[Federal Register Volume 73, Number 77 (Monday, April 21, 2008)]
[Proposed Rules]
[Pages 21260-21286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8261]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 73, No. 77 / Monday, April 21, 2008 /
Proposed Rules
[[Page 21260]]
DEPARTMENT OF HOMELAND SECURITY
U.S. Immigration and Customs Enforcement
8 CFR Parts 103 and 214
[DHS No. ICEB-2008-0004]
RIN 1653-AA54
Adjusting Program Fees and Establishing Procedures for Out-of-
Cycle Review and Recertification of Schools Certified by the Student
and Exchange Visitor Program To Enroll F or M Nonimmigrant Students
AGENCY: U.S. Immigration and Customs Enforcement, DHS.
ACTION: Proposed rule.
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SUMMARY: The Department of Homeland Security (DHS) is proposing to
amend the Student and Exchange Visitor Program (SEVP) school
certification petition fee and the application fee for nonimmigrants
seeking to become academic (F visa) or vocational (M visa) students, or
exchange visitors (J visa). This proposed rule would adjust the fees
for schools seeking to admit F or M students; adjust the fees paid by
individual F, M or J nonimmigrants; implement mandatory review of fees
collected by SEVP; set the fee for submitting a school certification
petition at $1700, plus $655 for each site; set the fee for each F or M
student at $200; for most J exchange visitors at $180; and for exchange
visitors seeking admission as au pairs, camp counselors, and summer
work/travel program participants at $35. DHS proposes to make this rule
effective at the beginning of fiscal year 2009, on October 1, 2008.
DHS proposes also to establish oversight and recertification of
schools for attendance by F or M students. The proposed rule would
establish procedures for schools to submit their recertification
petitions, add a provision allowing a school to voluntarily withdraw
from its certification, and clarify procedures for school operation
with regard to F or M students during recertification and following a
denial of recertification or a withdrawal of certification. Further,
the proposed rule would remove obsolete provisions used prior to
implementation of the Student and Exchange Visitor Information System
(SEVIS), a Web-enabled database that provides current information on F,
M and J nonimmigrants in the United States.
DATES: Comments must be submitted on or before June 20, 2008.
ADDRESSES: You may submit comments, which must be identified by DHS
docket number ICEB-2008-0004, using one of the following methods:
Federal Rulemaking Portal: http://www.regulations.gov. Follow the
instructions for submitting comments.
Mail: Office of Policy, U.S. Immigration and Customs Enforcement,
U.S. Department of Homeland Security, 425 I St., NW., Room 7257,
Washington, DC 20536.
Hand Delivery/Courier: The address for sending comments by hand
delivery or courier is the same as that for submitting comments by
mail. Contact telephone number is (202) 514-8693.
Facsimile: Comments may be submitted by facsimile at (866) 466-
5370.
FOR FURTHER INFORMATION CONTACT: Louis Farrell, Director, Student and
Exchange Visitor Program; U.S. Immigration and Customs Enforcement,
Department of Homeland Security; Chester Arthur Building, 425 I St.,
NW., Suite 6034, Washington, DC 20536; telephone number (202) 305-2346.
This is not a toll-free number. Program information can be found at
http://www.ice.gov/sevis/.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Background
A. Student and Exchange Visitor Program Legal Authority and
Requirements
B. Student and Exchange Visitor Information System
C. Development of SEVP
III. Adjustment of SEVP Fees
A. Rationale for New Fee Schedule
B. SEVP Funding Authority
C. SEVP Baseline Costs and Fees
D. Methodology
1. Activity-Based Costing Approach
2. Full Cost
3. Cost Basis for SEVP Fees Based on Current Services
4. Enhancements
E. Summary of the Full Cost Information for FY 2009
1. Fee Allocation
2. SEVP FY 2009 Cost Model Results
3. Fee Calculations
4. Calculation of Site-Visit Cost
5. Proposed Fee Levels
F. Impact on Applicants
IV. Procedures for Certification, Out-of-Cycle Review and
Recertification of Schools
A. Filing a Petition for SEVP Certification, Out-of-Cycle Review
or Recertification
1. General Requirements
2. School Systems
3. Petition Submission Requirements
4. Eligibility
B. Interview of Petitioner
C. Notices and Communications
D. Recordkeeping, Retention and Reporting Requirements
E. SEVP Certification, Recertification, Out-of-Cycle Review and
Oversight
1. Certification
2. Recertification
3. School Recertification Process
4. Out-of-Cycle Review
5. Voluntary Withdrawal of Certification
F. Designated School Officials
G. Denial or Withdrawal of SEVP Certification or Recertification
Procedures
1. Automatic Withdrawal
2. Withdrawal on Notice
3. Operations at a School When SEVP Certification Is Withdrawn
or Recertification Denied
V. Statutory and Regulatory Requirements
A. Regulatory Flexibility Act
B. Unfunded Mandates Reform Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
D. Executive Order 12866: Regulatory Review
E. Executive Order 13132, Federalism
F. Executive Order 12988 Civil Justice Reform
G. Paperwork Reduction Act
List of Subjects
Table of Abbreviations and Acronyms
ABC Activity-based Costing
CBP U.S. Customs and Border Protection
CEU Compliance Enforcement Unit
CFO Chief Financial Officer
DHS Department of Homeland Security
DOS Department of State
DSO Designated school official
EBSVERA Enhanced Border Security and Visa Entry Reform Act of 2002,
Public Law 107-173; May 14, 2002
FASAB Federal Accounting Standards Advisory Board
HSPD-2 Homeland Security Presidential Directive--2
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
[[Page 21261]]
INA Immigration and Nationality Act of 1952
INS Immigration and Naturalization Service
IRM Information Resources Management
IT information technology
NAICS North American Industry Classification System
NOIW Notice of Intent to Withdraw
OMB Office of Management and Budget
PDSO Principal designated school official
RFA Regulatory Flexibility Act
RFE Request for evidence
SBA Small Business Administration
SCB School Certification Branch
SEVIS Student and Exchange Visitor Information System
SEVP Student and Exchange Visitor Program
SFFAS FASAB Statement of Federal Financial Accounting Standard No 4:
Managerial Cost Accounting Concepts and Standards for the Federal
Government
SSA Social Security Administration
UMRA Unfunded Mandates Reform Act of 1995
USCIS U.S. Citizenship and Immigration Services
I. Public Participation
Interested persons are invited to comment on this rulemaking by
submitting written data, views, or arguments on all aspects of the
proposed rule. DHS invites comments related to the potential economic,
environmental, or Federalism effects that might result from this
proposed rule. Comments that will most assist DHS will reference a
specific portion of this proposed rule and preamble by the
identification number at the heading of the specific section being
addressed. The reason for any recommended change should be explained.
Data, information, and the authority that supports the recommended
change should be included.
DHS has entered into the docket for this rulemaking the SEVP Fee
Study, and Initial Regulatory Flexibility Act Analysis: Impact on Small
Schools of the Change in Fees for Certification and Institution of
Recertification by the Student and Exchange Visitor Program.
DHS welcomes comments on the information and analyses in these
supporting documents. The budget methodology software used in computing
the SEVIS fees is a commercial product licensed to SEVP, which may be
accessed on-site by appointment by calling (202) 305-2346.
Instructions: All submissions received must include the agency name
and Department of Homeland Security Docket No. ICEB-2008-0004. All
comments received (including any personal information provided) will be
posted without change to http://www.regulations.gov. See ADDRESSES,
above, for methods to submit comments. Mailed submissions may be paper,
disk, or CD-ROM.
Comments may be viewed online at http://www.regulations.gov, or in
person at U.S. Immigration and Customs Enforcement, Department of
Homeland Security, 425 I St., NW., Room 7257, Washington, DC 20536, by
appointment.
II. Background
A. Student and Exchange Visitor Program Legal Authority and
Requirements
Under section 101(a)(15)(F)(i) of the Immigration and Nationality
Act of 1952, as amended (INA), 8 U.S.C. 1101(a)(15)(F)(i), a foreign
student may be admitted into the United States in nonimmigrant status
to attend an academic or language training school (F visa). Under
section 101(a)(15)(M)(i) of the INA, 8 U.S.C. 1101(a)(15)(M)(i), a
foreign student may be admitted into the United States in nonimmigrant
status to attend a vocational education school (M visa). An F or M
student may enroll in a particular school only if the Secretary of
Homeland Security has certified the school for the attendance of F or M
students. Under section 101(a)(15)(j) of the INA, 8 U.S.C.
1101(a)(15)(j), a foreign citizen may be admitted into the United
States in nonimmigrant status as an exchange visitor (J visa) in an
exchange program sponsored by the Department of State (DOS).
Section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C, 110
Stat. 3009-546 (September 30, 1996), authorized the creation of a
program to collect current and ongoing information provided by schools
and exchange visitor programs regarding F, M, or J nonimmigrants during
the course of their stay in the United States, using electronic
reporting technology to the fullest extent practicable. IIRIRA further
authorized DHS to certify schools participating in F or M student
enrollment.
The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public
Law 107-56, 115 Stat. 272 (October 26, 2001), provided that alien date
of entry and port of entry information be collected. On October 30,
2001, the President issued Homeland Security Presidential Directive No.
2 (HSPD-2) requiring DHS to conduct periodic, ongoing recertification
of all schools certified to accept F or M students. 37 Weekly Comp.
Pres. Docs. 1570, 1571-72 (October 29, 2001).
The Enhanced Border Security and Visa Entry Reform Act of 2002
(EBSVERA), Public Law 107-173, 116 Stat. 543 (May 14, 2002), 8 U.S.C.
1762, provided for DHS to recertify all schools approved for attendance
by F or M students within two years of enactment. Further, EBSVERA
provided that DHS conduct an additional recertification of these
schools every two years thereafter. Data collection requirements for
SEVP certification, oversight and recertification of schools authorized
to enroll F or M students are not specified in legislation, but are
enumerated by regulation. 8 CFR 214.3, 214.4.
This proposed rule would amend DHS regulations governing
certification, oversight and recertification of schools by SEVP for
attendance by F or M students. The proposed rule would establish
procedures for schools to submit their recertification petitions, add a
provision allowing a school to voluntarily withdraw from its
certification, clarify procedures for school operation with regard to F
or M students during recertification and following a withdrawal of
certification, and remove obsolete provisions used prior to
implementation of SEVIS. The proposed rule would adjust the SEVP
certification fee and student application fee (I-901 SEVIS fee) to
reflect existing operating costs, program requirements, and planned
enhancements.
B. Student and Exchange Visitor Information System
SEVP administers SEVIS, a Web-based data entry, collection and
reporting system. SEVIS provides authorized users access to reliable
information on F, M and J nonimmigrants, and their dependents. DHS,
DOS, and other government agencies, as well as SEVP-certified schools
and DOS-designated exchange visitor programs, use SEVIS data.
Awareness of the information flow for F and M students is critical
to understanding the use of SEVIS. A nonimmigrant must apply to an
SEVP-certified school and be accepted for enrollment. From the
information provided by the nonimmigrant, the school enters student
information into SEVIS and issues a Form I-20, Certificate of
Eligibility for Nonimmigrant Student Status. The nonimmigrant must
submit an approved Form I-20 when applying for an F or M visa.
Similarly, a nonimmigrant must apply to a DOS-designated exchange
visitor program and be accepted for enrollment as a basis for applying
for a J exchange visitor visa. From the information provided by the
nonimmigrant, the
[[Page 21262]]
exchange visitor program enters exchange visitor information into SEVIS
and issues a Form DS-2019, Certificate of Eligibility for Exchange
Visitor (J-1) Status. The nonimmigrant must submit an approved Form DS-
2019 when applying for a J visa.
U.S. Customs and Border Protection (CBP) inspectors will enter data
into DHS systems related to the F, M or J admission to the United
States. These systems interface with SEVIS, providing SEVP with these
data.
Certified schools and exchange visitor programs update information
on their approved F, M and J nonimmigrants after the nonimmigrants'
admission and during their stay in the United States.
The SEVIS database enables DHS and DOS to efficiently administer
their approval (i.e., certification and designation, respectively) and
oversight processes of schools and programs wishing to benefit from
enrolling nonimmigrants. SEVIS assists law enforcement agencies in
tracking and monitoring F, M and J nonimmigrant status and apprehending
violators before they can potentially endanger the national security of
the United States. SEVIS assists government benefit and service
providers to better serve their F, M and J nonimmigrant applicants.
Finally, SEVIS enables schools and exchange visitor programs to
instantaneously transmit electronic information and changes in required
information on F, M and J nonimmigrants to U.S. Immigration and Customs
Enforcement (ICE) and DOS throughout their stay in the United States.
These include required notifications, reports, and updates to personal
data.
SEVIS data are used continually to qualify individuals applying for
F, M and J status and to facilitate port of entry screening by CBP; to
process benefit applications; to monitor nonimmigrant status
maintenance; and, as needed, to facilitate timely removal.
C. Development of SEVP
On July 1, 2002, selected schools that had been previously approved
to enroll F and M students began to receive preliminary certification
in SEVIS. After September 25, 2002, all schools became eligible to
petition for certification in SEVIS. By February 15, 2003, schools were
required to be certified in SEVIS in order to be authorized to issue
initial Forms I-20. As of August 1, 2003, schools and exchange visitor
programs were required to enter all F, M and J nonimmigrant data into
SEVIS.
As of February 1, 2008, SEVIS contained 1,016,029 active records on
F, M, and J students and exchange visitor. More than 9,000 schools are
currently SEVP-certified; more than 1,400 exchange visitor programs are
DOS-designated.
SEVP levies two fees to recoup the cost of DHS and DOS program
operations and services, as well as to maintain and enhance SEVIS. The
fees include: The I-901 SEVIS fee for the registration of student and
exchange visitor information in SEVIS, and the Certification Fee for
schools and school systems to accept nonimmigrant students
participating in the F and M visa programs.
On July 1, 2004, DHS promulgated a final rule that required the
collection of information relating to F, M and J nonimmigrants and
providing for the collection of the required fee to defray cost. 69 FR
39814. That rule provided for the collection of a fee to be paid by
foreign citizens seeking nonimmigrant status as F or M students or J
exchange visitors.
HSPD-2 requires DHS to conduct ongoing oversight and periodic
recertification of all schools certified to accept F and/or M students.
On September 25, 2002, the Department of Justice published an interim
rule that implemented the certification process for schools to receive
authorization to enroll F or M nonimmigrant students in SEVIS,
including the fees charged for this service and the accompanying site
visit. 67 FR 60107. This certification process includes an ongoing
commitment by schools to maintain current and accurate records in SEVIS
on their F and M students, as well as on their own operations.
Congress required DHS to recertify all schools approved for
attendance by F or M students within two years of the passage of
EBSVERA. EBSVERA section 502(a), 8 U.S.C. 1762(a). Congress also
required that schools be recertified every two years to confirm that
the schools remain eligible for certification and are in compliance
with recordkeeping, retention and reporting requirements.
Funding for recertification will be provided by a portion of the I-
901 SEVIS fee levied on F and M students.
In establishing the recertification process, SEVP conducted a
detailed business process analysis to document the recertification
business process; developed standard operating processes for
recertification; developed cycle time measurements of the proposed
processes; and estimated the level of effort required to conduct
compliance reviews of certified schools. Based on this analysis, SEVP
developed the projected cost for recertification.
III. Adjustment of SEVP Fees
A. Rationale for New Fee Schedule
The proposed amended fees are driven by two factors: The need to
comply with statutory and regulatory requirements that SEVP review its
fee structure every two years to ensure that the cost of the services
that are provided are fully captured by fees assessed on those
receiving the services; and the need to enhance SEVP capability to
achieve its legislative goals to support national security and counter
immigration fraud through the development and implementation of
critical system and programmatic enhancements.
This proposed rule would establish a fee structure that
incorporates the added cost of school recertification into the I-901
SEVIS fee that is paid by applicants for F and M status, allowing SEVP
to capture the entire cost for activities related to recertification.
The proposed rule would allow SEVP to fully fund activities and
institute critical near-term program and system enhancements in a
manner that fairly allocates cost and acknowledges defined performance
goals.
B. SEVP Funding Authority
The Secretary is authorized to collect fees for SEVP from
prospective F and M students and J exchange visitors. IIRIRA section
641(e)(1), as amended, 8 U.S.C. 1372(e)(1). Fees for specific classes
of aliens were statutorily limited, but the Secretary was authorized to
revise those fees. IIRIRA section 641(e)(4)(A), (g)(2), as amended, 8
U.S.C. 1372(e)(4)(A), (g)(2). These fees are deposited as offsetting
receipts into the Immigration Examinations Fee Account and are
available to the Secretary until expended for the purposes of the
program. IIRIRA section 641(e)(4)(B), 8 U.S.C. 1372(e)(4)(B).
