[Federal Register Volume 78, Number 225 (Thursday, November 21, 2013)]
[Proposed Rules]
[Pages 69778-69785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27898]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 78, No. 225 / Thursday, November 21, 2013 /
Proposed Rules
[[Page 69778]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[DHS Docket No. ICEB-2011-0005]
RIN 1653-AA63
Adjustments to Limitations on Designated School Official
Assignment and Study by F-2 and M-2 Nonimmigrants
AGENCY: U.S. Immigration and Customs Enforcement, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Homeland Security proposes to amend its
regulations under the Student and Exchange Visitor Program to improve
management of international student programs and increase opportunities
for study by spouses and children of nonimmigrant students. The
proposed rule would grant school officials more flexibility in
determining the number of designated school officials to nominate for
the oversight of campuses. The rule also would provide greater
incentive for international students to study in the United States by
permitting accompanying spouses and children of academic and vocational
nonimmigrant students with F-1 or M-1 nonimmigrant status to enroll in
study at an SEVP-certified school so long as any study remains less
than a full course of study. F-2 and M-2 spouses and children remain
prohibited, however, from engaging in a full course of study unless
they apply for, and DHS approves, a change of nonimmigrant status to a
nonimmigrant status authorizing such study.
DATES: Comments and related material must either be submitted to our
online docket via http://www.regulations.gov on or before January 21,
2014 or reach the Mail or Hand Delivery/Courier address listed below in
ADDRESSES by that date.
ADDRESSES: You may submit comments, identified by DHS Docket No. ICEB-
2011-0005, using any one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Student and Exchange Visitor Program, c/o Katherine
Westerlund, Policy Chief (Acting), U.S. Immigration and Customs
Enforcement, Department of Homeland Security, 500 12th Street SW., Stop
5600, Washington, DC 20536-5600.
Hand Delivery/Courier: Student and Exchange Visitor
Program, c/o Katherine Westerlund, Policy Chief (Acting), 2450 Crystal
Drive, Century Tower 9th Floor; Arlington, VA 22202, between 9 a.m. and
5 p.m., Monday through Friday, except federal holidays. Contact
telephone number (703) 603-3400.
To avoid duplication, please use only one of these three methods. See
the ``Public Participation and Request for Comments'' portion of the
SUPPLEMENTARY INFORMATION section below for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed
rule, call or email Katherine Westerlund, Policy Chief (Acting),
Student and Exchange Visitor Program, telephone 703-603-3400, email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
We encourage you to participate in this rulemaking by submitting
comments and related materials. All comments received will be posted
without change to http://www.regulations.gov and will include any
personal information you have provided.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (ICEB-2011-0005), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by mail or hand delivery, but please use only one of these
means. We recommend that you include your name and a mailing address,
an email address, or a phone number in the body of your document so
that we can contact you if we have questions regarding your submission.
To submit your comment online, go to http://www.regulations.gov,
click on the ``submit a comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop down menu select
``Proposed Rule'' and insert ``ICEB-2011-0005'' in the ``Keyword'' box.
Click ``Search'' then click on the balloon shape in the ``Actions''
column. If you submit your comments by mail or hand delivery, submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you submit comments by mail and
would like to know that they reached the mailing address, please
enclose a stamped, self-addressed postcard or envelope.
We will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble
as being available in the docket, go to http://www.regulations.gov, and
click on the ``read comments'' box, which will then become highlighted
in blue. In the ``Keyword'' box insert ``ICEB-2011-0005'', click
``Search'' and then click ``Open Docket Folder'' in the ``Actions''
column. Individuals without internet access can make alternate
arrangements for viewing comments and documents related to this
rulemaking by contacting the Student and Exchange Visitor Program using
the FOR FURTHER INFORMATION CONTACT information above. Please be aware
that anyone can search the electronic form of comments received into
any of our dockets by the name of the individual submitting the comment
(or signing the comment, if submitted on behalf of an association,
business, labor union, etc.).
C. Public Meeting
We do not now plan to hold a public meeting. But you may submit a
request for one to the docket using one of the methods specified under
ADDRESSES. In your request, explain why you believe a public meeting
would be beneficial. If we determine that one would aid this
rulemaking, we will hold one at a time and place announced by a later
notice in the Federal Register.
