[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Rules and Regulations]
[Pages 39814-39827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 04-14961]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 214, and 299

[ICE No. 2297-03]
RIN 1653-AA23


Authorizing Collection of the Fee Levied on F, J, and M 
Nonimmigrant Classifications Under Public Law 104-208; SEVIS

AGENCY: Bureau of Immigration and Customs Enforcement, DHS.

ACTION: Final rule.

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SUMMARY: On October 26, 2003, the Department of Homeland Security (DHS) 
published a proposed rule in the Federal Register, to implement section 
641 of the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (IIRIRA), requiring the collection of information relating to 
nonimmigrant foreign students and exchange visitors, and providing for 
the collection of the required fee to defray the costs.
    This rule amends the DHS regulations to provide for the collection 
of a fee to be paid by certain aliens who are seeking status as F-1, F-
3, M-1, or M-3 nonimmigrant students or as J-1 nonimmigrant exchange 
visitors. Generally, the rule levies a fee of $100, although applicants 
for certain J-1 exchange visitor programs will pay a reduced fee of 
$35, and certain other aliens will be exempt from the fee altogether. 
This final rule explains which aliens will be required to pay the fee, 
describes the consequences that an alien seeking F-1, F-3, M-1, M-3, or 
J-1 nonimmigrant status faces upon failure to pay the fee, and 
specifies which aliens are exempt from the fee. This fee is being 
levied on aliens seeking F-1, F-3, M-1, M-3, or J-1 nonimmigrant status 
to cover the costs of administering and maintaining the Student and 
Exchange Visitor Information System (SEVIS), which includes ensuring 
compliance with the system's requirements by individuals, schools, and 
exchange visitor program sponsors. The fee will also pay for the 
continued operation of the Student and Exchange Visitor Program (SEVP) 
and offset the resources to ensure compliance with SEVIS requirements, 
including funds to hire and train SEVIS Liaison Officers and other 
Bureau of Immigration and Customs Enforcement (ICE) officers.
    The rule will be effective on September 1, 2004, and will apply to 
potential nonimmigrants who are initially issued a Form I-20 or Form 
DS-2019 on or after that date. Potential nonimmigrants, for purposes of 
this rule, are those aliens who will apply to the Department of State 
(DOS) or DHS for initial attendance as an F, M, or J nonimmigrant, 
certain nonimmigrants in the United States that will apply for a change 
of status to an F, M, or J classification, and current J-1 
nonimmigrants that will apply for a J-1 category change on or after 
that date. If a Form I-20 or Form DS-2019 for initial status in a new 
program is issued on or after the effective date, the nonimmigrant 
traveling on that document will be required to pay the fee. Applicants, 
schools, and exchange visitor program sponsors should refer to the fee 
pay table contained in this rule for more detailed information 
concerning when a fee is required.

DATES: This final rule is effective September 1, 2004.

FOR FURTHER INFORMATION CONTACT: Jill Drury, Director'Student and 
Exchange Visitor Program (SEVP), Bureau of Immigration and Customs 
Enforcement, Department of Homeland Security, 800 K Street, NW., Room 
1000, Washington, DC 20536, telephone (202) 305-2346.

SUPPLEMENTARY INFORMATION:

Background

    On March 1, 2003, the former Immigration and Naturalization Service 
(Service) transferred from the Department of Justice to DHS pursuant to 
the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 
2135 (November 25, 2002). The Service's adjudication functions 
transferred to the Bureau of Citizenship and Immigration Services 
(CIS), and the Service's SEVIS function transferred to the Bureau of 
Border Security, now the Bureau of Immigration and Customs Enforcement 
(ICE). For the sake of simplicity, any reference to the Service has 
been changed to DHS, even when referencing events that preceded March 
1, 2003.

What Are SEVP, SEVIS, and the SEVIS Fee?

    Section 641 of the Illegal Immigration Reform and Immigrant 
Responsibility Act of 1996, Public Law No. 104-208, 110 Stat. 3546 
(September 30, 1996), codified at 8 U.S.C. 1372, required the creation 
of a program to collect

[[Page 39815]]

information relating to nonimmigrant foreign students and exchange 
visitor program participants during the course of their stay in the 
United States, using electronic reporting technology to the fullest 
extent practical. While the pilot program initially involved a small 
number of schools, the program has been expanded and fully implemented 
to cover all DHS-approved schools and DOS-designated exchange visitor 
program sponsors that enroll foreign nationals. The program became 
known as SEVP, and its core technology became known as SEVIS. The 
substantive requirements and procedures for SEVIS have been promulgated 
in separate rulemaking proceedings. See 67 FR 34862 (May 16, 2002, 
proposed rule for implementing SEVIS); 67 FR 44343 (July 1, 2002, 
interim rule for schools to apply for preliminary enrollment in SEVIS); 
67 FR 60107 (September 25, 2002, interim rule for certification of 
schools applying for enrollment in SEVIS); 67 FR 76256 (December 11, 
2002, DHS's final rule implementing SEVIS); and 67 FR 76307 (December 
12, 2002, DOS interim final rule implementing SEVIS). Under section 
442(a)(4) of the HSA, as amended, responsibility over SEVIS 
specifically transferred to ICE. Section 641(e) of IIRIRA requires that 
a fee be established and charged to aliens tracked in SEVIS to fund the 
program, and further requires that the fee be used only for SEVP 
related purposes. Consistent with this mandate, a sub-account will be 
created within the Immigration Examination Fee Account into which SEVIS 
fees will be deposited and maintained for exclusive use related to 
SEVP.

Who Are the Nonimmigrants Affected by IIRIRA Section 641?

    The Immigration and Nationality Act (Act) provides for the 
admission of different classes of nonimmigrant aliens, who are foreign 
nationals seeking temporary admission to the United States. The purpose 
of the alien's intended stay in the United States determines his or her 
proper nonimmigrant visa classification. Some visa classifications 
permit the nonimmigrant's spouse and qualifying children to accompany 
the nonimmigrant to the United States, or to join the nonimmigrant who 
is already in the United States. To qualify, the alien's child must be 
unmarried and under the age of 21.
    F-1 nonimmigrants, as defined in section 101(a)(15)(F) of the Act, 
are foreign nationals who come to the United States as foreign students 
to pursue a full course of study in DHS-approved colleges, 
universities, seminaries, conservatories, academic high schools, 
private elementary schools, other academic institutions, or in language 
training programs in the United States. For the purposes of this rule, 
the term ``school'' refers to all of these types of DHS-approved 
institutions. Generally, F-1 nonimmigrants are subject to the SEVIS fee 
and monitoring in SEVIS. An F-2 nonimmigrant is a foreign national who 
is the spouse or qualifying child of an F-1 student. While F-2 
nonimmigrants are subject to monitoring in SEVIS, as an alien deriving 
his or her status from that of the F-1 nonimmigrant, they are not 
required to pay a separate SEVIS fee.
    J-1 nonimmigrants, as defined in section 101(a)(15)(J) of the Act, 
are foreign nationals who have been selected by an exchange visitor 
program sponsor designated by the United States DOS to participate in 
an exchange visitor program in the United States. The J-1 
classification includes nonimmigrants participating in programs in 
which they will receive graduate medical education or training. 
Generally, J-1 nonimmigrants are required to pay a SEVIS fee, and are 
subject to monitoring in SEVIS. A J-2 nonimmigrant is a foreign 
national who is the spouse or qualifying child of a J-1 exchange 
visitor. While J-2 nonimmigrants are subject to monitoring in SEVIS, as 
an alien deriving his or her status from that of the J-1 nonimmigrant, 
they are not required to pay a separate SEVIS fee.
    M-1 nonimmigrants, as defined in section 101(a)(15)(M) of the Act, 
are foreign nationals pursuing a full course of study at a DHS-approved 
vocational or other recognized nonacademic institution (other than in 
language training programs) in the United States. The term ``school'' 
also encompasses those institutions attended by M-1 students for the 
purposes of this rule. Generally, M-1 nonimmigrants are subject to the 
SEVIS fee and monitoring in SEVIS. An M-2 nonimmigrant is a foreign 
national who is the spouse or qualifying child of an M-1 student. While 
M-2 nonimmigrants are subject to monitoring in SEVIS, as an alien 
deriving his or her status from that of the M-1 nonimmigrant, they are 
not required to pay a separate SEVIS fee.
    On November 2, 2002, Congress passed the Border Commuter Student 
Act of 2002, Public Law 107-274, 116 Stat. 1923 (2002), which created 
the F-3 and M-3 nonimmigrant classifications for certain aliens who are 
citizens of Canada or Mexico and who continue to reside in their home 
country while commuting to the United States to attend an approved 
school. Such border commuter students are not subject to the existing 
requirement for F-1 and M-1 students to be pursuing a full course of 
study. Instead, these border commuter students are specifically 
permitted to engage in either full-time or part-time studies. DHS 
adopted regulations relating to border commuter students, 67 FR 54941 
(August 27, 2002) (codified at 8 CFR 214.2(f)(18) and (m)(19)), and 
will be amending those regulations in the future to conform to the new 
legislation. In this rule, DHS notes that F-3 and M-3 students will be 
subject to the same rules as F-1 and M-1 students regarding the 
collection of the fee.