The Immigration Examination Fee Account, under INA section 286(m),
8 U.S.C. 1356(m), provides that the Secretary may collect fees at a
level that would ensure recovery of the full costs of providing
adjudication services, including the costs of providing similar
services without charge to asylum applicants and certain other
immigrants:
Notwithstanding any other provisions of law, all adjudication
fees as are designated by the [Secretary] in regulations shall be
deposited as offsetting receipts into a separate account entitled
``Immigration Examinations Fee Account'' in the Treasury of the
United States, * * *: Provided further, That fees for providing
adjudication and naturalization services may be set at a level that
will ensure recovery of the full costs of providing all such
services, including the costs of similar services provided without
[[Page 21263]]
charge to asylum applicants or other immigrants. Such fees may also
be set at a level that will recover any additional costs associated
with the administration of the fees collected.
Under this authority, user fees are employed, not only for the benefit
of the payer of the fee and any collateral benefit resulting to the
public, but also provide a benefit to certain others, particularly
asylum applicants and refugees and others whose fees are waived. The
fees proposed in this rule would not fund any support for asylum
applicants or refugees, but would support specific sets of reduced fee
and fee-exempt exchange visitors.
The Secretary is required to certify schools for participation in
SEVIS and authorization to enroll F and M students. INA section
101(a)(15)(F)(i), (M)(i), 8 U.S.C. 1101(a)(15)(F)(i), (M)(i). The
Secretary charges a fee for this adjudication and approval under the
Immigration Examinations Fee Account. INA section 286(m), 8 U.S.C.
1356(m).
The Secretary is also required to review and recertify schools
biennially. EBSVERA section 502(a), 8 U.S.C. 1762(a). The Secretary
must charge a fee for this service under the Immigration Examinations
Fee Account. INA section 286(m), 8 U.S.C. 1356(m). The Secretary would
recover the costs of recertification in this proposed rule from the
students who are benefited by the recertification.
In developing fees and fee rules, DHS looks to a range of
governmental accounting provisions. The Office of Management and Budget
(OMB) Circular A-25, User Charges (revised), section 6, 58 FR 38142
(July 15, 1993) defines ``full cost'' to include all direct and
indirect cost to any part of the Federal government for providing a
good, resource, or service. These costs include, but are not limited
to, an appropriate share of: direct and indirect personnel cost;
physical overhead; consulting and other indirect cost; management and
supervisory cost; enforcement; information collection and research; and
establishment of standards and regulation, including any required
environmental impact statements.
OMB Circular A-11, Preparation, Submission and Execution of the
Budget, section 31.12, July 2, 2007, directs agencies to develop user
charge estimates based on the full cost recovery policy set forth in
OMB Circular A-25, User Charges (budget formulation and execution
policy regarding user fees).
The Federal Accounting Standards Advisory Board (FASAB) Statement
of Federal Financial Accounting Standards (SFFAS) No. 4: Managerial
Cost Accounting Concepts and Standards for the Federal Government, July
31, 1995, provides the standards regarding managerial cost accounting
and full cost. SFFAS No. 4 defines ``full cost'' to include ``direct
and indirect costs that contribute to the output, regardless of funding
sources.'' FASAB identifies various classifications of cost to be
included and recommends various methods of cost assignment to identify
full cost. Activity-based costing (ABC) is highlighted as a costing
methodology useful to determine full cost within an agency.
The Chief Financial Officers Act of 1990, 31 U.S.C. 901-903,
requires each agency's Chief Financial Officer (CFO) to ``review, on a
biennial basis, the fees, royalties, rents and other charges imposed by
the agency for services and things of value it provides, and make
recommendations on revising those charges to reflect cost incurred by
it in providing those services and things of value.'' 31 U.S.C.
902(a)(8).
This proposed rule reflects the recommendations made by the CFO.
This proposed rule proposes increased funding that supports new
initiatives critical to improving homeland security; funds operations
to comply with statutory requirements to implement school
recertification, and reflects the implementation of specific cost
allocation methods to segment program cost to the appropriate fee,
either F and M students or schools, to ensure compliance with the legal
framework for fee setting.
C. SEVP Baseline Costs and Fees
SEVP certifies schools to enroll F and M students; administers,
maintains, and develops SEVIS; collects fees from F and M students, J
exchange visitors, and schools; adjudicates certification appeals; and
provides overall guidance to schools regarding program enrollment and
compliance, as well as the use of SEVIS. These activities are funded
solely through the collection of fees.
The I-901 SEVIS fee, collected from students and exchange visitors,
funds: the operation of SEVP; the cost of administering, maintaining,
and developing SEVIS; the cost of school recertification; and all
activities related to individual and organizational compliance issues
within the jurisdiction of SEVP. Individual and organizational
compliance includes funding the cost of investigations of compliance
issues related to schools participating in SEVP and exchange visitor
programs, as well as F, M, or J nonimmigrants where potential threats
to national security are identified, where immigration violation or
fraud is suspected, or both.
The Certification Fee is paid by schools that petition for the
authority to issue Forms I-20 to prospective nonimmigrant students for
the purpose of enrolling them in F or M visa status. These monies fund
the base internal cost for SEVP to process and adjudicate the initial
school certification petition (Form I-17, Petition for Approval of
School for Attendance by Nonimmigrant Student).
SEVP expects to receive and Congress has approved expenditure for
$56.2 million in student and certification fees in FY 2008. Budget of
the United States, FY2008, Appendix: Detailed Budget Estimates, at 459
(2007); Pub. L. 110-161, Div. E, 121 Stat. 1844 (2007). SEVP has
requested $119.58 million in expenditure authority for FY 2009. Budget
of the United States, FY2009, Appendix: Detailed Budget Estimates, at
490 (2008).
The I-901 SEVIS fee and school certification fee were initially set
when they were established in 2002 and have not been adjusted since
that time.
D. Methodology
SEVP captured and allocated cost utilizing an ABC approach to
define full cost, outline the sources of SEVP cost and define the fees.
The ABC approach also provides detailed information on the cost and
activities allocated to each fee.
1. Activity-Based Costing Approach
SEVP used BusinessObjects Metify ABM Solo Edition, version 3.0.1,
build 1277, ABC modeling software to determine the full cost associated
with updating and maintaining SEVIS to collect and maintain information
on F, M, and J nonimmigrants; certifying schools; overseeing school
compliance; recertifying schools; adjudicating appeals; investigating
suspected violations of immigration law and other potential threats to
national security by F, M, or J nonimmigrants; providing outreach and
education to users; and performing regulatory and policy analysis. The
model was also used to identify management and overhead cost associated
with the program.
ABC is a business management methodology that relates inputs (cost)
and outputs (products and services) by quantifying how work is
performed in an organization (activities). The ABC methodology provides
a way for fee-funded organizations to trace the cost of the provided
services and to calculate an appropriate fee for the service, based on
the cost of activities that are associated with the services for which
the fee is levied.
[[Page 21264]]
Using the ABC methodology, SEVP identified and defined the
activities needed to support SEVP functions, to include those of
current and future initiatives; captured the full resource cost and
apportioned it to the appropriate activity; and assigned the cost to
the appropriate fee category, based on the nature of the activity.
SEVP used an independent contractor and commercially available ABC
software to compute the fees. The structure of the software was
tailored to SEVP needs for continual and real-time fee review and cost
management.
2. Full Cost
A critical element in building the ABC model for SEVP was to
identify the sources and cost for all elements of the program.
Legislative and regulatory guidance requires that the SEVP fees recoup
the full cost of providing its resources and services, including, but
not limited to, an appropriate share of: direct and indirect personnel
cost, including salaries and fringe benefits, such as medical insurance
and retirement; retirement cost, including all (funded or unfunded)
accrued cost not covered by employee contributions, as specified in OMB
Circular A-11; overhead, consulting, and other indirect cost, including
material and supply cost, utilities, insurance, travel, as well as
rents or imputed rents on land, buildings, and equipment; management
and supervisory cost; and cost of enforcement, collection, research,
establishment of standards, and regulation.
To the extent applicable, SEVP used the cost accounting concepts
and standards recommended in the FASAB ``Statement of Financial
Accounting Standards Number 4, Managerial Cost Accounting Concepts and
Standards for the Federal Government'' (1996). FASAB Standard Number 4
sets the following five standards as fundamental elements of managerial
cost accounting: accumulate and report cost of activities on a regular
basis for management information purposes; define responsibility
segments and report the cost of each segment's outputs; report the full
cost of outputs (full cost includes resources that directly or
indirectly contribute to the output and supporting services within the
entity and from other entities); include full-cost, inter-entity cost,
significant and material items provided by all Federal entities; and
use appropriate costing methodologies to accumulate and assign cost to
output.
3. Cost Basis for SEVP Fees Based on Current Services
The FY 2009 budget provides the cost basis for the fees. The FY
2009 budget reflects the required revenue to sustain current
initiatives and to fund program enhancements: the implementation of
SEVIS II, enhanced enforcement capability, the expansion of school
liaison activity, and recertification.
Determining the projected cost for the current efforts involved
routine U.S. budget projection methodology. The U.S. budget establishes
the current services of the program and projects the mandatory and
inflation-based adjustments necessary to maintain current services. The
budget adjusts the current services to include enhancements to reflect
program policy decisions. Table 1 reflects the fiscal year 2007 final
budget, the FY 2008 President's request, and the FY 2009 program
budget.
Table 1.--Student and Exchange Visitor Program Summary of Requirements by Organization and Program Category
[Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
2007 spend 2008 spend 2009 spend 2008-2009
Organization plan plan plan change
----------------------------------------------------------------------------------------------------------------
SEVP Management................................ 6,785 2,586 8,639 6,053
School Certification Branch.................... 1,320 1,519 3,330 1,811
Information Technology Branch.................. 1,060 1,194 1,276 82
SEVP Liaison Branch............................ 365 684 4,737 4,053
Policy Branch.................................. 251 618 647 29
Mission Support Branch......................... 480 667 757 90
Office of the Principal Legal Advisor.......... 113 157 176 19
---------------------------------------------------------------
Total...................................... 10,374 7,425 19,562 12,137
===============================================================
Contractors 7,991 12,954 9,063 (3,891)
Program Expenses
CEU........................................ 12,256 12,682 44,597 31,915
SEVIS II*.................................. .............. .............. 25,100 25,100
Office of the Chief Information Officer.... 2,003 2,162 2,465 303
SEVIS (IRM)................................. 17,683 16,235 13,593 (2,642)
DOS........................................ 509 470 511 41
SEVIS Security............................. 672 698 500 (198)
Department of the Treasury................. 2,857 3,526 3,689 163
---------------------------------------------------------------
Total, SEVP............................ 54,345 56,153 119,580 63,427
===============================================================
Carry-forward
SEVIS II.................................... .............. 12,500 .............. (12,500)
CEU......................................... .............. 5,600 .............. (5,600)
---------------------------------------------------------------
Total Carry-forward..................... .............. 18,100 .............. (18,100)
===============================================================
Total, SEVP............................. 54,345 74,253 119,580 45,327
---------------------------------------------------------------
Full Time Equivalent Personnel................. 121 135 274 139
----------------------------------------------------------------------------------------------------------------
[[Page 21265]]
The program budget funds are expended to support personnel costs,
required travel to support the program, and for other objects, which
are reflected in Table 2.
Table 2.--Student and Exchange Visitor Program Summary of Requirements by Program and Object Class
[Dollars in thousands]
----------------------------------------------------------------------------------------------------------------
2008 2009
Object classes 2007 End of President's President's 2008-2009
Year budget budget request Change
----------------------------------------------------------------------------------------------------------------
Total Full-Time Equivalent personnel 7,239 7,479 24,239 16,760
compensation...................................
Other personnel compensation................... 81 84 254 170
Benefits....................................... 3,511 3,628 7,841 4,213
Travel......................................... 448 463 1,437 974
Transportation of materiel..................... 10 10 17 7
General Services Administration rent........... 10 10 17 7
Other rent..................................... 235 243 406 163
Communications, rent & misc. charges........... 609 629 1,084 455
Advisory & Assistance Services................. 7,468 7,763 13,958 6,195
Other services................................. 7,471 7,719 10,623 2,904
Purchase from Government Accounts.............. 509 526 907 381
Operations & maintenance of equipment.......... 16,460 17,006 20,116 4,110
Supplies & Materials........................... 645 667 1,150 483
Equipment...................................... 9,438 9,751 37,098 29,347
Land & Structures.............................. 215 222 383 161
---------------------------------------------------------------
Total, SEVP................................. 54,349 56,200 119,530 66,380
---------------------------------------------------------------
Full Time equivalents.......................... 121 135 261 126
----------------------------------------------------------------------------------------------------------------
4. Enhancements
In developing this proposed rule, SEVP reviewed its recent costs
and conducted a comprehensive feasibility study that identified goals
for services and projected future workload analyses, allocating costs
to specific services. Specifically, the increased fees described in
this proposed rule would fund: development of SEVIS II, the next
generation of critical systems infrastructure; acquisition of
additional Compliance Enforcement Unit (CEU) personnel; implementation
of recertification and improved oversight; and additions to outreach
and liaison activities with the academic community.
a. SEVIS II
SEVIS became fully operational in February of 2003. It is a Web-
enabled database that gives schools and program sponsors the capability
to transmit information and event notifications about F, M and J
nonimmigrants electronically to DHS and DOS throughout their
nonimmigrant stay in the United States.
Today, SEVIS has evolved well beyond its original, limited purpose
as a tracking tool. SEVIS is a critical national security component, a
primary resource for conducting counterterrorism and/or
counterintelligence threat analysis by the law enforcement and
intelligence communities. These national security attributes were not
fully envisioned or initially developed into the original design of
SEVIS. Two primary law enforcement/intelligence users of SEVIS are the
Foreign Terrorist Tracking Task Force and the CEU.
These new demands, along with ongoing concerns of the school and
exchange visitor sponsor communities, have been accommodated by the
creation of software updates and enhancements. The number of system
revisions that were made total in the thousands. While SEVIS has
adapted through upgrades and patches, SEVIS end-users still face
limitations in searching, sorting, and exporting data, as well as in
producing needed management reports. Data integrity concerns (due to
time lags, system constraints, and/or system design limitations)
continue to impact all SEVIS users.
SEVP began a comprehensive feasibility study in January 2007 to
determine and compare the viability of two options: to continue with
SEVIS as it is currently, relying on upgrades; or, to develop a next
generation system. Through intensive discussion with stakeholders, this
study identified vulnerabilities of the existing SEVIS database and,
additionally, identified the need to shift the focus from the original
intent of SEVIS to simply track documents to the more useful tracking
of individuals. Tracking individuals presents a paradigm shift, both in
the focus and use of SEVIS. Stakeholders indicated that the current
design infrastructure creates a high probability of an individual
having numerous distinct and unassociated records within the system,
making it almost impossible to comprehensively track all activities
associated with a single individual.
Stakeholders stated that the current SEVIS configuration presented
national security vulnerabilities that could not be eliminated by
simply altering or upgrading the current system and echoed the need for
a new system. SEVIS II, the next generation of software, is necessary
to more adequately perform and sustain mission-critical functions that
evolved in the use of SEVIS, but for which the system was not designed.
Building on the guidance provided by the feasibility study,
detailed requirements working sessions were conducted with both
external (i.e., schools and programs) and internal (i.e., Federal law
enforcement and intelligence communities) stakeholders. The purpose of
these working sessions was to gain more precision and detail for SEVIS
II that would: convert from a system that is centered on paper forms to
a real-time, automated system that is person-centric, incorporating
electronic forms (i.e., e-forms); greatly enhance the ability to search
the system, increase efficiency, and decrease risk of user error;
employ the Fingerprint Identification Number as the biometric
identifier to accurately and rapidly
[[Page 21266]]
match records to specific aliens (i.e., one alien, one record); and use
the current DHS enterprise architecture structure to create a system
that integrates well with existing systems throughout the government
and that is open, flexible, and scalable. Such interoperability with
other government systems would better provide critical, real-time
national security information and enhance the capability beyond that of
SEVIS I to determine changes of academic majors and identify academic
courses that are of national security interest.
While the mission for each stakeholder group varies, the
participants of the SEVIS II functional workshops agreed unanimously in
the prioritization of design elements, including development of the
unique identifier to make student lifecycle information readily
accessible by searching under a single identification. Additionally,
U.S. Citizenship and Immigration Service's (USCIS's) Enumeration
Service would increase the capability to share SEVIS data and improve
analytical capabilities throughout the immigration and law enforcement
community. Event driven workflow would reduce the probability that
students and exchange visitors who are associated with ``at risk''
activities would be overlooked, and would enhance the current SEVIS I
capability to determine when changes of academic majors might be of
national security interest. Data management would provide the ability
for end-users to extract required information from a single source.
Finally, the use of electronic forms would create real-time
availability for all specified roles and permissions, reducing the
potential for nonimmigrants to perpetrate fraudulent activity.
