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, 21260-21286 [E8-8261]
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21260
Proposed Rules
Federal Register
Vol. 73, No. 77
Monday, April 21, 2008
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.
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-ofCycle Review and Recertification of
Schools Certified by the Student and
Exchange Visitor Program To Enroll F
or M Nonimmigrant Students
U.S. Immigration and Customs
Enforcement, DHS.
ACTION: Proposed rule.
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AGENCY:
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
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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: https://
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 https://
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
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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, Outof-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
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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
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INA
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 https://
www.regulations.gov. See ADDRESSES,
above, for methods to submit comments.
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Mailed submissions may be paper, disk,
or CD–ROM.
Comments may be viewed online at
https://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).
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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 Webbased 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 SEVPcertified 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
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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.
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More than 9,000 schools are currently
SEVP-certified; more than 1,400
exchange visitor programs are DOSdesignated.
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.
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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
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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
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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.
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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 feefunded 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.
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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
plan
Organization
2008 spend
plan
2009 spend
plan
2008–2009
change
6,785
1,320
1,060
365
251
480
113
2,586
1,519
1,194
684
618
667
157
8,639
3,330
1,276
4,737
647
757
176
6,053
1,811
82
4,053
29
90
19
Total ..........................................................................................................
10,374
7,425
19,562
12,137
Contractors
Program Expenses
CEU ..........................................................................................................
SEVIS II* ...................................................................................................
Office of the Chief Information Officer ......................................................
SEVIS (IRM) .............................................................................................
DOS ..........................................................................................................
SEVIS Security .........................................................................................
Department of the Treasury .....................................................................
7,991
12,954
9,063
(3,891)
12,256
........................
2,003
17,683
509
672
2,857
12,682
........................
2,162
16,235
470
698
3,526
44,597
25,100
2,465
13,593
511
500
3,689
31,915
25,100
303
(2,642)
41
(198)
163
Total, SEVP .......................................................................................
54,345
56,153
119,580
63,427
Carry-forward
SEVIS II ....................................................................................................
CEU ..........................................................................................................
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SEVP Management .........................................................................................
School Certification Branch .............................................................................
Information Technology Branch .......................................................................
SEVP Liaison Branch ......................................................................................
Policy Branch ...................................................................................................
Mission Support Branch ..................................................................................
Office of the Principal Legal Advisor ...............................................................
........................
........................
12,500
5,600
........................
........................
(12,500)
(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
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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]
2007
End of Year
budget
Object classes
2008
President’s
budget
2009
President’s request
2008–2009
Change
Total Full-Time Equivalent personnel compensation ......................................
Other personnel compensation .......................................................................
Benefits ............................................................................................................
Travel ...............................................................................................................
Transportation of materiel ................................................................................
General Services Administration rent ..............................................................
Other rent .........................................................................................................
Communications, rent & misc. charges ...........................................................
Advisory & Assistance Services ......................................................................
Other services ..................................................................................................
Purchase from Government Accounts .............................................................
Operations & maintenance of equipment ........................................................
Supplies & Materials ........................................................................................
Equipment ........................................................................................................
Land & Structures ............................................................................................
7,239
81
3,511
448
10
10
235
609
7,468
7,471
509
16,460
645
9,438
215
7,479
84
3,628
463
10
10
243
629
7,763
7,719
526
17,006
667
9,751
222
24,239
254
7,841
1,437
17
17
406
1,084
13,958
10,623
907
20,116
1,150
37,098
383
16,760
170
4,213
974
7
7
163
455
6,195
2,904
381
4,110
483
29,347
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.
rfrederick on PROD1PC67 with PROPOSALS
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
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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
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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
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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, realtime 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.
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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
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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 SEVPcertified 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
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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 outof-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
21267
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
cost (millions)
Program cost by initiative
Program Base:
SEVP (current operational level) ............................................................................................................................................
CEU (current operational level) ..............................................................................................................................................
$35.23
21.67
Subtotal ...........................................................................................................................................................................
56.90
Enhancements:
SEVIS II ..................................................................................................................................................................................
Additional CEU Personnel ......................................................................................................................................................
Recertification .........................................................................................................................................................................
