, For
Academic and Language Students,
[[Page 76259]]
Forms I-20M-N, Certificate of Eligibility for Nonimmigrant (M-1)
Student Status, For Vocational Students, and Form DS-2019, Certificate
of Eligibility for Exchange Visitor (J-1) Status, that were issued
prior to the mandatory compliance date. In response to this request,
the Service has added provisions in Sec. 214.2(f), (j) and (m) of this
rule to allow F, J, and M nonimmigrants who were issued such documents
prior to the mandatory SEVIS compliance date, to continue to be
admitted to the United States using these documents for a limited
period of time. As of August 1, 2003, however, all non-SEVIS Forms I-20
and DS-2019 will no longer be acceptable, and F, J, and M nonimmigrants
must be in possession of a SEVIS Form I-20 or DS-2019.
Additionally, commenters stated that the proposed rule did not
address the process by which the dependents of F-1 or M-1 students are
to be issued the SEVIS Form I-20. The Service notes that section IV
of
the supplementary information in the proposed rule contains a
discussion of this process. However, the Service agrees that the
process as described in the proposed rule should be codified in the
pertinent provisions of Sec. 214.2 (f) and (m) and Sec. 214.3(k).
Additionally, prior to August 1, 2003, if exigent circumstances can
be demonstrated, the Service will allow the dependents of F-1, J-1,
and
M-1 nonimmigrants in possession of a SEVIS document to enter with a
copy of the principal's SEVIS document.
The Service notes that passage of the Enhanced Border Security and
Visa Entry Reform Act of 2002, Pub. L. 107-173 (Border Security Act),
necessitates changes to the disposition of the SEVIS Form I-20 at
ports-of-entry. The Border Security Act requires the Service to notify
approved schools and exchange programs that the F or M nonimmigrant
has
been admitted to the United States. By on, or about January 1, 2003,
the Service anticipates that it will accomplish this notification to
schools electronically through SEVIS.
However, for a short period of time, the Service will accomplish
this notification to schools and exchange programs using a paper
process. Upon the initial admission of the F or M student, the
inspector at a port-of-entry will take the SEVIS Form I-20 from the
student. The SEVIS Form I-20 will be returned to the school within
approximately 10 days of the student's arrival. The school will be
responsible for returning the SEVIS Form I-20 to the student or
notifying the Service that the student has failed to register. In the
case of a non-SEVIS Form I-20, the student's copy and the school's copy
will be appropriately annotated with the admission information. The
student's copy will be returned to the student at the port-of-entry
and
the school copy will be forwarded to the Service's data processing
center to be forwarded to the school listed on the Form I-20.
In the case of a SEVIS Form DS-2019, SEVIS will generate an
original SEVIS Form DS-2019 and a watermark version of the Form DS-
2019. Upon the initial admission of the J-1 exchange visitor, the
inspector at the port-of-entry will properly annotate both the original
SEVIS Form DS-2019 and the watermark draft copy. The inspector will
return the original SEVIS Form DS-2019 to the exchange visitor and the
watermark version will be forwarded by the inspector to the Service's
data processing center. The watermark version will be returned to the
program sponsor within approximately 10 days of the exchange visitor's
arrival. The program sponsor will be responsible for notifying the
Service and DOS that the exchange visitor has failed to commence
program participation by updating the record in SEVIS within 30 days
of
the program commencement date. Upon the initial admission of a J-1
nonimmigrant, the Service will continue to process the non-SEVIS Form
DS-2019 as it has done in the past.
While this paper-based process remains in effect, the Service's
data processing center will attach a cover letter to all Forms I-20
and
SEVIS Forms I-20 forwarded to schools, indicating that the student has
entered the United States using the school's form. Such notification
by
the Service allows schools to be able to comply with the requirement
that they report to the Service any students who fail to register.
SEVIS schools must report such ``no shows'' in SEVIS. Non-SEVIS schools
are required to report these ``no shows'' through the Service's
National Customer Service Center at 1-800-892-4829. In accordance with
the DOS regulations, program sponsors are also required to report in
SEVIS if an exchange visitor has failed to commence participation in
his or her program. A ``no-show'' is a student or exchange visitor who
has been issued a Form I-20 or Form DS-2019 by an approved school or
designated program, and has been admitted to the United States, but
who
fails to register at his or her school or commence participation in
his
or her program within 30 days of the institution's registration
deadline. Comments were also received requesting the Service to clarify
whether changes could be made in SEVIS to a student's Form I-20
information prior to the student's registration at the school. Although
this is not specifically addressed in the regulations, the DSO may
update all Form I-20 information in SEVIS prior to registration, with
the exception of major for a student with M nonimmigrant status who
is
not authorized to change educational objective.
However, once the Service fully implements a data share with the
Department of State's consular systems, the DSO will no longer be
permitted to update biographic information after visa issuance until
after the school has indicated the student has registered.
Additionally, after a student has entered the country, the DSO will
no
longer be permitted to change a student's program start date. Schools
will be permitted, however, to update SEVIS to indicate that a Form
I-
20 has been terminated at any time.
III. Roles and Responsibilities of School Officials
The Service received many comments on the creation of the two new
categories of designated school official, the principal designated
school official (PDSO) and the administrative school official (ASO).
While some commenters expressed the opinion that the creation of the
ASO was helpful, others indicated that the three-tiered proposal
imposes another layer of personnel, thereby limiting accountability.
Several commenters were also opposed to the requirement that PDSOs and
DSOs be United States citizens or lawful permanent residents. A primary
source of concern for the majority of these commenters was the
limitation on the number of DSOs per school or campus, citing the need
for more personnel resources to input data in SEVIS. Commenters viewed
the Service's limitation as arbitrary and suggested that schools should
be left to determine the number of DSOs necessary to carry out their
responsibilities. Others suggested that the number of DSOs be based
upon the number of F-1, M-1, and J-1 nonimmigrants at a particular
school.
The primary purpose of SEVIS is to provide access to current,
accurate information to schools and the Service on all F, J, and M
nonimmigrants. The information maintained in the system is only as
reliable as those who are entering it. The Service's ability to control
access is a customary and critical means of ensuring the integrity of
the system. In order to maintain the integrity of the data in SEVIS,
the Service has determined, in accordance with applicable Department
of
Justice
[[Page 76260]]
policies governing access to Departmental systems, that PDSOs and DSOs
must be either a citizen or lawful permanent resident of the United
States.
In response to the comments received, the Service will not adopt
the three-tiered category PDSO, DSO and ASO as proposed. The Service
finds merit in the commenters' arguments that this is an unnecessary
layer that would not improve accountability. As such, once the
necessary programming changes have been made to SEVIS, the Service will
remove the ASO category. The category of PDSO will remain.
The Service will maintain numeric limits on the number of DSOs per
school or campus in order to control access to SEVIS. Under this rule,
each school or campus will be allotted one position for the PDSO and
up
to nine positions for DSOs. However, the Service does find merit in
the
comments suggesting that the number of DSOs be proportional to the
number of nonimmigrant students. Once SEVIS is fully operational and
schools have entered all current students in the system, the Service
may reconsider the numerical limits on the number of DSOs.
On a related issue, in response to the Service's request, many
comments discussed the feasibility of a DSO certification program. A
certification process for DSOs was supported by most commenters as a
way to strengthen the reliability of the data retained in SEVIS.
However, several commenters urged the Service to hold off on
establishing a certification program until after SEVIS was fully
implemented in order to enable DSOs to focus fully on adjustment to
SEVIS. Other commenters stated they did not want the Service to
institute another mandatory program and that the Service should leave
such training up to schools on a voluntary basis. The Service
appreciates the responses received and will review and consider all
comments again before making a decision whether to establish a DSO
certification program. If a certification program is pursued, the
Service may revisit the DSO limitations based on immigration status
once such a certification process (including background checks) is in
place.
One commenter suggested that the Service make clear that
institutions have a right to seek legal counsel in establishing
appropriate SEVIS compliance systems. The commenter contended that the
Service's use of the PDSO as the point of contact for SEVIS serves to
contravene the Agency Practice Act, 5 U.S.C. 500(b). The Service has
no
intention of denying a school's right to be represented by legal
counsel. In fact, for many years there have been institutions that have
designated a legal advisor as a designated school official. This rule
does not prohibit a school from choosing to place counsel in the PDSO
or DSO position or from conferring with counsel regarding the
implementation of SEVIS requirements.
IV. Reduction in a Student's Course Load
Many comments were submitted regarding the proposed rule's
treatment of a reduction in a student's course load. Some commenters
suggested that the Service remove the word ``prior'' in the sentence,
``A student who drops below a full course of study without the prior
approval of the DSO will be considered out of status.'' Additionally,
commenters asserted that the Service should not consider a student to
be out of status due to a reduced course load until the end of the
semester or until the DSO is notified.
The Service cannot adopt these suggestions. With the implementation
of SEVIS, the Service expects to have accurate, real time, information
on all students. To allow a student to act, without first receiving
approval from the DSO, undermines the most basic concept of SEVIS. As
it is the responsibility of the student to maintain a full course of
study in order to remain in compliance with his or her nonimmigrant
status, it is reasonable to expect a student to understand this
responsibility. Accordingly, the student should consult with, and
receive the necessary permission from the designated school official
prior to performing an act that affects status.
The Service understands that there may be situations in which a
student is unable to maintain a full course load and has made
allowances for such situations, provided the student receives
permission first. The Service also understands there may be some
situations in which a student's incapacitation may render it impossible
for the student to request permission from the DSO prior to reducing
his or her course load (e.g., a student who is hospitalized for an
extended period of time as the result of an accident). In such cases,
the student will not be considered out of status.
Many commenters stated that the Service did not clearly indicate in
the proposed rule whether DSOs could authorize a nonimmigrant student
to drop below a full course of study more than once during his or her
course of study. To clarify, during the course of study within one
program level, an F-1 nonimmigrant can only be authorized on one
occasion to reduce his or her course load due to academic difficulties,
and must resume a full course at the start of the next available term
or session, excluding a summer session. An F-1 student taking a reduced
course load for academic reasons must still be taking at least one
class or half the clock hours required for a full course of study. A
DSO may not authorize an M-1 student to reduce his or her course load
based on academic difficulties.
Commenters also argued that the Service's requirement allowing an
F-1 student to drop below a full course of study only where he or she
faces ``initial'' difficulties should be expanded to include other
legitimate reasons as determined by the DSO. The Service does not adopt
this suggestion to permit the DSO to make a determination based on
personal or academic reasons. Such a determination is extremely vague
and is open to abuse.
Several commenters also suggest that the Service allow a DSO to
authorize a reduced course load if students are unprepared or in
jeopardy of failing a course. The Service notes that the current
regulations already provide for this situation. For example, a student
may be authorized to drop below full time study due to improper course
level placement.
In the case of an illness or medical condition, an F-1 student may
be authorized to reduce course load for a period not to exceed 12
months in aggregate. The DSO may also authorize a student to refrain
from taking any courses due to medical condition or illness if the
severity of the condition warrants such authorization. Although a
student may be authorized for up to 12 total months of a reduced course
load in this case, a school official must re-authorize the reduction
each term or session, and must update this authorization in SEVIS. The
12 month limit on authorization to reduce course load for illness or
medical condition is applied per each particular program level. If the
student completes one program, and advances to a different program
level, the student will be allowed a second aggregate 12-month period
in which he or she may be authorized to reduce course load.
An F-1 nonimmigrant who has already received authorization to
reduce course load for academic difficulties remains eligible for the
aggregate 12-month period to reduce his or her course load due to
illness or medical condition.
A student who is unable to resume a full course of study within the
time limits previously specified will either have to leave the U.S.
and
reapply when
[[Page 76261]]
he or she is able to resume a full course of study, or change to a more
appropriate nonimmigrant classification to continue medical treatment
in the U.S.
The Service recognizes that there may be cases in which an F-1
student may need authorization to reduce his or her course load for
more than 12 months while pursuing a single program level (for example,
while studying for an undergraduate college degree). However, to allow
a student to pursue less than full time study for an extended period
of
time with no limits opens the student program to a greater possibility
for abuse. Furthermore, such extended authorization would run counter
to the definition of a student as set forth in section 101(a)(15)(F)
of
the Act which requires that a student pursue full-time study.
As specified in the proposed rule, an M-1 student may only be
authorized to reduce course load for a reason of illness or medical
condition, and such authorization may not exceed an aggregate of 5
months. A school official must verify the continuation of the
authorization at each term or session by updating the authorization
in
SEVIS. However, as previously noted, the Service cannot permit an
institution to authorize a student to pursue less than full-time study
for an extended period of time.
On a related topic, many commenters suggested that the
documentation required to support authorization to drop below a full
course of study for illness or medical condition be expanded to include
documentation submitted by counselors, psychologists, and other
alternative medical practitioners. The Service adopts this suggestion
and will allow DSOs to accept medical documentation provided by
licensed medical doctors, doctors of osteopathy, or licensed clinical
psychologists to substantiate a student's reason for dropping below
a
full course of study for illness or medical condition.
Some comments contended that students with long-term medical
conditions, chronic illnesses, or learning disabilities may require
a
longer-term reduction in course load. The Service cannot, however,
permit an unlimited reduction in course load, as this would undermine
the premise of the F-1 and M-1 nonimmigrant student program. The
Service believes that the existing minimum requirements for defining
a
``full course of study'' are broad enough to accommodate students that
may not be able to take a rigorous course load.
Finally, one commenter suggested that the Service include a
specific provision in Sec. 214.2(f)(6)(iii) to allow a DSO to
authorize a reduced course load for graduate students enrolled in less
than full time coursework. The Service does not believe that such a
provision is necessary. The current regulation at Sec.
214.2(f)(6)(i)(A) allows the DSO to make the determination of whether
the graduate student is pursuing a full course of study. The
determination is left to the DSO in this case because even though
graduate students may not be enrolled in full-time classes, the school
may still consider them to be a full-time student while they conduct
research or work on their dissertation, for instance. As long as the
student is pursuing what the institution considers to be a full time
graduate program, the student is maintaining a full course of study.
If
the student is not pursuing full time study as determined by the DSO,
then the student would not be maintaining lawful student status unless
the DSO has authorized a reduced course load in accordance with the
provisions of Sec. 214.2(f)(6)(iii).
V. Transfers
Several commenters suggested that the Service permit F-1 students
to transfer schools during the 60-day grace period following completion
of studies or after completion of optional practical training. Although
not explicitly authorized in previous regulations, the Service has
accommodated school transfers within the 60-day period and has designed
SEVIS to continue this practice. The final rule explicitly permits the
transfer of student records in SEVIS during this 60-day period in Sec.
214.2(f)(5)(iv). However, to clarify, the DSO must indicate the school
to which the student intends to transfer in SEVIS. Therefore, the
initiation of a student record transfer in SEVIS can only be carried
out after the student has completed the application and acceptance
process and has determined the school to which he or she is
transferring.