Response to Public Comments on the Proposed Rule

    DHS initially proposed a rule implementing section 641(e) of 
IIRIRA, requiring fee collection related to SEVIS on December 21, 1999, 
at 64 FR 71323, and received 4,617 comments in response to this 
proposed rule. On October 26, 2003, DHS published a second proposed 
rule in the Federal Register at 68 FR 61148. The October 26, 2003, 
proposed rule addressed the 4,617 comments, as well as setting forth a 
new proposal for collection of the SEVIS fee. Comments to the second 
proposed rule were due to DHS on or before December 26, 2003. DHS 
received 239 comments regarding the collection of the required fee, as 
set forth in the second proposed rule. The following paragraphs will 
address each substantive issue raised in comments received in response 
to the October 2003 proposed rule. However, this discussion will not 
describe in detail all the provisions outlined in either of the prior 
proposed rules. Rather, it will address only those provisions relevant 
to the October 2003 comments. Commenters frequently addressed identical 
issues in their comments and, as a result, the number of comments 
received exceeds the number of issues discussed.
    In general, commenters acknowledged the Congressional mandate that 
DHS collect this fee and stated that this 2003 proposed rule was a 
significant improvement over the 1999 proposed rule. A significant 
number of commenters stated that they were generally pleased with SEVIS 
and DHS efforts to reach out to the schools and exchange visitor 
program sponsors. However, most of these commenters further stated that 
they believed the imposition of the fee would adversely impact 
participation by foreign students and exchange visitors. The commenters 
discussed the fee amount, the collection and remittance process, 
exemptions and

[[Page 39816]]

reductions to the fee, the frequency of the fee, the applicability of 
the fee, and the propriety of the fee.
I. Fee Amount
    The October 2003 proposed rule set the fee amount at $100, with the 
exception of specific J-1 exchange visitor programs. Although several 
commenters stated that the $100 fee was not overly burdensome, the 
majority of commenters stated that the fee was excessive and should be 
set at $54, based upon the fee study conducted in September 2002 by an 
independent contractor for DHS. Some commenters expressed concern 
regarding the use of the SEVIS fee to pay for SEVIS-related enforcement 
and compliance costs. Additionally, some commenters expressed concern 
that excessive fee receipts would become a money-generating tool for 
DHS, subsidizing other, unrelated programs.
    DHS reviewed and considered all comments on the fee amount, but has 
made the decision not to change the amount of the $100 proposed fee. 
Comments in response to the 1999 rule raised concerns about the 
proposed $95 fee, which had been determined by a fee study done in 
conjunction with the 1999 rule making. An independent fee study, 
carried out in September 2002, was done to respond to those commenter 
concerns, and to reassess the amount of the fee, based on changes in 
the SEVIS project funding since the publication of the 1999 proposed 
rule. An independent consulting firm was hired to conduct an objective 
fee review and ensure that applicable Federal law and fee guidance were 
followed. The fee review included the recovery of historical costs and 
costs over the FY 2003/2004 time period, as well as the appropriated 
monies received. The fee review also included costs for increased 
staffing and training for DHS personnel involved in the SEVP at DHS 
headquarters, district offices, service centers, and regional offices, 
as well as training for DOS personnel. The fee study determined that 
the fee should be set at $54.
    DHS arrived at the final rule fee amount of $100 by taking the fee 
recommended in the independent study ($54) and adding estimated 
compliance and enforcement costs, which the fee study did not include. 
DHS has determined that this fee should offset the resources necessary 
to ensure compliance with regulations, since compliance and maintenance 
of system integrity are an integral part of SEVP. Indeed, Congress, in 
placing SEVIS within ICE, specifically directed that the information 
collected in the program be used for enforcement purposes; thus, the 
use of the SEVIS fee for enforcement purposes is consistent with the 
HSA. See HSA 442(a)(4). This application of user fees as a funding 
source for compliance activities is also consistent with the 
introduction of user fees in the early 1980s. A Federal agency is 
authorized to recoup the ``full cost'' of providing special benefits, 
including the costs of enforcement, collection, research, as well as 
establishment of standards and regulations, when calculating its fees. 
DHS currently recoups some of the costs of detecting and deterring 
fraud and protecting the integrity of benefits and documents through 
its immigration benefit application fees.
    One important program benefit to be funded by the $100 fee is the 
establishment of localized personnel, or SEVIS Liaison Officers. These 
SEVIS Liaison Officers will be a local resource for schools and 
students, providing timely and accurate information or assistance in 
meeting the requirements of the program. SEVIS Liaison Officers may 
visit schools, interview school officials, review records, compare 
system information to school information, and assist schools with SEVP 
issues. They will also coordinate with local school representatives and 
assist with local training program development and implementation. 
Finally, SEVIS Liaison Officers will be available to assist immigration 
and other law enforcement officials who may have a need for information 
derived from SEVIS.
    As previously noted, consistent with the HSA mandate to utilize the 
information collected in SEVIS for enforcement purposes, also included 
in the fee calculation are funds that will be used to offset the total 
cost of SEVP enforcement. A portion of the fee will be used to fund new 
positions and to support officers in existing positions who are 
performing SEVIS enforcement, as well as to pay for any training, 
equipment, technical systems, or other items necessary to enhance their 
ability to enforce SEVIS. The ICE officers supported by the SEVIS fee 
will conduct investigations to ensure compliance with student and 
exchange visitor regulations. These officers are essential to ensuring 
data integrity in SEVIS. In addition, these officers will work in 
conjunction with SEVIS Liaison Officers on school reviews and re-
certifications. As noted in the 2003 proposed rule, while the fee will 
fund only a portion of the ICE officer positions needed to ensure SEVP 
integrity, DHS intends to staff all of the ICE officers necessary to 
ensure the success of compliance efforts.
    This rule sets the fee at the maximum amount initially authorized 
by IIRIRA ($100) for all F, M, and J nonimmigrants, with the exception 
of exchange visitors admitted as au pairs, camp counselors, or 
participants in summer work/travel programs who will be subject to a 
fee of $35, and those exempt from the fee altogether. IIRIRA also 
provides that the Secretary of Homeland Security may, on a periodic 
basis, revise the amount of the fee imposed and collected to take into 
account changes in the cost of carrying out the SEVP. Pursuant to the 
Chief Financial Officers Act of 1990, DHS will review this fee amount 
at least every 2 years. Upon review, if DHS finds that the fee is 
either too high or too low, the fee amount may be adjusted. Adjustments 
will be made subject to the Federal rulemaking process.
    Fee reviews to determine the appropriate amount of the fee and any 
adjustments required typically look at historical costs as well as 
anticipated costs based upon programmatic changes. Since DHS is 
establishing a dedicated sub-account for SEVIS fees within the 
Immigration Examination Fee Account, any excess revenue will accrue 
until the next scheduled fee review and will then be factored into the 
establishment of the new fee. As required by section 641 of IIRIRA, DHS 
will not use the proceeds from SEVIS fees except for SEVIS-related 
purposes, and will not generate revenue for other programs from this 
source. DHS notes that several commenters suggested that future fee 
studies be conducted by independent contractors and DHS acknowledges 
the value of this suggestion. However, DHS will not specifically 
comment in this rule on how future fee studies will be conducted.
    Several commenters objected to both the concept of a fee and the 
fee amount proposed. Some commenters stated that the imposition of a 
fee would deter participation and adversely affect the position of the 
United States in the international student/exchange visitor market, and 
that the regulations authorizing collection of such a fee will 
interfere with important cultural exchanges. DHS acknowledges these 
concerns; however, Congress has mandated that DHS set the SEVIS fee at 
an amount sufficient to cover the costs associated with the SEVP, 
including recouping the historical costs of program implementation, and 
ongoing costs of program maintenance. Thus, DHS is required to impose a 
fee on the nonimmigrants for whom the system

[[Page 39817]]

