It should be noted that on December 12, 2002, the Department of State published its own interim final rule with requests for comments establishing regulations and procedures for designated Exchange Visitor Program sponsors to gain access to the Student and Exchange Visitor Program (SEVP) database through SEVIS. The interim final rule became immediately effective on December 12, 2002 and specifically addresses requirements pertaining to exchange visitor program sponsors. The INS’ final rule addresses those areas over which INS has responsibility for exchange visitors, “e.g., admission, change of status, and duration of status.” See Federal Register, Vol. 67, No. 239, 76307 (December 12, 2002). Written comments on this rule must be submitted on or before January 13, 2003. The rule retains the important dates described in the INS’ final rule implementing SEVIS and explicitly states that “while not changing the majority of the Exchange Visitor Program regulations,” it will “have a major effect on the ways in which sponsors comply with these regulations.” See “Supplementary Information” at Part V “Request for Comments.”
SIGNIFICANT DATES:
January 30, 2003: The final rule confirms that the mandatory compliance date for all authorized schools to utilize SEVIS remains January 30, 2003. After January 30, schools must issue SEVIS Forms I–20. 8 C.F.R. Section 214.2(f)(1)(iii).
August 1, 2003: Non–SEVIS Forms I–20 issued prior to January 30 will remain valid until August 1, 2003. After August 1, non–SEVIS Forms I–20 can no longer be used for entry or any other purpose. Schools have been afforded a transition period in order to enter all current students into SEVIS through August 1, 2003. 8 C.F.R. Section 214.2(f)(1)(iii).
ADMISSION, STAY AND DEPARTURE:
F–1 students may only be admitted to the U.S. up to 30 days prior to the “indicated report date or program start date” listed on the Form I–20. In explanatory comments, INS indicates that the “report date” need not be the date the student begins classes. The DSO may use discretion in deciding how much time is needed for the student to complete preliminary activities such as orientation. Employment on campus, however, is limited to a maximum of 30 days prior to beginning classes. Under the old rule the earliest an F–1 could enter the United States was 90 days before the reporting date listed on Form I–20. If the prospective student wished to enter the U.S. more than 90 days before the reporting date, he or she had to obtain a B–2 “prospective student” visa and apply for a change of status after entering the U.S. 8 C.F.R. Section 214.2(f)(5)(i).
F–2 dependents are able to enter the U.S. up to 30 days before the F–1 student is actually enrolled. Previously, an F–2 dependent could enter the U.S. up to 60 days prior to enrollment. 8 C.F.R. Section 214.2(f)(3).
The final rule establishes two grace periods for departure preparation: a student who has completed a course of study and any authorized practical training following completion of studies has 60 days in order to depart, transfer, or file for change of status. A student who has been authorized by a DSO to withdraw from classes has 15 days to depart from the U.S. Students who terminate their course of study without obtaining prior approval from a DSO are not eligible for any additional grace period. The 60–day grace period existed under the old rule, however, the new rule clarifies that it applies only after completion of a course of study and/or authorized OPT. Previously, accepted practice presumed the 60–day grace period even in instances where the student withdrew, with or without DSO authorization. 8 C.F.R. Section 214.2(f)(5)(iv).
Except for “border commuter students” and public high school students, F–1 students are admitted for “duration of status.” A student who is admitted for “duration of status” is not required to apply for an extension of stay if he is maintaining status and making “normal progress toward completing his or her educational objective”; however, if he or she is unable to complete the course of study by the program end date on Form I–20, he or she must apply for a program extension pursuant to paragraph (f)(7)(iii) prior to the program end date. Under the old rule, the student had to apply for an extension within a 30–day period prior to the completion date on the Form I–20; the new rule opts for an open period for requesting program extensions. Extensions for students unable to meet the program completion date are still available pursuant to the same standards identified in the previous regulation. 8 CFR Section 214.2(f)(7)(i).
When determining a program completion date, the DSO “should make a reasonable estimate based on the time an average student would need to complete a similar program in the same discipline” including required activities prior to the start of classes. Under the previous rule, the DSO could add a grace period of up to one year to the completion date. Also, the final rule replaced “average foreign student” with “average student.”