School Liaison ........................................................................................................................................................................
25.60
26.78
3.24
7.06
Subtotal ...........................................................................................................................................................................
62.68
Total .........................................................................................................................................................................
119.58
rfrederick on PROD1PC67 with PROPOSALS
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
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Jkt 214001
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
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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
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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
SEVP ABC model output
category
FY 2009 budgeted
cost (millions)
I–901 SEVIS fee .............
Certification .....................
$117.91
1.67
Total .........................
119.58
Table 5 shows a more detailed cost
breakdown. The numbers are shown in
thousands, rather than millions, of
dollars due to the level of detail. There
are three levels for some costs: process,
activity, and sub-activity. Other costs
have only two levels of detail. To
simplify the presentation, the numbers
are rounded to the nearest thousand.
These numbers are not rounded in the
costing model.
TABLE 5.—SEVP ACTIVITY COST BY FEE CATEGORY
[$ in thousands]
Process
Activity
Sub-activity
Direct Assignment ................................
Pass through cost—Site Visit Contracts
Compliance Enforcement ....................
CEU Operations ..................................
CEU Programs ....................................
Investigations .......................................
CEU Liaison .........................................
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Case Resolution Unit: Resolve Issues
for Fee Payments.
Department of State ............................
I–515 Operations .................................
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School
certification fee
................
Access SEVIS data for investigative
leads.
Analyze SEVIS data to identify potential status violators pursuant to the
INA.
Assign viable leads to ICE Special
Agent in Charge offices for further
investigation and enforcement action if required.
Determine quality of SEVIS lead ........
Act as a liaison with the law enforcement and intelligence communities
concerning SEVIS data and provide
expertise in dealing with student investigations and enforcement.
Assess vulnerabilities in SEVIS that
can be exploited to misuse the system or otherwise violate law.
Perform alien flight student program
duties.
Perform budget formulation duties ......
Perform school certification and regulatory compliance.
Provide enforcement related training
to field personnel with respect to
the use of SEVIS.
Provide input to policy and regulatory
changes affecting enforcement and
national security.
Provide programmatic oversight .........
Perform Fraud Investigations (I–17) ...
Perform Student Investigations (I–901)
Coordinate SEVIS data to enhance field investigations
Interface with schools to provide initial contact prior to CEU involvement
Provide liaison support to CEU for other SEVP leads
Provide liaison support to CEU regarding possible leads from SEVIS
Access Government Lockbox queues
Administer SEVIS FMJ fee e-mail
Answer phone queries on I–901 SEVIS fee payment issues
Process credit card charge backs
Process fee payment transfer requests
Process refund requests
Process returned checks
Work with U.S. Bank and Treasury to enhance I–901 system
Work with U.S. Bank Government Lockbox to resolve fee payment issues
Develop exchange visitor policy and regulations
Monitor complaints
Perform exchange visitor program redesignations
Receive review and determine status of exchange visitor program applications
Review change of status applications
Close out I–515 case
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SEVIS
fee
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543
442
................
3,136
................
249
................
634
100
................
................
292
................
100
................
100
82
................
18
50
................
292
................
100
11,256
31,595
................
................
................
9
9
9
36
13
104
29
7
2
27
0
13
2
102
102
102
102
102
100
................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
................
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TABLE 5.—SEVP ACTIVITY COST BY FEE CATEGORY—Continued
[$ in thousands]
Process
Activity
Sub-activity
Coordinate with external organizations
Document and research I–515 case
Provide I–515 program management
Information Technology .......................
Maintain and update SEVIS ................
Other IT Support .................................
Provide Help Desk Support .................
Policy and Planning .............................
Policy development and analysis ........
rfrederick on PROD1PC67 with PROPOSALS
Provide Liaison Support to Federal
partners.
Provide Social Security Administration
(SSA) Liaison Support.
Program Analysis .................................
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45
94
165
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21APP1
................
................
................
1,124
2,175
................
................
1,803
31,420
................
................
443
................
719
................
888
98
754
................
4
32
136
820
39
43
................
35
2
2
270
................
140
................
140
1,062
2,159
66
110
................
................
................
................
................
21
15
................
................
354
................
338
................
139
................
122
................
234
110
................