The Service is also limiting the length of time a student may
remain in the U.S. while transferring between schools. The student may
not remain in the U.S. between programs if the student will not resume
classes within 5 months of transferring out of the current school, or
within 5 months of the program completion date as indicated on the Form
I-20 issued by the current school, whichever date is earlier. In the
case of a student authorized to engage in post-completion optional
practical training (OPT), the student must be able to resume classes
within 5 months of transferring out of the current school that
recommended OPT or the date the OPT authorization ends, whichever is
earlier. For example, in instances where a DSO initiates a transfer
within the 60-day period following completion of studies, in order to
remain in the United States between transfer of programs or schools,
the 5 month period begins tolling on the date the program was
completed, not the date the DSO initiated the transfer. The initiation
of a transfer out date occurs when the DSO enters a date for the
release of the student's record to the transfer school. While the DSO
may enter any date reasonable and appropriate for a student's
circumstances, in most instances, the DSO will want to enter the
release date as the date the student completes the last day of the
academic term at the current school.
The Service also received many comments stating that SEVIS should
not prevent transferring F-1 students from applying to more than one
school. In response to these comments, the Service wishes to clarify
that this final rule does not place any limit on the number of schools
to which a transferring F or M student may apply. The transferring
student may apply to and be accepted by any number of schools. However,
the rule restricts the number of SEVIS Forms I-20 that may be issued
to
a transferring student. For purposes of fraud prevention, as well as
privacy and paperwork reduction concerns, SEVIS will allow a student's
record to be available only to one school at a time. Once the student
decides which school he or she intends to transfer, the DSO of his or
her current school will update SEVIS to reflect this choice and will
enter the release date for the student. The student's name will then
appear in SEVIS at the transfer school as an ``alert'' containing the
student's name and release date. When the release date is reached, the
transfer school will be able to issue the transferring student a new
SEVIS Form I-20. In most cases, schools will be not be sending the
acceptance letter and the SEVIS Form I-20 at the same time. If the
student changes his or her mind prior to the release date, the DSO at
the current school may cancel the transfer request. If the transfer
request is cancelled the student may continue studies at the current
school or make a new request to be transferred to another school.
However, once the release date has been reached, the DSO at the current
school may no longer access the student's record in SEVIS. Therefore,
a
student who changes his or her mind after the release date must work
with the DSO of
[[Page 76262]]
the transfer school to accomplish a second transfer to another Service-
approved school. In such cases, the DSO of the transfer school must
complete the transfer process for the student in SEVIS and then
initiate any subsequent transfer that the student may request.
The transfer process for M students differs from that of F
students, in that M students must apply directly to the Service in
order to transfer schools. In order to ensure that the M transfer
student may continue in his or her studies without significant
interruption, the M nonimmigrant transfer process allows the M transfer
school to issue a SEVIS Form I-20 prior to the transfer student's
release date. The initiation of the SEVIS student transfer process
still requires that the current school enter the name of the M transfer
school, and it is only the transfer school indicated in the system that
can issue the SEVIS Form I-20 prior to the release date. The M student
may then apply to the Service for a transfer without having to wait
for
the release date, which will most likely be at the end of the academic
term. However, the transfer school will not have complete access to
the
student's SEVIS record until the release date is reached.
The M student may begin attending the transfer school pending the
adjudication of his or her transfer request. However, if the transfer
request is denied by the Service after the student has begun his/her
program at the transfer school, the SEVIS student record will be
automatically terminated and the student will be considered out of
status. Therefore, students are strongly encouraged to file their
applications for transfer approval with the Service Center as soon as
they are able. As stated above, the initial SEVIS Form I-20 from the
transfer school can be issued as soon as the current school indicates
in SEVIS that the student intends to transfer to that school. The
student will be notified by mail of the Service's decision. The DSO
will be notified of the Service's decision on an M transfer via a
system alert. Additionally, the DSO may view the status of any transfer
request by either accessing the student's record or by viewing the list
provided of pending/adjudicated applications in SEVIS. The process for
a SEVIS transfer for both F and M students allows the students to apply
to multiple schools but places the burden on the students to weigh
their options and decide on one particular school before the issuance
of a new SEVIS Form I-20 by the transfer school.
Several commenters stated that the limited time frame imposed by
the SEVIS transfer process will adversely affect current business
practices at some schools. Commenters indicated that, because a
transfer school can only issue a new SEVIS Form I-20 on the student's
release date, there will not be enough time for the transfer school
to
issue a SEVIS Form I-20 prior to the start of the new semester,
especially in instances where the transfer student is returning home
for a vacation.
In response, the Service notes that a transfer student who is
traveling abroad for a vacation and who plans to attend a different
school upon his or her return must make arrangements with the transfer
school to ensure that all necessary documentation is received in a
timely manner. For example, the student may obtain his or her SEVIS
Form I-20 prior to departure, or request that the transfer school
forward the SEVIS Form I-20 to his or her address abroad (just as the
schools now do for newly-applying students).
Some commenters suggested that the Service allow the student's
SEVIS record to be accessible by both the current and transfer schools
until the transfer is complete.
The Service cannot adopt this suggestion. In its outreach efforts,
the Service found that privacy was of the utmost concern to the
education community. Schools did not want other schools to have access
to any of their students' school information. The SEVIS transfer
process was designed with such concerns in mind. To allow students'
records to be open to both schools would allow one school to have
access to another school's data. One commenter noted that the reporting
time frames for transfer for non-SEVIS schools were different from
those for SEVIS schools and suggested that the Service use a standard
30-day reporting time period. For the sake of consistency in the
transfer process, the Service adopts this suggestion in the final rule
and allows non-SEVIS schools to send notification of transfer to the
Service data processing center within 30 days.
Finally, commenters suggested that the Service use consistent
terminology in its description of schools. The Service agrees with the
comment and in the final rule adopts the terms ``current school'' and
``transfer school.''
VI. Thirty-day Advance Admission
Many commenters stated that the 30-day limit prior to the program
start date is unreasonable. Commenters cited a student's need to find
adequate housing, attend orientation, and begin research projects as
reasons why a student might need additional time prior to the program
start date.
The Service, however, does not agree with the commenters. The DSO
is already able to take account of a student's obligations pertaining
to orientation, research projects, etc., prior to the start of classes.
Form I-20 states, ``The student is expected to report to the school
not
later than (date) and complete studies not later than (date).'' A DSO
may enter a date that would accommodate the beginning of research
projects or allow a student to attend an orientation session. The DSO
is permitted to set a program start date that accommodates the need
for
students to be in attendance at the school for such required
activities.
Information pertaining to student housing is readily available to
prospective students and in many cases housing is arranged by the
school. Although the Service recognizes that students need some time
to
find suitable housing, the Service does not believe that the advance
admission period needs to be extended beyond 30 days for this reason.
A
period of 30 days prior to the time the student is expected to be in
attendance at the school, as provided by this rule, should be adequate
for students to make arrangements for housing.
Finally, the Service is considering a change to the SEVIS Form I-20
to capture two distinct dates: (1) the date by which the student is
expected to enter the country (e.g., to begin research or on-campus
employment, attend orientation), and (2) the date that classes will
commence.
VII. Grace Periods
Many comments were received on the proposed rule's effect on
students who fail to maintain status by withdrawing from classes.
Commenters suggested that the Service consider reasons other than
medical conditions as a legitimate basis for withdrawing from classes,
thereby entitling students to a reasonable grace period.
The Service agrees with these comments, in part, but must
distinguish between instances where a student notifies the DSO and
receives authorization to withdraw versus those where a student never
attends or stops attending classes without DSO authorization. In
instances such as a death in the family, unforeseen financial hardship,
or a determination that the educational program is not appropriate for
the student, a DSO may authorize the student to withdraw from classes.
In such cases, the student will be afforded a 15-day grace period in
which he or she may make and complete arrangements for travel and
departure. In instances where the student has never registered
[[Page 76263]]
at the school or withdraws without DSO authorization, the student may
not be afforded the 15-day grace period.
The importance of notifying the DSO and obtaining permission for
withdrawal from classes cannot be overemphasized. A solid relationship
and line of communication must be established between the student and
the DSO to avoid adverse consequences to a student affecting his or
her
nonimmigrant status.
VIII. Concurrent Enrollment
Several commenters requested that the Service clarify the language
for concurrent enrollment. The commenters indicated that it was common
for a student to be enrolled in an English language program as well
as
a university program. In such instances, the requirements for
maintaining a full course of study vary. For English language programs,
the Service definition requires clock hours, while for university
programs the requirement is for credit hours. The commenters requested
the Service allow the DSO to make the determination as to what
constitutes a full course of study in such cases. The Service agrees
with the commenters and has added clarifying language to the rule
allowing the DSO to make these determinations.
IX. On-line and Distance Education Courses
Some commenters suggested that the Service's proposed restriction
of one class or three credits per semester of on-line or distance
education courses is a restriction that should be made by schools, not
by the Service. Other commenters stated that eliminating any distance
education or on-line courses for English language programs or
elementary and secondary students is too restrictive. Additional
commenters stated that the Service's intended restriction will have
a
negative impact on their programs as more programs add on-line courses.
Service finds merit in the argument against prohibiting distance
education and on-line courses for elementary and secondary students.
Accordingly, the Service has removed the restriction and will allow
elementary and secondary students to count distance education and on-
line courses in their determination of a full course of study.
The Service does not agree with the commenters that this rule
restricts schools from enrolling any student they wish in an on-line
or
distance education course. The rule does restrict a student in the
United States in an F-1 nonimmigrant status from being able to consider
more than one distance education or on-line class or three credits per
semester towards his or her full course of study requirements.
Furthermore, the rule restricts vocational students and English
language students from being able to consider any on-line or distance
education courses toward the full course of study requirements. Such
restrictions do not prohibit international students from completing
programs that are offered on-line, as the students can enroll in the
course without being admitted to the United States.
To clarify, the restriction that this rule places upon distance
education or on-line courses is that no more than one course or three
credits can be counted toward the full course of study requirements.
A
student currently pursuing a full course of study may add as many
distance education or on-line courses as he or she wishes in addition
to the courses counting toward the full course of study. In the case
of
M-1 students and English language students, although these courses
cannot be counted toward the full course of study requirement, these
students are not prohibited from taking additional courses on-line or
through distance education.
X. Practical Training
Several commenters requested that the Service change the language
in the optional practical training provision from ``9 consecutive
months'' to ``one full academic year.'' The commenters stated that many
schools do not operate on a 9-month calendar and, therefore, the
Service's 9-month requirement does not adequately address their needs.
The Service agrees with the commenters and notes that the term ``one
full academic year'' is already used in other parts of the Service
regulations pertaining to practical training. The final rule will,
therefore, incorporate the term ``one full academic year'' throughout
the appropriate sections of Sec. 214.2(f) and Sec. 274a.12.
Although commenters were generally supportive of the Service
allowing students involved in a study abroad program to use that time
toward the 9-month requirement (now ``one full academic year'') for
practical training, the Service must make one point of clarification
to
the rule. For a student to use the time spent studying abroad toward
the one full academic year requirement, the student must have spent
at
least one full academic term in a full course of study in the United
States prior to going abroad to study.
Some commenters requested that the Service broaden the provision
even further to allow graduate students conducting research abroad the
same benefit. The Service cannot adopt this suggestion at this time.
In
the case of students involved in a study abroad program, there is a
defined curriculum with courses that must be taken. However, the
Service is not satisfied that the same is true for graduate students
conducting research abroad. The Service may consider this in a future
rulemaking.
Several commenters pointed out that the proposed rule eliminated
Sec. 214.2(f)(10)(ii)(A) (3) and (4). The Service notes that this was
an unintentional error. This final rule combines those two clauses and
revises the language for clarity.
Many commenters suggested that the Service allow students to apply
for practical training prior to fulfilling the 9-month limit (now one
``full academic year'') but not be allowed to commence practical
training prior to that time. The commenters indicated that such a
provision is necessary for those students who want to participate in
practical training in the summer following their first academic year
but whose requests for practical training cannot be adjudicated in time
for the students to begin in the summer. Other commenters made similar
suggestions for students enrolled in one-year programs who, due to the
new limitation that optional practical training be applied for prior
to
the completion of studies, would be unable to apply.
Although the Service believes that changing the term ``9 months''
to ``one full academic year'' will resolve most of the problems cited
by the commenters, the Service will allow F students requesting
optional practical training to submit their application up to 90 days
prior to completing ``one full academic year.'' In such cases, the DSO
must indicate on the Form I-20 and/or update SEVIS to show that the
``from date'' in which the DSO is certifying is the date that the
student completes a full academic year of enrollment. While the Service
may adjudicate the request prior to the student's completion of one
full academic year, employment authorization will only be granted from
the date that the student actually completes a full academic year. The
student may not begin working until the date specified on the
employment authorization document. The Service, therefore, does not
adopt the commenters' suggestion that the Service allow DSOs to approve
optional practical training or give a type of interim employment
authorization until the student completes one full academic year of
enrollment.
[[Page 76264]]
Several commenters also requested that the Service clarify whether
students, other than F-1 nonimmigrants, who have been lawfully enrolled
in a Service-approved school for one full academic year, could also
be
eligible for optional practical training. However, while the Service
agrees that this issue needs clarification, this was not an issue
addressed in the proposed rule and the Service needs more time to
consider these issues. The Service may consider such clarification in
a
future rulemaking.
One commenter requested that the Service clarify the responsibility
of a DSO with regard to a student to whom the DSO has issued a Form
I-
20 and certified for optional practical training following completion
of studies. The Service appreciates the opportunity to clarify these
responsibilities in the final rule. Section 214.2(f)(10)(ii)(E)
provides that a DSO who recommends a student for optional practical
training remains responsible for maintaining the student's records in
SEVIS during the time that training is authorized. During the period
in
which a student is authorized by the Service to engage in optional
practical training following completion of studies, a student must
notify the DSO if his or her name or address changes, or if the student
wishes to discontinue training. Similar to the provision in current
regulations that a student engaged in optional practical training have
a Form I-20 endorsed within the last 6 months by the DSO for reentry,
the DSO is responsible for updating the SEVIS record of any student
participating in post-completion practical training. The DSO and
student must continue to communicate in order to ensure that the
student does not take any action that would adversely affect his or
her
nonimmigrant status. For example, if the student indicates that he or
she has changed address or terminated employment for any reason prior
to the period authorized by the employment authorization document and
does not intend to resume employment, the DSO must notify the Service
by updating SEVIS.
Finally, one commenter requested that the Service allow students to
use a school's address for purposes of receiving employment
authorization documents. While this practice will not be authorized
by
this final rule, the Service is considering incorporating this practice
into the operating procedures of the Service centers.
XI. Employment
Commenters also noted that the Service did not include a
description of the process for endorsing employment in SEVIS other than
practical training. In response, the Service has added language to the
final rule incorporating procedures for the endorsement in SEVIS of
employment authorization based upon severe economic hardship and
internships with an international organization. At this time there are
no such update requirements for on-campus employment.
Another commenter requested that the Service clarify when an F-1
student may begin working on-campus incident to status prior to the
beginning of classes. The commenter suggested that the Service
distinguish between work associated with being a Teacher's Assistant
or
Resident Assistant and, for example, working in the campus bookstore.