ON–LINE/DISTANCE EDUCATION COURSES:
For F–1 academic students “[n]o more than the equivalent of one class or three credits” per session may be counted towards the full course of study requirement “if the class is taken on–line or through distance education.” Elementary and secondary students may also count distance education and on–line courses towards the “full course of study requirement.” Previous regulations did not specifically refer to on–line or distance education courses. 8 C.F.R. Section 214.2(f)(6)(i)(G).
Language students may not engage in on–line or distance education courses as part of a full course of study. 8 C.F.R. Section 214.2(f)(6)(i)(G).
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 purpose integral to completion of the class.” Previous regulations did not specifically refer to on–line or distance education courses. 8 C.F.R. Section 214.2(m)(9)(v).
The regulations do not hinder any student from taking distance education or on–line courses in addition to a full course of study. See “Supplementary Information,” Part IX. On–line and Distance Education Courses.
REDUCTION IN COURSE LOAD:
A “reduced course load” for academic reasons must still consist of “at least six semester or quarter hours, or half the clock hours required for a full course of study, unless otherwise noted” and must still be approved, a priori, by the DSO. The only “otherwise noted exception” is the medical reasons exception described below. The old rule did not establish a minimum number of credits or hours for maintenance of a full course of study under a reduced course load for academic reasons. 8 CFR Section 214.2(f)(6)(iii).
A student may only be authorized once to reduce his or her course load due to “academic difficulties” during study within one program level and must resume a full course the next available term (excluding summer). 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, however, may still be authorized for “a reduced course load due to an illness or medical condition.” The definition of what constitutes acceptable “academic difficulties” remains unchanged. The old rule did not restrict the frequency of authorization of a reduced course load due to academic difficulties but instead relied largely on DSO discretion. 8 C.F.R. Section 214.2(f)(6)(ii)(A).
A DSO may authorize a reduced course load “or, if necessary, no course load” in cases of “temporary illness or medical condition” for a period not to exceed 12 months, in the aggregate, per program level. A reduced course load for medical reasons may be authorized on more than one occasion during a given program level but never for more than the aggregate 12 months. A student must document an illness or medical condition by providing evidence from a “licensed medical doctor, doctor of osteopathy, or licensed clinical psychologist.” The previous rule did not specify what type of documentation could justify a reduced course load due to medical condition or illness. In the new rule, the INS listed and specified the sources of information. The prior rule also did not specify any time limit by which a student must resume a full course of study nor did it specifically require advance authorization by the DSO. 8 C.F.R. Section 214.2(f)(6)(iii)(B).
A DSO must also authorize a reduced course load in advance of the “final semester of study” even if fewer courses of study are needed for completion. The previous rule specifically authorized such a reduction, with no advance notification by the DSO. 8 C.F.R. Section 214.2(f)(6)(iii)(C).
The new rule clarifies that a student may not maintain status by simply enrolling “for administrative purposes” after all academic work is completed. This was a frequent source of abuse under the old rule. 8 C.F.R. Section 214.2(f)(6)(i)(G).
M–1 students may not be authorized to reduce course load based upon academic difficulties. An M–1 student may only be authorized to reduce course load for reasons of illness or medical condition and only for an aggregate of five months. The previous rule only mentioned a reduction in course load for illness and did not impose a five month limitation. 8 C.F.R. Section 214.2(m)(5)(vi).
TRANSFERS:
Students must resume classes within five months of transferring out of their current school, or within five months of the program completion date as indicated on the Form I–20 issued by the current school, whichever date is earlier. For transfer students authorized to engage in post–completion OPT, the student must be able to resume classes within five months of transferring out of the school that recommended OPT or the date the OPT authorization ends, whichever is earlier. Students ineligible for a transfer may depart the country and return as an initial entry in F–1 status. A student is not otherwise permitted to remain in the U.S. when transferring between schools. The old rule did not contain a “five month” resumption requirement but simply required that the student enroll in the new school in the first term after leaving the previous school or the first term after vacation. 8 C.F.R. Section 214.2(f)(8)(i).