The proposed system, planned for implementation in FY2009, would
greatly enhance the capability of DHS to identify and reduce national
security threats; reduce the possibility for errors or abuses of status
by prospective and approved F, M and J nonimmigrants, as well as their
schools and programs; and better provide updated, correct, real-time
information to academic, law enforcement, and other government users.
SEVIS II would be the main repository of record.
SEVP projects that the cost for developing and deploying SEVIS II
would be $40.9 million. SEVP would incur $15.3 million of that cost in
FY 2007 and FY 2008. To complete the systems development and to
transition and migrate data from SEVIS I to SEVIS II, SEVP would need
$25.6 million in FY 2009.
b. Additional CEU Personnel
SEVP and SEVIS were initiated in the post-9/11 era, when the
necessity for a fully functioning monitoring system was made apparent
by the identification of many of the involved terrorists with misuse or
abuse of nonimmigrant status. The immigration system was again
challenged five years later, when eleven Egyptian students scheduled to
attend a summer program, failed to report to the school under which
they were admitted. Fortunately, in this instance, nothing developed
from subsequent investigation to indicate that a terrorist attack had
been intended. However, had the intent been to create a national
threat, the availability of SEVIS, the training of the respective
school officials, and the involvement of CEU personnel worked to
reasonably ensure that such a threat would not have succeeded. All
eleven of these nonimmigrants were located within days of their failure
to properly report and detained. A dedicated compliance enforcement
program that includes criminal investigative efforts has been and
continues to be employed to ensure the success of SEVP.
The CEU is able to investigate only the highest priority leads
identified by analysis of SEVIS data at present. Additional CEU
personnel would be used to investigate administrative and criminal
violations related to individual students and SEVP-certified schools.
To the extent that adequate resources are allocated and employed for
this purpose, increased CEU staffing levels would reduce the
vulnerability of the United States to future terrorist attacks and the
exploitation of the student and exchange visitor programs.
Compliance enforcement program and criminal investigative efforts
are helping to ensure the success of SEVP. The goal of ICE compliance
efforts is to achieve 100% compliance with F, M, and J nonimmigrant
regulations, to ensure that the institutions responsible for
participating in these programs are in compliance, and to prohibit any
abuse of SEVIS for criminal purposes. By ensuring the integrity of
SEVIS through consistent and expanded enforcement efforts, the
viability of the F, M, and J student and exchange visitor programs
within the United States would be maintained.
The current number of enforcement positions funded by SEVP fees is
inadequate. Accordingly, ICE does not have the needed personnel to
resolve all of the national security priority leads generated in SEVIS
that the CEU refers to its field offices. ICE does not receive
appropriated funds for these purposes and has utilized I-901 SEVIS fees
for these costs. The number of additional positions required to conduct
SEVP enforcement was calculated using data gathered from compliance
enforcement statistics from June 2003, to the present. The resource
projection took into account the average time required to complete a
compliance investigation and the average number of priority leads
referred to ICE field offices annually. The cases used for these
projections include administrative investigations of F, M and J status
violators, as well as criminal investigations into individuals and
organizations that have sought to exploit SEVIS for illicit purposes.
ICE resource projections indicate the need to hire additional
Special Agents to conduct these investigations. ICE has determined that
121 special agents are required. Based on established workforce
management ratios, additional Supervisory Special Agents, Investigative
Assistants, Intelligence Research Specialists, and Program Managers are
also required to support the additional Special Agent positions. CEU
collects detailed data during the course of investigations that capture
the amount of time needed and personnel utilized when pursuing an SEVP-
related investigation. CEU also collects data on each type of
investigation. Using the historical data for SEVP-related
investigations, CEU projected the need for 155 new positions, including
logistical support, as follows: 75 additional special agents to
investigate potential SEVP student and exchange visitor violators; 46
special agents to conduct criminal investigations of schools and
programs; 10 supervisory special agents in the field; 10 investigative
assistants and 10 intelligence research specialists to support field
investigations; and 4 special agent program managers for headquarters.
c. Recertification
The EBSVERA provided that DHS conduct a recertification of SEVP-
certified schools every two years. SEVP recertification is a review of
a school previously SEVP-certified to affirm that the school remains
eligible and is complying with regulatory recordkeeping, retention,
reporting and other requirements. The purpose, focus, and process of
recertification are addressed in section IV of this proposed rule.
The cost of recertification is incorporated in the I-901 SEVIS fee.
To project the cost for recertification in FY 2009 and FY 2010, SEVP
conducted a bottom-up analysis using cycle time and business process
analysis. It forecast
[[Page 21267]]
assumptions to project the total workload capacity needed for
recertification and the resulting resource requirements.
d. School Liaison Activity
School liaison positions, originally proposed in the initial fee
rule in 2004, were not developed. SEVP did not designate specific, co-
located staff for this function but has instead relied upon its
headquarters staff to conduct an aggressive outreach program, coupled
with targeted training opportunities, to inform and educate its
stakeholders. This approach can be credited for the high degree of
compliance that was achieved by the schools that were randomly selected
to participate in the data validation study conducted by SEVP in 2006.
That study was recently given national acclaim by DHS as a benchmark
for providing customer service.
In 2005-06, the Department of Education listed 4,216 schools of
higher education as eligible to issue diplomas to students. By 2005,
86% or 3,657 of these schools were also SEVP-certified. As market
saturation is reached in this category, new petitioners for SEVP
certification are typically small schools. Since 2005, 80% of new
petitions for SEVP certification were from schools that meet the Small
Business Administration (SBA) definition of ``small business''. Such
schools often enroll fewer F and/or M students. Consequently, school
officials at such schools often have fewer training resources and
opportunities to practice SEVIS skills and knowledge.
Moving forward in its planning for recertification and out-of-cycle
reviews, SEVP is committed to assuring that those schools which apply
for certification are given the resources and tools to remain
compliant. Should out-of-cycle and recertification reviews reveal
anomalies in either student or school records, SEVP would identify
solutions and work with the affected schools to enhance their knowledge
of SEVP regulations and their ability to work within the SEVIS
environment.
An expanded liaison function would give SEVP the resources to
continue providing stakeholders with high caliber information and
educational materials, plus opportunities to enhance ongoing and future
initiatives, such as recertification and the implementation of SEVIS
II. Increased resources would be used, specifically, to work with those
SEVP-certified schools that are identified during out-of-cycle reviews
with reporting anomalies. Training and increased oversight, targeted to
ensure the school's compliance and continued certification, would
foster SEVP-school liaison and promote interaction.
The projected cost for expanding school liaison activity is
equivalent to adding 64 new personnel positions.
E. Summary of the Full Cost Information for FY 2009
The total cost projection for FY 2009 is $119,580,000. Table 3 sets
out the projected current services for SEVP and supporting CEU
personnel in FY 2009 ($56.9 million). These costs are direct extensions
of the FY 2007 costs that are supported by the current fees. Table 3
also summarizes the enhancements for SEVIS II, additional CEU law
enforcement and supporting personnel, the recertification process, and
school liaison activities.
Table 3.--FY 2009 SEVP Cost by Initiative
------------------------------------------------------------------------
FY 2009 budgeted
Program cost by initiative cost (millions)
------------------------------------------------------------------------
Program Base:
SEVP (current operational level)................. $35.23
CEU (current operational level).................. 21.67
------------------
Subtotal..................................... 56.90
==================
Enhancements:
SEVIS II......................................... 25.60
Additional CEU Personnel......................... 26.78
Recertification.................................. 3.24
School Liaison................................... 7.06
------------------
Subtotal..................................... 62.68
==================
Total.................................... 119.58
------------------------------------------------------------------------
1. Fee Allocation
The purpose of the ABC methodology is to be able trace cost to
organizational elements, as well as to be able to identify all cost
components associated with the goods and services offered. For fee-
based organizations such as SEVP, this allows the assignment of cost to
one or more fees.
SEVP defined two fee categories: the I-901 SEVIS fee and the
Certification fee.
SEVP considered the creation of additional fee categories in
deciding how to apportion fees. For example, SEVP considered charging a
separate I-901 SEVIS Fee to F, M, and J dependents. SEVP also examined
various tiered fee structures. SEVP considered assigning some specific
costs (e.g., Form I-515 processing, data fixes, and appeals) to
separate fees. The ABC fee model allowed SEVP to evaluate these
scenarios. ICE opted for a fee structure with fewer fees and, as a
consequence, lower overhead (based on the increased cost of collecting
fees, combined with the marginal impact on the two fees).
I-901 SEVIS Fee. Recovers the systems cost for SEVIS and a portion
of the SEVP administrative cost, including the cost of recertification
(recovers the full cost to process school recertification applications,
including compliance cost directly related to the application process,
as well as a portion of SEVP administrative cost), program compliance
and enforcement. The fee would be apportioned between three
categories--full fee of $200 for F and M students, reduced fee of $180
for most J participants (excluding the costs for recertification) and
the further reduced fee of $35 for certain J program participants.
Government-sponsored J program participants are fee-exempt by law.
Certification Fee. Recovers the full cost to process initial school
[[Page 21268]]
certification applications and a portion of SEVP administrative cost.
2. SEVP FY 2009 Cost Model Results
Tables 4 and 5 show the summary of SEVP FY 2009 cost by source of
cost and by program cost by initiative. Tables 4 and 5 provide summary
level model results. Those interested in accessing the model to see
more detailed information can contact SEVP at (202) 305-2346 to make an
appointment. The ABC modeling software is a commercial product licensed
to SEVP.
Table 4.--Total SEVP FY 2009 Cost by Fee Category
------------------------------------------------------------------------
FY 2009 budgeted
SEVP ABC model output category cost (millions)
------------------------------------------------------------------------
I-901 SEVIS fee...................................... $117.91
Certification........................................ 1.67
------------------
Total............................................ 119.58
------------------------------------------------------------------------
Table 5 shows a more detailed cost breakdown. The numbers are shown
in thousands, rather than millions, of dollars due to the level of
detail. There are three levels for some costs: process, activity, and
sub-activity. Other costs have only two levels of detail. To simplify
the presentation, the numbers are rounded to the nearest thousand.
These numbers are not rounded in the costing model.
Table 5.--SEVP Activity Cost by Fee Category
[$ in thousands]
----------------------------------------------------------------------------------------------------------------
School
Process Activity Sub-activity I-901 certification
SEVIS fee fee
----------------------------------------------------------------------------------------------------------------
Direct Assignment................ Pass through cost--Site Visit Contracts ......... 543
----------------------------------------------------------------------------------------------------------------
Compliance Enforcement........... CEU Operations........... Access SEVIS data for 442 .............
investigative leads.
Analyze SEVIS data to 3,136 .............
identify potential
status violators
pursuant to the INA.
Assign viable leads to 249 .............
ICE Special Agent in
Charge offices for
further investigation
and enforcement action
if required.
Determine quality of 634 .............
SEVIS lead.
CEU Programs............. Act as a liaison with 100 .............
the law enforcement and
intelligence
communities concerning
SEVIS data and provide
expertise in dealing
with student
investigations and
enforcement.
Assess vulnerabilities 292 .............
in SEVIS that can be
exploited to misuse the
system or otherwise
violate law.
Perform alien flight 100 .............
student program duties.
Perform budget 100 .............
formulation duties.
Perform school 82 18
certification and
regulatory compliance.
Provide enforcement 50 .............
related training to
field personnel with
respect to the use of
SEVIS.
Provide input to policy 292 .............
and regulatory changes
affecting enforcement
and national security.
Provide programmatic 100 .............
oversight.
Investigations........... Perform Fraud 11,256 .............
Investigations (I-17).
Perform Student 31,595 .............
Investigations (I-901).
----------------------------------------------------------------------------------------------------------------
CEU Liaison...................... Coordinate SEVIS data to enhance field 9 .............
investigations
Interface with schools to provide initial contact 9 .............
prior to CEU involvement
Provide liaison support to CEU for other SEVP leads 9 .............
Provide liaison support to CEU regarding possible 36 .............
leads from SEVIS
Case Resolution Unit: Resolve Access Government Lockbox queues 13 .............
Issues for Fee Payments. Administer SEVIS FMJ fee e-mail 104 .............
Answer phone queries on I-901 SEVIS fee payment 29 .............
issues
Process credit card charge backs 7 .............
Process fee payment transfer requests 2 .............
Process refund requests 27 .............
Process returned checks 0 .............
Work with U.S. Bank and Treasury to enhance I-901 13 .............
system
Work with U.S. Bank Government Lockbox to resolve 2 .............
fee payment issues
Department of State.............. Develop exchange visitor policy and regulations 102 .............
Monitor complaints 102 .............
Perform exchange visitor program redesignations 102 .............
Receive review and determine status of exchange 102 .............
visitor program applications
Review change of status applications 102 .............
I-515 Operations................. Close out I-515 case 100 .............
[[Page 21269]]
Coordinate with external organizations 45 .............
Document and research I-515 case 94 .............
Provide I-515 program management 165 .............
----------------------------------------------------------------------------------------------------------------
Information Technology........... Maintain and update SEVIS Coordinate and monitor 1,124 .............
system performance. 2,175 .............
Identify and define new
system requirements.
Manage system security.. 1,803 .............
Modify and enhance SEVIS 31,420 .............
interface and
functionality (design
and development).
Monitor and manage Help 443 .............
Desk Team performance.
Provide system testing 719 .............
and release readiness
reviews.
Resolve errors in system 888 .............
data.
Other IT Support......... Administer SEVIS Toolbox 98 4
Liaison with Chief 754 32
Information Officer
other system owners,
the Federal Bureau of
Investigation, etc.
Manage IT contracts..... 136 .............
Perform ad hoc IT 820 35
projects.
Perform procurement 39 2
activities.
Provide general IT 43 2
support to SEVP office.
Provide Help Desk Support Contact customer to 270 .............
convey ticket
resolution.
Document ticket 140 .............
resolution and provide
daily and weekly
statuses.
Handle ticket 140 .............
escalations.
Log initial help desk 1,062 .............
ticket.
Perform research to 2,159 .............
resolve ticket.
Policy and Planning.............. Policy development and Develop strategic plan.. 66 .............
analysis. Draft implement and 110 .............
support plans and
procedures.
Maintain forms.......... 21 .............
Perform record retention 15 .............
and disposition.
Prepare and update 354 .............
policies procedures,
frequently asked
questions, regulations,
and Fact Sheets.
Provide guidance on SEVP 338 .............
policy issues.
Provide liaison support 139 .............
to SEVP internal and
external stakeholders,
to include
teleconferences and
working groups.
Provide review and 122 .............
answers to SEVIS source
e-mail site and
inquiries.
Publish rules and FR 234 .............
notices.
Respond and comment on 110 .............
pending legislation.
Provide Liaison Support Coordinate Federal 29 .............
to Federal partners. partner/SEVP 77 .............
interactions with other
government
organizations.
Coordinate Federal
partner/SEVP
interactions with other
government
organizations.
Coordinate policies and 119 .............
procedures with Federal
partners.
Provide Social Security Provide SSA Liaison 7 .............
Administration (SSA) Support.
Liaison Support.
----------------------------------------------------------------------------------------------------------------
Program Analysis................. Analyze SEVP/SEVIS data and processes 211 9
Collect data for analysis and reporting 151 6
Prepare reports 118 5
----------------------------------------------------------------------------------------------------------------
[[Page 21270]]
Resource Management.............. Manage Financial Formulate and execute 198 8
Resources. budget. 84 4
Manage financial systems
(Travel Manager,
Federal Financial
Management System,
Electronic System for
Personnel).
Manage travel/purchase 70 3
card.
Perform Contracting 34 1
Officer's Technical
Representative duties.
Perform revenue analysis 68 3
Prepare and monitor 5- 102 4
year spend plans.
Prepare and respond to 28 1
audit requests.
Prepare bi-annual fee 128 5
review.
Provide program 32 1
logistics.
Manage Personnel Manage payroll issues... 106 4
Resources. Manage position 95 4
description.
Perform personnel 3 0
actions (SF-521).
Prepare and execute 160 7
hiring plans.
Provide Human Resources 46 2
Division and Security
relevant personnel data.
Pass through cost-- Pass through cost-- 3,689 .............
Treasury Fee Collection. Treasury Fee Collection.
School Certification and Perform initial school Perform certification-- ......... 307
Recertification. certification. approvals. ......... 388
Perform certification--
denials.
Perform other School Monitor school 3,060 .............
Group activities. compliance. 992 212
Process and adjudicate
appeals.
Process and adjudicate 45 10
motions.
Process and adjudicate 791 .............
petition updates.
Perform school Perform recertification-- 1,114 .............
recertifications. approvals. 1,010 .............
Perform recertification--
denials.
Perform student 640 .............
notifications.
Withdraw schools from 539 .............
SEVIS.