was developed and maintained. DHS set the fee amount based upon program 
costs and is statutorily prohibited from lowering the fee to an amount 
that does not fund the program in order to address these concerns.
    Some commenters expressed concern that imposition of a SEVIS fee 
might lead to fraudulent use of visitor visa classifications to attend 
non-SEVIS-certified schools (particularly short-term English language 
programs). However, DHS cannot fail to implement the statutorily 
mandated fee because of potential fraud. Rather, DHS enforcement 
officers will continue to work to ensure that all nonimmigrant entries 
and stays in the United States are legal and based upon appropriate 
visa classifications.
II. The Fee Collection and Remittance Process
    The 1999 proposed rule required that educational institutions and 
exchange visitor program sponsors collect the fee, based upon then 
existing law, and mandated that the fee be collected prior to visa 
issuance. Congress subsequently amended the law to permit DHS to 
collect the fee directly from the F-1, F-3, J-1, M-1, or M-3 
nonimmigrants. Based upon these amendments to the law, the October 2003 
proposed rule provided for fee collection by DHS and required that 
proof of payment be presented during the visa application process or 
prior to submitting a change of status request.
    A number of the comments DHS received focused on the DHS fee 
collection process. The majority of commenters suggested that DOS 
collect the fee at the time of the visa interview, similar to the 
payment methodology used for collecting visa fees. Many commenters felt 
that without this change, nonimmigrants would experience difficulties 
and delays with payment methods that required use of the Internet, use 
of credit cards, use of checks drawn on U.S. banks and payable in U.S. 
dollars, and/or use of foreign mail delivery systems which may not be 
timely or reliable. A few commenters proposed the collection of the fee 
at the ports-of-entry when students and exchange visitors entered the 
United States, as an alternative payment method.
    DHS has considered the concerns raised by the commenters and will 
continue to work on alternate fee payment methodologies. DHS will not 
be able to establish a workable arrangement for fee collection by DOS 
prior to the effective date of this rule. However, a pilot DOS fee 
collection methodology is being developed at this time. Additionally, 
DHS is unable to implement fee collection at ports-of-entry due to the 
statutory mandate that the SEVIS fee be paid prior to visa issuance. 
Aliens who are exempt from the F, M, or J visa requirement, as 
described in section 212(d)(4) of the Act (e.g., Canadians), will be 
required to pay the fee and have the fee processed prior to applying 
for admission at a U.S. port-of-entry. Ports-of-entry will not be 
equipped to collect fees or provide mechanisms for nonimmigrants to 
submit fee payments. Also, consistent with the requirements of section 
641 of IIRIRA, nonimmigrants who are already located in the United 
States will be required to pay the fee prior to being approved for a 
change of classification to an F or M student or J exchange visitor, 
unless specifically exempt by DHS due to extenuating circumstances as 
determined by SEVP.
A. Payment Options on Implementation
    In order to allow for fee collection by DHS under the constraints 
outlined in the preceding paragraph, this rule establishes the same fee 
payment methods discussed in the proposed rule. However, recognizing 
that aliens abroad will be required to pay the fee prior to obtaining 
an F, J, or M visa at a U.S. embassy or consulate, DHS has sought to 
build in as much flexibility as possible for the payment of the fee. 
Accordingly, DHS establishes two options for fee payment:
    (1) The fee may be paid by mail, by submitting Form I-901, Fee 
Remittance for Certain F, M, and J Nonimmigrants, together with a check 
or money order drawn on a U.S. bank and payable in U.S. currency; or
    (2) The fee may be paid electronically, by completing Form I-901 
through the Internet and using a credit card.
    These options are similar to the means currently used by 
nonimmigrants abroad to pay fees and expenses to a school or exchange 
visitor program sponsor, as well as methods used by aliens in other 
circumstances to pay fees to DHS for immigration purposes.
    DHS acknowledges the commenters' concerns that some aliens may have 
difficulty making these payments. To alleviate these problems as much 
as possible, DHS will accept fee payment from a third party, either in 
the United States or abroad, using the methods outlined previously. 
This allows schools and exchange visitor program sponsors to pay for 
some or all of their participants, as they choose. Friends, family, or 
other interested parties may also make the fee payment on behalf of an 
alien.
    Additionally, some commenters requested a bulk or batch fee payment 
system that would allow exchange visitor program sponsors to pay the 
fee for their participants. In response, DHS has established a bulk fee 
payment process that will allow an exchange visitor program sponsor to 
pay the fee for large numbers of individuals at one time. This 
automated fee payment system has been successfully pilot tested. At 
this time, only exchange visitor program sponsors have expressed an 
interest in making bulk payments on behalf of affected aliens. As a 
result, DHS has only developed the bulk payment option for exchange 
visitor program sponsors. Although this regulation does not provide for 
a bulk payment option for schools enrolling F and M nonimmigrants, 
should schools express an interest in bulk payments in the future, DHS 
will assess the feasibility of developing this option for them.
    DHS wishes to clarify that the requirement that a check or money 
order be drawn on a U.S. bank does not necessitate that the student or 
potential exchange visitor living outside the United States approach a 
U.S. bank to make a payment. As provided in 8 CFR 103.7(a)(1), an 
application fee submitted from outside the United States, ``may be made 
by bank international money order or foreign draft drawn on a financial 
institution in the United States,'' and payable in U.S. currency. Many 
foreign banks are able to issue checks or money orders drawn on a U.S. 
bank. Accordingly, students or potential exchange visitors may obtain 
checks from banks chartered or operated in the United States, from 
foreign subsidiaries of U.S. banks, or from foreign banks that have an 
arrangement with a U.S. bank to issue a check, money order, or foreign 
draft that is drawn on a U.S. bank.
    DHS also clarifies that any Visa, MasterCard, or American Express 
credit card, whether issued in the United States or overseas, can be 
used to pay the fee over the Internet.
B. Payment Options in the Future
    DHS will continue to explore alternate fee payment methods that 
might ease potential difficulties associated with fee payment from 
foreign countries. Most significantly, DHS is working closely with DOS 
to establish a pilot project for DOS collection of the SEVIS fee 
overseas. This pilot is being developed to explore the feasibility of 
SEVIS fee collection at both consular offices with outsourced fee 
collection using foreign financial institutions and at consular offices 
with internal cashiers. The pilot will be

[[Page 39818]]

conducted in a small number of consulates.
    A number of issues surround the implementation of SEVIS fee 
collection at DOS consulates. It is important to note that fee 
settlement costs are distributed among all fee-payers. DHS will avoid 
implementing collection solutions that result in excessively high fee 
collection costs. The very real possibility of excessive costs 
associated with fee collections performed by some foreign financial 
institutions may make this method untenable in some locations. It is 
also possible that DHS and DOS will not be able to reach a negotiated 
agreement with foreign financial institutions to collect the fees in 
some locations where the Machine Readable Visa Fee is currently 
collected. The visa application fee is collected from all visa 
applicants every time they apply for a visa with no reductions or 
exceptions; the SEVIS fee is collected from a select group of 
nonimmigrants, does not apply each time a new visa is sought, and the 
amount varies depending upon several factors. Further, the SEVIS fee 
must be associated with an I-901 form so that the payment can be linked 
to a specific nonimmigrant in the SEVIS system. Because these factors 
may complicate collection, some foreign financial institutions may not 
be interested in collecting the fee. Further difficulties may arise 
with foreign government regulations limiting the ability of the 
Consulate Offices to transfer funds to the United States.
    Additionally, a needs analysis will be done to document the 
requirement for an alternative fee collection method in each individual 
country being considered. To avoid increased fee settlement costs that 
would be spread among all fee payers, the DOS pilot would be extended 
only post-by-post, country-by-country, on the basis of documented need. 
For these reasons, DHS will assess the feasibility, efficiency, and 
effectiveness of these pilot projects to determine whether and how 
SEVIS fee collection can occur through DOS consulates.
    Two additional methods being explored are the use of payment 
clearinghouses and the establishment of direct contractual 
relationships with foreign financial institutions to allow the 
potential nonimmigrant to pay that financial institution in foreign 
funds, similar to the process used by DOS for visa fee payments. While 
DHS remains committed to providing many options for fee payment, DHS 
can only allow for two avenues for fee remittance at this time. The 
alternative types of fee remittance discussed in this section will be 
fully explored and piloted as appropriate; however they will not be 
fully implemented without a cost-benefit analysis and a needs analysis. 
DHS will issue further guidance and a Federal Register notice relating 
to alternative collection methods when they become feasible.
C. Verification of Fee Payment
    Several commenters expressed concerns that, due to the timeframes 
involved in the visa application process, requiring fee payment prior 
to visa issuance creates an undue burden on F, M, and J visa 
applicants. DHS wishes to clarify that fee payment does not need to be 
completed prior to scheduling an interview with the consulate, or any 
other activities undertaken prior to the in-person application process 
at the consulate. However, in order to assure that fee payment can be 
verified for purposes of visa issuance, the fee payment must be 
processed at least 3 business days prior to the date upon which the 
alien reports to the consulate to submit the visa application and 
undergo a visa interview. For nonimmigrants paying the fee 
electronically using the Internet, and who choose to rely on electronic 
fee verification at the consulate, the fee must be submitted at least 3 
days in advance of the interview. However, a nonimmigrant paying the 
fee electronically by using the Internet is able to print out a receipt 
at the time of fee payment, and will be able to use that printed fee 
receipt for immediate verification of payment. For nonimmigrants paying 
the fee by mail, the fee must be submitted in a manner that assures 
arrival at the DHS address listed on the Form I-901 at least 3 business 
days before the scheduled interview. This timeframe is also required 
for aliens who are exempt from the F, M, or J visa requirement, as 
described in section 212(d)(4) of the Act (e.g., Canadians). For the 
fee to be verified electronically, the nonimmigrant must pay the fee 
either electronically via the Internet or by mail so that it arrives at 
the address listed on the I-901 form at least 3 business days prior to 
applying for admission at a U.S. port-of-entry. Again, a nonimmigrant 
paying electronically using the Internet who is able to print out the 
receipt at the time of fee payment will immediately be able to use that 
printed fee receipt for verification of payment.
    Other commenters expressed concern that the use of paper receipts 
would lead to fraud. DHS acknowledges this concern, but also must make 
receipts available to nonimmigrants because the statute requires that 
nonimmigrants be able to present proof of fee payment before being 
granted certain benefits, such as admission, a visa, or change of 
status. At this time, certain SEVIS users (e.g., DHS service centers 
processing change of status requests, SEVP telephone hotline) will be 
able to electronically verify fee payment status for nonimmigrants. DHS 
is working with DOS to finalize the interface that will allow consular 
officers overseas to see fee payment status electronically in the DOS 
data management system. Unfortunately, not every DOS consulate and 
embassy is anticipated to have electronic fee verification upon the 
effective date of this final rule. However, DHS believes that if fee 
collection were delayed until such time as paper receipts can be 
eliminated this would be inconsistent with Congressional statements 
favoring expeditious implementation of a SEVIS fee, and also with the 
Congressional requirement that nonimmigrants be able to present proof 
of fee payment before receiving benefits. See Visa Waiver Permanent 
Program Act of 2000 404(6), Public Law 106-396, 114 Stat 1637 (October 
30, 2000); 8 U.S.C. 1372(e)(5). Therefore, at this time, DHS will issue 
an official paper receipt acknowledging every payment regardless of 
payment method used. The paper receipt will be mailed or sent via 
express delivery service to the address provided on the Form I-901. 
Additionally, anyone who submits an individual fee electronically will 
be able to print out an electronic receipt immediately at the time of 
payment for use pending the mail delivery of the official paper 
receipt. Exchange visitor program sponsors who submit Form I-901s and 
pay the fee via the bulk filing process will receive receipts via 
express delivery for distribution to their program participants.
    While DHS will continue to provide a paper fee receipt, consular 
officials will use the DOS system to verify fee payment when validating 
Form I-20 or Form DS-2019 information, wherever possible. Even in cases 
where DOS can generally use the system to verify fee payment, the paper 
receipts will continue to serve as a secondary means of fee 
verification. Paper receipts will serve to assist students in 
demonstrating that the fee has been paid. However, a paper receipt is 
not required for the visa interview, admission at the port-of-entry, or 
any other part of the SEVIS process when proof of payment can be 
verified electronically. This dual system will ensure that, in 
instances where paper receipts sent by mail are either delayed in 
transit or not received at all, the issuance of the nonimmigrant visa