In a transfer from a non–SEVIS school to another non–SEVIS school, i.e., in the transition period up to January 30, the DSO must first determine that the student maintained status at the current school and is eligible for transfer prior to issuing Form I–20. The student must present the transfer Form I–20 to the receiving school’s DSO “within 15 days of the program start date” listed on the Form I–20. The old rule required the student to present the Form I–20 within 15 days of “beginning attendance at the new school.” 8 C.F.R. Section 214.2(f)(8)(ii)(A).
In a transfer from a SEVIS school to another SEVIS school, the final rule introduces the concept of “release date” for transfer procedures. The student first notifies the current school of his or her intent to transfer. The current school updates the student’s SEVIS record as a “transfer out” indicating the school the student intends to transfer to and a “release date.” The “release date” will be the current semester completion date, or the date of the expected transfer, if different than established academic cycle. The current school retains control of the student’s SEVIS record until the release date is reached. The student may cancel the transfer request at any time prior to the release date. After the release date the current school will no longer have access to the SEVIS record, and thus will be unable to cancel the request after the release date. The student is required to contact the transfer DSO within 15 days of the program start date. The prior rule, before SEVIS, obviously contained no such constraints. 8 C.F.R. Section 214.2(f)(8)(ii)(C).
ON–CAMPUS EMPLOYMENT:
Rules pertaining to on–campus employment remain essentially the same as under the prior rule with two exceptions: (1) In the case of a student making an initial entry to begin a new program, employment may begin no sooner than 30 days prior to the start of classes; and (2) In the case of transfer students, employment may occur only at the school which has jurisdiction over his or her SEVIS record. The transferring school has jurisdiction over the SEVIS record prior to the transfer release date and the transferee school has jurisdiction over the SEVIS record on and after the transfer release date. 8 C.F.R. Section 214.2(f)(9).
OPTIONAL PRACTICAL TRAINING:
Students may apply for OPT up to 90 days prior to being enrolled for “one full academic year” but may not begin employment until after the completion of the full academic year. Under the old rule a student could not apply for OPT until he or she had been “lawfully enrolled on a full–time basis” for “at least nine consecutive months.” 8 C.F.R. Section 214.2(f)(10)(ii)(A).
Students must request post–completion OPT prior to the completion of course requirements or the course of study. There is no explicit limit on the number of days before completion that a student may apply. This may negatively impact students who graduate in December 2002 but who wait to request OPT after January 2003. INS is apparently studying this issue. Under the old rule, students were allowed to apply for OPT up to 120 days before and up to 60 days after the completion of course requirements. 8 C.F.R. Section 214.2(f)(10)(ii)(A).
Beginning study at another educational level or transferring to another school is grounds for automatic termination of OPT. The previous rule did not mention beginning study another educational level as grounds for automatic termination of OPT. This will negatively impact students who legitimately want to use OPT and also want to begin studying for an additional degree, a practice implicitly permitted under the old rule. 8 C.F.R. Section 214.2(f)(10)(ii)(B).
Under the new rule, 12 months of OPT are available to F’s at each program level. The prior rule permitted only one such period, unless the student restarted the OPT “clock” by leaving the U.S. for at least five months. 8 C.F.R. Section 214.2(f)(10).
Practical training may be authorized to an F–1 student who has been enrolled on a full–time basis for at least “one full academic year.” Time spent studying abroad may count, for purposes of practical training, towards the “one full academic year” enrollment requirement, but only if the student has studied in the U.S. for one “full academic term” prior to studying abroad. It may be reasonably inferred, because of the nine–month computation, that “term” refers to one semester or quarter. The old rule referred to enrollment for “at least nine consecutive months” prior to prior to being eligible for practical training and did not provide for study abroad. 8 C.F.R. Section 214.2(f)(10).