The Service agrees that this provision needs clarification. The
Service will permit an F-1 student to begin on-campus employment prior
to the start of classes. While it is the responsibility of the DSO to
indicate a program start date that accommodates the student's
particular needs for employment, the DSO is not permitted to indicate
a
program start date more than 30 days prior to the start of classes for
the purpose of on campus employment. However, the Service does not
impose any limitation on the type of on-campus employment in which a
student may engage prior to the start of classes.
For off-campus employment based on severe economic hardship, the
current rules require that the student apply to the Service based on
a
favorable recommendation of the DSO. Some commenters requested that
the
Service allow DSOs to grant F-1 students permission to work based on
severe economic hardship without any review by the Service. That
suggestion is beyond the scope of the proposed rule, and the Service
is
not prepared to change existing processes at this time to allow a DSO
to grant such a benefit. However, the Service may consider this
suggestion when it reviews student employment issues at a future date.
Finally, this final rule makes conforming amendments to Sec.
214.2(f)(9) and Sec. 274a.12 to remove the reference to filing a wage
and labor attestation for off-campus employment. As indicated in the
proposed rule, the requirement for a wage and labor attestation was
part of a pilot program that has sunset. The final rule also amends
references in Sec. 274a.12 to include the current DOS Certificate of
Eligibility, Form DS-2019 and to cite to current exchange visitor
program designation regulations.
XII. Extensions
Several commenters requested that the Service amend the language of
Sec. 214.2(f)(7)(i) to remove the reference to a student being
``unable to complete a full course of study in a timely manner,''
indicating that this phrase implies that a student has done something
wrong. Commenters cited illness and family emergencies as possible
reasons why a student may take longer to complete his or her program,
but should still be considered to be pursuing his or her program in
a
timely way. The Service has no objection to the removal of this
language and has included a more neutral description in the final rule.
XIII. Reinstatement
Many commenters contended that the provisions in the proposed rule
for reinstatement were unnecessarily strict. Commenters urged the
Service to provide relief for students who are adversely affected by
``technical or computer errors'' in SEVIS, and suggest that the Service
adopt provisions similar to the provisions in DOS regulations that
allow for a correction of ``minor or technical infractions.''
Commenters stressed that DSOs will make mistakes occasionally,
especially when dealing with a new computer system. Other commenters
stated that to punish students for mistakes on the part of the DSO is
overly punitive.
The Service agrees that there may be a possibility that errors on
the part of SEVIS or other technological failures may cause a student
to fall out of status. Therefore, the Service has added Sec.
214.3(g)(4) to allow for a student's record to be administratively
corrected in situations where the error in question resulted from
technological errors or errors on the part of SEVIS. To
administratively correct a student's record in instances of SEVIS error
or technological failure, the DSO must contact the SEVIS system
administrator to explain the circumstances that caused the correction
to be requested, with documentation if necessary, as provided in Sec.
214.3(g)(4). An administrative correction by the system administrator
will be completed without fee.
However, while the Service recognizes that a DSO may make a mistake
in a student's record that causes the student to fall out of status,
the Service does not believe that such errors merit an administrative
correction. Ultimately, it is the student's responsibility to ensure
that he or she remains in status and is in compliance with the
regulations at all times. That is not to say that the student will not
be
[[Page 76265]]
afforded a remedy in these situations. On the contrary, in instances
where the DSO was neglectful or inadvertently failed to update or
extend a student's status, the student is permitted to file for
reinstatement and establish that the actions on the part of the DSO
were beyond his or her control. Where the Service finds that a DSO has
repeated violations of Service regulations or finds malfeasance on the
part of a DSO, the Service may withdraw the approval of the designated
school official.
Other commenters stated that the Service should abandon the
proposed 5-month period as the demarcation of the outer limit for
reinstatement and instead consider the overall record of the student.
While the Service believes that 5 months is generally sufficient time
for a student who has fallen out of status, unintentionally or
otherwise, to become cognizant of this fact and to attempt to remedy
the situation, the Service also recognizes that there may be legitimate
situations in which this is not possible. In fairness to these
students, the Service has created a provision in the final rule for
a
rebuttable presumption that a student who has been out of status for
more than 5 months is ineligible for reinstatement unless the student
can provide a substantial reason for the delay and an explanation of
how the student filed the request for reinstatement as promptly as
possible under the circumstances. If the student provides sufficient
documentation, the presumption of ineligibility may be rebutted. Such
a
provision strikes a balance between the Service's desire to establish
a
limit on reinstatement requests while still accommodating those
students with extenuating circumstances.
XIV. Reporting Current Name and Address
Several commenters requested that the Service consider allowing
students who live on-campus to list a mailing address in place of a
physical address. Commenters noted that many students living on-campus,
including boarding students in secondary schools, may only be able to
receive mail via a mailing address. The Service agrees with the
commenters, and has made a provision permitting students who physically
reside on campus, but cannot receive their mail at a campus address,
to
list a mailing address that they use at the school rather than a
physical address, provided that the school maintains a record of and,
upon request, provides the exact location of the alien's residence.
Likewise, in order to accommodate limited situations where similar
circumstances might exist for students living off-campus, or for
exchange visitors, a student's or exchange visitor's mailing address
may be listed. The school or exchange visitor program, however, must
maintain a record of and, upon request, provide the exact location of
the alien's residence. The Service intends to modify SEVIS to accept
both a mailing address and physical address. Once SEVIS is modified,
in
cases where the mailing and physical address are not the same, the
school will be required to report both the current mailing and current
physical address in SEVIS.
Additionally, commenters stated that requiring students to report
changes of address to their DSO rather than directly to the Service
on
Form AR-11 may result in the DSO being accused of failing to update
a
student's SEVIS record when, in fact, the student failed to report his
or her address change to the DSO. The commenters suggested that
students be required to report address changes directly to the Service.
The Service, however, cannot adopt this suggestion. To do so would
undermine the primary purpose of SEVIS; namely, to maintain current,
accurate information on all F and M nonimmigrants. Currently, all
nonimmigrants are required to report a change of address to the Service
by submitting Form AR-11. The notification of the change of address
is
submitted by the nonimmigrant through the mail. The Service is not
stipulating what interaction must take place between the student and
the DSO to document notification of address change by the student. To
avoid the type of situation cited by the commenters, schools may
establish business processes to document when a student reports a
change of address. For example, a school may require students to submit
a completed Form AR-11 to be kept on file in the international office,
in addition to the school updating SEVIS as required.
Finally, the Service wishes to clarify that, while the timely
reporting and update of a student's address in SEVIS satisfies the
alien student's requirement to notify the Service of a change of
address as specified in 8 CFR 265.1, such notification does not
necessarily exempt the student from reporting a change of address as
required by other applicable regulations, statutes or programs.
Specifically, a nonimmigrant student required to report under the
National Security Entry-Exit Registration System (NSEERS), 8 CFR
264.1(f), must report a change of address as mandated by that program,
in addition to complying with SEVIS reporting requirements.
XV. Relating to Reporting Requirements of Sec. 214.3(g)(3)
One commenter requested that the requirement in section Sec.
214.3(g)(3) for schools to report, ``any other notification request
made by SEVIS to the DSO with respect to the current status of the
student,'' be removed based on the assertion that the requirement is
overly broad.
The Service does not adopt this suggestion. The primary purpose of
SEVIS is to maintain complete and up-to-date information on all foreign
students. For this reason, the DSO needs to respond in a timely fashion
to requests from the Service relating to the current status of any
particular student.
Another commenter associated with independent, secondary schools
asked the Service to consider allowing such schools to report on
students only one time per year. The commenter stated that it is time-
consuming to update student records each term because students at such
schools register only once a year.
The Service does not adopt this suggestion. The requirement in
question applies only to academic terms that run longer than 6 months.
The DSO for such schools will be sent an electronic message from SEVIS
requesting the DSO to verify that the students are still enrolled. To
allow the DSO in such schools to update student records only at the
time of initial registration would undermine the effectiveness of
SEVIS.
Another commenter stated that the requirement of Sec.
214.3(g)(3)(iii)(C), which requires schools to report the start date
of
the student's next term, is burdensome and inherently impossible
because it requires the DSO to know the student's intent. The Service
does not agree with this commenter. The Border Security Act requires
that all schools to report in SEVIS each academic term as to whether
a
student has registered or not registered. This requirement is one of
the most essential requirements in SEVIS because it enables SEVIS to
identify those students who have failed to return to school following
a
term or vacation.
Finally, one commenter questioned the effect, if any, that the
Family Educational Rights and Privacy Act, 20 U.S.C. 1232g (FERPA) has
on the information collected and reported in SEVIS. Although FERPA
restricts the ability of an educational agency or institution that
accepts certain Federal funding to disclose personal information
contained in a student's educational record, this final rule makes
clear that FERPA does not relieve any approved school or designated
exchange
[[Page 76266]]
program of the duty to comply with the SEVIS reporting requirements.
Section 641 of IIRIRA requires approved schools and designated
exchange visitor programs to collect the information specified in
section 641(c). Section 641(d) makes it clear that schools may not
enroll F or M nonimmigrant students and that exchange visitor programs
may not accept J nonimmigrants unless the school or exchange program
collects the information and reports it to SEVIS as required.
The general rule is that two statutes that relate to the same issue
must be read so as to give effect to both. Thus, section 641 of IIRIRA
can properly be considered an exception to FERPA, such that an
educational agency or institution does not violate FERPA by disclosing
only so much as section 641 of IIRIRA requires the agency or
institution to disclose. Section 641(c)(2) of IIRIRA expressly provides
that FERPA does not apply to F, J, or M nonimmigrants, to the extent
that the Attorney General determines that waiving FERPA is necessary
to
implement SEVIS. The Commissioner has authority to make this
determination on the Attorney General's behalf. That the Commissioner
has made this determination was implicit in the proposed rule since
the
proposed rule required approved schools and designated exchange
programs to provide the information, or risk the loss of ability to
enroll or accept F, J, or M nonimmigrants. The final rule includes new
language in 8 CFR 214.1 to make this determination explicit. This new
provision is stated in Sec. 214.1, rather than Sec. 214.3 to make
clear that the FERPA waiver applies to J nonimmigrants as well as to
F
and M nonimmigrants.
XVI. Dependents of F-1 and M-1 Nonimmigrants
Many commenters stated that F-2, J-2, and M-2 nonimmigrants should
be allowed to enroll in full-time study, without being required to
change status. The Service does not adopt this suggestion. The need
to
monitor nonimmigrants being educated and trained in the United States
is of vital importance to the national security of the United States.
The value of SEVIS would be undermined if the Service were to adopt
the
commenters' suggestion.
Other commenters suggested that the Service remove the language
``avocational or recreational'' from the types of study that may be
permitted by F-2 and M-2 dependents as DSOs may have difficultly
determining what study is avocational or recreational and what is not.
While the Service will not remove such language from the rule, the
Service provides the following clarification. If a student engages in
study to pursue a hobby or if the study is that of an occasional,
casual, or recreational nature, such study may be considered as
avocational or recreational. The concept of avocational or recreational
is not new, but is a long-standing policy applied by both the DOS and
the Service for the interpretation of the B-1/B-2 nonimmigrant visa.
It should be noted that this regulation permits F-2 and M-2
nonimmigrants to attend elementary, middle and high school on a full-
time basis. Furthermore, if a dependent of an F-1 or M-1 wishes to
pursue his or her education full time, beyond what is avocational or
recreational, or at the elementary, middle, or high school level, he
or
she has the option to change status to that of an F-1 or M-1
nonimmigrant.
One commenter requested that the Service clarify the status of
those F-2 or M-2 dependents enrolled in a school in a full course of
study prior to the effective date of this final rule. In response, the
Service will allow an F-2 or M-2 dependent enrolled in a full course
of
study prior to January 1, 2003, to continue studies provided they apply
for a change of status on or before March 11, 2003.
Finally, many commenters stated that the Service should allow F-2
and M-2 nonimmigrants to be authorized for employment. The existing
regulations, Sec. 214.2(f)(15) and (m)(13), prohibit employment for
F-
2 and M-2 dependents. The Service did not propose any change relating
to employment authorization for dependents in the proposed rule and,
therefore, this suggestion is beyond the scope of this rulemaking
proceeding. The Service will not incorporate any changes relating to
this issue in the final rule.
XVII. Electronic Filing Issues
The Service incorporates many processes electronically into SEVIS
and that are addressed in this final rule. For example, the requirement
to complete and submit a paper Form I-538 attached to paper copies of
the Form I-20 for updates has been completely eliminated. Furthermore,
the Form I-17 is filed electronically in SEVIS and fee payment is made
through Pay.gov on the Internet.
While SEVIS is a significant step forward in the transformation to
e-Gov, there remain certain processes related to nonimmigrant students
that are not incorporated into SEVIS, primarily because such processes
are in regard to a broader range of nonimmigrants, not specific to F,
M, or J visa classifications. As noted in this final rule, the Form
I-
765, Application for Employment Authorization, utilized for application
for Optional Practical Training and other work authorization by a
nonimmigrant student, is a hybrid process that includes SEVIS, but also
the Service's benefit application process. Likewise, the Form I-539,
Application to Extend/Change Nonimmigrant Status, is utilized for the
M-1 transfer, M-1 extension, and the reinstatement processes. These
are
also hybrid processes that are used not merely in connection with
SEVIS, but also for other Service processes.
The Service is currently in the process of establishing and
implementing a new enterprise architecture to its information
technology systems and business processes Service-wide. In order to
further adjust business processes and fully take advantage of e-Gov
systems and efficiencies, the Service will promote the electronic
filing of applications. The Service wishes to take advantage of e-Gov
and the Internet, while remaining flexible in order to best utilize
emerging and future technologies to better serve the public.
Accordingly, the Service hopes to be able to offer e-filing of the Form
I-765 in fiscal year 2003, and e-filing of the Form I-539 by fiscal
year 2005.
Currently the Form I-17 is filed electronically, but in accordance
with the Service's full certification rule for SEVIS (67 FR 60107)
there are certain supporting documents and signatures physically
collected during an on-site visit to the school. The Service is looking
at the potential to enhance SEVIS to accommodate electronic attachments
of supporting documentation to the electronic Form I-17. In addition,
the Service will be examining the issue of electronic signatures.
The Service also wishes to note that SEVIS addresses more than just
the collection of data for monitoring and tracking of foreign students.
In addition to providing efficiency to the Service's processes for the
review and adjudication of items such as Form I-17 educational
institution application and reinstatement, the system also provides
value-added features that should prove useful to the school user. For
example, SEVIS provides ``ticklers'' and system alerts to the school,
such as when a foreign student is issued a visa (once data share with
DOS Consular Affairs is in effect), or when a nonimmigrant student
enters through a port-of-entry (once data share with entry data is in
[[Page 76267]]
effect). There are also system alerts for when a student is coming to
the end of their program, as well as a selection of numerous reports
available to the school user. Furthermore, the system provides a search
engine functionality to enable direct queries based upon the SEVIS
ID from the Form I-20 issued by the school, as well as
enhanced search capability to search by multiple parameters and data
elements.
Good Cause Exception
This rule is effective on January 1, 2003. The Service finds that
good cause exists, under 5 U.S.C 553(d), for making this rule effective
with less than the usual 30-day effective date. The USA PATRIOT Act,
Public Law 107-56, mandates that SEVIS be fully implemented and
expanded prior to January 1, 2003. Because of vital national security
concerns that underpin the USA PATRIOT Act, and the Enhanced Border
Security Act, Public Law 107-173, promulgation of this rule with a 30-
day delayed effective date would be contrary to the public interest.