[[Page 39819]]

will proceed unimpeded; additionally, in instances where paper receipts 
are presented as proof of fee payment, the electronic records will 
serve as fraud prevention. As part of the regulatory implementation and 
during this initial period of dual paper and electronic fee payment 
verification, DHS will also initiate and maintain a telephone hotline 
to be used by DOS consular officers, DHS inspectors at ports-of-entry, 
and DHS officers adjudicating change of status cases at service centers 
as a backup means to allow these officials to verify the electronic 
record of fee payment. This dual process, in which paper receipts may 
be relied upon for fee verification until electronic verification is 
available at every consulate, is necessary to assure a timely and 
effective implementation of the fee payment validation process. DHS may 
issue a notice in the Federal Register to eliminate the paper receipt 
at some time in the future, if it has been clearly demonstrated that it 
is no longer necessary. In summation, non-immigrants affected by this 
rule are encouraged to present a paper receipt in the following cases:
     Nonimmigrants applying for an F, M, or J visa abroad 
should present a paper receipt to verify fee payment until such time 
that all consular officers can electronically verify fee payment. DHS 
will inform all schools and program sponsors when an electronic fee 
verification capability has been established at all consulates.
     Nonimmigrants exempt from the visa requirement (pursuant 
to section 212(d)(4) of the Act) should present a paper receipt to 
verify fee payment at the port-of-entry, prior to being admitted to the 
United States as an F, M, or J nonimmigrant, although all DHS 
inspectors should be able to electronically verify fee payment if a 
paper receipt is not available.
     Nonimmigrants applying for a change of status to F, M, or 
J from within the United States will not be required to send the paper 
receipt with their change of status application. Rather, the 
adjudicating officer will access SEVIS to verify payment of the fee. 
However, students and exchange visitors should note that if the 
adjudicating officer does not find verification of fee payment in 
SEVIS, the applicant will receive a request for evidence from the 
service center and the applicant may be required to submit a paper 
receipt in response to this request.
D. The I-901 Form
    Finally, in response to the notice published in the Federal 
Register (68 FR 59800) on October 17, 2003, some commenters expressed 
concern about the Form I-901, Fee Remittance For Certain F, J, and M 
Nonimmigrants. Commenters were concerned that a fee payment was linked 
to a single SEVIS identification number, since a nonimmigrant may apply 
to more than one school or exchange visitor program, and, therefore, 
may have multiple I-20s or DS-2019s with multiple SEVIS identification 
numbers. DHS clarifies that fee verification will allow for a fee 
payment made on one SEVIS identification number to be applied to 
another SEVIS identification number issued to the same individual. 
Nonimmigrants are strongly encouraged to bring proof of both SEVIS 
identification numbers to the consulate or port-of-entry when payment 
has been made on a SEVIS identification number that is different than 
the one being used to obtain a visa or entry. DHS notes that if a new 
fee payment is required, as explained fully below, it must be paid, 
regardless of payments made on the same or different SEVIS 
identification numbers. In the future, multiple SEVIS identification 
numbers for a single nonimmigrant are likely to be augmented with the 
unique biometric identifier used by the United States Visitor and 
Immigrant Status Indicator Technology Program (US-VISIT). This will 
enable positive matches where more than one record exists for a single 
person.
    In response to comments, several minor changes are being made to 
the I-901 form. The titles for the name blocks are being further 
clarified. DHS is amending the instructions to clarify that a credit 
card may be used to pay the fee when the Internet version of the form 
is used. In addition, DHS is changing the form so that an ``N'' will 
automatically populate the first space of the SEVIS identification 
number to help prevent data entry errors. And finally, DHS is adding a 
street address to the form to allow for courier delivery of the form 
and payment to DHS.
III. Fee Exemption and Reduction
    IIRIRA section 641provides that an alien seeking J-1 status to 
participate in an exchange visitor program that is sponsored by the 
Federal government is exempt from paying a fee. Several commenters 
requested clarification on how to determine which programs the Federal 
government sponsors. DHS clarifies that those potential J-1 exchange 
visitors exempt from the fee as participants in a Federal government 
sponsored exchange visitor program are those participating in an 
exchange visitor program with a program identification designator 
prefix of G-1, G-2, or G-3.
    Commenters suggested that other students and/or exchange visitors 
should be exempt from the fee. Similarly, a number of commenters 
suggested that the fee be reduced below $100 for other programs to 
mirror the reduction Congress expressly provided to certain J-1 
participants, including lower fees for short-term English language 
programs, for all English language programs, for some or all short-term 
programs, for part-time and full-time commuter students, and for 
secondary school students. As noted in the 2003 proposed rule, Congress 
specifically exempted from the SEVIS fee only J-1 nonimmigrants who are 
participating in an exchange visitor program sponsored by the Federal 
government, and explicitly reduced it only for certain other J-1 
nonimmigrants. DHS interprets the Congressional mandate such that no 
other groups of nonimmigrants should be exempted from the SEVIS fee or 
have a reduced SEVIS fee based upon the principle of expressio unius: 
when one or more things of a class are expressly mentioned, others of 
the same class are necessarily excluded.
    Additionally, DHS cannot adopt the suggestion made by some 
commenters, that secondary school students and exchange visitors should 
be exempt from the fee payment because they were not initially required 
to be tracked in SEVIS. DHS is requiring that all elementary and 
secondary non-immigrant students on F-1 and J-1 visas be tracked in 
SEVIS, based upon amendments to section 641(e)(1) of IIRIRA made by 
section 416 of the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism (USA 
PATRIOT) Act of 2001, Public Law 107-56, 115 Stat 272 (October 26, 
2001). Since these students are required to be tracked in SEVIS and are 
not expressly exempted from paying fees by Congress, DHS requires fee 
payment from them.
IV. The Frequency of the Fee
    In the 2003 proposed rule, DHS suggested that aliens who paid the 
fee and were denied a visa would not have to pay another fee to apply 
for the same visa classification for a period of 9 months, and 
specifically sought comments on this timeframe. The majority of 
commenters felt that this timeframe should be extended to 12 months to 
accommodate the academic and program-specific annual calendars. This 
suggestion was accepted and adopted in this final rule.

[[Page 39820]]

    Although DHS provided an explanation of when a new fee payment 
would be required in the 2003 proposed rule, several commenters 
requested a more detailed clarification. In the following paragraphs, 
DHS re-states and further clarifies exactly when a fee is initially 
required, and when an additional fee payment would be subsequently 
required by the same individual. The SEVIS fee is a one-time fee for 
each nonimmigrant program in which the student or exchange visitor 
participates. For purposes of this fee, a ``single program'' for an F 
or M student generally extends from the time that the student is 
granted a particular nonimmigrant status, until such time that the 
nonimmigrant falls out of status, changes status, or departs the United 
States for an extended period of time. For a J exchange visitor, a 
single program is defined by the category and/or sponsor at the time of 
initial program participation, and extends until a change of category, 
a transfer from a fee-exempt sponsor to a non-fee-exempt sponsor, or 
until such time as the nonimmigrant falls out of status or changes 
status. In general:
     An F or M student will be required to pay only one fee if 
he/she maintains continuous status in a single visa classification, or 
if he/she is granted a reinstatement to student status in a timely 
manner following a violation of status;
     A J exchange visitor will be required to pay only one fee 
if he/she maintains status while participating in a single exchange 
visitor program, or if he/she resumes status within the same program 
following a violation of status;
     A student or exchange visitor will be required to pay a 
new fee if he/she violates status and cannot or does not resume status 
in a program, in accordance with 8 CFR 214.2 (f)(16) and (m)(16) or 22 
CFR 62.45, and subsequently returns to the United States to participate 
in another program;
     A student or exchange visitor will be required to pay a 
new fee if he/she wishes to change to another student or exchange 
visitor status, unless explicitly exempt; and,
     An exchange visitor will be required to pay a new fee 
prior to applying for a change of category.
    This final rule further clarifies that an F or M student will not 
be required to pay a new fee upon transfer to a new school, extension 
of stay, change in educational level, when obtaining a new visa for re-
entry for program continuation, upon a temporary absence of less than 5 
months, or upon a period of approved absence in which the student is 
engaged in overseas study as a part of his/her U.S. educational program 
requirements. Further, a student will not have to pay a new fee if he/
she falls out of status and files for reinstatement prior to the 
presumptive ineligibility deadline set forth in 8 CFR 
214.2(f)(16)(i)(A) or (m)(16)(i)(A). An exchange visitor will not 
generally be required to pay a new fee upon transfer between programs 
within the same exchange visitor category. However, an exchange visitor 
that transfers from a fee-exempt program to a non-fee-exempt program 
under the same exchange visitor category, e.g., a program with a prefix 
of G-1, G-2 or G-3, to another program with a program prefix that is 
not G-1, G-2 or G-3, but is within the same program category (e.g., 
research scholar), will be required to pay the fee upon transfer. 
Further, as previously stated, a change of J-1 exchange visitor 
category will require payment of a new fee. An intending J-1 
nonimmigrant will be required to pay a new fee if, after completion of 
an exchange visitor program, he/she wishes to return to the United 
States to begin a new program, even if it is in the same category. An 
exchange visitor will not be required to pay a new fee if he/she falls 
out of valid program status due to a minor or technical infraction. 
However, an exchange visitor will be required to pay the SEVIS fee 
prior to applying for reinstatement under 22 CFR 62.45 with DOS.
    As previously noted, this final rule extends the period of time 
from 9 months to 12 months during which an alien does not need to repay 
the fee when re-applying for the same category of visa after initial 
denial. Additionally, DHS clarifies that this 12-month exemption 
applies to a student or exchange visitor who has been denied a change 
of status within the United States, and whose application is 
subsequently re-opened and approved. However, DHS wishes to clarify 
that if a visa is denied for a particular J-1 exchange visitor 
category, and the alien is applying for a visa in a different J-1 
category, the alien will have to pay a new fee in conjunction with that 
visa application, even if the second application is made within the 12-
month period identified previously. This restriction on J-1 
applications also applies to applications for change of status to a J-1 
exchange visitor program.
    Where an F or M nonimmigrant is applying for reinstatement to 
student status, and has been out of status for a period that exceeds 5 
months at the time of filing, the nonimmigrant will be required to pay 
a new fee to DHS prior to the adjudication of the reinstatement 
request. This 5-month time limit is set in accordance with the 5-month 
presumptive ineligibility deadline at 8 CFR 214.2(f)(16)(i)(A) and 
(m)(16)(i)(A). Similarly, pursuant to 22 CFR 62.45, where an exchange 
visitor applies for reinstatement after a substantive violation or 
after falling out of his/her valid J program status for longer than 120 
days but less than 270 days, the exchange visitor will be required to 
pay a new fee prior to applying with DOS for reinstatement.
    A new fee would also be required if an F, M, or J nonimmigrant 
changes to a non-student/exchange visitor visa classification and then 
wishes to return to the previously held F, M, or J status. Finally, a 
new fee is needed if an alien re-applies for the same visa status or 
for the same change in status more than 12 months after a denial is 
issued either overseas at a U.S. embassy or consulate, or within the 
United States.
    The following charts outline who is exempt from paying a fee, who 
is required to pay a fee and when a fee payment is required, and who 
may pay a reduced fee:
    Chart I--Fee payment not required if applicant is:
    A continuing F, M, or J nonimmigrant who maintains that status, and 
whose initial Form I-20 or DS-2019 was issued before September 1, 2004, 
as evidenced by their SEVIS record and the issuance date on their form.
    An F-2, J-2, or M-2 dependent .
    A J-1 participant in an exchange visitor program sponsored by the 
Federal government. A program sponsored by the Federal government is 
identified by a program designation prefix of G-1, G-2, or G-3 .
    An F-1, F-3, J-1, M-1, or M-3 nonimmigrant applying for a visa to 
return to the United States as a continuing student or a continuing 
participant of an exchange visitor program.
     This provision applies only to nonimmigrants returning to 
the United States to resume participation in a program that was 
previously begun, in which he or she has maintained status, and which 
has not yet been completed.
     This includes F or M nonimmigrants who will return as 
continuing students after a temporary absence from the United States 
for a period of less than 5 months in duration.
     This provision also includes F or M students returning as 
continuing students after working towards completion of the U.S. 
program in authorized overseas study.
    An F-1 or F-3, nonimmigrant maintaining continuous status and