................
29
77
................
................
119
................
7
................
211
151
118
Coordinate and monitor system performance.
Identify and define new system requirements.
Manage system security .....................
Modify and enhance SEVIS interface
and functionality (design and development).
Monitor and manage Help Desk Team
performance.
Provide system testing and release
readiness reviews.
Resolve errors in system data ............
Administer SEVIS Toolbox ..................
Liaison with Chief Information Officer
other system owners, the Federal
Bureau of Investigation, etc.
Manage IT contracts ...........................
Perform ad hoc IT projects .................
Perform procurement activities ...........
Provide general IT support to SEVP
office.
Contact customer to convey ticket resolution.
Document ticket resolution and provide daily and weekly statuses.
Handle ticket escalations ....................
Log initial help desk ticket ...................
Perform research to resolve ticket ......
Develop strategic plan .........................
Draft implement and support plans
and procedures.
Maintain forms .....................................
Perform record retention and disposition.
Prepare and update policies procedures, frequently asked questions,
regulations, and Fact Sheets.
Provide guidance on SEVP policy
issues.
Provide liaison support to SEVP internal and external stakeholders, to include teleconferences and working
groups.
Provide review and answers to SEVIS
source e-mail site and inquiries.
Publish rules and FR notices ..............
Respond and comment on pending
legislation.
Coordinate Federal partner/SEVP
interactions with other government
organizations.
Coordinate Federal partner/SEVP
interactions with other government
organizations.
Coordinate policies and procedures
with Federal partners.
Provide SSA Liaison Support ..............
Analyze SEVP/SEVIS data and processes
Collect data for analysis and reporting
Prepare reports
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I–901
SEVIS
fee
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TABLE 5.—SEVP ACTIVITY COST BY FEE CATEGORY—Continued
[$ in thousands]
Process
Activity
Sub-activity
Resource Management .......................
Manage Financial Resources ..............
Formulate and execute budget ...........
Manage financial systems (Travel
Manager, Federal Financial Management System, Electronic System
for Personnel).
Manage travel/purchase card ..............
Perform Contracting Officer’s Technical Representative duties.
Perform revenue analysis ...................
Prepare and monitor 5-year spend
plans.
Prepare and respond to audit requests.
Prepare bi-annual fee review ..............
Provide program logistics ....................
Manage payroll issues ........................
Manage position description ...............
Perform personnel actions (SF–521) ..
Prepare and execute hiring plans .......
Provide Human Resources Division
and Security relevant personnel
data.
Pass through cost—Treasury Fee Collection.
Perform certification—approvals .........
Perform certification—denials .............
Monitor school compliance ..................
Process and adjudicate appeals .........
Process and adjudicate motions .........
Process and adjudicate petition updates.
Perform recertification—approvals ......
Perform recertification—denials ..........
Perform student notifications ...............
Withdraw schools from SEVIS ............
8
4
70
34
3
1
68
102
3
4
28
1
128
32
106
95
3
160
46
5
1
4
4
0
7
2
3,689
................
................
................
3,060
992
45
791
307
388
................
212
10
................
1,114
1,010
640
539
................
................
................
................
Develop Liaison Program
Implement Liaison Program
Perform school liaison functions
Answer the main telephone line
Liaison with service providers for copier maintenance, DHL/FedEx mail, cell
phones, blackberries, etc.
Maintain SEVP supplies and materials
Manage executive correspondence
Process time and attendance/travel vouchers
Provide administrative support for special projects
Coordinate with internal and external stakeholders
Oversee process improvements
Provide program oversight
383
402
1,946
82
30
................
................
................
3
1
66
88
25
132
156
160
476
3
4
1
6
7
7
20
Develop and deliver SEVIS training ....
2,126
236
................
................
203
................
1,147
................
236
77
................
................
132
248
................
................
129
................
Pass through cost—Treasury Fee Collection.
Perform initial school certification .......
Perform other School Group activities
Perform school recertifications ............
School Liaison .....................................
SEVP Administrative Support ..............
SEVP Management .............................
Training and Outreach .........................
Develop and implement ......................
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SEVIS communication strategy ...........
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School
certification fee
198
84
Manage Personnel Resources ............