This final rule does not vary greatly from the proposed rule published
on May 16, 2002. Many of the changes in this final rule were made at
the request of the affected community. As such the final rule provides
more flexibility and imposes less of a burden upon the affected
community. While the Service will not give the entire 30-day period
prior to the effective date of this rule, the difference in the amount
of time between the date of publication of this rule and the effective
date of this rule still affords the affected community with sufficient
notice for compliance.
Regulatory Flexibility Act
The Commissioner, in accordance with the Regulatory Flexibility Act
(5 U.S.C. 605(b)), has reviewed this regulation and, by approving it,
certifies that this rule will not have a significant economic impact
on
a substantial number of small entities. Although some schools may be
considered small entities, the use of SEVIS as a means for
recordkeeping and reporting will streamline the processes currently
in
existence.
SEVIS uses technology already in place at most schools, and has
been designed for use over the Internet. Institutions need only have
access to a web-browser to gain access to the Internet and will not
require any software to download. The Service will not charge a
subscriber or user fee in order to use SEVIS. However, while there is
no charge for access to SEVIS, there might be undetermined, individual,
organizational costs to upgrade vendor software or campus information
technology systems to use the batch-method interface with SEVIS.
The Service has taken this cost into account and has developed
SEVIS to utilize common standards. As previously discussed in the
supplementary information, schools using SEVIS will no longer have to
print out, file, and mail as many paper forms. Indeed, there should
be
little to no additional cost for schools that do not choose to use the
optional batch processing capability. In fact, these schools may
experience some savings as a result of the efficiencies that SEVIS will
provide. Moreover, while the initial monetary impact on schools that
choose to use batch capability may be greater, those schools might
experience long-term savings because the automated process of
maintaining student records for purposes of SEVIS would likely reduce
future personnel costs. These decisions as to cost/benefit tradeoffs
will be up to the discretion of each school. Accordingly, this rule
will not have a significant economic impact on a substantial number
of
small entities as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely effect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this regulation has been submitted to the Office
of Management and Budget (OMB) for review.
1. Purpose for Regulation
For close to twenty years, Service regulations have required the
use of the Form I-20 and have required schools to maintain records on
nonimmigrant students enrolled at their institution. These regulations
also have required schools to furnish such information to the Service
upon request. Schools have been required to maintain records and
updates on student information such as the student's name, date and
place of birth, country of citizenship, address, status, date of
commencement of studies, and a photocopy of the student's Form I-20.
This final rule incorporates similar collection and reporting
requirements, with some additional information collection and reporting
procedures that are mandated by IIRIRA, the USA PATRIOT Act, and the
Enhanced Border Security Act. This rule is necessary to improve and
streamline the reporting and recordkeeping of F, J, and M nonimmigrants
by establishing a process for the electronic reporting DSOs of
information required to be reported to the Service, and providing clear
standards governing the maintenance, extension and reinstatement of
student status.
Schools will be required to report some additional information that
they were not required to maintain in the past, and there are changes
to reporting requirements as a result of the above statutory authority
and this final rule. However, the implementation of SEVIS (an
electronic and e-Gov system) mitigates the new elements and frequency
of reporting. In order to create or update any student or exchange
visitor related form (e.g., Form I-20, Form DS-2019), the school or
sponsor will now access SEVIS and enter the information electronically.
Thus, the data is instantly collected in a central database before the
form is ever printed. Because the information will be collected
electronically, there will no longer be a need for multiple copies of
forms. Neither the Service nor the DOS will need a separate paper copy
for data entry because both agencies can access SEVIS in real time.
Likewise, schools and sponsors will no longer be required to maintain
their own paper copy of the record, because it will be accessible
through SEVIS.
2. Assessment of Costs
a. One-time transition costs associated with continuing students
and exchange visitors.
The Service has set January 30, 2003, as the date by which all
schools must use SEVIS in order to issue a new Form
[[Page 76268]]
I-20. However, in order to allow schools sufficient time to enter all
current students in SEVIS, the Service has determined August 1, 2003,
to be the date upon which all current or continuing students must be
entered into SEVIS, unless such students require a new Form I-20
because of a reportable action such as new visa issuance.
While some percentage of current or continuing students may
graduate or complete their programs prior to August 1, 2003, those
students that are continuing a course of study as of August 1, 2003,
must be entered into SEVIS by that date and issued a SEVIS Form I-20.
This requirement for schools to input all current or continuing
students will be a one-time event in the first year for transition to
SEVIS.
The following estimate is based upon the amount of time it would
take to complete a Form I-20 in order to enter a continuing student
in
SEVIS.
------------------------------------------------------------------------
Continuing student reporting burden
------------------------------------------------------------------------
a. Number of Continuing Students........................... 625,000
b. Number of Continuing Exchange Visitors.................. 275,000
c. Number of Responses per Respondent...................... 1
d. Hours per Response...................................... .52
e. Total One-time Reporting Burden......................... 468,000
------------
f. Total Public Cost................................... $4,680,000
------------------------------------------------------------------------
The following estimate is based upon the amount of time it would
take to complete a SEVIS Form I-20. This one-time reporting burden for
continuing students and exchange visitors is based upon a standard
requirement and process for each response. As such, the school or
exchange program should not require much time to familiarize or refresh
themselves on the relevant regulatory provision and process. The
projected hours per response were derived by breaking the process into
two basic components:
------------------------------------------------------------------------
Minutes
------------------------------------------------------------------------
Learning about the Law and the Program..................... 1
Data Collection and Input.................................. 30
Total Hours per Response............................... \1\ 31
------------------------------------------------------------------------
\1\ .52 hours.
The total one-time reporting burden was derived by multiplying the
number of applicant respondents (estimated continuing student plus
estimated continuing exchange visitors = 900,000) x frequency of
response (1) x average response time of 31 minutes (.52 hours) per
response. The estimated one-time public cost estimation is based on
the
number of respondents (900,000) x 31 minutes (.52 hours) per response
x
$10 (average hourly rate).
The number of applicant respondents, 625,000 students, is the
Service's best estimate based upon experience, statistics, and industry
sources such as the 2001 Open Doors Report on International Educational
Exchange produced by the Institute of International Education. The
number of applicant respondents, 275,000 exchange visitors, is the best
estimate provided by the Department of State, Office of Exchange
Coordination and Designation, Bureau of Educational and Cultural
Affairs.
b. Operational costs.
The Service has worked closely with the Department of State as well
as the American Council on Education (ACE), NAFSA-Association of
International Educators, and others to obtain their views on the
availability of data, frequency of collection, clarity of instructions,
disclosure and the data elements to be reported. In addition, the
educational community has attended several working group sessions and
high-level policy discussions. As a result of these consultations, the
Service has incorporated many suggestions in the SEVIS requirements.
The following estimate is based upon the amount of time it would
take to complete a SEVIS Form I-20. As the information being collected
by SEVIS will differ for each individual depending on the event being
updated, the data required for entry into SEVIS cannot be determined
on
a consistent basis. As such, the Service is using the SEVIS Form I-20
as the standard, and averaging the amount of data entry in SEVIS per
response across initial SEVIS Form I-20 entry and subsequent update
response.
------------------------------------------------------------------------
Annual reporting burden
------------------------------------------------------------------------
Number of Students...................................... 625,000
Number of Exchange Visitors............................. 275,000
Number of Responses per Respondent...................... 5
Hours per Response...................................... .333
Total Annual Reporting Burden....................... 1,498,500
Total Public Cost................................... $14,985,000
------------------------------------------------------------------------
The projected hours per response for this collection of information
were derived by first breaking the process into three basic components:
------------------------------------------------------------------------
Minutes
------------------------------------------------------------------------
Learning about the Law and the Program........................ 10
Data Collection and Updates................................... 5
Adjudication, notification, reports........................... 5
---------
Total Hours per Response.................................. 20
------------------------------------------------------------------------
The Service anticipates that the initial data entry may require 30
minutes. However, once the records are uploaded into SEVIS, the updates
and maintenance of the information will require considerably less time.
Included in this estimate is time associated with each response for
the
school or exchange program to familiarize or refresh themselves as to
the relevant regulatory provision and process. Unlike section (a)
above, updates and other processes beyond the initial data entry of
a
Form I-20 (or Form DS-2019) may be varied, and as such may require a
small amount of time to learn about the law. We estimate approximately
10 minutes for the update of these records. In calculating the hours
per response, we considered both the initial data entry of the Form
I-
20 and the update of information and estimated an average of 20 minutes
per response. The Services estimates 5 responses per year for each
respondent based upon a generalization that each student will require
an initial Form I-20, the school will likely need to report
registration of the student twice a year, and there may be one or two
further responses such as a change of address, change of major, or
request for employment.
The total annual reporting burden hours was derived by multiplying
the number of applicant respondents (900,000) x frequency of response
(5) x average response time of 20 minutes (.333 hours) per response.
The estimated annual public cost estimation is based on the number of
respondents (900,000) x 20 minutes (.333 hours) per response x $10
(average hourly rate).
c. SEVIS Batch functionality.
The use of SEVIS batch processing is a choice to be made
voluntarily by each individual school. Therefore, any school cost to
create, purchase, or upgrade technology to use batch processing is a
business decision to be made by each school in context with their
business processes, infrastructure, and cost/benefit assessment. Batch
functionality is an optional method made available to schools and is
not a requirement for SEVIS compliance.
Other than personnel costs to input and update student records in
SEVIS, there is virtually no cost to schools as real time interactive
capability only requires that the school have Internet access and a
free browser. There is no other software necessary to use the real time
interactive capability and there are
[[Page 76269]]
no recurring access fees. Therefore, for real-time interactive, there
is no programming costs, server costs, and no software required to
download or provide via CD-ROM, since SEVIS is accessed through the
Internet similar to many commonly used Web sites.
In addition, those schools that do elect to incur any costs to
create or purchase software to take advantage of SEVIS batch
functionality would likely then not incur personnel costs and burden
as
described in section (a) above. Batch functionality entails school
technology systems uploading larger amounts of data directly to SEVIS.
As such, the cost of the one-time requirement of entering all
continuing students in SEVIS may be substantially reduced since
existing electronic records would be entered into SEVIS via a batch
system-to-system upload. Furthermore, any start-up and maintenance
costs incurred by schools using the SEVIS batch functionality might
be
highly cost effective in the longer term because, once the electronic
interface is complete, the process of maintaining student records for
purposes of SEVIS would be highly automated, thereby likely reducing
the future personnel costs.
d. Estimation of Total Cost
The Service estimates that the total cost to implement and operate
SEVIS the first year will be approximately $20 million. After the
initial implementation costs are incurred, the Service estimates that
the schools will incur yearly costs of less than $15 million to fulfill
their ongoing SEVIS requirements. As schools become more adept at
fulfilling these requirements, the Service expects that these costs
may
drop.
3. Assessment of Benefits
SEVIS implements IIRIRA, which requires the INS to collect current
information, on an ongoing basis, from schools and exchange programs
relating to nonimmigrant foreign students and exchange visitors during
the course of their stay in the United States. Furthermore, the
President issued Homeland Security Directive No. 2 (HS PDD-02) that,
in
part, directs an end to the abuse of international student status. In
addition, the USA PATRIOT Act amended IIRIRA to require full
implementation and expansion of SEVIS prior to January 1, 2003.
Furthermore, the Enhanced Border Security Act adds to and clarifies
the
collection of information and specifically requires an educational
institution to report any failure of an alien to enroll not later than
30 days after registration deadline.
SEVIS enables schools and exchange program sponsors to transmit
electronic information and event notifications, via the Internet, to
the Service and DOS throughout a student or exchange visitor's stay
in
the United States. SEVIS will be informed of status events for students
and exchange visitors including, but not limited to, entry/exit data,
changes of address, program extensions, employment notifications, and
changes in program of study. SEVIS will also provide system alerts,
event notifications, and reports to the schools and exchange programs,
as well as for Service and DOS offices.
Implementation of SEVIS will revise and enhance the process by
which foreign students and exchange visitors gain admission to the
United States. SEVIS will increase the Service's ability to track and
monitor foreign students and exchange visitors in order to ensure that
they arrive in the United States, show up and register at the school
or
exchange program, and properly maintain their status during their stay
as valued guests in this country. SEVIS provides a proper balance
between openness to international students and exchange visitors and
the security obtained by enforcing the law.
SEVIS addresses more than the collection of data for monitoring and
tracking of foreign students. In addition to providing efficiency to
Service processes for the review and adjudication of items such as Form
I-17 educational institution application and reinstatement, the system
also provides value-added features that are useful to the school. For
example, SEVIS provides ``ticklers'' and system alerts to the school,
such as when a foreign student is issued a visa (once data share with
DOS Consular Affairs is in effect), or when a nonimmigrant student
enters through a port-of-entry (once data share with entry data is in
effect). There are also system alerts for when a student is coming to
the end of their program, as well as a selection of numerous reports
available to the school user. Furthermore, the system provides a search
engine functionality to enable direct queries based upon the SEVIS
ID from the Form I-20 issued by the school, as well as
enhanced search capability to search by multiple parameters and data
elements. SEVIS itself includes many self-help features for the end-
user. Elements include an online tutorial, frequently asked questions,
and system help and index.
This rule also increases the number of DSOs that a school is
authorized from five to ten per school or campus. This increase in the
number of SEVIS authorized DSOs is intended to provide schools with
greater flexibility to address needs for personnel in the short or
longer term for managing their international student programs and for
properly reporting and updating records in SEVIS.
Another benefit and a Paperwork Reduction Act element is that SEVIS
will eliminate the need for and use of the Form I-538 that formerly
was
used by schools to notify the Service in cases of the approval of an
F-
1 for extension or curricular practical training. The former process
required a school to mail the Form I-538 to a Service contractor in
London, KY for data entry. With SEVIS this notification can be made
in
real-time, through the update of the student's record in SEVIS.
Ultimately, it is the intent of the Service and DOS to phase out the
paper submission of all student and exchange visitor related forms in
favor of completely electronic submissions, updates, and reporting.
4. Conclusion
The Service believes that the benefits of this rule far outweigh
its costs. SEVIS will benefit both the approved schools and the Service
by implementing an effective e-Gov system to replace what is currently
a poorly performing paper-based reporting system. This rule improves
and streamlines the reporting and recordkeeping of F, J, and M
nonimmigrants and provides clear standards governing the maintenance,
extension and reinstatement of student status. SEVIS also will be used
as a tool for ensuring that F, J, and M nonimmigrant students are
complying with their applicable regulatory requirements. This rule will
provide the Service a means of determining whether nonimmigrant
students and exchange visitors are currently enrolled in an approved
course of study or exchange visitor program. Thus, SEVIS will serve
as
means of protecting both the public and national security. Therefore,
the benefits of this rule outweigh any economic costs that will be
incurred during its implementation and operation.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States,
or
on the distribution of power and responsibilities among the various
levels of Government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
[[Page 76270]]
Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The Service is adding new electronic reporting requirements using
SEVIS which is considered an information collection under the Paperwork
Reduction Act. Accordingly, this information collection requirement
has
been approved by the Office of Management and Budget. The OMB control
number for this information collection is 1115-0252.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment,
Reporting and recordkeeping requirements, Students.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS: AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356;
31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp.,
p. 166; 8 CFR part 2.