[[Page 39821]]

 changing educational levels. Examples include F students:
     Moving directly from high school to college.
     Moving directly from a masters degree program to a 
doctoral program.
    An F-1, F-3, M-1, or M-3 nonimmigrant transferring between approved 
schools at the same educational level.
    A J-1 nonimmigrant transferring between programs in the same 
exchange visitor category where no differential fee exists. Examples 
include transfers:
     Between two fee-exempt programs (a transfer between G-1, 
G-2, or G-3 programs).
     Between two non-fee-exempt programs.
     From a non-fee-exempt program to a fee-exempt program (G-
1, G-2, or G-3 program).
    A nonimmigrant applying for a change of classification from within 
the United States between an F-1 and F-3 status, or between M-1 and M-3 
status.
    An F-1, F-3, J-1, M-1, or M-3 nonimmigrant requesting/applying for 
an extension of stay in a single program.
     ``Extension'' for purposes of this example applies to 
students who have maintained participation in a program when additional 
time is needed for program completion.
    An alien who paid an initial fee when seeking an F-1, F-3, M-1, or 
M-3 visa from an embassy or consulate abroad, was denied a visa, and is 
applying again for a visa for the same type of program within 12 months 
of the initial denial.
    An alien who paid an initial fee when seeking a J-1 visa from an 
embassy or consulate abroad, was denied a visa, and is applying again 
for a visa in the same J-1 exchange visitor category within 12 months 
of the initial visa denial.
     This provision does NOT apply to J-1 applicants who 
initially applied for a fee exempt program (e.g., a program with a 
program identifier designation prefix of G-1, G-2 or G-3), and who, 
after visa denial, apply for a program that is not fee exempt.
    A nonimmigrant who has applied for a change of status in the United 
States to an F, M, or J classification, had the initial application for 
the change of status denied for a reason other than failure to pay the 
SEVIS fee, and is applying for a motion to re-open the case within 12 
months of the original denial.
    Pursuant to SEVP discretion, certain nonimmigrants changing between 
F and M status due solely to a change in school classification during 
their course of study.
    An F or M nonimmigrant applying for reinstatement of student 
status, who has not been out of student status for a period exceeding 
the presumptive ineligibility requirement set forth in 8 CFR 
214.2(f)(16)(A) or 214.2(m)(16)(A).
    Chart II--Fee payment of $100 is required if the applicant is:
    An alien seeking an initial F-1, F-3, J-1, M-1, or M-3 visa from an 
embassy or consulate abroad for initial attendance at a DHS-approved 
school or initial participation in a Department of State-designated 
exchange visitor program that is subject to the $100 fee amount. 
(Specific J-1 programs not subject to the $100 fee are described in 
both Chart I and Chart III.)
    The fee must be processed 3 business days before the consular 
interview, unless the applicant has a printed receipt from Internet 
payment. Fees will not be payable at the consulate.
    An alien exempt from the visa requirement described in section 
212(d)(4) of the Act, who will be applying for admission at a United 
States port-of-entry to begin initial attendance at a DHS-approved 
school or initial participation in a Department of State-designated 
exchange visitor program that is subject to the $100 fee amount. 
(Specific J-1 programs not subject to the $100 fee are described in 
both Chart I and Chart III.) Such fee must be processed at least 3 
business days prior to making an application for admission at the port-
of-entry, unless the applicant has a printed receipt from Internet 
payment. Fees will not be payable at the port-of-entry.
    An alien in the United States seeking a change of status to F-1, F-
3, J-1, M-1, or M-3 . Exceptions are listed in Chart I for instances 
not requiring fee payment.
    A nonimmigrant who was initially granted J-1 status as a 
participant in an exchange visitor program sponsored by the Federal 
government, (i.e., with a program identifier designation prefix of G-1, 
G-2, or G-3), and who is now transferring to another J-1 program in the 
same category that is not similarly sponsored (i.e., has a program 
identifier designation prefix other than G-1, G-2, or G-3).
    A J-1 nonimmigrant who is applying for a change of category within 
the United States, with the exception of a change to a J-1 program 
specifically requiring an alternate fee, as indicated in Chart III, or 
a program whose program identifier designation prefix is G-1, G-2, or 
G-3.
    A J-1 nonimmigrant who is applying for reinstatement after a 
substantive violation, or who has been out of program status for longer 
than 120 days but less than 270 days during the course of his or her 
program.
    An F or M nonimmigrant applying for reinstatement of student 
status, who has been out of student status for a period exceeding the 
presumptive ineligibility requirement set forth in 8 CFR 
214.2(f)(16)(A) or 214.2(m)(16)(A).
    An F or M nonimmigrant, including an F-3 or M-3 nonimmigrant, who 
has been absent from the United States for a period exceeding 5 months, 
was not working towards completion of curriculum in authorized overseas 
study, and now wishes to re-enter for a new F or M program of study in 
the United States.
    Chart III--Fee payment is reduced to $35 if applicant is:
    A J-1 nonimmigrant applying for participation in a summer work/
travel, au pair, or camp counselor program.
V. Applicability of the Fee Requirement
    A number of commenters to the proposed rule stated that the fee 
should not be implemented without adequate notice. Generally, 
commenters suggested that implementation be delayed to not earlier than 
September 2004, although one commenter felt that January 2005 would be 
most appropriate. Additionally, various commenters stated that fee 
implementation should not take place in the spring, summer, or fall due 
to considerations with academic and program calendars. However, 
Congress mandated in section 641 of the IIRIRA that the Student and 
Exchange Visitor Program information collection effort be funded by 
those aliens included in the program, and made express provisions to 
expedite implementation and collection of the fee. See, e.g., Visa 
Waiver Permanent Program Act of 2000, 404, Public Law 106-396, 114 
Stat. 1637 (October 30, 2000) (exempting the SEVIS fee from the 
Administrative Procedures Act rulemaking process in order to ``ensure 
the expeditious, initial implementation of this section''). SEVIS is 
currently operational and DHS is incurring associated operating costs. 
As such, while the fee is not being imposed retroactively, this fee 
must be collected as soon as feasible. This final rule imposes the fee 
requirement for students and exchange visitors whose Form I-20 or Form 
DS-2019 is initially issued on or after September 1, 2004. In general, 
nonimmigrants maintaining F, M, or J status will not be subject to the 
fee. Further, intending F, M, or J nonimmigrants issued an I-20 or DS-
2019 prior to September 1, 2004, (as evidenced by the issuance date on 
the form) will not be subject to the fee except as defined in the 
preceding charts. While some school and exchange visitor programs 
requested more time to

[[Page 39822]]

prepare for the implementation of the fee, a proposed rule on this fee 
was initially published in 1999 and, most recently, a revised proposal 
was published in October 2003. The statutory provisions and proposed 
rules have informed the schools and exchange visitor programs that this 
fee collection will occur. Moreover, DHS is collecting the fee, which 
is a change to the 1999 proposal that schools and exchange visitor 
program sponsors collect this fee. Thus, DHS believes that there has 
been sufficient time to prepare for fee implementation.
    As noted, this rule will be effective on September 1, 2004, and 
will apply to potential nonimmigrants that are initially issued a Form 
I-20 or Form DS-2019 on or after that date. Potential nonimmigrants, 
for purposes of this rule, are those aliens who will apply to DOS or 
DHS for initial attendance as an F, M, or J nonimmigrant, certain 
nonimmigrants in the United States that will apply for a change of 
status to an F, M, or J classification, and current J-1 nonimmigrants 
that will apply for a J-1 category change, on or after that date. If a 
Form I-20 or Form DS-2019 for initial status in a new program is issued 
on or after the effective date, the nonimmigrant traveling on that 
document will be required to pay the fee. Applicants, schools, and 
exchange visitor program sponsors should refer to the fee pay table 
contained in this rule for more detailed information concerning when a 
fee is required.