----------------------------------------------------------------------------------------------------------------
School Liaison................... Develop Liaison Program 383 .............
Implement Liaison Program 402 .............
Perform school liaison functions 1,946 .............
SEVP Administrative Support...... Answer the main telephone line 82 3
Liaison with service providers for copier 30 1
maintenance, DHL/FedEx mail, cell phones,
blackberries, etc.
Maintain SEVP supplies and materials 66 3
Manage executive correspondence 88 4
Process time and attendance/travel vouchers 25 1
Provide administrative support for special projects 132 6
SEVP Management.................. Coordinate with internal and external stakeholders 156 7
Oversee process improvements 160 7
Provide program oversight 476 20
----------------------------------------------------------------------------------------------------------------
Training and Outreach............ Develop and deliver SEVIS Deliver training........ 2,126 .............
training. Develop training plans 236 .............
based on requirements.
Develop training 203 .............
requirements for
designated school
officials, responsible
officers, immigration
inspectors, DOS, etc.
Develop and implement.... Attend and prepare 1,147 .............
conferences/workshops
related to the SEVIS
community.
SEVIS communication Contact and educate 236 .............
strategy. student organizations, 77 .............
associations,
embassies,
Congressional staffers,
etc.
Develop and provide
rollout plans.
Facilitate SEVIS problem 132 .............
resolution.
Monitor and enhance 248 .............
SEVIS source Web-site.
Prepare and distribute 129 .............
quarterly newsletter.
[[Page 21271]]
Provide Webinars........ 129 .............
Respond to Public 210 .............
Affairs and
Congressional Inquiries.
-------------------------
Total........................ ......................... ........................ 117,907 1,673
----------------------------------------------------------------------------------------------------------------
3. Fee Calculations
The cost model provides detailed cost information by activity and a
summary cost for each, giving the aggregate fee cost by category. Next,
SEVP projected the total number of fee payments of each type for FY
2009 and determined the fee-recoverable budget--the full cost of the
service minus any offsets. Offsets include such costs as pass through
cost for contractors or appropriated funding.
SEVP selected a forecasting approach to determine the total number
of expected fee payments for each fee.
a. I-901 SEVIS Fee
To calculate a fee amount for the I-901 SEVIS Fee, SEVP estimated
the number of fee payments expected in FY 2009 for each of the four fee
payment levels: fee-exempt, reduced fee, full fee for J participants
(excluding the cost for recertification of F and M certified schools),
and full fee for F and M students (including recertification costs).
The legislation exempted government-sponsored J-1 exchange visitors
from the fee payment when the fee was initially provided for in section
641 of IIRIRA. All other F, M and J nonimmigrants were to pay $100. An
additional modification was made by Congress establishing the reduced
fee of $35 for au pairs, camp counselors, or participants in a summer
work travel program. Public Law 106-553, App. B, sec. 110, 114 Stat.
2762, 2762A-51, 2762A-68 (Dec. 21, 2000). IIRIRA also provided for
revising the fee once the program to collect information was expanded
to include all F, M, and J nonimmigrants, to take into account the
actual cost of carrying out the program. As a result, SEVP needed to
forecast the number of prospective F, M and J nonimmigrants in FY 2009,
with a breakout of J exchange visitors by exchange visitor category.
After determining the number of expected I-901 SEVIS fee payments
in FY 2009, SEVP calculated the I-901 SEVIS fee.
There are only two complete years of I-901 SEVIS fee payment data
available for projecting the fee demand. Because these data are not
sufficient to make a reliable projection of future demand with any
degree of statistical accuracy, SEVP developed a surrogate for
historical I-901 SEVIS fee payment data, based on visa issuance data
from DOS.
While the number of F, M and J nonimmigrant visas issued does not
equal the number of I-901 SEVIS fee payments, there is a correlation
between the two numbers. Table 6 reflects the change in the numbers of
visas issued to provide the trend data needed to project the growth in
I-901 SEVIS fee payments.
Table 6.--F, M, and J Visa Issuance Data 1997-2006 Issued Visas*
------------------------------------------------------------------------
Growth rate**
Fiscal year Total (percent)
------------------------------------------------------------------------
1997.................................... 453,156 ..............
1998.................................... 450,531 -0.6
1999.................................... 480,131 6.6
2000.................................... 526,997 9.8
2001.................................... 560,500 6.4
2002.................................... 485,276 -13.4
2003.................................... 473,719 -2.4
2004.................................... 478,219 0.9
2005.................................... 518,873 8.5
2006.................................... 591,050 13.9
------------------------------------------------------------------------
* Does not include dependent visa holders, as they are not subject to
payment of the I-901 SEVIS fee.
** Growth rate rounded to nearest tenth of a percent.
As indicated in Table 6, the level of visa issuances varied greatly
over the past ten years. The impact of the terrorist attacks of 9/11
and the aftermath had a significant impact on the number of visas
issued. Other factors that impact the number of visas issued include:
strategies employed by other countries to retain/attract international
students; economic growth rate changes in source countries; changing
populations in source countries; new programs and schools;
globalization; program marketing; and foreign currency exchange rates.
This high degree of variation in the historical data, combined with the
variables impacting demand for visas, called for a simplified
forecasting methodology.
Consequently, SEVP selected a three-year moving average of prior
year growth rates in visa issuance data as the method to forecast
program demand. A moving average is the arithmetic average of a certain
number (n) of the most recent observations. When a new observation is
added, the oldest observation is dropped. Moving averages, in smoothing
out short-term fluctuations, highlight longer-term trends or cycles. A
three-year moving average is more representative of latest changes in
demand than of the average of all years; moderates extremes, while
still matching overall trends; is slow to react to sharp changes--
trailing measure; and is based on historical data of visa issuances
rather than econometric forecasts of prospective students and exchange
visitors.
SEVP evaluated alternative forecasting methods, including average
growth rate, linear regression, and second degree polynomial
regression. SEVP rejected these methods due to inaccuracy, poor fit as
measured by the r-squared statistic, and the projection of
unsustainable, sub-exponential growth, respectively. SEVP selected a
three-year moving average because it best exhibited the characteristics
of a balanced method between accuracy and conservatism, considering the
limitations of the underlying data. As a trailing measure, a moving
average is a conservative method and is, therefore, especially suitable
for use in fee setting because it mitigates risk to the cash flow and
subsequent solvency of SEVP. A three-year moving average, reflected in
Table 7, places a balanced mix of emphasis on recent and historical
data and still contains enough data points to smooth out some
variability in the underlying data. SEVP determined that this method
was the best fit, based on the deficiencies of other statistical
methods and a qualitative evaluation of how well this method achieved
the objectives of accuracy and conservatism.
[[Page 21272]]
Table 7.--Historical Three-Year Moving Average
----------------------------------------------------------------------------------------------------------------
3-Year moving
Issued visas 3-Year moving Growth rate average by
Fiscal year (primary) average (percent) rate
(percent)
----------------------------------------------------------------------------------------------------------------
1997............................................ 453,156 .............. .............. ..............
1998............................................ 450,531 .............. .............. ..............
1999............................................ 480,131 .............. .............. ..............
2000............................................ 526,997 485,886 9.8 5.3
2001............................................ 560,500 522,543 6.4 7.6
2002............................................ 485,276 524,258 -13.4 0.9
2003............................................ 473,719 506,498 -2.4 -3.1
2004............................................ 478,219 479,071 0.9 -5.0
2005............................................ 518,873 490,270 8.5 2.4
2006............................................ 591,050 529,381 13.9 7.8
----------------------------------------------------------------------------------------------------------------
Once the three-year moving average was used to forecast issued
visas, SEVP converted these values to payment estimates by multiplying
by the ratio of historical payments to issued visas, as reflected in
Table 8. This rate was developed by comparing the historical payments
in FY 2005-FY 2007 to the F-1, M-1, and J-1 visas issued during the
same time period. In addition to the overall I-901 SEVIS fee payment
rate, the study also determined the proportion of payments between $0,
$35, $180, and $200 fee payments. This proportion was developed based
on the profile of F and M students and J exchange visitors that
currently have active records in SEVIS.
Table 8.--I-901 SEVIS Fee Payment Forecast FY 2009-2010
------------------------------------------------------------------------
I-901 Payment sub-type FY 2009
------------------------------------------------------------------------
Full Payments ($200), F/M............................... 395,915
Full Payment ($180), J.................................. 180,950
Subsidized ($35)........................................ 221,223
No Payment ($0)......................................... 34,384
---------------
Total................................................. 832,472
------------------------------------------------------------------------
The ABC model calculated a total I-901 SEVIS fee cost (including the
cost of recertification) of $117,907 for FY 2009. This is offset by
subtracting the payment made to the Department of the Treasury for
expedited delivery of receipts for payment of I-901 SEVIS fees. (SEVP
already recovers this cost through a direct payment of $30 paid by
individuals who choose expedited delivery. Thus, SEVP must subtract
this cost from the full budget to avoid collecting twice for the same
service, as reflected in Table 9.)
Table 9.--FY 2009 I-901 Fee Recoverable Budget
----------------------------------------------------------------------------------------------------------------
Fee-
Total budget Offsets recoverable
----------------------------------------------------------------------------------------------------------------
FY 2009 Budget............................................... $117,907,380 $1,828,464 $116,084,916
----------------------------------------------------------------------------------------------------------------
To arrive at the final proposed fees, rounding was applied to the
result of the fee algorithm. 8 CFR 103.7(b). Rounding results in a fee
of $200 for F and M students and $180 for those J exchange visitors
subject to the full fee.
b. Certification Fee
The demand pattern for school certification is difficult to
predict. The historical data include the mass enrollment of schools
into SEVIS in 2002 and 2003. While there is some continued demand for
SEVP-certification from new schools, the demand has slowed; most
potential participants have either already become certified or decided
not to enroll F or M students. A higher fee may deter some schools from
applying for certification. Given the difficulties in making the
projection, SEVP elected to use a moving three-year average with the
historical data from FY 2004 to FY 2006, illustrated in Table 10.
Table 10.--Three-Year Moving Average of the Number of School
Certification Applications Processed
------------------------------------------------------------------------
3-Year
Fiscal year Approved Denied Total moving
average
------------------------------------------------------------------------
2002........................ 1,636 297 1,933 .........
2003........................ 5,367 976 6,343 .........
2004........................ 745 135 880 3,052
2005........................ 491 89 580 2,601
2006........................ 536 97 633 * 698
------------------------------------------------------------------------
* Rounded to 700.
The total fee category budget is taken directly from the FY 2009 SEVP
ABC model, reflected in Table 11. The figures under the offsets heading
are from site-visit contracts that are priced separately from the
certification fee. The cost is treated as pass-through cost (i.e., paid
by the petitioning school).
[[Page 21273]]
Table 11.--FY 2009 Certification Fee Recoverable Budget
----------------------------------------------------------------------------------------------------------------
Fee-
Fee category Units Total budget Offsets recoverable
----------------------------------------------------------------------------------------------------------------
Certification............................... 700 $1,672,630 $543,000 $1,129,630
----------------------------------------------------------------------------------------------------------------
School certification fees are calculated by dividing the fee-
recoverable budget by the anticipated number of payments. This results
in a fee-recoverable amount from schools of $1,613 each. To arrive at
the final proposed fee, rounding was applied to the result of the fee
algorithm. This results in a Certification Fee of $1,700 per school.
c. Recertification Cost
As with the other fees, determining the fee amount to be
incorporated in the I-901 SEVIS fee associated with recertification
requires determining the full cost of recertification and the number of
schools that would choose to recertify.
Number of Schools Expected to Recertify. As a new requirement,
there is no program history to provide any insight into the level of
participation in the school recertification program. In addition, due
to the mass-enrollment of schools in 2002 and 2003 during the initial
rollout of SEVIS and the biennial review requirement, as established in
EBSVERA, most certified schools would be required to petition at the
onset of recertification. As such, SEVP intends to schedule the
recertification workload over a two-year period in order to smooth
program demand and avoid the associated cyclical variation in workload
and resource requirements.
As part of the procedure to establish the recertification workflow,
SEVP conducted business process analysis to document the
recertification business process, developed standard operating
procedures for recertification, developed cycle-time measurements of
the proposed processes, and estimated the level of effort required to
conduct compliance reviews of certified schools. To accomplish this,
SEVP collected cycle-time samples or cycle-time estimates from activity
subject matter experts and validated these estimates through SEVP
management.
Given the nature of initiating a new program, SEVP management
developed notional estimates to forecast program demand. SEVP
management made several assumptions as the basis of their estimates.
First, SEVP assumed that not all schools would elect to recertify and
that schools with extremely low student participation rates were more
likely to elect to withdraw from the program, rather than assume the
administrative burden of recertification. SEVP analyzed the number of
schools in the SEVIS database that had F and/or M students attending
their school. Of all the schools in SEVIS, 33% had no F and/or M
students enrolled and 55% had less than five F and/or M students
enrolled.
Based on this information, combined with knowledge and experience
about currently certified schools, SEVP developed a notional estimate
that 73% of certified schools would elect to recertify. This estimate
was validated and accepted by SEVP management as part of the business
process analysis and served as an assumption in the formulation of the
FY 2009 proposed budget for recertification, as captured in the SEVP
ABC model. SEVP used the same notional 73% estimate that was used to
formulate the budget request as an input to the methodology used to
develop the forecast for program demand for recertification:
SEVP determined the total number of participating schools in the
program. This number reflects a snapshot in time, as the total number
of program participants fluctuates with new schools being certified and
other schools withdrawing from certification. At the time of this
analysis, SEVIS contained 8,967 certified schools.
SEVP divided the total number of schools in half because, while
schools are required to be recertified every two years, the
recertification workload will be spread over two years during the first
cycle of recertification to better distribute the labor and program
resource demand.
SEVP multiplied the number of eligible schools (from Step 2) by the
anticipated recertification participation rate of 73%. This step
reduced the recertification-eligible schools to the subset of schools
that SEVP believes would actually elect to undergo the recertification
process and represents the total number of expected recertification
petitions in FY 2009. This reduction reflects the elimination of most
schools that do not enroll F and/or M students at present, but have
enrolled small numbers of F and/or M students in the past. SEVP expects
that such schools would not elect to continue SEVP certification.
Based on this calculation, SEVP forecasts that 3,250 schools would
elect to recertify in FY 2009. A similar number of schools are expected
to petition for recertification in FY 2010, the second year of the fee
adjustment cycle.
I-17 Recertification Forecast Validation Analysis. Given the
notional estimates used in the formulation of the recertification
budget and subsequent recertification petition forecast, SEVP conducted
a separate analysis to create a demand model for determining the
probability that a school would recertify. The number of schools
recertifying is derived by determining the probability of
recertification for each currently certified school in SEVIS as of May
2007.\1\ The most important criterion used in determining whether a
school would petition to recertify is whether or not it currently
enrolls F and/or M students. The schools are divided into two groups.
The first is schools that have never enrolled an F or M student (1,386
schools) and the second group is those that have had a least one F or M
student or that created initial records for future enrollments (7,576).
---------------------------------------------------------------------------
\1\ The number of schools in SEVIS varies as schools are added
and withdrawn. The total number of schools for a specific analysis
will differ from that of another analysis where data was extracted
at a different time.
---------------------------------------------------------------------------
The demand for each year was determined by adding the probability
of recertification for all schools. For example, one school with a 90%
probability of recertifying and another school with a 10% probability
of recertifying count as one probable certification. All schools had a
probability factor between zero and one.
Demand Calculation for Zero-Student Schools. In determining the
probability that a school that has never enrolled an F or M student
would recertify, SEVP assumes that the more years a school has been
certified, but does not enroll F and/or M students, the less likely it
is that the school would recertify.
Demand Calculation for Schools with F and/or M Students. In
determining the demand for recertification for a school with an
enrolled F/M student population, three student population factors were
considered. The student population factors considered: F/M student
population for 2006 (or 2007 if the number was larger); F/M student
population as a percentage of the total
[[Page 21274]]
student population; and growth of F/M student population over the last
two years. SEVP elected to use the notional estimate of a 73%
recertification rate as the recertification petition forecast for the
FY 2009 fee analysis.
Once the number of schools expected to recertify was established,
the next step was to determine the appropriate recertification fee-
recoverable budget for FY 2009, based on the capacity needed to certify
this number of schools. Because there are no offsets, the
recertification fee-recoverable budget is $5,332,690. To arrive at the
final proposed fee, rounding was applied to the result of the fee
algorithm. This resulted in a fee-recoverable recertification fee
amount of $20 per F and M student, which is charged within the I-901
SEVIS fee.
4. Calculation of Site-Visit Cost
The cost of site visits for SEVP certification is a function of the
number of locations listed on the school's Form I-17 petition, each of
which must be visited. The current basic cost per site visit location
for initial certification is $350. The proposed fee amount is $655 per
location. The site visit fee is based on existing contracts that run
from FY 2009 through FY 2011. Schools must pay the amount they
calculate on the payment Web site, https://www.pay.gov/paygov/ at the
time they submit their petition.