Sec. 103.7 [Amended]
2. Section 103.7(b)(1) is amended by removing the entry for ``Form
I-538'' from the listing of fees.
PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Pub. L. 104-208, 110
Stat. 3009-708; section 141 of the Compacts of Free Association with
the Federated States of Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and
1931 note, respectively; 8 CFR part 2.
4. Section 214.1 is amended by adding a new paragraph (h) to read
as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
* * * * *
(h) Education privacy and F, J, and M nonimmigrants. As authorized
by section 641(c)(2) of Division C of Pub. L. 104-208, 8 U.S.C. 1372,
and Sec. 2.1(a) of this chapter, the Service has determined that, with
respect to F and M nonimmigrant students and J nonimmigrant exchange
visitors, waiving the provisions of the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. 1232g, is necessary for the proper
implementation of 8 U.S.C. 1372. An educational agency or institution
may not refuse to report information concerning an F or M nonimmigrant
student or a J nonimmigrant exchange visitor that the educational
agency or institution is required to report under 8 U.S.C. 1372 and
Sec. 214.3(g) (or any corresponding Department of State regulation
concerning J nonimmigrants) on the basis of FERPA and any regulation
implementing FERPA. The waiver of FERPA under this paragraph authorizes
and requires an educational agency or institution to report information
concerning an F, J or M nonimmigrant that would ordinarily be protected
by FERPA, but only to the extent that 8 U.S.C. 1372 and Sec. 214.3(g)
(or any corresponding Department of State regulation concerning J
nonimmigrants) requires the educational agency or institution to report
information.
5. Section 214.2 is amended by:
a. Revising paragraph (f)(1)(i);
b. Adding new paragraphs (f)(1)(iii);
c. Revising paragraph (f)(3);
d. Revising paragraphs (f)(4)(i) and (ii);
e. Revising paragraph (f)(5)(i);
f. Revising paragraph (f)(5)(iv);
g. Revising paragraph (f)(6)(i) introductory text and paragraph
(f)(6)(i)(E);
h. Adding paragraphs (f)(6)(i)(G) and (f)(6)(i)(H);
i. Revising paragraph (f)(6)(iii), and by adding a new paragraph
(f)(6)(iv);
j. Revising paragraph (f)(7);
k. Revising paragraph (f)(8)(i) and adding paragraphs
(f)(8)(ii)(A), (B), (C), and (D);
l. Adding two sentences to the end of paragraph (f)(9)(i);
m. Removing and reserving paragraphs (f)(9)(ii)(B) and (E);
n. Revising paragraphs (f)(9)(ii)(D), (f)(9)(ii)(F)(1), and
(f)(9)(iii);
o. Revising paragraph (f)(10) introductory text;
p. Revising paragraph (f)(10)(i);
q. Revising paragraphs (f)(10)(ii)(A) and (B);
r. Revising the paragraph heading for paragraph (f)(10)(ii)(D);
s. Adding a new paragraph (f)(10)(ii)(E);
t. Revising paragraph (f)(11)(ii);
u. Revising paragraph (f)(12);
v. Revising paragraphs (f)(15) and (f)(16); and by
w. Adding a new paragraph (f)(17).
The additions and revisions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(f) * * *
(1) * * *
(i) Eligibility for admission. A nonimmigrant student may be
admitted into the United States in nonimmigrant status under section
101(a)(15)(F) of the Act, if:
(A) The student presents a SEVIS Form I-20 issued in his or her own
name by a school approved by the Service for attendance by F-1 foreign
students. (In the alternative, for a student seeking admission prior
to
August 1, 2003, the student may present a currently-valid Form I-20A-B/
I-20ID, if that form was issued by the school prior to January 30,
2003);
(B) The student has documentary evidence of financial support in
the amount indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-
20ID);
(C) For students seeking initial admission only, the student
intends to attend the school specified in the student's visa (or, where
the student is exempt from the requirement for a visa, the school
indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID)); and
(D) In the case of a student who intends to study at a public
secondary school, the student has demonstrated that he or she has
reimbursed the local educational agency that administers the school
for
the full, unsubsidized per capita cost of providing education at the
school for the period of the student's attendance.
* * * * *
(iii) Use of SEVIS. On January 30, 2003, the use of the Student and
Exchange Visitor Information System (SEVIS) will become mandatory for
the issuance of any new Form I-20. A student or dependent who presents
a non-SEVIS Form I-20 issued on or after January 30, 2003, will not
be
accepted for admission to the United States. Non-SEVIS Forms I-20
issued prior to
[[Page 76271]]
January 30, 2003, will continue to be acceptable until August 1, 2003.
However, schools must issue a SEVIS Form I-20 to any current student
requiring a reportable action (e.g., extension of status, practical
training, and requests for employment authorization) or a new Form I-
20, or for any aliens who must obtain a new nonimmigrant student visa.
As of August 1, 2003, the records of all current or continuing students
must be entered in SEVIS.
* * * * *
(3) Admission of the spouse and minor children of an F-1 student.
The spouse and minor children accompanying an F-1 student are eligible
for admission in F-2 status if the student is admitted in F-1 status.
The spouse and minor children following-to-join an F-1 student are
eligible for admission to the United States in F-2 status if they are
able to demonstrate that the F-1 student has been admitted and is, or
will be within 30 days, enrolled in a full course of study, or engaged
in approved practical training following completion of studies. In
either case, at the time they seek admission, the eligible spouse and
minor children of an F-1 student with a SEVIS Form I-20 must
individually present an original SEVIS Form I-20 issued in the name
of
each F-2 dependent issued by a school authorized by the Service for
attendance by F-1 foreign students. Prior to August 1, 2003, if exigent
circumstances are demonstrated, the Service will allow the dependent
of
an F-1 student in possession of a SEVIS Form I-20 to enter the United
States using a copy of the F-1 student's SEVIS Form I-20. (In the
alternative, for dependents seeking admission to the United States
prior to August 1, 2003, a copy of the F-1 student's current Form I-
20ID issued prior to January 30, 2003, with proper endorsement by the
DSO will satisfy this requirement.) A new SEVIS Form I-20 (or Form I-
20A-B) is required for a dependent where there has been any substantive
change in the F-1 student's current information.
(4) * * *
(i) A current SEVIS Form I-20 (or, for readmission prior to August
1, 2003, a current Form I-20ID which was issued prior to January 30,
2003), properly endorsed by the DSO for reentry if there has been no
substantive change to the most recent Form I-20 information; or
(ii) A new SEVIS Form I-20 (or, for readmission prior to August 1,
2003, a new Form I-20ID which was issued prior to January 30, 2003),
if
there has been a substantive change in the information on the student's
most recent Form I-20 information, such as in the case of a student
who
has changed the major area of study, who intends to transfer to another
Service approved institution or who has advanced to a higher level of
study.
(5) * * *
(i) General. Except for border commuter students covered by the
provisions of paragraph (f)(18) of this section, an F-1 student is
admitted for duration of status. Duration of status is defined as the
time during which an F-1 student is pursuing a full course of study
at
an educational institution approved by the Service for attendance by
foreign students, or engaging in authorized practical training
following completion of studies, except that an F-1 student who is
admitted to attend a public high school is restricted to an aggregate
of 12 months of study at any public high school(s). An F-1 student may
be admitted for a period up to 30 days before the indicated report date
or program start date listed on Form I-20. The student is considered
to
be maintaining status if he or she is making normal progress toward
completing a course of study.
* * * * *
(iv) Preparation for departure. An F-1 student who has completed a
course of study and any authorized practical training following
completion of studies will be allowed an additional 60-day period to
prepare for departure from the United States or to transfer in
accordance with paragraph (f)(8) of this section. An F-1 student
authorized by the DSO to withdraw from classes will be allowed a 15-day
period for departure from the United States. However, an F-1 student
who fails to maintain a full course of study without the approval of
the DSO or otherwise fails to maintain status is not eligible for an
additional period for departure.
* * * * *
(6) * * *
(i) General. Successful completion of the full course of study must
lead to the attainment of a specific educational or professional
objective. A course of study at an institution not approved for
attendance by foreign students as provided in Sec. 214.3(a)(3) does
not satisfy this requirement. A ``full course of study'' as required
by
section 101(a)(15)(F)(i) of the Act means:
* * * * *
(E) Study in a curriculum at an approved private elementary or
middle school or public or private academic high school which is
certified by a designated school official to consist of class
attendance for not less than the minimum number of hours a week
prescribed by the school for normal progress toward graduation.
* * * * *
(G) For F-1 students enrolled in classes for credit or classroom
hours, no more than the equivalent of one class or three credits per
session, term, semester, trimester, or quarter may be counted toward
the full course of study requirement if the class is taken on-line or
through distance education and does not require the student's physical
attendance for classes, examination or other purposes integral to
completion of the class. An on-line or distance education course is
a
course that is offered principally through the use of television,
audio, or computer transmission including open broadcast, closed
circuit, cable, microwave, or satellite, audio conferencing, or
computer conferencing. If the F-1 student's course of study is in a
language study program, no on-line or distance education classes may
be
considered to count toward a student's full course of study
requirement.
(H) On-campus employment pursuant to the terms of a scholarship,
fellowship, or assistantship is deemed to be part of the academic
program of a student otherwise taking a full course of study.
* * * * *
(iii) Reduced course load. The designated school official may allow
an F-1 student to engage in less than a full course of study as
provided in this paragraph (f)(6)(iii). Except as otherwise noted, a
reduced course load must consist of at least six semester or quarter
hours, or half the clock hours required for a full course of study.
A
student who drops below a full course of study without the prior
approval of the DSO will be considered out of status. On-campus
employment pursuant to the terms of a scholarship, fellowship, or
assistantship is deemed to be part of the academic program of a student
otherwise taking a full course of study.
(A) Academic difficulties. The DSO may authorize a reduced course
load on account of a student's initial difficulty with the English
language or reading requirements, unfamiliarity with U.S. teaching
methods, or improper course level placement. The student must resume
a
full course of study at the next available term, session, or semester,
excluding a summer session, in order to maintain student status. A
student previously authorized to drop below a full course of study due
to academic difficulties is not eligible for a second authorization
by
the DSO due to academic difficulties while pursuing a
[[Page 76272]]
course of study at that program level. A student authorized to drop
below a full course of study for academic difficulties while pursuing
a
course of study at a particular program level may still be authorized
for a reduced course load due to an illness medical condition as
provided for in paragraph (B) of this section.
(B) Medical conditions. The DSO may authorize a reduced course load
(or, if necessary, no course load) due to a student's temporary illness
or medical condition for a period of time not to exceed an aggregate
of
12 months while the student is pursuing a course of study at a
particular program level. In order to authorize a reduced course load
based upon a medical condition, the student must provide medical
documentation from a licensed medical doctor, doctor of osteopathy,
or
licensed clinical psychologist, to the DSO to substantiate the illness
or medical condition. The student must provide current medical
documentation and the DSO must reauthorize the drop below full course
of study each new term, session, or semester. A student previously
authorized to drop below a full course of study due to illness or
medical condition for an aggregate of 12 months may not be authorized
by a DSO to reduce his or her course load on subsequent occasions while
pursuing a course of study at the same program level. A student may
be
authorized to reduce course load for a reason of illness or medical
condition on more than one occasion while pursuing a course of study,
so long as the aggregate period of that authorization does not exceed
12 months.
(C) Completion of course of study. The DSO may authorize a reduced
course load in the student's final term, semester, or session if fewer
courses are needed to complete the course of study. If the student is
not required to take any additional courses to satisfy the requirements
for completion, but continues to be enrolled for administrative
purposes, the student is considered to have completed the course of
study and must take action to maintain status. Such action may include
application for change of status or departure from the U.S.
(D) Reporting requirements for non-SEVIS schools. A DSO must report
to the Service any student who is authorized to reduce his or her
course load. Within 21 days of the authorization, the DSO must send
a
photocopy of the student's current Form I-20ID along with Form I-538
to
Service's data processing center indicating the date and reason that
the student was authorized to drop below full time status. Similarly,
the DSO will report to the Service no more than 21 days after the
student has resumed a full course of study by submitting a current copy
of the students' Form I-20ID to the Service's data processing center
indicating the date a full course of study was resumed and the new
program end date with Form I-538, if applicable.
(E) SEVIS reporting requirements. In order for a student to be
authorized to drop below a full course of study, the DSO must update
SEVIS prior to the student reducing his or her course load. The DSO
must update SEVIS with the date, reason for authorization, and the
start date of the next term or session. The DSO must also notify SEVIS
within 21 days of the student's commencement of a full course of study.
If an extension of the program end date is required due to the drop
below a full course of study, the DSO must update SEVIS by completing
a
new SEVIS Form I-20 with the new program end date in accordance with
paragraph (f)(7) of this section.
(iv) Concurrent enrollment. An F-1 student may be enrolled in two
different Service-approved schools at one time as long as the combined
enrollment amounts to a full time course of study. In cases where a
student is concurrently enrolled, the school from which the student
will earn his or her degree or certification should issue the Form I-
20, and conduct subsequent certifications and updates to the Form I-20.
The DSO from this school is also responsible for all of the reporting
requirements to the Service. In instances where a student is enrolled
in programs with different full course of study requirements (e.g.,
clock hours vs. credit hours), the DSO is permitted to determine what
constitutes a full time course of study.
(7) Extension of stay.--
(i) General. An F-1 student who is admitted for duration of status
is not required to apply for extension of stay as long as the student
is maintaining status and making normal progress toward completion of
his or her educational objective. An F-1 student who is currently
maintaining status and making normal progress toward completing his
or
her educational objective, but who is unable to complete his or her
course of study by the program end date on the Form I-20, must apply
prior to the program end date for a program extension pursuant to
paragraph (f)(7)(iii) of this section.
(ii) Report date and program completion date on Form I-20. When
determining the report date on the Form I-20, 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.
Such required activities may include, but are not limited to, research
projects and orientation sessions. However, for purposes of employment,
the DSO may not indicate a report date more than 30 days prior to the
start of classes. When determining the program completion date on Form
I-20, the DSO should make a reasonable estimate based upon the time
an
average student would need to complete a similar program in the same
discipline.
(iii) Program extension for students in lawful status. An F-1
student who is unable to meet the program completion date on the Form
I-20 may be granted an extension by the DSO if the DSO certifies that
the student has continually maintained status and that the delays are
caused by compelling academic or medical reasons, such as changes of
major or research topics, unexpected research problems, or documented
illnesses. Delays caused by academic probation or suspension are not
acceptable reasons for program extensions. A DSO may not grant an
extension if the student did not apply for an extension until after
the
program end date noted on the Form I-20. An F-1 student who is unable
to complete the educational program within the time listed on Form I-20
and who is ineligible for program extension pursuant to this paragraph
(f)(7) is considered out of status. If eligible, the student may apply
for reinstatement under the provisions of paragraph (f)(16) of this
section.