School Certification and Recertification
I–901
SEVIS
fee
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Deliver training ....................................
Develop training plans based on requirements.
Develop training requirements for designated school officials, responsible
officers, immigration inspectors,
DOS, etc.
Attend and prepare conferences/workshops related to the SEVIS community.
Contact and educate student organizations, associations, embassies,
Congressional staffers, etc.
Develop and provide rollout plans ......
Facilitate SEVIS problem resolution ...
Monitor and enhance SEVIS source
Web-site.
Prepare and distribute quarterly newsletter.
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TABLE 5.—SEVP ACTIVITY COST BY FEE CATEGORY—Continued
[$ in thousands]
Process
Activity
Sub-activity
I–901
SEVIS
fee
School
certification fee
Provide Webinars ................................
Respond to Public Affairs and Congressional Inquiries.
Total ..............................................
rfrederick on PROD1PC67 with PROPOSALS
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 governmentsponsored 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
15:19 Apr 18, 2008
................
................
..............................................................
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.
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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*
Fiscal year
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
..........
..........
..........
..........
..........
..........
..........
..........
..........
..........
Growth rate**
(percent)
Total
453,156
450,531
480,131
526,997
560,500
485,276
473,719
478,219
518,873
591,050
........................
¥0.6
6.6
9.8
6.4
¥13.4
¥2.4
0.9
8.5
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
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impacting demand for visas, called for
a simplified forecasting methodology.
Consequently, SEVP selected a threeyear 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.
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TABLE 7.—HISTORICAL THREE-YEAR MOVING AVERAGE
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
3-Year moving
average
Growth rate
(percent)
3-Year moving
average by
rate
(percent)
........................
........................
........................
485,886
522,543
524,258
506,498
479,071
490,270
529,381
........................
........................
........................
9.8
6.4
¥13.4
¥2.4
0.9
8.5
13.9
........................
........................
........................
5.3
7.6
0.9
¥3.1
¥5.0
2.4
7.8
Issued visas
(primary)
Fiscal year
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
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
453,156
450,531
480,131
526,997
560,500
485,276
473,719
478,219
518,873
591,050
profile of F and M students and J
exchange visitors that currently have
active records in SEVIS.
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
TABLE 8.—I–901 SEVIS FEE
made to the Department of the Treasury
PAYMENT FORECAST FY 2009–2010 for expedited delivery of receipts for
payment of I–901 SEVIS fees. (SEVP
I–901 Payment sub-type
FY 2009
already recovers this cost through a
direct payment of $30 paid by
Full Payments ($200), F/M ...
395,915
Full Payment ($180), J .........
180,950 individuals who choose expedited
Subsidized ($35) ...................
221,223 delivery. Thus, SEVP must subtract this
No Payment ($0) ..................
34,384 cost from the full budget to avoid
collecting twice for the same service, as
Total ..................................
832,472 reflected in Table 9.)
TABLE 9.—FY 2009 I–901 FEE RECOVERABLE BUDGET
Total budget
FY 2009 Budget ...........................................................................................................................
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 SEVPcertification from new schools, the
demand has slowed; most potential
Offsets
Feerecoverable
$117,907,380
$1,828,464
$116,084,916
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
Fiscal year
rfrederick on PROD1PC67 with PROPOSALS
2002
2003
2004
2005
2006
Approved
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
.................................................................................................................................................
Denied
1,636
5,367
745
491
536
297
976
135
89
97
Total
1,933
6,343
880
580
633
3-Year
moving
average
................
................
3,052
2,601
* 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
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under the offsets heading are from sitevisit contracts that are priced separately
from the certification fee. The cost is
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treated as pass-through cost (i.e., paid
by the petitioning school).
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21273
TABLE 11.—FY 2009 CERTIFICATION FEE RECOVERABLE BUDGET
Fee category
Units
Total budget
Offsets
Feerecoverable
Certification ......................................................................................................
700
$1,672,630
$543,000
$1,129,630
rfrederick on PROD1PC67 with PROPOSALS
School certification fees are
calculated by dividing the feerecoverable 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,
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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
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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).
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
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.