5. Proposed Fee Levels
The full I-901 SEVIS fee for F and M students is increased from
$100 to $200. The full I-901 SEVIS fee for most J exchange visitors is
increased from $100 to $180. SEVP has not adjusted these fees since its
inception in 2004. The I-901 SEVIS fee for special J-visa categories
(au pair, camp counselor and summer work travel) remains at the
previous $35 level, set in IIRIRA. IIRIRA also exempts government-
sponsored exchange visitors in the G-1 programs.
The Certification Fee is increased from $230 to $1,700. This fee
was set in 2002, prior to the reorganization of the Immigration and
Naturalization Service (INS) into DHS. This is the base fee for
certification and does not include the site visit fee.
The site visit cost for SEVP certification is priced separately as
a pass-through charge to recover the associated contract cost. While
this contract cost is in the cost model, it was subtracted from the
Certification Fee calculations. All schools applying for SEVP
certification would pay the site visit fee.
The proposed program fee schedule for SEVP in FY 2009 is shown in
Table 12:
Table 12.--FY 2009 SEVP Program Fees
------------------------------------------------------------------------
Category Amount
------------------------------------------------------------------------
I-901 SEVIS Fees:
I-901 Primary F/M visa holders (Full $200
payment)...........................................
I-901 Primary J visa holders (Full payment) 190
I-901 Special J-visa Categories (Subsidized 35
payment)...........................................
I-901 Government Visitor (G-1) (No payment) 0
I-17 School Fee:
Certification Fee.......................... 1,700
Site visit fee for initial certification 655
(base fee to be multiplied by number of locations
cited on the Form I-17)............................
------------------------------------------------------------------------
Table 13 reflects the break even analysis based on the proposed fee
schedule and the proportional fee volumes (rounded) required to
generate sufficient revenue to offset proposed program costs.
Table 13.--Projected Revenue
----------------------------------------------------------------------------------------------------------------
Forecasted
Fee Amount volume Revenue
----------------------------------------------------------------------------------------------------------------
I-901 F/M full............................................... $200 392,284 $78,456,822
I-901 J full................................................. 180 179,291 32,272,295
I-901 partial................................................ 35 219,194 7,671,797
--------------------------------------------------
I-901 Subtotal........................................... ............... 790,769 118,400,914
==================================================
Certification Fee............................................ 1,700 694 1,179,087
--------------------------------------------------
Grand Total.............................................. ............... 791,463 119,580,001
----------------------------------------------------------------------------------------------------------------
F. Impact on Applicants
ICE recognizes that this proposed rule may have an impact on F, M,
and J nonimmigrants, as well as the programs and schools seeking to
become either SEVP-certified or recertified. The current school
certification fee is based on the historical INS cost, determined prior
to the inception of SEVIS. It reflects circumstances and work processes
that were entirely different from those used today.
The current student fees are based on a fee analysis performed when
SEVP was first established. The cost calculations were established on
the basis of projected workload volumes and processes. In addition,
Congress appropriated SEVP $30 million to develop SEVIS. Consequently,
neither the cost for system development nor the cost of recertification
was reflected in the earlier I-901 SEVIS fee.
The new fee analysis proposes fees that would: Recover the full
cost of SEVP operations with fee-generated revenue; align the fees with
currently planned costs and processes that have been redesigned and
refined as the program has gained experience and maturity; and take
advantage of more detailed and accurate data sources and improved
management tools to align resources and workload. In addition, the
[[Page 21275]]
new fees reflect the development of a newly engineered database.
SEVP is mandated to review its fee structure at least every two
years. See 31 U.S.C. 902(a)(8); OMB Circular A-25. Future fee rules
would combine historic data with more recent experience, which would
generate cost adjustments that would reflect new efficiencies, activity
changes, amended security measures, or legislation developed in
response to global developments. Although prediction of future fee
adjustments is speculative, the historically long development of an
intervening fee schedule, as well as the development costs that are
necessarily included in this fee adjustment, suggests that future
biennial fee adjustments would not be as substantial as the adjustments
proposed in this rule.
IV. Procedures for Certification, Out-of-Cycle Review and
Recertification of Schools
DHS is proposing to recertify all schools approved for attendance
by F and M students every two years, pursuant to Title V, section 502
of EBSVERA and HSPD-2. DHS would establish procedures for review of
each SEVP-certified school every two years. In addition, SEVP would
conduct ``out-of-cycle'' reviews whenever it determines that
clarification or investigation of school performance or eligibility is
necessary. Certification, under this proposed rule, is a continuous,
on-going process. From initial certification, SEVP continually oversees
school compliance with recordkeeping, retention and reporting
requirements. SEVP can identify deviations from reporting requirements
by schools and take appropriate action through SEVIS and other
resources.
Recertification is, in effect, a ``report card'' given to a school
every two years to verify achievement of required standards in the
period since the previous certification. The focus of oversight and
recertification is past performance, coupled with a review to ensure
that the educational institution maintains the basic eligibility
required for certification.
Performance is monitored through SEVIS, DHS records, submissions
from the school, and on-site reviews, when warranted. SEVP would
require schools, as appropriate, to make corrections immediately,
rather than wait for formal recertification. SEVP would review the
school's compliance with Federal regulations and SEVP guidance.
A summary of proposed rule changes and explanation for the changes
follows.
A. Filing a Petition for SEVP Certification, Out-of-Cycle Review or
Recertification
1. General Requirements
Petition filings related to school adjudications are now submitted
to SEVP through SEVIS, rather than the USCIS district director. This
change was a result of the transfer of school adjudications from USCIS
to ICE. The requirement for a separate petition to be filed by school
systems or schools with campuses overlapping USCIS district boundaries
has been deleted.
2. School Systems
The term ``school system'' is clarified to refer to groups of
inter-related schools providing instruction to public school grade
levels 9-12 and private school levels kindergarten through 12.
3. Petition Submission Requirements
Document submission requirements for petitions are clarified with
respect to the need for providing paper copies of the Form I-17 with
original signatures of all school officials entered on the form. More
importantly, the scope of responsibility that a school official assumes
in signing the Form I-17 is more clearly stated and the consequences of
willful misstatement are established.
4. Eligibility
School eligibility criteria for SEVP certification are transferred
from their present location in 8 CFR 214.3 to a position directly
following the listing of types of schools that may be approved for SEVP
certification. This repositioning is intended to provide a concise
statement for prospective petitioners in their suitability assessment
for becoming certified.
B. Interview of Petitioner
SEVP may conduct ``in-person'' interviews with the petitioner or
the petitioner's representative as part of adjudication. SEVP proposes
to expand this option to include telephone interviews, recognizing a
telephone interview as having the same legal impact as testimony given
in physical presence.
C. Notices and Communications
SEVP relies on procedures in 8 CFR 103.2 to give notices to schools
to support the administration of the petition adjudication process.
This is a USCIS-specific regulation; some terms and officials
identified in the regulation do not pertain to ICE. This proposed rule
identifies respective ICE counterparts that must be substituted for the
SEVP application. SEVP has also expanded the use of these notices to
include the compliance considerations of oversight, out-of-cycle review
and recertification.
All notices from SEVP to schools related to certification,
oversight, recertification, denial, appeals and withdrawal, as well as
requests for evidence (RFEs) are generated and transmitted through
SEVIS by e-mail. The date of service is reduced to the date of notice
transmission by eliminating the delay of traditional mailing. All SEVP-
certified schools are responsible for maintaining the accuracy of
designated school official (DSO) information in SEVIS. Since notices
are sent to all DSOs, SEVP would not recognize non-receipt of
notification as grounds for appeal of a denial or withdrawal of a
school. Schools are required to ensure that their spam filters do not
block reception of SEVP notices. The term, ``in writing'' is expanded
to include the option for electronic signatures to support movement
toward a paperless environment.
The proposed rule would require that any change in school
information in SEVIS must be updated and identifies the circumstances
when changes that must be reported might occur.
A Notice of Intent to Withdraw (NOIW) is sent to a school 30 days
prior to the school's certification expiration date as notification
that a complete petition for recertification has not been received and
advising the school that it would be automatically withdrawn on the
certification expiration date if a completed petition has not been
received. This notice ensures adequate due process before the benefit
to enroll F and M students is removed. During an out-of-cycle review,
an NOIW advises a school that SEVP has identified a compliance issue
and is allowing the school an opportunity to correct any misperception
by SEVP.
Notices of Denial, Automatic Withdrawal and Withdrawal are sent to
advise schools of the date of the decision, appeal rights (if any), and
the responsibilities for school operations until the SEVIS access
termination date.
A Notice of SEVIS Access Termination Date informs a school of the
date when all F and/or M students at a school which has been withdrawn
from SEVP certification or denied recertification must complete
transfer to another SEVP-certified school or depart the United States
to remain in compliance with their status obligations. By the SEVIS
access termination date, the denied or withdrawn school must have
either
[[Page 21276]]
released the SEVP records of their F and M students or completed them.
On this date, the school can no longer gain access to SEVIS for any
updates, and all student records of the school's remaining in Active
status are terminated. In most instances, this date would not be sent
until appeals options have been exhausted and the decision to withdraw
or deny has been upheld.
D. Recordkeeping, Retention and Reporting Requirements
Student records. The record retention period for student records is
extended from one to three years beyond a student's program completion,
including denial of reinstatement. This is to support review of
recordkeeping compliance during the school's recertification. The
proposed rule is clarified to ensure that the school continues to
maintain the same recordkeeping and reporting obligations during a
pending reinstatement as when the student is in status. School
recordkeeping for F or M students, beyond information entered into
SEVIS, is clarified to include that information generally recognized as
contained in a school transcript. Schools must be able to provide
transcripts or access to an equivalent tracking system. Information on
coursework must be compiled and recorded within the term the courses
are taken and graded. These clarifications articulate the intent of
existing regulation and enable SEVP to better monitor student progress
in his or her program, as well as participation.
Reporting Changes in Student and School Information. The proposed
rule would clarify that, other than immediate updates of changes in
school information following approval of a petition for SEVP
certification or recertification, changes in any other information must
be entered in SEVIS within 21 days of their occurrence. The standard
had not been previously identified.
The proposed rule further clarifies that the terms ``program start
date'' (used in SEVIS) and ``report date'' (used on Forms I-20) for
initial students are interchangeable. It then goes to identify accepted
considerations that can be taken by a DSO in determining the actual
date. This clarification is necessary to ensure that nonimmigrants do
not have excessive time in the United States before being required to
report to their programs.
A requirement is established to update the program completion date
in SEVIS when student performance indicates that the date already in
SEVIS is no longer accurate. This is necessary to reduce the
opportunity for inappropriate student overstays beyond actual program
completion and is consistent with the requirement for timely recording
of student information related to course enrollment and completion.
E. SEVP Certification, Recertification, Out-of-Cycle Review and
Oversight
1. Certification
The proposed rule would establish a requirement that an on-line fee
to petition must be filed before the petition would be adjudicated. The
proposed rule updates fees for the certification petition and for site
visits, as discussed above.
The proposed rule would set time requirements for conduct of the
site visit following the date SEVP contacts the school for that
purpose. The proposed rule would establish that failure by the school
to comply with this requirement would result in the petition being
denied for abandonment. The proposed rule would require knowledge
proficiency standards for those persons identified as DSOs. The
inability of personnel to demonstrate reasonable knowledge and
competence of DSO requirements and responsibilities could be cause for
petition denial.
2. Recertification
The proposed rule would specify the sections of 8 CFR 214.3 related
to eligibility and compliance that would be examined during
recertification. Following a distribution of certification expiration
dates by SEVP in the first cycle of recertification to enable leveling
of the workload, all subsequent petitions for recertification would be
tied to exactly two years from the certification expiration date in the
first recertification cycle. Delays in petition filing, adjudication
and appeals (if any) would not impact a school's next certification
expiration date. Schools should file as early as possible in the
recertification eligibility period to preclude unnecessary processing
delays in adjudication.
The timeline for filing is established. A school must submit a
complete package before adjudication would begin, and SEVP would
confirm with the school when a complete petition has been received.
SEVP urges schools to submit their complete petition packages at least
12 weeks before their certification expiration date to allow SEVP
adequate time to verify and confirm with the school that they filed
their recertification petition package properly. Complete and timely
filing is viewed by SEVP as a reflection on the DSOs' qualification for
continued certification.
A school that has not filed a complete petition for SEVP
recertification by its certification expiration date would be given
immediate automatic withdrawal from certification.
3. School Recertification Process
SEVP would consider a range of factors in conducting
recertification analyses. Indications of substandard performance and/or
anomalies in SEVIS or from other sources since the previous
certification may cause increased scrutiny. Analysis of a school may be
modified if the school falls into special interest categories for
enforcement.
The proposed rule establishes a school's responsibility for the
actions of its employees (e.g., DSOs), whether or not they are
currently employed at the time of recertification. The principal
designated school official (PDSO) at a school is presumed to exercise
oversight of all DSOs.
Few schools would receive an on-site review during SEVP
recertification. On-site review in recertification is distinguished
from an on-site visit given during initial certification. The purposes
of an on-site visit include confirmation of a school's eligibility for
SEVP certification, promoting basic competencies for DSOs, and
providing outreach to better familiarize the school with the roles and
responsibilities that come with the benefit of SEVP certification.
The purpose of an on-site review is, generally, to address
compliance. While a few random on-site reviews may be conducted to
maintain a performance baseline for all schools or to explore potential
performance benchmarks, the primary reason an on-site review is
conducted is to resolve questions or concerns about school performance.
4. Out-of-Cycle Review
The term ``out-of-cycle'' review is introduced in the proposed rule
to replace the term ``periodic'' review, which implied a review at
regular intervals. Out-of-cycle review can be conducted at any time and
would be conducted when the level of concern warrants.
The proposed rule now specifies some types of changes to school
information in SEVIS that would warrant an out-of-cycle review. In most
instances, these reviews are limited to phone e-mail contact to gather
details and confirm school eligibility for continued SEVP
certification. Incomplete or ambiguous responses, coupled with other
performance indicators, might lead to further investigation.
[[Page 21277]]
A school may be requested to electronically update all school
information in SEVIS and/or provide SEVP with supporting documentation
for the update at any time. The filing must be within 10 business days
of the request.
On-site review in out-of-cycle review may be conducted for the same
reasons as during recertification. A school undergoing out-of-cycle
review that does not support an on-site review within 30 days of being
contacted by SEVP would have its SEVP certification withdrawn.
The Notice of Continued Approval, advising of a positive
determination to an out-of-cycle review, would have no impact on a
school's established certification expiration date for recertification.
An out-of-cycle review, generally, would be issue-oriented, while
recertification entails an overall, more comprehensive review of school
performance.
5. Voluntary Withdrawal of Certification
The proposed rule establishes procedures for a school to withdraw
from its SEVP certification, addressing options for future petitioning
to certify and the impact of previous performance on adjudication of
future petitions. SEVP seeks to facilitate withdrawal of schools that
it determines are not suitable for the continued enrollment of F and/or
M students. If it subsequently elects to petition for SEVP
certification, a school's past performance would be considered in the
adjudication.
F. Designated School Officials
Only the PDSO of the main campus is authorized to submit a Form I-
17 for recertification. SEVP may also designate certain functions in
SEVIS for use by the PDSO only.
G. Denial or Withdrawal of SEVP Certification or Recertification
Procedures
The proposed rule is updated, in accordance with EBSVERA, to
recognize that future petitions for SEVP certification by schools that
have been withdrawn on notice would be accepted at the discretion of
the Director of SEVP. Reasons that a school might be no longer entitled
to SEVP certification are clarified and expanded.
1. Automatic Withdrawal
The proposed rule establishes re-petitioning criteria for schools
that have been automatically withdrawn. Automatic withdrawal is viewed
by SEVP as essentially an administrative action. New petitions for SEVP
certification are, consequently, accepted from schools that have been
automatically withdrawn without restriction. However, schools that have
been previously SEVP-certified would be subject to consideration of
past performance in the adjudication of any new petition. The proposed
rule identifies circumstances when automatic withdrawal would be
implemented.
2. Withdrawal on Notice
The proposed rule clarifies existing text and gives a school that
files an appeal of a withdrawal on notice the choice to request a
telephone interview in support of its response to an NOIW.
3. Operations at a School When SEVP Certification Is Withdrawn or
Recertification Denied
The proposed rule establishes the legal requirements and necessary
procedures for such schools in the interim between receipt of a Notice
of Denial or Withdrawal of SEVP Certification through the SEVIS access
termination date. It prescribes actions that DSOs must take on behalf
of their F or M students to protect and avoid wrongful termination of
their visa status. The proposed rule describes the SEVIS access
termination date and the parameters by which it is determined. The
proposed rule recognizes the responsibility and liability that SEVP-
certified schools have for their F and M students, and identifies the
SEVIS access termination date as the date when school responsibility is
relinquished and liability for these students is removed.