(iv) Notification. Upon granting a program extension, a DSO at a
non-SEVIS school must immediately submit notification to the Service's
data processing center using Form I-538 and the top page of Form I-20A-
B showing the new program completion date. For a school enrolled in
SEVIS, a DSO may grant a program extension only by updating SEVIS and
issuing a new Form I-20 reflecting the current program end date. A DSO
may grant an extension any time prior to the program end date listed
on
the student's original Form I-20.
(8) * * *
(i) A student who is maintaining status may transfer to another
Service approved school by following the notification procedure
prescribed in paragraph (f)(8)(ii) of this section. However, an F-1
student is not permitted to remain in the United States when
transferring between schools or programs unless the student will begin
classes at the transfer school or program within 5 months of
transferring out of the current school or within 5 months of the
program completion date on his or her current Form I-20, whichever is
[[Page 76273]]
earlier. In the case of an F-1 student authorized to engage in post-
completion optional practical training (OPT), the student must be able
resume classes within 5 months of transferring out of the school that
recommended OPT or the date the OPT authorization ends, whichever is
earlier. An F-1 student who was not pursuing a full course of study
at
the school he or she was last authorized to attend is ineligible for
school transfer and must apply for reinstatement under the provisions
of paragraph (f)(16) of this section, or, in the alternative, may
depart the country and return as an initial entry in a new F-1
nonimmigrant status.
(ii) * * *
(A) Non-SEVIS School to Non-SEVIS school. To transfer from one non-
SEVIS school to a different non-SEVIS school, the student must first
notify the school he or she is attending of the intent to transfer,
then obtain a Form I-20 issued in accordance with the provisions of
8
CFR 214.3(k) from the school to which he or she intends to transfer.
Prior to issuance of any Form I-20, the DSO at the transfer school is
responsible for determining that the student has been maintaining
status at his or her current school and is eligible for transfer to
the
new school. The transfer will be effected only if the student completes
the Student Certification portion of the Form I-20 and returns the form
to a DSO of the transfer school within 15 days of the program start
date listed on Form I-20. Upon receipt of the student's Form I-20 the
DSO must note ``transfer completed on (date)'' in the space provided
for the DSO's remarks, thereby acknowledging the student's attendance
at the transfer school; return the Form I-20 to the student; submit
the
School copy of the Form I-20 to Service's Data Processing Center within
30 days of receipt from the student; and forward a photocopy of the
school copy to the school from which the student transferred.
(B) Non-SEVIS school to SEVIS school. To transfer from a non-SEVIS
school to a SEVIS school, the student must first notify the school he
or she is attending of the intent to transfer, then obtain a SEVIS Form
I-20 issued in accordance with the provisions of 8 CFR 214.3(k) from
the school to which he or she intends to transfer. Prior to issuance
of
any Form I-20, the DSO at the transfer school is responsible for
determining that the student has been maintaining status at his or her
current school and is eligible for transfer to the new school. Once
the
transfer school has issued the SEVIS Form I-20 to the student
indicating a transfer, the transfer school becomes responsible for
updating and maintaining the student's record in SEVIS. The student
is
then required to notify the DSO at the transfer school within 15 days
of the program start date listed on SEVIS Form I-20. Upon notification
that the student is enrolled in classes, the DSO of the transfer school
must update SEVIS to reflect the student's registration and current
address, thereby acknowledging that the student has completed the
transfer process. In the remarks section of the student's SEVIS Form
I-
20, the DSO must note that the transfer has been completed, including
the date, and return the form to the student. The transfer is effected
when the transfer school updates SEVIS indicating that the student has
registered in classes within the 30 days required by Sec.
214.3(g)(3)(iii).
(C) SEVIS school to SEVIS school. To transfer from a SEVIS school
to a SEVIS school the student must first notify his or her current
school of the intent to transfer and must indicate the school to which
he or she intends to transfer. Upon notification by the student, the
current school will update the student's record in SEVIS as a
``transfer out'' and indicate the school to which the student intends
to transfer, and a release date. The release date will be the current
semester or session completion date, or the date of expected transfer
if earlier than the established academic cycle. The current school will
retain control over the student's record in SEVIS until the student
completes the current term or reaches the release date. At the request
of the student, the DSO of the current school may cancel the transfer
request at any time prior to the release date. As of the release date
specified by the current DSO, the transfer school will be granted full
access to the student's SEVIS record and then becomes responsible for
that student. The current school conveys authority and responsibility
over that student to the transfer school, and will no longer have full
SEVIS access to that student's record. As such, a transfer request may
not be cancelled by the current DSO after the release date has been
reached. After the release date, the transfer DSO must complete the
transfer of the student's record in SEVIS and may issue a SEVIS Form
I-
20. The student is then required to contact the DSO at the transfer
school within 15 days of the program start date listed on the SEVIS
Form I-20. Upon notification that the student is enrolled in classes,
the DSO of the transfer school must update SEVIS to reflect the
student's registration and current address, thereby acknowledging that
the student has completed the transfer process. In the remarks section
of the student's SEVIS Form I-20, the DSO must note that the transfer
has been completed, including the date, and return the form to the
student. The transfer is effected when the transfer school notifies
SEVIS that the student has enrolled in classes in accordance with the
30 days required by Sec. 214.3(g)(3)(iii).
(D) SEVIS school to non-SEVIS school. To transfer from a SEVIS
school to a non-SEVIS school, the student must first notify his or her
current school of the intent to transfer and must indicate the school
to which he or she intends to transfer. Upon notification by the
student, the current school will update the student's status in SEVIS
as ``a transfer out'', enter a ``release'' or expected transfer date,
and update the transfer school as ``non-SEVIS.'' The student must then
notify the school to which the he or she intends to transfer of his
or
her intent to enroll. After the student has completed his or her
current term or session, or has reached the expected transfer date,
the
DSO at the current school will no longer have full access to the
student's SEVIS record. At this point, if the student has notified the
transfer school of his or her intent to transfer, and the transfer
school has determined that the student has been maintaining status at
his or her current school, the transfer school may issue the student
a
Form I-20. The transfer will be effected only if the student completes
the Student Certification portion of the Form I-20 and returns the form
to a designated school official of the transfer school within 15 days
of the program start date listed on Form I-20. Upon receipt of the
student's Form I-20 the DSO must do as follows: note ``transfer
completed on (date)'' in the space provided for the DSO's remarks,
thereby acknowledging the student's attendance; return the Form I-20
to
the student; submit the school copy of the Form I-20 to the Service's
data processing center within 30 days of receipt from the student; and
forward a photocopy of the school copy to the school from which the
student transferred.
* * * * *
(9) * * *
(i) * * * In the case of a transfer in SEVIS, the student may only
engage in on-campus employment at the school having jurisdiction over
the student's SEVIS record. Upon initial entry to begin a new course
of
study, an F-1 student may not begin on-campus employment more than 30
days prior to the actual start of classes.
(ii) * * *
[[Page 76274]]
(B) Reserved.
* * * * *
(D) Procedure for off-campus employment authorization due to severe
economic hardship. The student must request a recommendation from the
DSO for off-campus employment. The DSO at a non-SEVIS school must make
such a certification on Form I-538, Certification by Designated School
Official. The DSO of a SEVIS school must complete such certification
in
SEVIS. The DSO may recommend the student for work off-campus for one
year intervals by certifying that:
(1) The student has been in F-1 status for one full academic year;
(2) The student is in good standing as a student and is carrying a
full course of study as defined in paragraph (f)(6) of this section;
(3) The student has demonstrated that acceptance of employment will
not interfere with the student's carrying a full course of study; and
(4) The student has demonstrated that the employment is necessary
to avoid severe economic hardship due to unforeseen circumstances
beyond the student's control pursuant to paragraph (f)(9)(ii)(C) of
this section and has demonstrated that employment under paragraph
(f)(9)(i) of this section is unavailable or otherwise insufficient to
meet the needs that have arisen as a result of the unforeseen
circumstances.
(E) Reserved.
(F) * * *
(1) The applicant should submit the economic hardship application
for employment authorization on Form I-765, with the fee required by
8
CFR 103.7(b)(1), to the service center having jurisdiction over his
or
her place of residence. Applicants at a non-SEVIS school should submit
Form I-20, Form I-538, and any other supporting materials such as
affidavits which further detail the unforeseen circumstances that
require the student to seek employment authorization and the
unavailability or insufficiency of employment under paragraph (f)(9)(i)
of this section. Students enrolled in a SEVIS school should submit the
SEVIS Form I-20 with the employment page demonstrating the DSO's
comments and certification.
* * * * *
(iii) Internship with an international organization. A bona fide F-
1 student who has been offered employment by a recognized international
organization within the meaning of the International Organization
Immunities Act (59 Stat. 669) must apply for employment authorization
to the service center having jurisdiction over his or her place of
residence. A student seeking employment authorization under this
provision is required to present a written certification from the
international organization that the proposed employment is within the
scope of the organization's sponsorship, Form I-20 ID or SEVIS Form
I-
20 with employment page completed by DSO certifying eligibility for
employment, and a completed Form I-765, with required fee as contained
in Sec. 103.7(b)(1) of this chapter.
(10) Practical training. Practical training may be authorized to an
F-1 student who has been lawfully enrolled on a full time basis, in
a
Service-approved college, university, conservatory, or seminary for
one
full academic year. This provision also includes students who, during
their course of study, were enrolled in a study abroad program, if the
student had spent at least one full academic term enrolled in a full
course of study in the United States prior to studying abroad. A
student may be authorized 12 months of practical training, and becomes
eligible for another 12 months of practical training when he or she
changes to a higher educational level. Students in English language
training programs are ineligible for practical training. An eligible
student may request employment authorization for practical training
in
a position that is directly related to his or her major area of study.
There are two types of practical training available:
(i) Curricular practical training. An F-1 student may be authorized
by the DSO to participate in a curricular practical training program
that is an integral part of an established curriculum. Curricular
practical training is defined to be alternative work/study, internship,
cooperative education, or any other type of required internship or
practicum that is offered by sponsoring employers through cooperative
agreements with the school. Students who have received one year or more
of full time curricular practical training are ineligible for post-
completion academic training. Exceptions to the one academic year
requirement are provided for students enrolled in graduate studies that
require immediate participation in curricular practical training. A
request for authorization for curricular practical training must be
made to the DSO. A student may begin curricular practical training only
after receiving his or her Form I-20 with the DSO endorsement.
(A) Non-SEVIS process. A student must request authorization for
curricular practical training using Form I-538. Upon approving the
request for authorization, the DSO shall: certify Form I-538 and send
the form to the Service's data processing center; endorse the student's
Form I-20 ID with ``full-time (or part-time) curricular practical
training authorized for (employer) at (location) from (date) to
(date)''; and sign and date the Form I-20ID before returning it to the
student.
(B) SEVIS process. To grant authorization for a student to engage
in curricular practical training, a DSO at a SEVIS school will update
the student's record in SEVIS as being authorized for curricular
practical training that is directly related to the student's major area
of study. The DSO will indicate whether the training is full-time or
part-time, the employer and location, and the employment start and end
date. The DSO will then print a copy of the employment page of the
SEVIS Form I-20 indicating that curricular practical training has been
approved. The DSO must sign, date, and return the SEVIS Form I-20 to
the student prior to the student's commencement of employment.
(ii) * * *
(A) General. A student may apply to the Service for authorization
for temporary employment for optional practical training directly
related to the student's major area of study. The student may not begin
optional practical training until the date indicated on his or her
employment authorization document, Form I-766 or Form 688B. A student
may submit an application for authorization to engage in optional
practical training up to 90 days prior to being enrolled for one full
academic year, provided that the period of employment will not begin
until after the completion of the full academic year as indicated by
the DSO. A student may be granted authorization to engage in temporary
employment for optional practical training:
(1) During the student's annual vacation and at other times when
school is not in session, if the student is currently enrolled, and
is
eligible for registration and intends to register for the next term
or
session;
(2) While school is in session, provided that practical training
does not exceed 20 hours a week while school is in session; or
(3) After completion of the course of study, or, for a student in a
bachelor's, master's, or doctoral degree program, after completion of
all course requirements for the degree (excluding thesis or
equivalent). Continued enrollment, for the school's administrative
purposes, after all requirements for the degree have been met does not
preclude eligibility for optional practical training. However,
[[Page 76275]]
optional practical training must be requested prior to the completion
of all course requirements for the degree or prior to the completion
of
the course of study. A student must complete all practical training
within a 14-month period following the completion of study.
(B) Termination of practical training. Authorization to engage in
optional practical training employment is automatically terminated when
the student transfers to another school or begins study at another
educational level.
* * * * *
(D) Action of the DSO-Non SEVIS schools. * * *
(E) SEVIS process. In making a recommendation for optional
practical training under SEVIS, the DSO will update the student's
record in SEVIS as having been recommended for optional practical
training. A DSO who recommends a student for optional practical
training is responsible for maintaining the record of the student for
the duration of the time that training is authorized. The DSO will
indicate in SEVIS whether the employment is to be full-time or part-
time, and note in SEVIS the start and end date of employment. The DSO
will then print the employment page of the student's SEVIS Form I-20,
and sign and date the form to indicate that optional practical training
has been recommended. The student must file with the service center
for
an Employment Authorization Document, on Form I-765, with fee and the
SEVIS Form I-20 employment page indicating that optional practical
training has been recommended by the DSO.
(11) * * *
(ii) A DSO's recommendation for optional practical training on Form
I-20ID, or, for a SEVIS school, on an updated SEVIS Form I-20.
(12) Decision on application for employment authorization. The
Service shall adjudicate the Form I-765 and issue an EAD on the basis
of the DSO's recommendation unless the student is found otherwise
ineligible. The Service shall notify the applicant of the decision and,
if the application is denied, of the reason or reasons for the denial.
The applicant may not appeal the decision. An F-1 student authorized
by
the Service to engage in practical training is required to report any
change of name or address, or interruption of such employment to the
DSO for the duration of the authorized training. A DSO who recommends
a
student for optional practical training is responsible for updating
the
student's record to reflect these reported changes for the duration
of
the time that training is authorized.
* * * * *
(15) Spouse and children of F-1 student. The F-2 spouse and minor
children of an F-1 student shall each be issued an individual SEVIS
Form I-20 in accordance with the provisions of Sec. 214.3(k).
(i) Employment. The F-2 spouse and children of an F-1 student may
not accept employment.
(ii) Study. (A) The F-2 spouse of an F-1 student may not engage in
full time study, and the F-2 child may only engage in full time study
if the study is in an elementary or secondary school (kindergarten
through twelfth grade). The F-2 spouse and child may engage in study
that is avocational or recreational in nature.
(B) An F-2 spouse or F-2 child desiring to engage in full time
study, other than that allowed for a child in paragraph (f)(15)(ii)(A)
of this section, must apply for and obtain a change of nonimmigrant
classification to F-1, J-1, or M-1 status. An F-2 spouse or child who
was enrolled on a full time basis prior to January 1, 2003, will be
allowed to continue study but must file for a change of nonimmigrant
classification to F-1, J-1, or M-1 status on or before March 11, 2003.
(C) An F-2 spouse or F-2 child violates his or her nonimmigrant
status by engaging in full time study except as provided in paragraph
(f)(15)(ii)(A) or (B) of this section.