E:\FR\FM\21APP1.SGM
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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
I–901
•
•
•
•
I–17
•
•
Amount
SEVIS Fees:
I–901 Primary F/M visa holders (Full payment) .....................................................................................................................
I–901 Primary J visa holders (Full payment) .........................................................................................................................
I–901 Special J-visa Categories (Subsidized payment) ........................................................................................................
I–901 Government Visitor (G–1) (No payment) .....................................................................................................................
School Fee:
Certification Fee ........................................................................................................................................................................
Site visit fee for initial certification (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
$200
190
35
0
1,700
655
sufficient revenue to offset proposed
program costs.
TABLE 13.—PROJECTED REVENUE
Fee
Forecasted
volume
Amount
I–901 F/M full .........................................................................................................................
I–901 J full .............................................................................................................................
I–901 partial ...........................................................................................................................
$200
180
35
Grand Total .....................................................................................................................
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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.
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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.
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$78,456,822
32,272,295
7,671,797
118,400,914
694
1,179,087
791,463
1,700
392,284
179,291
219,194
790,769
I–901 Subtotal ................................................................................................................
Certification Fee .....................................................................................................................
Revenue
119,580,001
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
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A. Filing a Petition for SEVP
Certification, Out-of-Cycle Review or
Recertification
IV. Procedures for Certification, Out-ofCycle Review and Recertification of
Schools
rfrederick on PROD1PC67 with PROPOSALS
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.
3. Petition Submission Requirements
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 ‘‘outof-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.
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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.
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
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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
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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.
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.
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
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.
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E. SEVP Certification, Recertification,
Out-of-Cycle Review and Oversight
1. Certification
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
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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. Onsite 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-ofcycle 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.
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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.
rfrederick on PROD1PC67 with PROPOSALS
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 repetitioning 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
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Jkt 214001
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 SEVPcertified 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
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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-forprofit 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.
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
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.
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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
of large
schools
Percent
of small
schools
Description
NAICS
codes
Arts ...................................................
Schools clearly identifiable as giving instruction in the fine arts; a mix of
F and M schools.
Schools that offer only flight training and other related technical training
Schools that offer English language instruction only ................................
Schools that offer English language instruction and other courses, such
as test preparation.
611610
1.1
0.8
Flight ................................................
English Language ............................
English Language and Other ...........
3.5
3.1
0.5
Schools with seminary or theology in the name. Most issue a degree ....
F schools that do not fall into another category. Includes Bible schools,
nursing schools, etc. that do not issue a degree.
1.5
1.0
3.8
3.0
Private K–12 ....................................
Public HS .........................................
Technical Vocational ........................
Private elementary, middle and secondary schools .................................
Public high schools ...................................................................................
M schools that do not fall into another category (diverse group that includes schools of horseshoeing, beauty schools, culinary arts
schools, non-degree medical instruction, and computer technical
training).
20.1
5.0
5.1
44.4
14.4
13.5
University or College .......................
Schools that issue one of the following degrees: associates, bachelors,
masters, and Ph.D. These schools may also offer programs of study
in the other areas listed.
611512
611630
611630
611691
611430
............
611410
611420
611430
611110
611110
611210
611410
611420
611430
611511
611519
611310
611210
0.4
4.4
1.3
Seminary ..........................................
Other Private Academic ...................
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Type of school
60.1
12.9
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.
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TABLE 16.—PROJECTED NUMBER OF Of the 574 small schools expected to
SMALL SCHOOLS EXPECTED TO apply for certification, SEVP projects
that about 10 schools may be impacted
CERTIFY BY LEVEL OF IMPACT
Projected
number of small
schools
Level of impact
Under 0.5% .........................
0.5% to under 1% ...............
1% to under 2% ..................
2% to under 3% ..................
3% to under 4% ..................
4% to under 5% ..................
5% to under 6% ..................
6% to under 7% ..................
7% to under 8% ..................
10% to under 11% ..............
12% to under 13% ..............
23% to under 24% ..............
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469
59
29
7
1
5
1
2
0
0
1
1
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.