V. Statutory and Regulatory Requirements
A. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act (RFA; 5 U.S.C.
601(6)), ICE examined the impact of this proposed rule on small
entities. The ``Regulatory Flexibility Act Analysis: Impact on Small
Schools of the Change in Fees for Certification and Institution of
Recertification by the Student and Exchange Visitor Program,'' located
in the docket, provides details of how the analysis was conducted and
detailed information on the results.
As described above, under INA section 186(m)-(n), 8 U.S.C. 1356(m)-
(n), SEVP is authorized to collect fees to support the costs of
certification and recertification from those entities that benefit from
the certification/recertification process. Initial certification is
viewed as a benefit to the school. Recertification is viewed as a
benefit to F and M students. Recovery of the full cost of all
operations is essential because SEVP receives no appropriated funds and
is fully dependent on fees to meet operating expenses and newly
identified requirements.
A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business, per the Small Business Act (15
U.S.C. 632)); a small, not-for-profit organization; or a small
governmental jurisdiction (locality with fewer than 50,000 people).
This analysis focuses on small schools. SEVP used the North American
Industry Classification System (NAICS) for the Educational Sector \2\
combined with the Small Business Administration (SBA) definition of
small entities for all schools except public high schools.
---------------------------------------------------------------------------
\2\ The Educational Services sector comprises establishments
that provide instruction and training in a wide variety of subjects.
This instruction and training is provided by specialized
establishments, such as schools, colleges, universities, and
training centers. These establishments may be privately owned and
operated for profit or not for profit, or they may be publicly owned
and operated. They may also offer food and accommodation services to
their students.
---------------------------------------------------------------------------
The RFA and SBA guidance requires each agency to make its own
determination of significant impact, given the characteristics of the
regulated population and the given rule. Among the things the agency
considers when determining the impact of a rule are: the possibilities
of long-term insolvency; short-term insolvency; disproportional burden,
based on whether or not the regulations place the small entities at a
significant competitive disadvantage; and inefficiency, based on
whether the social cost imposed on small entities outweighs the social
benefit of regulating them.
Establishing a cut-off level for significant impact on this
population is difficult. Many schools are non-profit or public.
Privately owned schools often operate with modest profit margins.
Profits go back into the school for expansion of the school or the
facilities in most cases.
Certification and recertification are voluntary. In addition,
schools with no F and/or M students and no concrete plans to enroll
any, in particular, have little motive to recertify.
Another factor is that SEVP cannot certify or recertify schools
that are under-funded or financially unstable. The certification
regulations require that a school ``possesses the necessary facilities,
personnel, and finances to conduct instruction in recognized courses.''
Regulations require that schools be established and recognized
[[Page 21278]]
institutions of learning prior to becoming SEVP-certified. This
eliminates marginal and start-up schools from the population of schools
that can seek certification.
SEVP examined the entire range of potential impacts on schools and
did an in-depth analysis of the smalls schools at two levels--``3% and
over'' and ``5% and over,'' meaning that the certification fee is ``3%
and over'' or ``5% and over'' of the total earnings of the school in
tuition collected from their F and/or M students. Detailed results of
this examination are in the ``Regulatory Flexibility Act Analysis:
Impact on Small Schools of the Change in Fee for Certification and
Institution of Recertification by the Student and Exchange Visitor
Program,'' located in the docket.
SEVP conducted the analysis of the potential impact of the proposed
Certification Fee in accordance with the RFA using data drawn from
SEVIS in May 2007. At that time, there were 8,961 SEVP-certified
schools. This number may differ from other analyses as the number of
certified schools fluctuates with SEVP continually adding newly
certified schools and schools withdrawing from certification.
All SEVP-certified schools self-report average enrollment and
average tuition cost for students. SEVP did not need to use publicly
available information or use sampling, therefore, to gather data on the
finances of the schools. The reported number of students and the
tuition cost per student were used to estimate annual total tuition
income. The tuition cost per student was determined by the data in the
school's Form I-17, available in SEVIS, and the tuition cost reported
for F and/or M students.
In some cases, the data supplied by a school for the average cost
to students appeared erroneous. In these instances, the cost was
updated using the school's published tuition rate from its Web site or
the amount of tuition shown in the records of individual F and/or M
students at that school.
SEVP found that 46% of schools in SEVIS meet the SBA definition of
a small entity. Table 14 provides a list of schools by type and SBA
NAICS code as well as the percent of large and small schools in that
category.
Table 14.--Percent of SEVP-Certified Schools by Type and SBA NAICS Codes
----------------------------------------------------------------------------------------------------------------
Percent Percent
Type of school Description NAICS codes of large of small
schools schools
----------------------------------------------------------------------------------------------------------------
Arts............................... Schools clearly identifiable as 611610......... 1.1 0.8
giving instruction in the fine
arts; a mix of F and M schools.
Flight............................. Schools that offer only flight 611512......... 0.4 3.5
training and other related
technical training.
English Language................... Schools that offer English language 611630......... 4.4 3.1
instruction only.
English Language and Other......... Schools that offer English language 611630......... 1.3 0.5
instruction and other courses, such 611691.........
as test preparation. 611430.........
Seminary........................... Schools with seminary or theology in ............... 1.5 3.8
the name. Most issue a degree.
Other Private Academic............. F schools that do not fall into 611410......... 1.0 3.0
another category. Includes Bible 611420.........
schools, nursing schools, etc. that 611430.........
do not issue a degree.
Private K-12....................... Private elementary, middle and 611110......... 20.1 44.4
secondary schools.
Public HS.......................... Public high schools................. 611110......... 5.0 14.4
Technical Vocational............... M schools that do not fall into 611210......... 5.1 13.5
another category (diverse group 611410.........
that includes schools of 611420.........
horseshoeing, beauty schools, 611430.........
culinary arts schools, non-degree 611511.........
medical instruction, and computer 611519.........
technical training).
University or College.............. Schools that issue one of the 611310......... 60.1 12.9
following degrees: associates, 611210.........
bachelors, masters, and Ph.D. These
schools may also offer programs of
study in the other areas listed.
----------------------------------------------------------------------------------------------------------------
Twenty-nine SEVP-certified schools have not registered any F or M
students. Nearly 25 percent of SEVP-certified schools have five or
fewer F and or M students enrolled. Most have not had more than five
since the inception of SEVP. SEVP does not expect these schools to
recertify.
The resulting profile was used to project the expected
characteristics for the 700 new schools expected to certify annually.
This analysis indicated that approximately 82% of the schools seeking
certification in the future would be small schools. Table 16 provides
the projected number of schools at each level of impact.
Table 16.--Projected Number of Small Schools Expected To Certify by
Level of Impact
------------------------------------------------------------------------
Projected
Level of impact number of small
schools
------------------------------------------------------------------------
Under 0.5%............................................. 469
0.5% to under 1%....................................... 59
1% to under 2%......................................... 29
2% to under 3%......................................... 7
3% to under 4%......................................... 1
4% to under 5%......................................... 5
5% to under 6%......................................... 1
6% to under 7%......................................... 2
7% to under 8%......................................... 0
10% to under 11%....................................... 0
12% to under 13%....................................... 1
23% to under 24%....................................... 1
------------------------------------------------------------------------
Of the 574 small schools expected to apply for certification, SEVP
projects that about 10 schools may be impacted by 3% or more. That is,
the certification fee is 3% or more of the total earnings of the school
in tuition collected by their F and/or M students. That represents
about 1.7% of the small school certification applicants. SEVP expects
that four small schools (0.7%) would be impacted by 5% or more.
The category most impacted would be ``Other Private Academic''
schools. Of the 16 schools of this type, SEVP projects, as illustrated
in Table 17, two would be impacted by 3% and over and none would be
impacted by 5% and over.
[[Page 21279]]
Table 17.--Summary of the Impact of the Certification Fee on Small
Schools
------------------------------------------------------------------------
Percent of Percent of
small small
schools schools
impacted impacted
3% and over 5% and over
------------------------------------------------------------------------
Certification Fee............................. 1.7 0.7
------------------------------------------------------------------------
SEVP did not make a determination of substantial numbers, as the
percentage of schools impacted by the fees is so low that it does not
appear substantial.
SEVP considered four alternatives to the proposed Certification Fee
in this proposed rule. The need for fees to recover the operating costs
of SEVP was inherent in all of the alternatives. Three were rejected
for the reasons given. Option 2 was chosen. SEVP seeks comments on the
alternatives considered and any significant alternatives not
considered.
Option 1: Do not charge a fee to cover the costs of certification
and recertification. SEVP does not consider a ``no charge'' option to
be viable. There are only two sources of income available to SEVP: fee
income or appropriated funds. Congress mandated that ICE/SEVP certify
schools that wish to enroll F or M students and recertify those schools
every two years. It is unlikely that Congress would appropriate
operating funds for a program that has the authority to collect fees
from the entities that derive direct benefits from it.
Option 2: Allocate some or all costs to the I-901 SEVIS fee. One
alternative was to assign all costs to the fee charged to F, M and J
nonimmigrants. This would spread the fee-recoverable cost of the
program against a larger population. The I-901 SEVIS fee is authorized
by the Illegal Immigration Reform and Responsibility Act of 2002
(IIRIRA, 8 U.S.C. 1372). SEVP considers availability of certified
schools that F and M students can attend as a benefit to students.
Initial certification constitutes a potential benefit to the
petitioning schools, however, under INA section 286(m), 8 U.S.C.
1356(m), SEVP opted to collect a fee from schools filing a
certification petition, but to pass the cost of recertification to the
nonimmigrants being benefited for these reasons.
Option 3: Apportion recertification fees by number of F and/or M
students enrolled. SEVP would assess a Recertification Fee based on the
number of F and/or M students enrolled at a school during the previous
two years in this scenario. The advantages of this load-based scenario
include: lower fees for schools with fewer F and/or M students and the
scenario may deter schools from issuing Forms I-20 to marginally
qualified students. The disadvantages of this scenario include: the
schools with large enrollments would pay a disproportionate part of the
cost of recertification because the cost for oversight and
recertification does not vary directly with the number of students; the
number of students would have to be calculated; a school would not be
able to predict its fee from year to year; a process for resolving
billing disputes would be needed; and SEVP would need to create a fee
collection system that creates an invoice to the school.
SEVP rejected this option because assessing and collecting the fee
would require building a payment process that captured the needed data,
generated invoices, and tracked invoice payment. The cost to build and
operate a fee payment system of this complexity could increase the
overall program costs. It would also make it more difficult for SEVP-
certified schools to budget for the recertification.
Option 4: Charge a variable recertification fee based on the risk
profile for the school. Schools would be put into a risk category based
on the student profile. SEVP would need to develop a methodology to
assign a risk factor for each type of school. For example, schools that
enroll grades K-12 deal with a lower risk population, so their risk is
reduced. For these K-12 schools the risk factor might be 75%, whereas a
high-risk group might have a factor of 125%. The fees would be adjusted
so that schools in a higher risk category would pay higher fees.
The advantages would be: schools with classes of students that pose
a lower risk would pay a smaller fee; types of schools with past
performance indicating a higher risk would pay a higher fee; and the
fee would be predictable.
The disadvantages would be: the rationale for the fee structure is
complex and would need to be supported by a full analysis; any
rationale for assessing risk would be controversial; the fee would be
higher than that in the current version of the rule for many small
schools; and some schools highly in compliance with SEVP requirements
would be penalized for the poor performance of other schools in that
group, as schools would be grouped by type.
SEVP rejected this alternative due to the inherent complexity and
difficulty in making fair risk assessments for entire groups of
schools.
SEVP believes that, based on this analysis, the option it chose for
this proposed rule is the most appropriate option and that this
proposed rule, once final, would not have a significant economic impact
on a substantial number of small entities. SEVP welcomes comments on
that conclusion. Members of the public should please submit a comment,
as described in this proposed rule under ``Public Participation,'' if
they think that their business, organization, or governmental
jurisdiction qualifies as a small entity and that this proposed rule
would have a significant economic impact on it. It would be helpful if
commenters provide SEVP with as much of the following information as
possible. Is the commenter's school currently SEVP-certified? If not,
does the school plan to seek certification? Does it meet the SBA
criteria for a small entity? If not, what criteria should SEVP use to
properly identify small schools? Indicate the type of school, using one
of those listed in this analysis or a more complete description. Please
describe the type and extent of the impact on the commenter's school.
Please describe any recommended alternative method of assessing the
Certification Fee or the institution of recertification that would
mitigate the impact on a small school or comment upon the alternatives
presented in the ``Regulatory Flexibility Act Analysis,'' located in
the docket.
SEVP may certify in the final rule that this action does not have a
significant economic impact on a substantial number of small entities
if comments received do not demonstrate that the rule would cause a
substantial number of small entities to incur significant direct costs.
B. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) requires certain
actions to be taken by an agency before ``promulgation of any rule that
includes any Federal mandate that may result in the expenditure by
State, Local and Tribal governments, in the aggregate, or by the
private sector, of $100,000,000 or more (adjusted annually for
inflation) in any 1 year.'' 2 U.S.C. 1532(a). This rulemaking is not a
``Federal mandate,'' as defined for UMRA purposes, 2 U.S.C. 658(6), as
the payment of an SEVP certification fee by individuals, Local
governments or other private sector entities is (to the extent it could
be termed an enforceable duty) one that arises from participation in a
voluntary Federal program (i.e., applying for status as F-1, F-3, M-1,
or M-3 students or as J-1 exchange visitor in the United States or
seeking approval from the United
[[Page 21280]]
States for attendance by certain aliens seeking status as F-1, F-3, M-1
students). 2 U.S.C. 658(7)(A)(ii). Therefore, no actions were deemed
necessary under the provisions of the UMRA.
C. Small Business Regulatory Enforcement Fairness Act of 1996
This rulemaking is not a major rule, as defined by 5 U.S.C. 804,
for purposes of Congressional review of agency rulemaking under the
Small Business Regulatory Enforcement Act of 1996, Public Law 104-121.
This rulemaking would not result in an annual effect on the economy of
more than $100 million; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of U.S.-based companies to
compete with foreign-based companies in domestic and export markets.
D. Executive Order 12866: Regulatory Review
This proposed rule is not considered by DHS to be an economically
significant regulatory action under Executive Order 12866, section
3(f), Regulatory Planning and Review, since it would not have an annual
effect on the United States' economy of $100 million. The
implementation of this proposed rule would provide ICE SEVP with
additional fee revenue of $58,538 million in FY 2009 and $62,581
million in FY 2010. It is however, a significant rulemaking and has
been reviewed by OMB.
E. Executive Order 13132, Federalism
This rulemaking would not have substantial direct effects on the
States, or on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of Government. Consequently, DHS has determined that
this rulemaking does not have sufficient Federalism implications to
warrant the preparation of a Federalism summary impact statement, in
accordance with section 6 of Executive Order 13132.
F. Executive Order 12988 Civil Justice Reform
This proposed rule meets the applicable standards set forth in 3(a)
and 3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act
All Departments are required to submit to OMB for review and
approval, any reporting or recordkeeping requirements inherent in a
rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), 44 U.S.C. 3501, et seq. Schools will be using SEVIS
to petition for recertification. The recertification process requires
schools to input data in SEVIS, print the Form I-17 and sign the form.
The electronic data captured for the Form I-17 have been previously
approved for use by the Office of Management and Budget (OMB) as one
component of the data that are captured in SEVIS. The OMB Control
Number for this collection is 1615-0066 (changed to 1653-0038). With
the implementation of SEVIS under 67 FR 60107 (September 25, 2002),
most schools enrolled in SEVIS were petitioning for DHS
recertification, rather than initial certification (i.e., enrolling F
or M nonimmigrant students for the first time). The workload for both
certification and recertification was included under OMB 1615-0066.
The changes to the fees would require changes to SEVIS and the I-
901 software to reflect the updated fee amounts, as these systems
generate the pertinent petition and application forms. ICE SEVP would
submit a revision to OMB with respect to any changes to existing
information collection approvals.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
Accordingly, Chapter I of Title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
1. The authority citation for part 103 is revised to read as
follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356, 1372; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982
Comp., p. 166; 8 CFR part 2.
2. Section 103.7(b)(1) is amended by revising the entries for Forms
I-17, I-290B, and I-901 in the listing of fees, to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-17. $1,700 plus $655 per location listed on the Form I-17B
for filing a petition for school certification.
* * * * *
Form I-290B. $585 (the fee will be the same when an appeal is taken
from the denial of a petition with one or more multiple beneficiaries,
provided that they are all covered by the same petition, and therefore,
the same decision), for filing an appeal from any decision under the
immigration laws (except those related to either Form I-17 SEVP
certification or recertification) in any type of proceeding over which
the Board of Immigration Appeals does not have appellate jurisdiction.