VI. Propriety of the Fee Requirement

    Some commenters stated that it is unfair to charge fees to 
nonimmigrants who were denied a visa, stating that these nonimmigrants 
receive no benefit from the program. A few commenters further stated 
that the fee should only be paid by those who choose to actually come 
to the United States, regardless of whether or not a visa is issued. 
These recommendations, while acknowledged, cannot be adopted by DHS. 
Pursuant to statutory mandate, the fee payment must be processed prior 
to obtaining a nonimmigrant visa.
    DHS has modified the proposed rule to make the fee payable prior to 
obtaining a visa, rather than prior to starting the visa application 
process. Likewise, for aliens who are exempt from the visa 
requirements, the fee must be paid and processed prior to making an 
application for admission at a port-of-entry. However, DHS wishes to 
further clarify this distinction. Fee payment does not need to be 
completed prior to scheduling an interview with the consulate or any 
other activities undertaken prior to the in-person application process 
at the consulate. In order to assure that fee payment can be verified 
for purposes of visa issuance, the fee payment should be processed at 
least 3 business days prior to the date upon which the alien reports to 
the consulate to submit the visa application and undergo a visa 
interview, unless the alien can present a printed receipt from Internet 
payment. Similarly, 3 business days also must elapse between the 
processing of a fee and submitting an application for admission at a 
port-of-entry for aliens exempt from the visa provisions, as described 
in section 212(d)(4) of the Act, unless the alien can present a printed 
receipt from Internet payment. As stated in previous sections, if the 
visa or admission is subsequently denied and the alien applies again 
within 12 months, no new SEVIS fee will be required.
    DHS further wishes to clarify that those nonimmigrants who are 
denied a visa or who are granted a visa and then choose not to come to 
the United States have already benefited from SEVIS. A nonimmigrant 
seeking F, M, or J status must prove to the consular officer granting 
his or her visa that he or she has been admitted by a DHS certified 
school or DOS designated exchange visitor program sponsor. Prior to 
SEVIS, nonimmigrants used hard copy forms issued by the schools or 
sponsors to verify their claim. These forms were subject to fraud and 
difficult to verify. This led to abuse of these nonimmigrant 
classifications as well as delays and denials of visa applications when 
consular officers suspected fraud. SEVIS allows nonimmigrant 
information to be entered into the system by certified schools or 
designated sponsors. The nonimmigrant is then granted a Form I-20 or 
Form DS-2019, which he or she can then use to apply for an F, M, or J 
visa. SEVIS allows for immediate electronic verification of an alien's 
I-20 or DS-2019 information, assisting consular officers as they 
determine the alien's eligibility for F, M, or J status. This 
constitutes a benefit for every applicant seeking student or exchange 
visitor status.
    Further, some commenters argued that the tracking of F, M, and J 
nonimmigrants while they are in the United States does not benefit 
individuals, but rather benefits the population as a whole by 
increasing the security of the United States. DHS disagrees. SEVIS was 
developed subsequent to the discovery that some of the terrorists 
participating in the 1993 World Trade Center bombing and the September 
11, 2001 attacks were nonimmigrants using student visas. At a time when 
some Americans felt that student and exchange visitor visas ought to be 
severely curtailed or eliminated, the development of SEVIS with its 
ability to maintain information on F, M, and J nonimmigrants allowed 
for the continued use of these visa classifications. Thus, SEVIS 
benefits the individual nonimmigrants able to obtain and use visas of 
these classifications. Additionally, when an F, M, or J nonimmigrant 
seeks further benefits such as employment, change of status, or 
reinstatement, SEVIS is used to verify their eligibility.
    Further, enforcement of F, M, or J status violations benefits all 
F, M, or J nonimmigrants. DHS notes that these visa classifications 
allow nonimmigrants to enter the United States for long periods of time 
with benefits (such as employment opportunities) not available for many 
other visa classifications. Prior to SEVIS, there was widespread abuse 
of these visa classifications, including overstays. Widespread abuse of 
the F, M, and J visa classifications undermines the legitimacy of the 
entire foreign student and exchange visitor program. An effective 
enforcement program that relies upon SEVIS information to identify and 
initiate investigations of status violations enhances the integrity of 
the entire program. Enforcement oversight leads to the increased 
integrity of the program; it is possible to differentiate between 
legitimate students and exchange visitors and the status violators. 
This benefits the individual F, M, or J nonimmigrants who are 
legitimate.
    SEVIS allows each F, M, or J nonimmigrant to provide easily 
verifiable documentation that confirms that he or she is abiding by the 
requirements of his or her student or exchange visitor status. Further, 
SEVIS creates alerts when certified schools or designated sponsors 
provide or fail to provide certain required information. These alerts 
are used to initiate investigations in which ICE enforcement officers 
verify whether or not a violation of status has occurred. By enforcing 
status violations, DHS helps ensure that the majority of students and 
exchange visitors in SEVIS are legitimately in status and that the data 
in SEVIS is reliable. Without enforcement, the violations of status 
that undermined the student and exchange visitor program in the past 
would occur again. With enforcement ensuring the integrity of SEVIS 
data, legitimate students and exchange visitors can provide reliable 
documentation of their status and avoid difficulties and delay when 
seeking benefits.

[[Page 39823]]

    As previously stated, some nonimmigrants may not be granted visas 
or may choose not to come to the United States after their visas are 
granted. DHS will not refund the fee in these cases. However, fees paid 
in error will be refunded.

VII. Miscellaneous Comments and Concerns

    A number of commenters suggested that the proposed fee will deter 
participation by foreign students and exchange visitors. In particular, 
it was noted that participation in short-term or intensive English 
language programs has already dropped significantly. DHS recognizes 
that there have been significant changes in the national security 
environment since September 11, 2001. However, DHS notes that while the 
demand for foreign student and exchange visitor visas has been down in 
the past 2 years, so has the demand for visas in general. Therefore, 
there is little reason to believe that this downward trend for students 
and exchange visitors is based solely upon the implementation of SEVIS. 
Similarly, future reduced participation (especially that already 
evidenced by reduced applications) will not necessarily be linked 
directly to the implementation of the SEVIS fee. It is noted that in 
many cases, compared with the overall cost of a U.S. education or 
participation in an exchange visitor program, the imposition of the 
SEVIS fee does not significantly increase the financial burden on 
foreign students and exchange visitor program participants.
    Additionally, a few commenters expressed a belief that the 
imposition of this fee would deter the participation of students and 
exchange visitors with the most limited resources, particularly those 
from the least developed countries. While DHS acknowledges this 
possibility, the statute mandating the implementation of the fee allows 
for no specific fee reductions, exemptions, or delayed payments based 
upon a nonimmigrant's available resources or the infrastructure 
limitations of his/her country. Further, F, M, and J nonimmigrants are 
required by DHS and DOS regulations to provide evidence of sufficient 
financial resources to support themselves throughout their program. 
When considering the average cost of a temporary stay in the United 
States, including all related program costs, DHS does not believe that 
the SEVIS fee presents an additional cost burden sufficient to act as a 
deterrent to F, M, or J program participation. DHS notes that many 
schools and exchange visitor program sponsors, as well as other 
interested third party organizations (such as advocacy groups), already 
make special efforts to assist these nonimmigrants. DHS commends and 
encourages this assistance and, to facilitate such assistance, DHS will 
accept fee payment from third parties.

Regulatory Flexibility Act

    I have reviewed this final rule in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)) and, by approving it, I preliminarily 
certify that this rule will not have a significant economic impact on a 
substantial number of small entities. The students and exchange 
visitors impacted by this rule are not considered ``small entities,'' 
as that term is defined in 5 U.S.C. 601(6).
    Since Congress changed the law to provide that DHS will collect the 
fee directly from the nonimmigrant, rather than having the school or 
exchange visitor program sponsor collect and remit the fee, schools and 
exchange visitor program sponsors will no longer need to be involved in 
any way with respect to the collection of the fee. However, they are 
free to offer assistance to their students or potential exchange 
visitors if they choose to do so. Exchange visitor program sponsors who 
choose to participate in the bulk payment process to pay the fee on 
behalf of their participants may incur costs associated with 
establishing their batch file connection with the fee payment system, 
as well as the costs of the fees. However, the program sponsor's 
assumption of these costs on behalf of their participants is voluntary 
and, therefore, not subject to the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments (in the aggregate) or by the private sector of $100 
million or more in any one year, and it will not significantly or 
uniquely effect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule, as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the U.S. economy of $100 million or more; 
a major increase in costs or prices; or, significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of U.S.-based companies to compete with foreign-based 
companies in domestic and export markets. As mandated by Congress, this 
rule levies a fee in the amount of $100 on some nonimmigrant students 
and exchange visitors, and a fee in the amount of $35 for exchange 
visitors admitted as au pairs, camp counselors, or participants in a 
summer work/travel program.