(16) Reinstatement to student status.--
(i) General. The district director may consider reinstating a
student who makes a request for reinstatement on Form I-539,
Application to Extend/Change Nonimmigrant Status, accompanied by a
properly completed SEVIS Form I-20 indicating the DSO's recommendation
for reinstatement (or a properly completed Form I-20A-B issued prior
to
January 30, 2003, from the school the student is attending or intends
to attend prior to August 1, 2003). The district director may consider
granting the request if the student:
(A) Has not been out of status for more than 5 months at the time
of filing the request for reinstatement (or demonstrates that the
failure to file within the 5 month period was the result of exceptional
circumstances and that the student filed the request for reinstatement
as promptly as possible under these exceptional circumstances);
(B) Does not have a record of repeated or willful violations of
Service regulations;
(C) Is currently pursuing, or intending to pursue, a full course of
study in the immediate future at the school which issued the Form I-20;
(D) Has not engaged in unauthorized employment;
(E) Is not deportable on any ground other than section 237(a)(1)(B)
or (C)(i) of the Act; and
(F) Establishes to the satisfaction of the Service, by a detailed
showing, either that:
(1) The violation of status resulted from circumstances beyond the
student's control. Such circumstances might include serious injury or
illness, closure of the institution, a natural disaster, or
inadvertence, oversight, or neglect on the part of the DSO, but do not
include instances where a pattern of repeated violations or where a
willful failure on the part of the student resulted in the need for
reinstatement; or
(2) The violation relates to a reduction in the student's course
load that would have been within a DSO's power to authorize, and that
failure to approve reinstatement would result in extreme hardship to
the student.
(ii) Decision. If the Service reinstates the student, the Service
shall endorse the student's copy of Form I-20 to indicate the student
has been reinstated and return the form to the student. If the Form
I-
20 is from a non-SEVIS school, the school copy will be forwarded to
the
school. If the Form I-20 is from a SEVIS school, the adjudicating
officer will update SEVIS to reflect the Service's decision. In either
case, if the Service does not reinstate the student, the student may
not appeal that decision.
(17) Current name and address. A student must inform the DSO and
the Service of any legal changes to his or her name or of any change
of
address, within 10 days of the change, in a manner prescribed by the
school. A student enrolled at a SEVIS school can satisfy the
requirement in 8 CFR 265.1 of notifying the Service by providing a
notice of a change of address within 10 days to the DSO, who in turn
shall enter the information in SEVIS within 21 days of notification
by
the student. A student enrolled at a non-SEVIS school must submit a
notice of change of address to the Service, as provided in 8 CFR 265.1,
within 10 days of the change. Except in the case of a student who
cannot receive mail where he or she resides, the address provided by
the student must be the actual physical location where the student
resides rather than a mailing address. In cases where a student
provides a mailing address, the school must maintain a record of, and
must provide upon request from the Service,
[[Page 76276]]
the actual physical location where the student resides.
* * * * *
Sec. 214.2 [Amended]
5. Section 214.2 is further amended by revising the term ``IAP-66''
to read ``DS-2019'' wherever that term appears in the following
paragraphs:
Paragraph (j)(1)(iv)
Paragraph (j)(2)
Paragraph (j)(3)
Paragraph (j)(4)(i).
6. Section 214.2 is further amended by revising paragraphs
(j)(1)(i) and (ii), and by adding new paragraphs (j)(1)(vii) and
(j)(1)(viii) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(j) * * *
(1) General--(i) Eligibility for admission. A nonimmigrant exchange
visitor and his or her accompanying spouse and minor children may be
admitted into the United States in J-1 and J-2 classifications under
section 101(a)(15)(J) of the Act, if the exchange visitor and his or
her accompanying spouse and children each presents a SEVIS Form DS-2019
issued in his or her own name by a program approved by the Department
of State for participation by J-1 exchange visitors. Prior to August
1,
2003, if exigent circumstances are demonstrated, the Service will allow
the dependent of an exchange visitor possessing a SEVIS Form DS-2019
to
enter the United States using a copy of the exchange visitor's SEVIS
Form DS-2019. However, where the exchange visitor presents a properly
completed Form DS-2019, Certificate of Eligibility for Exchange Visitor
(J-1) Status, which was issued to the J-1 exchange visitor by a program
approved by the Department of State for participation by exchange
visitors and which remains valid for the admission of the exchange
visitor, the accompanying spouse and children may be admitted on the
basis of the J-1's non-SEVIS Form DS-2019.
(ii) Admission period. An exchange alien, and J-2 spouse and
children, may be admitted for a period up to 30 days before the report
date or start of the approved program listed on Form DS-2019. The
initial admission of an exchange visitor, spouse and children may not
exceed the period specified on Form DS-2019, plus a period of 30 days
for the purposes of travel or for the period designated by the
Commissioner as provided in paragraph (j)(1)(vi) of this section.
Regulations of the Department of State published at 22 CFR part 62 give
general limitations on the stay of the various classes of exchange
visitors. A spouse or child may not be admitted for longer than the
principal exchange visitor.
* * * * *
(vii) Use of SEVIS. At a date to be established by the Department
of State, the use of the Student and Exchange Visitor Information
System (SEVIS) will become mandatory for designated program sponsors.
After that date, which will be announced by publication in the Federal
Register, all designated program sponsors must begin issuance of the
SEVIS Form DS-2019.
(viii) Current name and address. A J-1 exchange visitor must inform
the Service and the responsible officer of the exchange visitor program
of any legal changes to his or her name or of any change of address,
within 10 days of the change, in a manner prescribed by the program
sponsor. A J-1 exchange visitor enrolled in a SEVIS program can satisfy
the requirement in 8 CFR 265.1 of notifying the Service by providing
a
notice of a change of address within 10 days to the responsible
officer, who in turn shall enter the information in SEVIS within 21
days of notification by the exchange visitor. A J-1 exchange visitor
enrolled at a non-SEVIS program must submit a change of address to the
Service, as provided in 8 CFR 265.1, within 10 days of the change.
Except in the case of an exchange visitor who cannot receive mail where
he or she resides, the address provided by the exchange visitor must
be
the actual physical location where the exchange visitor resides rather
than a mailing address. In cases where an exchange visitor provides
a
mailing address, the exchange visitor program must maintain a record
of, and must provide upon request from the Service, the actual physical
location where the exchange visitor resides.
* * * * *
7. Section 214.2 is further amended by:
a. Revising paragraph (m)(1)(i);
b. Adding new paragraphs (m)(1)(iii);
c. Revising the paragraph heading and the introductory text in
paragraph (m)(3);
d. Revising paragraph (m)(5);
e. Removing and reserving paragraphs (m)(6), (m)(7), and (m)(8);
f. Adding new paragraphs (m)(9)(v) and (vi);
g. Revising paragraphs (m)(10), (m)(11)(ii), (m)(13), and
(m)(14)(ii) introductory text;
h. Adding a new paragraph (m)(14)(vi);
i. Revising paragraph (m)(16);
j. Revising paragraph (m)(17); and by
k. Adding new paragraph (m)(18).
The additions and revisions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(m) * * *
(1) Admission of student. (i) Eligibility for admission. A
nonimmigrant student may be admitted into the United States in
nonimmigrant status under section 101(a)(15)(M) of the Act, if:
(A) The student presents a SEVIS Form I-20 issued in his or her own
name by a school approved by the Service for attendance by M-1 foreign
students. (In the alternative, for a student seeking admission prior
to
August 1, 2003, the student may present a currently-valid Form I-20M-N/
I-20ID, if that form was issued by the school prior to January 30,
2003);
(B) The student has documentary evidence of financial support in
the amount indicated on the SEVIS Form I-20 (or the Form I-20M-N/I-
20ID); and
(C) For students seeking initial admission only, the student
intends to attend the school specified in the student's visa (or, where
the student is exempt from the requirement for a visa, the school
indicated on the SEVIS Form I-20 (or the Form I-20M-N/I-20ID)).
* * * * *
(iii) Use of SEVIS. On January 30, 2003, the use of the Student and
Exchange Visitor Information System (SEVIS) will become mandatory for
the issuance of any new Form I-20. A student or dependent who presents
a non-SEVIS Form I-20 issued on or after January 30, 2003, will not
be
accepted for admission to the United States. Non-SEVIS Forms I-20
issued prior to January 30, 2003, will continue to be accepted for
admission to the United States until August 1, 2003. However, schools
must issue a SEVIS Form I-20 to any current student requiring a
reportable action (e.g., extension of status, practical training, and
requests for employment authorization) or a new Form I-20, or for any
aliens who must obtain a new nonimmigrant student visa. As of August
1,
2003, the records of all current or continuing students must be entered
in SEVIS.
* * * * *
(3) Admission of the spouse and minor children of an M-1 student.
The spouse and minor children accompanying an M-1 student are eligible
for admission in M-2 status if the student is admitted in M-1 status.
The spouse and minor children following-to-join an M-1 student are
[[Page 76277]]
eligible for admission to the United States in M-2 status if they are
able to demonstrate that the M-1 student has been admitted and is, or
will be within 30 days, enrolled in a full course of study, or engaged
in approved practical training following completion of studies. In
either case, at the time they seek admission, the eligible spouse and
minor children of an M-1 student with a SEVIS Form I-20 must
individually present an original SEVIS Form I-20 issued in the name
of
each M-2 dependent issued by a school authorized by the Service for
attendance by M-1 foreign students. Prior to August 1, 2003, if exigent
circumstances are demonstrated, the Service will allow the dependent
of
an M-1 student in possession of a SEVIS Form I-20 to enter the United
States using a copy of the M-1 student's SEVIS Form I-20. (In the
alternative, for dependents seeking admission to the United States
prior to August 1, 2003, a copy of the M-1 student's current Form I-
20ID issued prior to January 30, 2003, with proper endorsement by the
DSO will satisfy this requirement.) A new SEVIS Form I-20 (or Form I-
20M-N) is required for a dependent where there has been any substantive
change in the M-1 student's current information.
* * * * *
(5) Period of stay. A student in M nonimmigrant status is admitted
for a fixed time period, which is the period necessary to complete the
course of study indicated on the Form I-20, plus practical training
following completion of the course of study, plus an additional 30 days
to depart the United States, but not to exceed a total period of one
year. An M-1 student may be admitted for a period up to 30 days before
the report date or start date of the course of study listed on the Form
I-20. An M-1 student who fails to maintain a full course of study or
otherwise fails to maintain status is not eligible for the additional
30-day period of stay.
(6) [Reserved]
(7) [Reserved]
(8) [Reserved]
(9) * * *
(v) On-line courses/distance education programs. No on-line or
distance education classes may be considered to count toward an M-1
student's full course of study requirement if such classes do not
require the student's physical attendance for classes, examination or
other purposes integral to completion of the class. An on-line or
distance education course is a course that is offered principally
through the use of television, audio, or computer transmission
including open broadcast, closed circuit, cable, microwave, or
satellite, audio conferencing, or computer conferencing.
(vi) Reduced course load. The designated school official may
authorize an M-1 student to engage in less than a full course of study
only where the student has been compelled by illness or a medical
condition that has been documented by a licensed medical doctor, doctor
of osteopathy, or licensed clinical psychologist, to interrupt or
reduce his or her course of study. A DSO may not authorize a reduced
course load for more than an aggregate of 5 months per course of study.
An M-1 student previously authorized to drop below a full course of
study due to illness or medical condition for an aggregate of 5 months,
may not be authorized by the DSO to reduce his or her course load on
subsequent occasions during his or her particular course of study.
(A) Non-SEVIS schools. A DSO must report any student who has been
authorized by the DSO to carry a reduced course load. Within 21 days
of
the authorization, the DSO must send a photocopy of the student's Form
I-20 to the Service's data processing center indicating the date that
authorization was granted. The DSO must also report to the Service's
data processing center when the student has resumed a full course of
study, no more than 21 days from the date the student resumed a full
course of study. In this case, the DSO must submit a photocopy of the
student's Form I-20 indicating the date that a full course of study
was
resumed, with a new program end date.
(B) SEVIS reporting. In order for a student to be authorized to
drop below a full course of study, the DSO must update SEVIS prior to
the student reducing his or her course load. The DSO must update SEVIS
with the date, reason for authorization, and the start date of the next
term or session. The DSO must also notify SEVIS within 21 days of the
student's commencement of a full course of study.
(10) Extension of stay.
(i) Eligibility. The cumulative time of extensions that can be
granted to an M-1 student is limited to a period of 3 years from the
M-
1 student's original start date, plus 30 days. No extension can be
granted to an M-1 student if the M-1 student is unable to complete the
course of study within 3 years of the original program start date. This
limit includes extensions that have been granted due to a drop below
full course of study, a transfer of schools, or reinstatement. An M-1
student may be granted an extension of stay if it is established that:
(A) He or she is a bona fide nonimmigrant currently maintaining
student status;
(B) Compelling educational or medical reasons have resulted in a
delay to his or her course of study. Delays caused by academic
probation or suspension are not acceptable reasons for program
extension; and
(C) He or she is able to, and in good faith intends to, continue to
maintain that status for the period for which the extension is granted.
(ii) Application. A student must apply to the Service for an
extension on Form I-539, Application to Extend/Change Nonimmigrant
Status. A student's M-2 spouse and children seeking an extension of
stay must be included in the application. The student must submit the
application to the service center having jurisdiction over the school
the student is currently authorized to attend, at least 15 days but
not
more than 60 days before the program end date on the student's Form
I-
20. The application must also be accompanied by the student's Form I-20
and the Forms I-94 of the student's spouse and children, if applicable.
(iii) Period of stay. If an application for extension is granted,
the student and the student's spouse and children, if applicable, are
to be given an extension of stay for the period of time necessary to
complete the course of study, plus 30 days within which to depart from
the United States, or for a total period of one year, whichever is
less. A student's M-2 spouse and children are not eligible for an
extension unless the M-1 student is granted an extension of stay, or
for a longer period than is granted to the M-1 student.
(iv) SEVIS update. A DSO must update SEVIS to recommend that a
student be approved for an extension of stay. The SEVIS Form I-20 must
be printed with the recommendation and new program end date for
submission by mail to the service center, with Form I-539, and Forms
I-
94 if applicable.
(11) * * *
(ii) Procedure. A student must apply to the Service on Form I-539
for permission to transfer between schools. Upon application for school
transfer, a student may effect the transfer subject to approval of the
application. A student who transfers without complying with this
requirement or whose application is denied after transfer pursuant to
this regulation is considered to be out of status. If the application
is approved, the approval of the transfer will be determined to be the
program start date listed on the Form I-20, and the student
[[Page 76278]]
will be granted an extension of stay for the period of time necessary
to complete the new course of study plus 30 days, or for a total period
of one year, whichever is less.
(A) Non-SEVIS school. The application must be accompanied by the
Form I-20ID copy and the Form I-94 of the student's spouse and
children, if applicable. The Form I-539 must also be accompanied by
Form I-20M-N properly and completely filled out by the student and by
the designated official of the school which the student wishes to
attend. The student must submit the application for school transfer
to
the service center having jurisdiction over the school the student is
currently authorized to attend. Upon approval, the adjudicating officer
will endorse the name of the school to which the transfer is authorized
on the student's Form I-20ID copy and return it to the student. The
officer will also endorse Form I-20M-N to indicate that a school
transfer has been authorized and forward it to the Service's processing
center for updating. The processing center will forward Form I-20M-N
to
the school to which the transfer has been authorized to notify the
school of the action taken.