* * * * *
Form I-901. $200 for remittance of the I-901 SEVIS fee levied on F
and M students. $180 for remittance of the I-901 SEVIS fee levied on
most J exchange visitors. $35 for remittance of the I-901 SEVIS fee
levied for J-1 au pairs, camp counselors, and participants in a summer
work/travel program. There is no I-901 SEVIS fee remittance obligation
for J exchange visitors in government sponsored programs.
* * * * *
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, 1185 (pursuant
to E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1186a, 1187,
1221, 1281, 1282, 1301-1305, 1356, 1372, 1379, 1731-32; section 643,
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 214.3 is amended by:
a. Revising paragraph (a)(1);
b. Adding paragraph (a)(3);
c. Revising the first sentence in paragraph (b) introductory text;
d. Revising the first sentence in paragraph (c);
e. Revising paragraphs (d), (e), and (f);
f. Revising paragraph (g)(1);
g. Removing paragraph (g)(2);
h. Redesignating paragraphs (g)(3) and (g)(4) as paragraphs (g)(2)
and (g)(3) respectively;
i. Revising newly designated paragraph (g)(2) heading, and by
revising newly designated paragraphs (g)(2)(i), (g)(2)(ii) introductory
text, (g)(2)(ii)(E), and (g)(2)(iii)(C);
j. Adding paragraph (g)(2)(iii)(D);
[[Page 21281]]
k. Revising paragraph (h);
l. Revising paragraph (i);
m. Revising the introductory text of paragraph (k);
n. Revising paragraph (l)(1)(ii); and by
o. Revising paragraph (l)(2).
The revisions and additions read as follows:
Sec. 214.3 Approval of schools for enrollment of F and M
nonimmigrants.
(a) * * *
(1) General. A school or school system seeking initial or continued
authorization for attendance by nonimmigrant students under sections
101(a)(15)(F)(i) or 101(a)(15)(M)(i) of the Act, or both, must file a
petition for certification or recertification with the Student and
Exchange Visitor Program (SEVP), using the Student and Exchange Visitor
Information System (SEVIS), in accordance with the procedures at
paragraph (h) of this section. The petition must state whether the
school or school system is seeking certification for attendance of
nonimmigrant students under section 101(a)(15)(F)(i) or
101(a)(15)(M)(i) of the Act or both. The petition must identify by name
and address each location of the school that is included in the
petition for certification or recertification, specifically including
any physical location in which a nonimmigrant can attend classes
through the school (i.e., campus, extension campuses, satellite
campuses, etc.).
(i) School systems. A school system, as used in this section, means
public school (grades 9-12) or private school (grades kindergarten-12).
A petition by a school system must include a list of the names and
addresses of those schools included in the petition with the supporting
documents.
(ii) Submission requirements. Certification and recertification
petitions require that a complete Form I-17, Petition for Approval of
School for Attendance by Nonimmigrant Student, including supplements A
and B and bearing original signatures, be included with the school's
submission of supporting documentation. In submitting the Form I-17, a
school certifies that the designated school officials (DSOs) signing
the form have read and understand DHS regulations relating to:
nonimmigrant students at 8 CFR 214.1, 214.2(f), and/or 214.2(m); change
of nonimmigrant classification for students at 8 CFR 248; school
certification and recertification under this section; withdrawal of
school certification under this section and 8 CFR 214.4; that both the
school and its DSOs intend to comply with these regulations at all
times; and that, to the best of its knowledge, the school is eligible
for SEVP certification. Willful misstatements constitute perjury (18
U.S.C. 1621).
* * * * *
(3) Eligibility. (i) The petitioner, to be eligible for
certification, must establish at the time of filing that it:
(A) Is a bona fide school;
(B) Is an established institution of learning or other recognized
place of study;
(C) Possesses the necessary facilities, personnel, and finances to
conduct instruction in recognized courses; and
(D) Is, in fact, engaged in instruction in those courses.
(ii) The petitioner, to be eligible for recertification, must
establish at the time of filing that it:
(A) Remains eligible for certification in accordance with paragraph
(a)(3)(i) of this section;
(B) Has complied during its previous period of certification with
recordkeeping, retention, and reporting requirements and all other
requirements of paragraphs (g), (j), (k), and (l) of this section.
(b) * * * Institutions petitioning for certification or
recertification must submit certain supporting documents as follows,
pursuant to sections 101(a)(15)(F) and (M) of the Act. * * *
* * * * *
(c) * * * If the petitioner is a vocational, business, or language
school, or American institution of research recognized as such by the
Secretary of Homeland Security, it must submit evidence that its
courses of study are accepted as fulfilling the requirements for the
attainment of an educational, professional, or vocational objective,
and are not avocational or recreational in character. * * *
(d) Interview of petitioner. The petitioner or an authorized
representative of the petitioner may be required to appear in person
before or be interviewed by telephone by a DHS representative prior to
the adjudication of a petition for certification or recertification.
The interview will be conducted under oath.
(e) Notices to schools related to certification or recertification
petitions or to out-of-cycle review--(1) General. All notices from SEVP
to schools or school systems related to school certification,
recertification, or out-of-cycle review will be issued in accordance
with the procedures at 8 CFR 103.2(b)(1), (4)-(16), (18) and (19), with
the exception that all procedures will be conducted by SEVP, the SEVP
Director, and the Assistant Secretary, ICE, as appropriate, and except
as provided in this section. All notices related to the collection of
evidence, testimony, and appearance pertaining to petitions for
recertification encompass compliance with the recordkeeping, retention
and reporting, and other requirements of paragraphs (f), (g), (j), (k),
and (l) of this section, as well as to eligibility. Notices will be
generated and transmitted through SEVIS and/or by e-mail. The date of
service is the date of transmission of the e-mail notice. DSOs must
maintain current contact information, including current e-mail
addresses, at all times. Failure of a school to receive SEVP notices
due to inaccurate DSO e-mail addresses in SEVIS or blockages of the
school's e-mail system caused by spam filters is not grounds for appeal
of a denial or withdrawal. The term ``in writing'' means either a paper
copy bearing original signatures or an electronic copy bearing
electronic signatures.
(2) SEVP approval notification and SEVIS updating by certified
schools. SEVP will notify the petitioner by updating SEVIS to reflect
approval of the petition and by e-mail upon approval of a certification
or recertification petition. The certification or recertification is
valid only for the type of program and nonimmigrant classification
specified in the certification or recertification approval notice. The
certification or recertification must be recertified every two years
and may be subject to out-of-cycle review at any time. Approval may be
withdrawn in accordance with 8 CFR 214.4.
(3) Modifications to Form I-17 while a school is SEVP-certified.
Any modification made by an SEVP-certified school on the Form I-17 at
any time after certification and for the duration of a school's
authorization to enroll F and/or M students must be reported to SEVP
and will be processed by SEVP in accordance with the provisions of
paragraphs (f)(1), (g)(2) and (h)(3)(i) of this section.
(4) Notice of Intent to Withdraw (NOIW) SEVP certification--(i)
Automatic withdrawal. SEVP will serve the school with an NOIW 30 days
prior to a school's SEVP certification expiration date if the school
has not submitted to SEVP a completed recertification petition, in
accordance with paragraph (h)(2) of this section. The school will be
automatically withdrawn immediately, in accordance with 8 CFR
214.4(a)(3), if it has not submitted a completed recertification
petition by the school's certification expiration date.
(ii) Withdrawal on notice. SEVP will issue an NOIW, in accordance
with 8
[[Page 21282]]
CFR 214.4(b), if SEVP determines that a school reviewed out-of-cycle
has failed to sustain eligibility or has failed to comply with the
recordkeeping, retention, reporting and other requirements of
paragraphs (f), (g), (j), (k), and (l) of this section. When a school
fails to file an answer to an NOIW within the 30-day period, SEVP will
withdraw the school's certification and notify the DSOs of the
decision, in accordance with 8 CFR 214.4(d). Such withdrawal of
certification may not be appealed.
(5) Notice of Denial. A Notice of Denial will be sent to a school
when SEVP denies a petition for initial certification or
recertification. The notice will address appeals options. Schools
denied recertification must comply with 8 CFR 214.4(i).
(6) Notice of Automatic Withdrawal. Schools that relinquish SEVP
certification for any of the reasons cited in 8 CFR 214.4(a)(3) will be
served a Notice of Automatic Withdrawal.
(7) Notice of Withdrawal. A school found to be ineligible for
continued SEVP certification as a result of an out-of-cycle review will
receive a Notice of Withdrawal. Schools withdrawn must comply with 8
CFR 214.4(i).
(8) Notice of SEVIS Access Termination Date. The Notice of SEVIS
Access Termination Date gives the official date for the school's denial
or withdrawal to be final and SEVIS access to be terminated. In most
situations, SEVP will not determine a SEVIS access termination date for
that school until the appeals process has concluded and the initial
denial or withdrawal has been upheld, in accordance with 8 CFR
214.4(i)(3). The school will no longer be able to access SEVIS and SEVP
will automatically terminate any remaining Active SEVIS records for
that school on that date.
(f) Adjudication of a petition for SEVP certification or
recertification. (1) Approval. The school is required to immediately
report through SEVIS any change to its school information upon approval
of a petition for SEVP certification or recertification. Modification
to school information listed in paragraph (h)(3) of this section will
require a determination of continued eligibility for certification. The
certification is valid only for the type of program and student
specified in the approval notice. The certification may be withdrawn in
accordance with the provisions of 8 CFR 214.4, is subject to review at
any time, and will be reviewed every 2 years.
(2) Denial. The petitioner will be notified of the reasons for the
denial and appeal rights, in accordance with the provisions of 8 CFR
part 103 and 8 CFR 214.4, if SEVP denies a petition for certification
or recertification.
(g) * * *
(1) Student records. An SEVP-certified school must keep records
containing certain specific information and documents relating to each
F-1 or M-1 student to whom it has issued a Form I-20, while the student
is attending the school and until the school notifies SEVP, in
accordance with the requirements of paragraphs (g)(1) and (2) of this
section, that the student is not pursuing a full course of study. The
school must keep a record of having complied with the reporting
requirements for at least three years after the student is no longer
pursuing a full course of study. The school must maintain records on
the student in accordance with paragraphs (g)(1) and (2) of this
section if a school recommends reinstatement for a student who is out
of status. The school must maintain records on the student for three
years from the date of the denial if the reinstatement is denied. The
DSO must make the information and documents required by this paragraph
available, including academic transcripts, and must furnish them to DHS
representatives upon request. Schools must maintain and be able to
provide an academic transcript or other routinely maintained student
records that reflect the total, unabridged academic history of the
student at the institution, in accordance with paragraph (g)(1)(iv) of
this section. All courses must be recorded in the academic period in
which the course was taken and graded. The information and documents
that the school must keep on each student are as follows:
(i) Identification of the school, to include name and full address.
(ii) Identification of the student, to include name while in
attendance, date and place of birth, country of citizenship, school's
student identification number.
(iii) Current address where the student and his or her dependents
physically reside. In the event the student or his or her dependents
cannot receive mail at such physical residence, the school must provide
a mailing address in SEVIS. If the mailing address and the physical
address are not the same, the school must maintain a record of both
mailing and physical addresses and provide the physical location of
residence of the student and his or her dependents to DHS upon request.
(iv) Record of coursework. Identify the student's degree program
and field of study. For each course, give the periods of enrollment,
course identification code and course title; the number of credits or
contact hours, and the grade; the number of credits or clock hours, and
for credit hour courses the credit unit; the term unit (semester hour,
quarter hour, etc.). Include the date of withdrawal if the student
withdrew from a course. Show the grade point average for each session
or term. Show the cumulative credits or clock hours and cumulative
grade point average. Narrative evaluation will be accepted in lieu of
grades when the school uses no other type of grading.
(v) Record of transfer credit or clock hours accepted. Type of
hours, course identification, grades.
(vi) Academic status. Include the effective date or period if
suspended, dismissed, placed on probation, or withdrawn.
(vii) Whether the student has been certified for practical
training, and the beginning and end dates of certification.
(viii) Statement of graduation (if applicable). Title of degree or
credential received, date conferred, program of study or major.
(ix) Termination date and reason.
(x) The documents referred to in paragraph (k) of this section.
(xi) Date of last entry into the United States; most recent Form I-
94 number and date of issue.
Note to paragraph (g)(1): A DHS officer may request any or all
of the above data on any individual student or class of students
upon notice. This notice will be in writing if requested by the
school. The school will have three work days to respond to any
request for information concerning an individual student, and ten
work days to respond to any request for information concerning a
class of students. The school will respond orally on the same day
the request for information is made if DHS requests information on a
student who is being held in custody, and DHS will provide a written
notification that the request was made after the fact, if the school
so desires. DHS will first attempt to gain information concerning a
class of students from DHS record systems.
(2) Reporting changes in student and school information. (i)
Schools must update SEVIS with the current information within 21 days
of a change in any of the information contained in paragraphs (f)(1)
and (h)(3) of this section.
(ii) Schools are also required to report within 21 days any change
of the information contained in paragraph (g)(1) or the occurrence of
the following events:
* * * * *
(E) Any other notification request not covered by paragraph (g)(1)
of this section made by DHS with respect to the current status of the
student.
[[Page 21283]]
(iii) * * *
(C) The start date of the student's next session, term, semester,
trimester, or quarter. For initial students, the start date is the
``program start date'' or ``report date.'' (These terms are used
interchangeably.) The DSO may choose a reasonable date to accommodate a
student's need to be in attendance for required activities at the
school prior to the actual start of classes when determining the report
date on the Form I-20. Such required activities may include, but are
not limited to, research projects and orientation sessions. The DSO may
not, however, indicate a report date more than 30 days prior to the
start of classes. The next session start date is the start of classes
for continuing students.
(D) Adjustment to the program completion date. Any factors that
influence the student's progress toward program completion must be
reflected by making an adjustment updating the program completion date.
* * * * *
(h) SEVP certification, recertification, out-of-cycle review, and
oversight of schools--(1) Certification. A school seeking SEVP
certification for attendance by nonimmigrants under section
101(a)(15)(F)(i) or 101(a)(15)(m)(i) of the Act must use SEVIS to file
an electronic petition (which compiles the data for the Form I-17) and
must submit the nonrefundable certification petition fee on-line.
(i) Filing a petition. The school must access the SEVP Web site at
http://www.ice.gov/sevis to file a certification petition in SEVIS. The
school will be issued a temporary ID and password in order to access
SEVIS to complete and submit an electronic Form I-17. The school must
submit online the nonrefundable certification petition fee of $1,700,
and the mandatory site visit fee of $655. The school must pay the $655
site visit cost for each additional school or campus listed on Form I-
17B.
(ii) Site visit, petition adjudication and school notification.
SEVP will conduct a site visit for each petitioning school and its
additional schools or campuses. SEVP will contact the school to arrange
the site visit. The school must comply with and complete the visit
within 30 days after the date SEVP contacts the school to arrange the
visit, or the petition for certification will be denied as abandoned.
DSOs and school officials that have signed the school's Form I-17
petition must be able to demonstrate to DHS representatives how they
obtain access to the regulations cited in the certification as part of
the site visit. Paper or electronic access is acceptable. DSOs must be
able to extract pertinent citations within the regulations related to
their requirements and responsibilities. SEVP will issue a notice of
approval and SEVIS will be updated to reflect the school's
certification if SEVP approves the school's certification petition.
(iii) Certification denial. SEVP will issue a notice of denial in
accordance with paragraph (f)(2) of this section if a school's petition
for certification is denied.
(2) Recertification. Schools are required to file a completed
petition for SEVP recertification before the school's certification
expiration date, which is two years from the date of their previous
SEVP certification or recertification expiration date, except for the
first recertification cycle after publication of the recertification
rule. SEVP will review a petitioning school's compliance with the
recordkeeping, retention and reporting, and other requirements of
paragraphs (f), (g), (j), (k), and (l) of this section, as well as
continued eligibility for certification, pursuant to paragraph (a)(3)
of this section.
(i) Filing of petition for recertification. Schools must submit a
completed Form I-17 (including supplements A and B) using SEVIS, and
submit a paper copy of the Form I-17 bearing original signatures of all
officials. SEVP will notify all DSOs of a previously certified school
180 days prior to the school's certification expiration date that the
school may submit a petition for recertification. A school may file its
recertification petition at any time after receipt of this
notification. A school must submit a complete recertification petition
package, as outlined in the submission guidelines, by its certification
expiration date. SEVP will send a notice of confirmation of complete
filing or rejection to the school upon receipt of any filing of a
petition for recertification.