Executive Order 12866

    DHS is required to implement this rule under section 641(e) of 
IIRIRA, 8 U.S.C. 1372. This rule is considered by DHS to be a 
significant regulatory action under Executive Order 12866, section 
3(f), Regulatory Planning and Review. Accordingly, this regulation has 
been submitted to the Office of Management and Budget (OMB) for review. 
In particular, DHS has assessed both the costs and benefits of this 
rule, as required by Executive Order 12866, section 1(b)(6), and has 
made a reasoned determination that the benefits of this regulation 
justify its costs.

How Was the Amount of the Fee Determined?

    The costs to the public that this rule imposes are primarily the 
fees that must be paid by nonimmigrant students and exchange visitors 
that will be processed through SEVIS prior to being admitted to the 
United States. DHS is required by section 641 of IIRIRA to collect a 
fee to recover the cost of collecting student and exchange visitor 
information electronically. After careful evaluation of the costs to 
design, develop, and accurately maintain the statutorily mandated 
information collection system, DHS is now imposing a fee of $100 for 
nonimmigrant students and most intending exchange visitors, and $35 for 
potential exchange visitors admitted as au pairs, camp counselors, or 
participants in a summer work/travel program. The fees imposed under 
this final rule will support personnel costs, ongoing system operation 
and maintenance costs, training costs, and other costs related to the 
program, as well as offset the resources necessary to ensure compliance 
with the regulations.
    Approximately 362,400 F-1 students and 312,400 J-1 exchange 
visitors are expected to enter the United States in Fiscal Year 2004. 
Based upon historical trends, it is further estimated that as many as 
10% may subsequently violate the terms of their nonimmigrant status 
each year. However, in an effort to compensate for the possible 
inaccuracies of earlier systems and data on student and exchange 
visitor noncompliance, the estimated number of violators has been 
reduced to 5%.

[[Page 39824]]

Using this percentage, DHS estimates 33,720 foreign students and 
exchange visitors might be subject to enforcement actions on an annual 
basis, although no actual measure of the number of student and exchange 
visitors who have violated their immigration status has ever been 
conducted. While remaining within the initial $100 statutory 
limitation, DHS has calculated the fee to cover the costs of systems 
and program office operations and maintenance, training, and personnel, 
including SEVIS liaison officers and ICE officers in the field. Based 
upon estimates of the total F, M, and J visa population and estimates 
of the total staff-hours that will be needed to ensure compliance with 
SEVIS requirements, DHS has estimated that the fee will fund 
approximately 60% of the personnel resources needed for compliance 
efforts.

Why Is the SEVIS Fee Necessary?

    If DHS failed to assess a SEVIS fee, it would be in violation of 
the law. Additionally, should DHS either not assess the fees under this 
rule or assess the fees at a lesser amount, DHS would be unable to 
continue to implement and operate SEVIS or, at a minimum, be forced to 
sustain a more limited capability to ensure compliance by foreign 
students and exchange visitors with the requirements of SEVIS. This 
would be contrary to the intent of Congress in giving ICE 
responsibility over SEVIS. If the fees are not imposed or are imposed 
at a lesser amount, the public could incur the intangible impact of 
reduced security, as a result of a more limited ability to ensure 
compliance. The imposition of this fee shifts the burden of funding 
program operating and compliance efforts to the population whose data 
is actually entered and tracked in SEVIS. If the fees are not imposed, 
or are imposed at a lesser amount, the general public would become 
responsible for bearing the shortage in the funding of program 
implementation and conformity. This would be contrary to the explicit 
directive of Congress, as set out in section 641 of IIRIRA, and 
subsequent amendments.

What Are the Benefits of Establishing the SEVIS Fee?

    SEVIS is a vital tool in protecting the public by: (1) Enhancing 
the process by which nonimmigrants seeking to be foreign students and 
exchange visitors gain admission to the United States; and (2) 
increasing the ability of DHS to track and monitor foreign students and 
exchange visitors to ensure that they arrive in the United States, show 
up and register at the school or be validated as participating in their 
exchange visitor program activity, and properly maintain their status 
during their stay in this country. SEVIS enables a proper balance 
between openness in admitting foreign students and exchange visitors 
into the United States and preserving the security enhanced by 
enforcing the law.

What Are the Costs of Establishing the SEVIS Fee?

    The projected time per response for this collection of information 
were derived by first breaking the process into three basic components:

    Learning about the Law and the Form--5 Minutes
    Completion of the Form--9 Minutes
    Assembling and Filing the Form--5 Minutes
    Total Time per Response--19 Minutes
    For all components, DHS used tests to determine completion times. 
People who were not conversant with immigration processes were used to 
determine average completion times. The Total annual reporting burden 
hours is 192,000. This figure was derived by multiplying the number of 
respondents (600,000) x frequency of response (1) x 19 minutes or (.32 
hours) per response. The estimated annual public cost is $61,920,000. 
This figure is based on the number of respondents 600,000 multiplied by 
19 minutes (.32), multiplied by $10 (average hourly rate); plus the 
number of respondents (600,000) x fee of $100.
Conclusion
    Balanced against the costs and requirements to collect information 
electronically, the burden imposed by this regulation is fully 
justified by the benefits it provides.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This final rule requires the use of the Form I-901, Fee Remittance 
Form for Certain F, J, and M Nonimmigrants. This form is considered an 
information collection document and subject to review and clearance 
under Paperwork Reduction Act procedures. On October 17, 2003, at 68 FR 
59800, DHS published a notice in the Federal Register, soliciting 
public comments on the Form I-901 for a period of 60 days. The comments 
that were filed by the public and OMB have been addressed and 
reconciled in the preamble of this final rule. DHS has received OMB 
approval for proposed information collection, Form I-901, Fee 
Remittance for Certain F, J, and M Nonimmigrants (OMB No. 1653-0034) 
that is contained in this final rule. The costs and benefits of Form I-
901 have been fully set out in the supporting statement for the Form I-
901 that will be published separately in the Federal Register.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(government agencies), Freedom of information, Privacy, Reporting and 
recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and recordkeeping requirements, Students.

8 CFR Part 299

    Immigration, Reporting and record-keeping requirements.

0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is 
amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Pub. L. 107-296 116, Stat. 2135 (6 U.S.C. 1 
et. seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 
166; 8 CFR part 2.

0
2. Section 103.7(b)(1) is amended by adding the entry for Form I-901 to 
the listing of fees, in proper alpha/numeric sequence, to read as 
follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-901. For remittance of the SEVIS fee levied on certain F, J, 
and M

[[Page 39825]]

nonimmigrant aliens--$100. For remittance of the SEVIS fee levied for 
J-1 au pairs, camp counselors, and participants in a summer work/travel 
program--$35.
* * * * *

PART 214--NONIMMIGRANT CLASSES

0
3. The authority citation for part 214 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to E.O. 13323, 69 FR 241), 1186a, 1187, 1221, 1281, 1282, 1301-1305, 
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.


0
4. Section 214.2 is amended by:
0
a. Adding a new paragraph (f)(19);
0
b. Adding a new paragraph (j)(5); and by
0
c. Adding a new paragraph (m)(20).
    The additions read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (f) * * *
    (19) Remittance of the fee. An alien who applies for F-1 or F-3 
nonimmigrant status in order to enroll in a program of study at a 
Department of Homeland Security (DHS)-approved educational institution 
is required to pay the Student and Exchange Visitor Information System 
(SEVIS) fee to DHS, pursuant to 8 CFR 214.13, except as otherwise 
provided in that section.
* * * * *
    (j) * * *
    (5) Remittance of the fee. An alien who applies for J-1 
nonimmigrant status in order to commence participation in a Department 
of State-designated exchange visitor program is required to pay the 
SEVIS fee to DHS, pursuant to 8 CFR 214.13, except as otherwise 
provided in that section.
* * * * *
    (m) * * *
    (20) Remittance of the fee. An alien who applies for M-1 or M-3 
nonimmigrant status in order to enroll in a program of study at a DHS-
approved vocational educational institution is required to pay the 
SEVIS fee to DHS, pursuant to 8 CFR 214.13, except as otherwise 
provided in that section.
* * * * *

0
5. Section 214.13 is added to read as follows:


Sec.  214.13  SEVIS fee for certain F, J, and M nonimmigrants.