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TABLE 17.—SUMMARY OF THE IMPACT load-based scenario include: lower fees
OF THE CERTIFICATION FEE ON for schools with fewer F and/or M
students and the scenario may deter
SMALL SCHOOLS
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
Certification Fee
1.7
0.7 vary directly with the number of
students; the number of students would
SEVP did not make a determination of
have to be calculated; a school would
substantial numbers, as the percentage
not be able to predict its fee from year
of schools impacted by the fees is so low to year; a process for resolving billing
that it does not appear substantial.
disputes would be needed; and SEVP
SEVP considered four alternatives to
would need to create a fee collection
the proposed Certification Fee in this
system that creates an invoice to the
proposed rule. The need for fees to
school.
recover the operating costs of SEVP was
SEVP rejected this option because
inherent in all of the alternatives. Three assessing and collecting the fee would
were rejected for the reasons given.
require building a payment process that
Option 2 was chosen. SEVP seeks
captured the needed data, generated
comments on the alternatives
invoices, and tracked invoice payment.
considered and any significant
The cost to build and operate a fee
alternatives not considered.
payment system of this complexity
Option 1: Do not charge a fee to cover could increase the overall program
the costs of certification and
costs. It would also make it more
recertification. SEVP does not consider
difficult for SEVP-certified schools to
a ‘‘no charge’’ option to be viable. There budget for the recertification.
are only two sources of income available
Option 4: Charge a variable
to SEVP: fee income or appropriated
recertification fee based on the risk
funds. Congress mandated that ICE/
profile for the school. Schools would be
SEVP certify schools that wish to enroll put into a risk category based on the
F or M students and recertify those
student profile. SEVP would need to
schools every two years. It is unlikely
develop a methodology to assign a risk
that Congress would appropriate
factor for each type of school. For
operating funds for a program that has
example, schools that enroll grades K–
the authority to collect fees from the
12 deal with a lower risk population, so
entities that derive direct benefits from
their risk is reduced. For these K–12
it.
schools the risk factor might be 75%,
Option 2: Allocate some or all costs to whereas a high-risk group might have a
the I–901 SEVIS fee. One alternative
factor of 125%. The fees would be
was to assign all costs to the fee charged adjusted so that schools in a higher risk
to F, M and J nonimmigrants. This
category would pay higher fees.
would spread the fee-recoverable cost of
The advantages would be: schools
the program against a larger population. with classes of students that pose a
The I–901 SEVIS fee is authorized by
lower risk would pay a smaller fee;
the Illegal Immigration Reform and
types of schools with past performance
Responsibility Act of 2002 (IIRIRA, 8
indicating a higher risk would pay a
U.S.C. 1372). SEVP considers
higher fee; and the fee would be
availability of certified schools that F
predictable.
and M students can attend as a benefit
The disadvantages would be: the
to students. Initial certification
rationale for the fee structure is complex
constitutes a potential benefit to the
and would need to be supported by a
petitioning schools, however, under
full analysis; any rationale for assessing
INA section 286(m), 8 U.S.C. 1356(m),
risk would be controversial; the fee
SEVP opted to collect a fee from schools would be higher than that in the current
filing a certification petition, but to pass version of the rule for many small
the cost of recertification to the
schools; and some schools highly in
nonimmigrants being benefited for these compliance with SEVP requirements
reasons.
would be penalized for the poor
Option 3: Apportion recertification
performance of other schools in that
fees by number of F and/or M students
group, as schools would be grouped by
enrolled. SEVP would assess a
type.
Recertification Fee based on the number
SEVP rejected this alternative due to
of F and/or M students enrolled at a
the inherent complexity and difficulty
school during the previous two years in in making fair risk assessments for
this scenario. The advantages of this
entire groups of schools.
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Percent of
small
schools
impacted
3% and
over
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Percent of
small
schools
impacted
5% and
over
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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 SEVPcertified? 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
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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.
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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.
15:19 Apr 18, 2008
Jkt 214001
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.
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,
VerDate Aug<31>2005
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.
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:
§ 103.7
*
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*
Fees.
*
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*
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*
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(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);
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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:
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§ 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
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15:19 Apr 18, 2008
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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-ofcycle 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
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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 email. 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 email 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-ofcycle 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
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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 outof-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
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15:19 Apr 18, 2008
Jkt 214001
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 SEVPcertified 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
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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.