(B) SEVIS school. The student must first notify his or her current
school of the intent to transfer and indicate the school to which the
student intends to transfer. Upon notification by the student, the
current school must update SEVIS to show the student as a ``transfer
out'' and input the ``release date'' for transfer. Once updated as a
``transfer out'' the transfer school is permitted to generate a SEVIS
Form I-20 for transfer but will not gain access to the student's SEVIS
record until the release date is reached. Upon receipt of the SEVIS
Form I-20 from the transfer school, the student must submit Form I-539
in accordance with Sec. 214.2(m)(11) to the service center with
jurisdiction over the current school. The student may enroll in the
transfer school at the next available term or session and is required
to notify the DSO of the transfer school immediately upon beginning
attendance. The transfer school must update the student's registration
record in SEVIS in accordance with Sec. 214.3(g)(3). Upon approval of
the transfer application, the Service officer will endorse the name
of
the school to which the transfer is authorized on the student's SEVIS
Form I-20 and return it to the student.
(C) Transition process. Once SEVIS is fully operational and
interfaced with the service center benefit processing system, the
Service officer will transmit the approval of the transfer to SEVIS
and
endorse the name of the school to which transfer is authorized on the
student's SEVIS Form I-20 and return it to the student. As part of a
transitional process until that time, the student is required to notify
the DSO at the transfer school of the decision of the Service within
15
days of the receipt of the adjudication by the Service. Upon
notification by the student of the approval of the Service, the DSO
must immediately update SEVIS to show that approval of the transfer
has
been granted. The DSO must then print an updated SEVIS Form I-20 for
the student indicating that the transfer has been completed. If the
application for transfer is denied, the student is out of status and
the DSO must terminate the student's record in SEVIS.
* * * * *
(13) Employment. Except as provided in paragraph (m)(14) of this
section, a student may not accept employment.
(14) * * *
(ii) Application. A M-1 student must apply for permission to accept
employment for practical training on Form I-765, with fee as contained
in 8 CFR 103.7(b)(1), accompanied by a Form I-20 that has been endorsed
for practical training by the designated school official. The
application must be submitted prior to the program end date listed on
the student's Form I-20 but not more than 90 days before the program
end date. The designated school official must certify on Form I-538
that--
* * * * *
(vi) SEVIS process. The DSO must update the student's record in
SEVIS to recommend that the Service approve the student for practical
training, and print SEVIS Form I-20 with the recommendation, for the
student to submit to the Service with Form I-765 as provided in this
paragraph (m)(14).
* * * * *
(16) Reinstatement to student status.
(i) General. A district director may consider reinstating a student
who makes a request for reinstatement on Form I-539, Application to
Extend/Change Nonimmigrant Status, accompanied by a properly completed
SEVIS Form I-20 indicating the DSO's recommendation for reinstatement
(or a properly completed Form I-20M-N issued prior to January 30, 2003,
from the school the student is attending or intends to attend prior
to
August 1, 2003). The district director may consider granting the
request only if the student:
(A) Has not been out of status for more than 5 months at the time
of filing the request for reinstatement (or demonstrates that the
failure to file within the 5 month period was the result of exceptional
circumstances and that the student filed the request for reinstatement
as promptly as possible under these exceptional circumstances);
(B) Does not have a record of repeated or willful violations of the
Service regulations;
(C) Is currently pursuing, or intends to pursue, a full course of
study at the school which issued the Form I-20M-N or SEVIS Form I-20;
(D) Has not engaged in unlawful employment;
(E) Is not deportable on any ground other than section 237(a)(1)(B)
or (C)(i) of the Act; and
(F) Establishes to the satisfaction of the Service, by a detailed
showing, either that:
(1) The violation of status resulted from circumstances beyond the
student's control. Such circumstances might include serious injury or
illness, closure of the institution, a natural disaster, or
inadvertence, oversight or neglect on the part of the DSO, but do not
include instances where a pattern of repeated violations or where a
willful failure on the part of the student resulted in the need for
reinstatement; or
(2) The violation relates to a reduction in the student's course
load that would have been within a DSO's power to authorize, and that
failure to approve reinstatement would result in extreme hardship to
the student.
(ii) Decision. If the Service reinstates the student, the Service
shall endorse the student's copy of Form I-20 to indicate that the
student has been reinstated and return the form to the student. If the
Form I-20 is from a non-SEVIS school, the school copy will be forwarded
to the school. If the Form I-20 is from a SEVIS school, the
adjudicating officer will update SEVIS to reflect the Service's
decision. In either case, if the Service does not reinstate the
student, the student may not appeal the decision. The district director
will send notification to the school of the decision.
(17) Spouse and children of M-1 student. The M-2 spouse and minor
children of an M-1 student shall each be issued an individual SEVIS
Form I-20 in accordance with the provisions of Sec. 214.3(k).
(i) Employment. The M-2 spouse and children may not accept
employment.
(ii) Study. (A) The M-2 spouse may not engage in full time study,
and the M-2 child may only engage in full time study if the study is
in
an elementary or secondary school (kindergarten through twelfth grade).
The M-2 spouse and
[[Page 76279]]
child may engage in study that is avocational or recreational in
nature.
(B) An M-2 spouse or M-2 child desiring to engage in full time
study, other than that allowed for a child in paragraph (m)(17)(ii)
of
this section, must apply for and obtain a change of nonimmigrant
classification to F-1, J-1, or M-1 status. An M-2 spouse or child who
was enrolled on a full time basis prior to January 1, 2003, will be
allowed to continue study but must file for a change of nonimmigrant
classification to F-1, J-1, or M-1 status on or before March 11, 2003.
(C) An M-2 spouse or M-2 child violates his or her nonimmigrant
status by engaging in full time study except as provided in paragraph
(m)(17)(i) and (ii) of this section.
(18) Current name and address. A student must inform the Service
and the DSO of any legal changes to his or her name or of any change
of
address, within 10 days of the change, in a manner prescribed by the
school. A student enrolled at a SEVIS school can satisfy the
requirement in 8 CFR 265.1 of notifying the Service by providing a
notice of a change of address within 10 days to the DSO, and the DSO
in
turn shall enter the information in SEVIS within 21 days of
notification by the student. A nonimmigrant student enrolled at a non-
SEVIS institution must submit a notice of change of address to the
Service, as provided in 8 CFR 265.1, within 10 days of the change.
Except in the case of a student who cannot receive mail where he or
she
resides, the address provided by the student must be the actual
physical location where the student resides rather than a mailing
address. In cases where a student provides a mailing address, the
school must maintain a record of, and must provide upon request from
the Service, the actual physical location where the student resides.
* * * * *
8. Section 214.3 is amended by:
a. Revising paragraph (a)(2)(i)(F);
b. Adding a new paragraph (a)(2)(v);
c. Adding a new paragraph (e)(3);
d. Revising paragraphs (g)(1)(iv) and (g)(1)(v);
e. Revising the paragraph heading and by adding two new sentences
at the end of paragraph (g)(2);
f. Adding new paragraphs (g)(3) and (g)(4);
g. Revising paragraph (k) introductory text; and by
h. Revising paragraph (l).
The additions and revisions read as follows:
Sec. 214.3 Petitions for approval of schools.
(a) * * *
(2) * * *
(i) * * *
(F) A private elementary school.
* * * * *
(v) The following may not be approved for attendance by foreign
students:
(A) A home school,
(B) A public elementary school, or
(C) An adult education program, as defined by section 203(l) of the
Adult Education and Family Literacy Act, Public Law 105-220, as
amended, 20 U.S.C. 9202(l), if the adult education program is funded
in
whole or in part by a grant under the Adult Education and Family
Literacy Act, or by any other Federal, State, county or municipal
funding.
* * * * *
(e) * * *
(3) SEVIS reporting. Upon approval of a petition, the district
director shall update SEVIS to reflect approval of the petition. An
e-
mail notification will be sent to the principal DSO by SEVIS. An
approved school that has been enrolled in SEVIS must immediately update
SEVIS to reflect any material changes to its name, address or
curriculum for a determination of continued eligibility for approval.
* * * * *
(g) * * *
(1) * * *
(iv) Current address where the student and his or her dependents
physically reside. In the event the student or his or her dependents
reside on or off campus and cannot receive mail at that location, the
school may provide a mailing address. The school, however, must
maintain a record of the physical location of residence of the student
and his or her dependents and provide such information to the Service
upon request. Once SEVIS is modified, in cases where the mailing and
physical address are not the same, the school will be required to
report both the student's current mailing and current physical address
in SEVIS.
(v) The student's current academic status.
* * * * *
(2) Reporting requirements for non-SEVIS students. * * * In the
case of a student that does not have an electronic record in SEVIS,
the
Service will notify the school if the student enters the U.S. to attend
their institution. No later than 30 days following the deadline for
registering for classes, the school is then required to contact the
Service if that student fails to register.
(3) SEVIS reporting requirements.
(i) Within 21 days of a change in any of the information contained
in paragraph (e)(3) of this section, schools must update SEVIS with
the
current information.
(ii) Schools are also required to report within 21 days of the
occurrence the following events:
(A) Any student who has failed to maintain status or complete his
or her program;
(B) A change of the student's or dependent's legal name or U.S.
address;
(C) Any student who has graduated early or prior to the program end
date listed on SEVIS Form I-20;
(D) Any disciplinary action taken by the school against the student
as a result of the student being convicted of a crime; and
(E) Any other notification request made by SEVIS with respect to
the current status of the student.
(iii) Each term or session and no later than 30 days after the
deadline for registering for classes, schools are required to report
the following registration information:
(A) Whether the student has enrolled at the school, dropped below a
full course of study without prior authorization by the DSO, or failed
to enroll;
(B) The current address of each enrolled student; and
(C) The start date of the student's next session, term, semester,
trimester, or quarter.
(4) Administrative correction of a student's record. In instances
where technological or computer problems on the part of SEVIS cause
an
error in the student's record, the DSO may request the SEVIS system
administrator, without fee, to administratively correct the student's
record.
* * * * *
(k) Issuance of Certificate of Eligibility. A designated school
official (DSO) of a school approved by the Service to enroll
nonimmigrant students must sign any completed Form I-20 issued for
either a prospective or continuing student or a dependent. A Form I-20
issued by an approved school system must state which school within the
system the student will attend. The form must only be issued from
within the United States. Only a designated official of a Service
approved school shall issue a Certificate of Eligibility, Form I-20,
to
a prospective student and his or her dependents, and only after the
following conditions are met:
* * * * *
(l) Designated official--
(1) Meaning of term Designated Official. As used in Sec. Sec.
214.1(b), 214.2(b), 214.2(f), 214.2(m), and 214.4, a Designated
Official, Designated School Official (DSO), or Principal Designated
[[Page 76280]]
School Official (PDSO), means a regularly employed member of the school
administration whose office is located at the school and whose
compensation does not come from commissions for recruitment of foreign
students. An individual whose principal obligation to the school is
to
recruit foreign students for compensation does not qualify as a
designated official. The PDSO and any other DSO must be named by the
president, owner, or head of a school or school system. The PDSO and
DSO may not delegate this designation to any other person.
(i) A PDSO and DSO must be either a citizen or lawful permanent
resident of the United States.
(ii) Each campus must have one PDSO. The PDSO is responsible for
updating SEVIS to reflect the addition or deletion of all designated
officials on his or her associated campus. The Service will also 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. In all other respects the PDSO and DSO will share
the same responsibilities.
(iii) Each school may have up to 10 designated officials at any one
time, including the PDSO. In a multi-campus school, each campus may
have up to 10 designated officials at any one time including a required
PDSO. In a private elementary or public or private secondary school
system, however, the entire school system is limited to 10 designated
officials at any one time including the PDSO.
(2) Name, title, and sample signature. Petitions for school
approval must include the names, titles, and sample signatures of
designated officials. An approved school must update SEVIS upon any
changes to the persons who are principal or designated officials, and
furnish the name and title of the new official within 21 days of the
change. Any changes to the PDSO or DSO must be made by the PDSO. In
its
discretion, the Service may reject the submission of any individual
as
a DSO or withdraw a previous submission by a school of an individual.
(3) Statement of designated officials. A petition for school
approval must include a statement by each designated official
certifying that the official is familiar with the Service regulations
relating to the requirements for admission and maintenance of status
of
nonimmigrant students, change of nonimmigrant status under part 248
of
this chapter, and school approval under Sec. Sec. 214.3 and 214.4, and
affirming the official's intent to comply with these regulations. At
the time a new designated official is added, the designated official
must make the same certification.
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
9. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
10. Section 248.3 is amended by revising paragraph (e)(2) to read
as follows:
Sec. 248.3 Application.
* * * * *
(e) * * *
(2) An alien classified under sections 101(a)(15)(A) or
101(a)(15)(G) of the Act as a member of the immediate family of a
principal alien classified under the same section, or an alien
classified under sections 101(a)(15)(E), (H), (I), (J), (L), or (Q)(ii)
of the Act as the spouse or child who accompanied or followed-to-join
a
principal alien who is classified under the same section, may attend
school in the United States, provided that the principal alien or
spouse or child maintain their nonimmigrant status.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
11. The authority citation for part 274a continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
12. Section 274a.12 is amended by:
a. Removing and reserving paragraph (b)(6)(ii);
b Revising paragraph (b)(6)(iii);
c. Revising paragraph (b)(11);
d. Revising the last sentence of paragraph (c)(3)(ii); and by
e. Revising paragraph (c)(3)(iii).
The revisions read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(6) * * *
(ii) [Reserved]
(iii) Curricular practical training (internships, cooperative
training programs, or work-study programs which are part of an
established curriculum) after having been enrolled full-time in a
Service approved institution for one full academic year. Curricular
practical training (part-time or full-time) is authorized by the
Designated School Official on the student's Form I-20. No Service
endorsement is necessary.
* * * * *
(11) An exchange visitor (J-1), pursuant to Sec. 214.2(j) of this
chapter and 22 CFR part 62. An alien in this status may be employed
only by the exchange visitor program sponsor or appropriate designee
and within the guidelines of the program approved by the Department
of
State as set forth in the Form DS-2019, Certificate of Eligibility,
issued by the program sponsor;
* * * * *
(c) * * *
(3) * * *
(ii) * * * The F-1 student must also present a Form I-20 ID or
SEVIS Form I-20 with employment page completed by DSO certifying
eligibility for employment; or
(iii) Is seeking employment because of severe economic hardship
pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has filed the Form I-20 ID
and
Form I-538 (for non-SEVIS schools), or SEVIS Form I-20 with employment
page completed by the DSO certifying eligibility, and any other
supporting materials such as affidavits which further detail the
unforeseen economic circumstances that require the student to seek
employment authorization.
Dated: December 5, 2002.
Michael J. Garcia,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-31184 Filed 12-6-02; 1:45 pm]
BILLING CODE 4410-10-P
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