    (a) Applicability. Except as otherwise provided for in this 
section, the following aliens are required to submit a payment of $100 
to the Department of Homeland Security (DHS) in advance of obtaining 
nonimmigrant status as a student or exchange visitor, in addition to 
any other applicable fees:
    (1) An alien who applies for F-1 or F-3 nonimmigrant status in 
order to enroll in a program of study at a DHS-approved 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 DHS-
approved academic or language-training institution including private 
elementary and secondary schools and public secondary schools;
    (2) An alien who applies for J-1 nonimmigrant status in order to 
commence participation in an exchange visitor program designated by the 
Department of State (DOS), with a reduced fee for certain exchange 
visitor categories as provided in paragraphs (b)(1) and (c) of this 
section; and
    (3) An alien who applies for M-1 or M-3 nonimmigrant status in 
order to enroll in a program of study at a DHS-approved vocational 
educational institution, including a flight school.
    (b) Aliens not subject to a fee. No SEVIS fee is required with 
respect to:
    (1) A J-1 exchange visitor who is coming to the United States as a 
participant in an exchange visitor program sponsored by the Federal 
government, identified by a program identifier designation prefix of G-
1, G-2, or G-3;
    (2) Dependents of F, M, or J nonimmigrants. The principal alien 
must pay the fee, when required under this section, in order for his/
her qualifying dependents to obtain F-2, J-2, or M-2 status. However, 
an F-2, J-2, or M-2 dependent is not required to pay a separate fee 
under this section in order to obtain that status or during the time 
he/she remains in that status.
    (3) A nonimmigrant described in paragraph (a) of this section whose 
Form I-20 or Form DS-2019 for initial attendance was issued on or 
before May 31, 2004.
    (c) Special Fee for Certain J-1 Nonimmigrants. A J-1 exchange 
visitor coming to the United States as an au pair, camp counselor, or 
participant in a summer work/travel program is subject to a fee of $35.
    (d) Time for payment of SEVIS fee. An alien who is subject to 
payment of the SEVIS fee must remit the fee directly to DHS as follows:
    (1) An alien seeking an F-1, F-3, J-1, M-1, or M-3 visa from a 
consular officer abroad for initial attendance at a DHS-approved school 
or to commence participation in a Department of State-designated 
exchange visitor program, must pay the fee to DHS before issuance of 
the visa.
    (2) An alien who is exempt from the visa requirement described in 
section 212(d)(4) of the Act must pay the fee to DHS before the alien 
applies for admission at a U.S. port-of-entry to begin initial 
attendance at a DHS-approved school or initial participation in a 
Department of State-designated exchange visitor program.
    (3) A nonimmigrant alien in the United States seeking a change of 
status to F-1, F-3, J-1, M-1, or M-3 must pay the fee to DHS before the 
alien is granted the change of nonimmigrant status, except as provided 
in paragraph (e)(4) of this section.
    (4) A J-1 nonimmigrant who is applying for a change of program 
category within the United Status, in accordance with 22 CFR 62.42, 
must pay the fee associated with that new category, if any, prior to 
being granted such a change.
    (5) A J-1 nonimmigrant initially granted J-1 status to participate 
in a program sponsored by the Federal government, as defined in 
paragraph (b)(1) of this section, and transferring in accordance with 
22 CFR 62.42 to a program that is not similarly sponsored, must pay the 
fee associated with the new program prior to completing the transfer.
    (6) A J-1 nonimmigrant who is applying for reinstatement after a 
substantive violation of status, or who has been out of program status 
for longer than 120 days but less than 270 days during the course of 
his/her program must pay a new fee to DHS, if applicable, prior to 
being granted a reinstatement to valid J-1 status.
    (7) An F or M student who is applying for reinstatement of student 
status because of a violation of status, and who has been out of status 
for a period of time that exceeds the presumptive ineligibility 
deadline set forth in 8 CFR 214.2(f)(16)(i)(A) or (m)(16)(i)(A), must 
pay a new fee to DHS prior to being granted a return to valid status.
    (8) An F-1, F-3, M-1, or M-3 nonimmigrant who has been absent from 
the United States for a period that exceeds 5 months in duration, and 
wishes to reenter the United States to engage in further study in the 
same course of study, with the exception of students who have been 
working toward completion of a U.S. course of study in authorized 
overseas study, must pay a

[[Page 39826]]

new fee to DHS prior to being granted student status.
    (e) Circumstances where no new fee is required. (1) Extension of 
stay, transfer, or optional practical training for students. An F-1, F-
3, M-1, or M-3 nonimmigrant is not required to pay a new fee in 
connection with:
    (i) An application for an extension of stay, as provided in 8 CFR 
214.2(f)(7) or (m)(10);
    (ii) An application for transfer, as provided in 8 CFR 214.2(f)(8) 
or (m)(11);
    (iii) A change in educational level, as provided in 8 CFR 
214.2(f)(5)(ii); or
    (iv) An application for post-completion practical training, as 
provided in 8 CFR 214.2(f)(10)(ii) or (m)(14).
    (2) Extension of program or transfer for exchange visitors. A J-1 
nonimmigrant is not required to pay a new fee in connection with:
    (i) An application for an extension of program, as provided in 22 
CFR 62.43; or
    (ii) An application for transfer of program, as provided in 22 CFR 
62.42.
    (3) Visa issuance for a continuation of study. An F-1, F-3, J-1, M-
1, or M-3 nonimmigrant who has previously paid the fee is not required 
to pay a new fee in order to be granted a visa to return to the United 
States as a continuing student or exchange visitor in a single course 
of study, so long as the nonimmigrant is not otherwise required to pay 
a new fee in accordance with the other provisions in this section.
    (4) Certain changes in student classification.
    (i) No fee is required for changes between the F-1 and F-3 
classifications, and no fee is required for changes between the M-1 and 
M-3 classifications.
    (ii) Institutional reclassification. DHS retains the discretionary 
authority to waive the additional fee requirement when a nonimmigrant 
changes classification between F and M, if the change of status is due 
solely to institutional reclassification by the Student and Exchange 
Visitor Program during that nonimmigrant's course of study.
    (5) Re-application following denial of application by consular 
officer. An alien who fully paid a SEVIS fee in connection with an 
initial application for an F-1, F-3, M-1, or M-3 visa, or a J-1 visa in 
a particular program category, whose initial application was denied, 
and who is reapplying for the same status, or the same J-1 exchange 
visitor category, within 12 months following the initial notice of 
denial is not required to repay the SEVIS fee.
    (6) Re-application following denial of an application for a change 
of status. A nonimmigrant who fully paid a SEVIS fee in connection with 
an initial application for a change of status within in the United 
States to F-1, F-3, M-1, or M-3 classification, or for a change of 
status to a particular J-1 exchange visitor category, whose initial 
application was denied, and who is granted a motion to reopen the 
denied case is not required to repay the SEVIS fee if the motion to 
reopen is granted within 12 months of receipt of initial notice of 
denial.
    (f) [Reserved]
    (g) Procedures for payment of the SEVIS fee. (1) Options for 
payment. An alien subject to payment of a fee under this section may 
pay the fee by any procedure approved by DHS, including:
    (i) Submission of Form I-901, to DHS by mail, along with the proper 
fee paid by check, money order, or foreign draft drawn on a financial 
institution in the United States and payable in United States currency, 
as provided by 8 CFR 103.7(a)(1);
    (ii) Electronic submission of Form I-901 to DHS using a credit card 
or other electronic means of payment accepted by DHS; or,
    (iii) A designated payment service and receipt mechanism approved 
and set forth in future guidance by DHS.
    (2) Receipts. DHS will provide a receipt for each fee payment under 
paragraph (g)(1) of this section until such time as DHS issues a notice 
in the Federal Register that paper receipts will no longer be 
necessary. Further receipt provisions include:
    (i) DHS will provide for an expedited delivery of the receipt, upon 
request and receipt of an additional fee;
    (ii) If payment was made electronically, both DHS and the 
Department of State will accept a properly completed receipt that is 
printed-out electronically, in lieu of the receipt generated by DHS;
    (iii) If payment was made through an approved payment service, DHS 
and the Department of State will accept a properly completed receipt 
issued by the payment service, in lieu of the receipt generated by DHS.
    (3) Electronic record of fee payment. DHS will maintain an 
electronic record of payment for the alien as verification of receipt 
of the required fee under this section. If DHS records indicate that 
the fee has been paid, an alien who has lost or did not receive a 
receipt for a fee payment under this section will not be denied an 
immigration benefit, including visa issuance or admission to the United 
States, solely because of a failure to present a paper receipt of fee 
payment.
    (4) Third-party payments. DHS will accept payment of the required 
fee for an alien from an approved school or a designated exchange 
visitor program sponsor, or from another source, in accordance with 
procedures approved by DHS.
    (h) Failure to pay the fee. The failure to pay the required fee is 
grounds for denial of F, M, or J nonimmigrant status or status-related 
benefits. Payment of the fee does not preserve the lawful status of any 
F, J, or M nonimmigrant that has violated his or her status in some 
other manner.
    (1) For purposes of reinstatement to F or M status, failure to pay 
the required fee will be considered a ``willful violation'' under 8 CFR 
214.2(f)(16) or (m)(16), unless DHS determines that there are 
sufficient extenuating circumstances (as determined at the discretion 
of the Student and Exchange Visitor Program).
    (2) For purposes of reinstatement to valid J program status, 
failure to pay the required fee will not be considered a ``minor or 
technical infraction'' under 22 CFR 62.45.

PART 299--IMMIGRATION FORMS

0
6. The authority citation for part 299 continues to read as follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.


0
7. Section 299.1 is amended in the table by adding, in proper alpha/
numeric sequence, the entry for ``Form I-901'' to read as follows:


Sec.  299.1  Prescribed forms.

* * * * *

----------------------------------------------------------------------------------------------------------------
                      Form No.                           Edition date                     Title
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
I-901                                                          02-09-04  Fee Remittance for Certain F, J, and M
                                                                          Nonimmigrants.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


[[Page 39827]]


0
8. Section 299.5 is amended by:
0
a. Revising the term ``INS form No.'' to read ``Form No.'' in the table 
heading;
0
b. Revising the term ``INS form title'' to read ``Title'' in the table 
heading; and by
0
c. Adding the entry for Form ``I-901'' to the table, in proper alpha/
numeric sequence.
    The addition reads as follows:


Sec.  299.5  Display of control numbers.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                                                                                   Currently
                      Form No.                                         Title                      assigned OMB
                                                                                                  control No.
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
I-901                                                 Fee Remittance For Certain F, J, and M           1653-0034
                                                       Nonimmigrants..
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


    Dated: June 25, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04-14961 Filed 6-30-04; 8:45 am]
BILLING CODE 4410-10-P