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(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 https://
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
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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.
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(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.
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(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-ofcycle 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
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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
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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:
§ 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
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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).
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Jkt 214001
(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
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21285
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
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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:
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§ 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 SEVPcertified 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
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Jkt 214001
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
DEPARTMENT OF AGRICULTURE
Grain Inspection, Packers and
Stockyards Administration
9 CFR Part 201
RIN 0580–AA99
Weighing, Feed, and Swine
Contractors
Grain Inspection, Packers and
Stockyards Administration, USDA.
ACTION: Proposed rule; notice of
reopening of comment period.
AGENCY:
SUMMARY: We published a notice of
proposed rulemaking in the Federal
Register on February 11, 2008 (73 FR
7686), asking for comments on proposed
amendments to four existing scales and
weighing regulations issued under the
Packers and Stockyards Act (P&S Act).
The notice provided an opportunity for
interested parties to submit written
comments to Grain Inspection, Packers
and Stockyards Administration (GIPSA)
until April 11, 2008. In response to a
request from the poultry industry, we
are reopening and extending the
comment period to provide interested
parties with additional time in which to
comment.
DATES: The comment period for the
proposed rule published at 73 FR 7686,
February 11, 2008, which originally
closed on April 11, 2008, is reopened
and extended through May 21, 2008. We
will consider comments that we receive
by May 21, 2008.
ADDRESSES: We invite you to submit
comments on this notice of proposed
rulemaking. You may submit comments
by any of the following methods:
• E-Mail: Send comments via
electronic mail to
comments.gipsa@usda.gov.
• Mail: Send hardcopy written
comments to Tess Butler, GIPSA, USDA,
1400 Independence Avenue, SW., Room
1643–S, Washington, DC 20250–3604.
• Fax: Send comments by facsimile
transmission to: (202) 690–2755.
PO 00000
Frm 00027
Fmt 4702
Sfmt 4702
• Hand Delivery or Courier: Deliver
comments to: Tess Butler, GIPSA,
USDA, 1400 Independence Avenue,
SW., Room 1643–S, Washington, DC
20250–3604.
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Instructions: All comments should
make reference to the date and page
number of the February 11, 2008, issue
of the Federal Register. [73 FR 7686]
• Read Comments: All comments will
be available for public inspection in the
above office during regular business
hours (7 CFR 1.27(b)).
FOR FURTHER INFORMATION CONTACT: S.
Brett Offutt, Director, Policy and
Litigation Division, P&SP, GIPSA, 1400
Independence Avenue, SW.,
Washington, DC 20250–3646, (202) 720–
7363, s.brett.offutt@usda.gov.
SUPPLEMENTARY INFORMATION: GIPSA
published a notice of proposed
rulemaking in the Federal Register on
February 11, 2008 (73 FR 7686), seeking
public comment on proposed
amendments to 9 CFR part 201. The
comment period of 60 days from the
date of publication closed on April 11,
2008. GIPSA has received a request from
the poultry industry to provide
interested parties additional time to
comment. In response, the comment
period is reopened for an additional 30day period. Any comments submitted
after the close of the original comment
period on April 11, 2008, but prior to
the date of publication of this notice in
the Federal Register will also be
considered. All comments submitted
between February 11, 2008 and May 21,
2008 will be considered.
Dated: April 14, 2008.
Alan Christian,
Acting Administrator, Grain Inspection,
Packers and Stockyards Administration.
[FR Doc. E8–8554 Filed 4–18–08; 8:45 am]
BILLING CODE 3410–KD–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 25
[Docket No. NM391; Notice No. 25–08–05–
SC]
Special Conditions: Embraer S.A.,
Model ERJ 190–100 ECJ Airplane;
Flight-Accessible Class C Cargo
Compartment
Federal Aviation
Administration (FAA), DOT.
AGENCY:
E:\FR\FM\21APP1.SGM
21APP1
]]>Agencies
[Federal Register Volume 73, Number 77 (Monday, April 21, 2008)]
[Proposed Rules]
[Pages 21260-21286]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-8261]
========================================================================
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.
========================================================================
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.
-----------------------------------------------------------------------
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: https://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
https://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 https://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 https://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