F–2 and M–2 dependents are permitted to attend elementary, middle and high school on a full–time basis. F–2’s are also permitted to engage in post–secondary study that is “avocational or recreational in nature.” F–2 dependents who are enrolled in a full course of study prior to January 1, 2003 may continue studies provided they apply for a change of status to F–1, M–1 or J–1 on or before March 11, 2003. The final rule clarifies in the supplementary information what constitutes “avocational or recreational.” “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 prior rule did not prohibit full–time post–secondary study by F–2’s or M–2’s. 8 C.F.R. Section 214.2(f)(15)(ii).
REINSTATEMENT:
The district director may consider reinstatement of a student who has not been out of status for more than five months at the time of filing for reinstatement. In other words, if the student fails to become aware of the status violation after five months, he or she is generally ineligible for reinstatement. However, a student may demonstrate “exceptional circumstances” for seeking reinstatement after five months and that the request was filed as “promptly as possible under these exceptional circumstances.” In addition, just as under the old rule, the student must also be pursuing a full course of study, have not engaged in unauthorized employment and cannot be deportable on any grounds other than Section 237(a)(1)(B) [present in violation of law] or (C)(i) [nonimmigrant status violators] of the INA. The old rule contained no five month general limitation for requesting reinstatement. 8 C.F.R. Section 214.2(f)(16).
In order to be reinstated, the student must present a “detailed showing” that the violation of status resulted from circumstances beyond his control, such as “serious injury or illness, closure of the institution, a natural disaster, or inadvertence, oversight, or neglect on the part of the DSO, but does 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.” The prior regulation allowed the student to demonstrate circumstances beyond his or her control or extreme hardship. Id.
The only ground for reinstatement that does not depend upon “exceptional circumstances” is a situation where the student reduced course load (which was within the DSO’s power to authorize) without prior authorization from the DSO. In this instance, the student must demonstrate that failure to approve the reinstatement would result in “extreme hardship” to the student. This provision was not contained in the old rule. 8 C.F.R. Section 214.2(f)(16)(i).
F–3 AND M–3 “BORDER COMMUTER STUDENTS”:
“Border commuter students,” i.e. citizens of Canada or Mexico who continue to reside in their home country while commuting to the U.S., are admitted in F–3 or M–3 status to attend an approved school within 75 miles of a U.S. land border. F–3 and M–3 nonimmigrants may not be admitted for “duration of status,” but only for a date certain. The DSO must indicate a completion date that reflects the actual semester or term. A new I–20 is required for each new semester or term. Border commuter students are ineligible for any employment pursuant to F–3 status except curricular practical training and post–completion optional practical training. This provision was added to INS regulations on August 27, 2002 in order to implement the Border Commuter Student Act of 2002 (H.R. 4967) (Public Law 107–274) and was unmodified by the final rule. 8 C.F.R. Section 214.2(f)(18) and (m)(19). The Service indicates in supplementary information that it will be amending regulations relating to “border commuter students” in the near future but 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–1and M–1 students.”See “Supplementary Information,” “Who are F, J, and M Nonimmigrants?”
INFORMATION AND RECORDKEEPING:
The recordkeeping requirements of 8 C.F.R. Section 214.3(g)(1) remain largely unchanged with two minor exceptions: (1) The final rule allows schools to report a mailing address to SEVIS where the student cannot receive mail at the physical address; and (2) clarifies the “academic status” information, changing it from “full–time or part–time” to “current academic status.” It should be noted that SEVIS does not supplant the old reporting requirements, when and where the government deems them necessary. That is, Section 214.3(g)(1) still mandates that certain information be provided to INS, upon request, within given time limits, depending on the situation. Though the Service would undoubtedly already have all this information should the DSO be properly updating SEVIS and it is functioning properly, the old regulation was retained to deal with situations falling outside these parameters. 8 C.F.R. Section 214.3(g)(1).
The DSO must update SEVIS prior to the student’s reducing his or her course load with the date and reason for the authorization, as well as the start date of the next semester. The DSO must also notify SEVIS within 21 days of the resumption of the full course load. This is a new reporting requirement added by the final rule. 8 C.F.R. Section 214.2(f)(6)(iii)(E).