(A) Notice of confirmation assures a school of uninterrupted access
to SEVIS while SEVP adjudicates the school's petition for
recertification. A school that has complied with the petition
submission requirements will continue to have SEVIS access after its
certification expiration date while the adjudication for
recertification is pending. The school is required to comply with all
regulatory, recordkeeping, retention and reporting, and other
requirements of paragraphs (f), (g), (j), (k), and (l) of this section
during the period the petition is pending.
(B) Notice of rejection informs a school that it must take prompt
corrective action in regard to its recertification petition prior to
its certification expiration date to ensure that its SEVIS access will
not be terminated and its petition for recertification will be accepted
for adjudication.
(ii) Consequence of failure to petition. SEVP will issue an NOIW to
the school 30 days prior to a school's certification expiration date.
SEVP will no longer accept a petition for recertification from the
school and will immediately withdraw the school's certification if the
school does not petition for recertification, abandons its petition, or
does not submit a complete recertification petition package by the
certification expiration date, in accordance with the automatic
withdrawal criteria in 8 CFR 214.4(a)(3). The school must comply with 8
CFR 214.4(i) upon withdrawal.
(iii) School recertification process--(A) General. School
recertification reaffirms the petitioning school's eligibility for SEVP
certification and the school's compliance with recordkeeping,
retention, reporting and other requirements of paragraphs (f), (g),
(j), (k), and (l) of this section since its previous certification.
(B) Compliance. Assessment by SEVP of a school petitioning for
recertification will focus primarily on overall school compliance, but
may also include examination of individual DSO compliance as data and
circumstances warrant. Past performance of these individuals, whether
or not they continue to serve as principal designated school officials
(PDSOs) or DSOs, will be considered in any petition for recertification
of the school.
(C) On-site review for recertification. All schools are subject to
on-site review, at the discretion of SEVP, in conjunction with
recertification. The school must comply with and complete an on-site
review within 30 days of the notification by a DHS representative of a
school that it has been selected for an on-site review for
recertification, or the petition for recertification will be denied as
abandoned, resulting in the school's withdrawal from SEVIS.
(iv) Recertification approval. SEVP will issue a notice of approval
if a school's petition for recertification is approved. The date of the
subsequent recertification review will be two years after the school's
certification expiration date from this petition cycle.
(v) Recertification denial. SEVP will issue a notice of denial if a
school's petition for recertification is denied, in accordance with 8
CFR 103.3.
[[Page 21284]]
(vi) Adjustment of certification expiration date. Schools eligible
for recertification before [Insert date 180 days from date of
publication of the final rule in the Federal Register] will, at a
minimum, have their certification expiration date extended to [Insert
date 180 days from the date of publication of the final rule in the
Federal Register]. SEVP may extend the certification expiration date
beyond this date during the first cycle of recertification.
(3) Out-of-cycle review and oversight of SEVP-certified schools.
(i) SEVP will determine if out-of-cycle review is required upon receipt
in SEVIS of any changes from an SEVP-certified school to its Form I-17
information. The Form I-17 information that requires out-of-cycle
review when changed includes:
(A) Approval for attendance of students (F/M/both);
(B) Name of school system; name of main campus;
(C) Mailing address of the school;
(D) Location of the school;
(E) School type;
(F) Public/private school indicator;
(G) Private school owner name;
(H) The school is engaged in;
(I) The school operates under the following Federal, State, Local
or other authorization;
(J) The school has been approved by the following national,
regional, or state accrediting association or agency;
(K) Areas of study;
(L) Degrees available from the school;
(M) If the school is engaged in elementary or secondary education;
(N) If the school is engaged in higher education;
(O) If the school is engaged in vocational or technical education;
(P) If the school is engaged in English language training;
(Q) Adding or deleting campuses;
(R) Campus name;
(S) Campus mailing address; and
(T) Campus location address.
(ii) SEVP may request a school to electronically update all Form I-
17 fields in SEVIS and provide SEVP with documentation supporting the
update. The school must complete such updates in SEVIS and submit the
supporting documentation to SEVP within 10 business days of the request
from SEVP.
(iii) SEVP may review a school's certification at any time to
verify the school's compliance with the recordkeeping, retention,
reporting and other requirements of paragraphs (f), (g), (j), (k), and
(l) of this section to verify the school's continued eligibility for
SEVP certification pursuant to paragraph (a)(3) of this section. SEVP
may initiate remedial action with the school, as appropriate, and may
initiate withdrawal proceedings against the school pursuant to 8 CFR
214.4(b) if noncompliance or ineligibility of a school is identified.
(iv) On-site review. SEVP-certified schools are subject to on-site
review at any time. SEVP will initiate withdrawal proceedings against
the school, pursuant to 8 CFR 214.4(b), if a certified school selected
for on-site review prior to its certification expiration date fails to
comply with and complete the review within 30 days of the date SEVP
contacted the school to arrange the review.
(v) Notice of Continued Eligibility. SEVP will issue the school a
notice of continued eligibility if, upon completion of an out-of-cycle
review, SEVP determines that the school remains eligible for
certification. Such notice will not change the school's previously-
determined certification expiration date unless specifically notified
by SEVP.
(vi) Withdrawal of certification. SEVP will institute withdrawal
proceedings in accordance with 8 CFR 214.4(b) if, upon completion of an
out-of-cycle review, SEVP determines that a school or its programs are
no longer eligible for certification.
(vii) Voluntary withdrawal. A school can voluntarily withdraw from
SEVP certification at any time or in lieu of complying with an out-of-
cycle review or request. Failure of a school to comply with an out-of-
cycle review or request by SEVP will be treated as a voluntary
withdrawal. A school must initiate voluntary withdrawal by sending a
request for withdrawal on official school letterhead to SEVP.
(i) Administration of student regulations. DHS officials may
conduct out-of-cycle, on-site reviews on the campuses of SEVP-certified
schools to determine whether nonimmigrant students on those campuses
are complying with DHS regulations pertaining to them, including the
requirement that each maintains a valid passport. DHS officers will
take appropriate action regarding violations of the regulations by
nonimmigrant students.
* * * * *
(k) Issuance of Certificate of Eligibility. A DSO of an SEVP-
certified school must sign any completed Form I-20 issued for either a
prospective or continuing student or a dependent. A Form I-20 issued by
a certified school system must state which school within the system the
student will attend. Only a DSO of an SEVP-certified school may issue a
Form I-20 to a prospective student and his or her dependents, and only
after the following conditions are met:
* * * * *
(l) * * *
(1) * * *
(ii) Each campus must have one PDSO. The PDSO is responsible for
updating SEVIS to reflect the addition or deletion of any DSO on his or
her associated campus. SEVP will use the PDSO as the point of contact
on any issues that relate to the school's compliance with the
regulations, as well as any system alerts generated by SEVIS. SEVP may
also designate certain functions in SEVIS for use by the PDSO only. The
PDSO of the main campus is the only DSO authorized to submit a Form I-
17 for recertification. The PDSO and DSO will share the same
responsibilities in all other respects.
* * * * *
(2) Name, title, and sample signature. Petitions for SEVP
certification, review and recertification must include the names,
titles, and sample signatures of designated officials. An SEVP-
certified school must update SEVIS upon any changes to the persons who
are principal or designated officials, and furnish the name, title and
e-mail address of any new official within 21 days of the change. Any
changes to the PDSO or DSO must be made by the PDSO within 21 days of
the change. DHS may, at its discretion, reject the submission of any
individual as a DSO or withdraw a previous submission by a school of an
individual.
* * * * *
5. Section 214.4 is amended by:
a. Revising the section heading;
b. Revising paragraph (a)(1);
c. Redesignating paragraphs (a)(2) and (a)(3) as paragraphs (a)(3)
and (a)(4) respectively;
d. Adding a new paragraph (a)(2);
e. Revising newly designated paragraph (a)(3);
f. Revising paragraph (b);
g. Revising paragraph (g); and by
h. Adding paragraph (i).
The revisions and addition read as follows:
Sec. 214.4 Denial of certification, denial of recertification or
withdrawal of SEVP certification.
(a) * * *
(1) Denial of certification. The petitioning school will be
notified of the reasons and appeal rights if a petition for
certification is denied, in accordance with the provisions of 8 CFR
103.3. A petitioning school denied certification may file a new
petition for certification at any time.
(2) Denial of recertification or withdrawal on notice. The school
must
[[Page 21285]]
wait at least one calendar year from the date of denial of
recertification or withdrawal on notice before being eligible to
petition again for SEVP certification if a school's petition for
recertification is denied by SEVP pursuant to 8 CFR 214.3(h)(3)(v), or
its certification withdrawn on notice pursuant to paragraph (b) of this
section. Eligibility to re-petition will be at the discretion of the
Director of SEVP. A school or school system's SEVP certification for
the attendance of nonimmigrant students, pursuant to sections
101(a)(15)(F)(i) and/or 101(a)(15)(M)(i) of the Immigration and
Nationality Act, will be withdrawn on notice subsequent to out-of-cycle
review, or recertification denied, if the school or school system is
determined to no longer be entitled to certification for any valid and
substantive reason including, but not limited to, the following:
(i) Failure to comply with 8 CFR 214.3(g)(1) without a subpoena.
(ii) Failure to comply with 8 CFR 214.3(g)(2).
(iii) Failure of a DSO to notify SEVP of the attendance of an F-1
transfer student as required by 8 CFR 214.2(f)(8)(ii).
(iv) Failure of a DSO to identify on the Form I-20 which school
within the system the student must attend, in compliance with 8 CFR
214.3(k).
(v) Willful issuance by a DSO of a false statement, including
wrongful certification of a statement by signature, in connection with
a student's school transfer or application for employment or practical
training.
(vi) Conduct on the part of a DSO that does not comply with the
regulations.
(vii) The designation as a DSO of an individual who does not meet
the requirements of 8 CFR 214.3(l)(1).
(viii) Failure to provide SEVP paper copies of the school's Form I-
17 bearing the names, titles, and signatures of DSOs as required by 8
CFR 214.3(l)(2).
(ix) Failure to submit statements of DSOs as required by 8 CFR
214.3(l)(3).
(x) Issuance of Forms I-20 to students without receipt of proof
that the students have met scholastic, language, or financial
requirements as required by 8 CFR 214.3(k)(2).
(xi) Issuance of Forms I-20 to aliens who will not be enrolled in
or carry full courses of study, as defined in 8 CFR 214.2(f)(6) or
214.2(m)(9).
(xii) Failure to operate as a bona fide institution of learning.
(xiii) Failure to employ adequate qualified professional personnel.
(xiv) Failure to limit advertising in the manner prescribed in 8
CFR 214.3(j).
(xv) Failure to maintain proper facilities for instruction.
(xvi) Failure to maintain accreditation or licensing necessary to
qualify graduates as represented in the school's Form I-17.
(xvii) Failure to maintain the physical plant, curriculum, and
teaching staff in the manner represented in the Form I-17.
(xviii) Failure to comply with the procedures for issuance of Forms
I-20 as set forth in 8 CFR 214.3(k).
(xix) Failure of a DSO to notify SEVP of material changes, such as
changes to the school's name, address, or curriculum, as required by 8
CFR 214.3(f)(1).
(3) Automatic withdrawal. A school that is automatically withdrawn
and subsequently wishes to enroll nonimmigrant students in the future
may file a new petition for SEVP certification at any time. The school
must use the certification petition procedures described in 8 CFR
214.3(h)(1) to gain access to SEVIS for submitting its petition. Past
compliance with the recordkeeping, retention, reporting and other
requirements of 8 CFR 214.3(f), (g), (j), (k), and (l), and with the
requirements for transition of students under paragraph (i) of this
section will be considered in the evaluation of a school's subsequent
petition for certification. SEVP certification will be automatically
withdrawn:
(i) As of the date of termination of operations, if an SEVP-
certified school terminates its operations.
(ii) As of a school's certification expiration date, if an SEVP-
certified school does not submit a completed recertification petition
in the manner required by 8 CFR 214.3(h)(2).
(iii) Sixty days after the change of ownership if an SEVP-certified
school changes ownership, unless the school files a new petition for
SEVP certification, in accordance with the procedures at 8 CFR
214.3(h)(1), within 60 days of the change of ownership. SEVP will
review the petition if the school properly files such petition to
determine whether the school still meets the eligibility requirements
of 8 CFR 214.3(a)(3) and is still in compliance with the recordkeeping,
retention, reporting and other requirements of 8 CFR 214.3 (f), (g),
(j), (k), and (l). SEVP will institute withdrawal proceedings in
accordance with paragraph (b) of this section if, upon completion of
the review, SEVP finds that the school is no longer eligible for
certification, or is not in compliance with the recordkeeping,
retention, reporting and other requirements of 8 CFR 214.3 (f), (g),
(j), (k), and (l).
(iv) If an SEVP-certified school voluntarily withdraws from its
certification.
(b) Withdrawal on notice. SEVP will initiate an out-of-cycle review
and serve the school's PDSO with a Notice of Intent to Withdraw (NOIW)
if SEVP has information that a school or school system may no longer be
entitled to SEVP certification prior to the school being due for its
two-year recertification. The NOIW will inform the school of:
(1) The grounds for withdrawing SEVP certification.
(2) The 30-day deadline from the date of the service of the NOIW
for the school to submit sworn statements, and documentary or other
evidence, to rebut the grounds for withdrawal of certification in the
NOIW. An NOIW is not a means for the school to submit evidence that it
should have previously submitted as a part of its established reporting
requirements.
(3) The school's right to submit a written request (including e-
mail) within 30 days of the date of service of the NOIW for a
telephonic interview in support of its response to the NOIW.
* * * * *
(g) Decision. The decision of SEVP will be in accordance with 8 CFR
103.3(a)(1).
* * * * *
(i) Operations at a school when SEVP certification is relinquished
or withdrawn, or whose recertification is denied and on the SEVIS
access termination date--(1) General. A school whose certification is
relinquished or withdrawn, or whose recertification is denied may, at
SEVP discretion, no longer be able to create Initial student records or
issue new Forms I-20, Certificate of Eligibility for Nonimmigrant
Student, for initial attendance. Schools must comply with the
instructions given in the notice of withdrawal or denial with regard to
management of status for their Initial and continuing F and/or M
students. All other SEVIS functionality, including event reporting for
students, will remain unchanged until the school's SEVIS access
termination date. The school must continue to comply with the
recordkeeping, retention, reporting and other requirements of 8 CFR
214.3(f), (g), (j), (k), and (l) until its SEVIS access termination
date.
(2) SEVIS access termination. In determining the SEVIS access
termination date, SEVP will consider the impact that such date will
have upon SEVP, the school, and the school's
[[Page 21286]]
nonimmigrant students in determining the SEVIS access termination date.
SEVP will not determine a SEVIS access termination date for that school
until the appeals process has concluded and the initial denial or
withdrawal has been upheld unless a school whose certification is
withdrawn or whose recertification is denied is suspected of criminal
activity or poses a potential national security threat. The school will
no longer be able to access SEVIS, and SEVP will automatically
terminate any remaining Active SEVIS records for that school on the
SEVIS access termination date.
(3) Legal obligations and ramifications for a school and its DSOs
when a school is having SEVP certification denied or withdrawn. Schools
are obligated to their students to provide the programs of study to
which they have committed themselves in the students' application for
enrollment and acceptance process. Schools are obligated to the U.S.
government to comply with the recordkeeping, retention, reporting and
other requirements contained in 8 CFR 214.3. With any new petition for
SEVP certification, SEVP will consider the extent to which a school has
fulfilled these obligations to students and the U.S. government during
any previous period of SEVP certification.
6. Section 214.13 is amended by revising paragraph (a), to read as
follows:
Sec. 214.13 SEVIS fee for certain F, J, and M nonimmigrants.
(a) Applicability. The following aliens are required to submit a
payment in the amount indicated for their status to the Student and
Exchange Visitor Program (SEVP) in advance of obtaining nonimmigrant
status as an F or M student or J exchange visitor, in addition to any
other applicable fees, except as otherwise provided for in this
section:
(1) An alien who applies for F-1 or F-3 status in order to enroll
in a program of study at an SEVP-certified institution of higher
education, as defined in section 101(a) of the Higher Education Act of
1965, as amended, or in a program of study at any other SEVP-certified
academic or language-training institution including private elementary
and secondary schools and public secondary schools, the amount of $200;
(2) An alien who applies for J-1 status in order to commence
participation in an exchange visitor program designated by the
Department of State (DOS), the amount of $180, with a reduced fee for
certain exchange visitor categories as provided in paragraphs (b)(1)
and (c) of this section; and
(3) An alien who applies for M-1 or M-3 status in order to enroll
in a program of study at an SEVP-certified vocational educational
institution, including a flight school, in the amount of $200.
* * * * *
Michael Chertoff,
Secretary.
[FR Doc. E8-8261 Filed 4-18-08; 8:45 am]
BILLING CODE 4410-10-P