A new paragraph has been added, 8 C.F.R. Section 214.3(g)(3), which specifies SEVIS reporting requirements. 8 C.F.R. Section 214.3(g)(3)(ii) sets forth new “event based” reporting requirements. Schools must report to SEVIS within 21 days of their occurrence the following events: a student’s failure to maintain status or complete a course of study; a change in a student or dependent’s name or address; a student who has graduated early or before the completion date on SEVIS Form I–20; disciplinary action against the student as a result of a conviction for a crime; and any other notification request made by SEVIS with respect to current student status. This is a new reporting requirement added by the rule.
8 C.F.R. Section 214.3(g)(iii) sets forth new “periodic reporting” requirements for the following registration information for each term or session “no later than 30 days after the deadline for registering for classes”; whether the enrolled student dropped below a full course of study without prior DSO authorization; current address of each enrolled student; and start date of the student’s next term or session. This is a new reporting requirement added by the rule.
New paragraph 8 C.F.R. Section 214.3(g)(4) allows for the administrative correction of a student’s record in instances where technological or computer problems on the part of SEVIS caused an error in the student’s record. The DSO may request the SEVIS system administrator, without fee, to administratively correct the error. This is a new capability inherent to SEVIS.
CHANGE OF ADDRESS:
The rule requires students to notify the DSO within 10 days of any change of address, and specifies that this will satisfy the general requirement contained in 8 C.F.R. Section 265.1 of notifying the Service of a change of address. There was no such explicit requirement in the old rule. 8 C.F.R. Section 214.2(f)(18).
The rule allows students and schools to use a mailing address rather than a physical address but the school must maintain a record of the physical location where the student resides and provide that information upon request from the Service. The old rule contained no such provision. 8 C.F.R. Section 214.2(f)(18).
DESIGNATED OFFICIALS:
The new rule mandates the designation of one Principal Designated Official (PDSO) for each campus. The PDSO is responsible for updating SEVIS to reflect the addition or deletion of all designated officials (including the PDSO him or herself) and also serves as the primary Service point of contact on issues relating to SEVIS compliance. Apart from this important function, the PDSO will share the same responsibilities as any other DSO. The old rule made no reference to a PDSO. 8 C.F.R. Section 214.3(l)(1)(ii).
Each school may have up to 10 designated school officials (DSO’s) at any one time, including the PDSO. The old rule provided for only five designated officials at any one time and again, did not include a PDSO. 8 C.F.R. Section 214.3(l)(1)(iii).
EDUCATIONAL PRIVACY:
The final rule clarifies that the INS Commissioner is waiving certain requirements imposed by the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. Section 1232g in order that schools may meet all SEVIS reporting requirements. Broadly speaking, FERPA restricts the ability of an educational agency or institution that accepts certain federal funding to disclose information contained in a student’s record. The Commissioner may waive FERPA “to the extent necessary to implement SEVIS.” This waiver, which implements the legislative mandate established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) (Public Law 104–208) Section 641(c)(2), does not, however, extend to agencies outside the INS, except to the Department of State, with respect to any corresponding regulation concerning J nonimmigrants. That is, DSO’s are not authorized to provide student or exchange visitor information to other law enforcement entities unless an established exception to FERPA is applicable. 8 C.F.R. Section 214.1(h). The rule thus does not create wholesale exceptions to FERPA not already contained in prior law and regulation, except for the expanded information required by SEVIS reporting requirements.
CONCLUSION:
The final rule amended current regulations in part to comply with the additional reporting requirements imposed by the USA PATRIOT Act (Public Law 107–56) and Section 501 of the Enhanced Border Security Act (Public Law 107–173). Also, the Service needed to improve its procedures in order “to maintain updated information on approximately one million non-immigrant foreign students and exchange visitors during the course of their stay in the United States each year.” See INS Fact Sheet, December 11, 2002. The INS reports that commenters to the proposed regulation generally “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.” Supplementary Information, “Response to Public Comments on the Proposed Rule.” It is certainly our hope that the implementation of SEVIS is carried out in this spirit.