[[Page 69779]]
II. Abbreviations
CFR Code of Federal Regulations
DHS Department of Homeland Security
DOS Department of State
DSO Designated school official
FR Federal Register
HSPD-2 Homeland Security Presidential Directive No. 2
ICE U.S. Immigration and Customs Enforcement
INA Immigration and Nationality Act of 1952, as amended
INS Legacy Immigration and Naturalization Service
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
OMB Office of Management and Budget
PDSO Principal designated school official
SEVIS Student and Exchange Visitor Information System
SEVP Student and Exchange Visitor Program
Sec. Section symbol
U.S.C. United States Code
USA PATRIOT Act Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001
III. Background
A. The Student and Exchange Visitor Program
The Department of Homeland Security (DHS), U.S. Immigration and
Customs Enforcement (ICE), operates the Student and Exchange Visitor
Program (SEVP), which serves as the central liaison between the U.S.
educational community and U.S. Government organizations that have an
interest in information regarding students in F, J and M nonimmigrant
status. SEVP manages and oversees significant elements of the process
by which educational institutions interact with F, J and M
nonimmigrants to provide information about their immigration status to
the U.S. Government. ICE uses the Student and Exchange Visitor
Information System (SEVIS) to track and monitor schools, participants
and sponsors in exchange visitor programs, and F, J and M
nonimmigrants, as well as their accompanying spouses and children,
while they are in the United States and participating in the United
States educational system.
ICE derives its authority to manage these programs from several
sources. Under section 101(a)(15)(F)(i) of the Immigration and
Nationality Act of 1952, as amended (INA), 8 U.S.C. 1101(a)(15)(F)(i),
a foreign student may be admitted to the United States in nonimmigrant
status to attend an academic school or language training program (F
visa). Similarly, under section 101(a)(15)(M)(i) of the INA, 8 U.S.C.
1101(a)(15)(M)(i), a foreign student may be admitted to the United
States in nonimmigrant status to attend a vocational or other
recognized nonacademic institution (M visa). Under section
101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J), a foreign citizen
may be admitted into the United States in nonimmigrant status as an
exchange visitor (J visa) in an exchange program designated by the
Department of State (DOS). An F or M student may enroll in a particular
school only if the Secretary of Homeland Security has certified the
school for the attendance of F and/or M students. See 8 U.S.C. 1372; 8
CFR 214.3.
Section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C, 110
Stat. 3009-546 (codified at 8 U.S.C. 1372), authorized the creation of
a program to collect current and ongoing information provided by
schools and exchange visitor programs regarding F, J or M nonimmigrants
during the course of their stay in the United States, using electronic
reporting technology where practicable. Section 641 of IIRIRA further
authorized the Secretary of Homeland Security to certify schools to
participate in F or M student enrollment.
The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public
Law 107-56, 115 Stat. 272 (USA PATRIOT Act), as amended, provides for
the collection of alien date of entry and port of entry information for
aliens whose information is collected under 8 U.S.C. 1372. Following
the USA PATRIOT Act, the President issued Homeland Security
Presidential Directive No. 2 (HSPD-2), requiring the Secretary of
Homeland Security to conduct periodic, ongoing reviews of schools
certified to accept F, J and/or M nonimmigrants to include checks for
compliance with recordkeeping and reporting requirements, and
authorizing termination of institutions that fail to comply. See 37
Weekly Comp. Pres. Docs. 1570, 1571-72 (Oct. 29, 2001).
Thereafter, section 502 of the Enhanced Border Security and Visa
Entry Reform Act of 2002, Public Law 107-173, 116 Stat. 543 (codified
at 8 U.S.C. 1762), directed the Secretary to review the compliance with
recordkeeping and reporting requirements under 8 U.S.C. 1372 and INA
section 101(a)(15)(F), (J) and (M), 8 U.S.C. 1101(a)(15)(F), (J) and
(M), of all schools \1\ approved for attendance by F, J and/or M
students within two years of enactment, and every two years thereafter.
Accordingly, and as directed by the Secretary, ICE carries out the
Department's ongoing obligation to collect data from, certify, review,
and recertify schools enrolling F, J and/or M students. The specific
data collection requirements associated with these obligations are
specified in part in legislation, see 8 U.S.C. 1372(c), and more
comprehensively in regulations governing SEVP found at 8 CFR 214.3.
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\1\ DHS oversees compliance of schools approved for attendance
by J nonimmigrants; however, section 502(b) of this the Enhanced
Border Security and Visa Entry Reform Act of 2002 assigns oversight
of exchange visitor sponsors to the Secretary of State.
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B. Student and Exchange Visitor Information System
ICE's SEVP carries out its programmatic responsibilities through
SEVIS, a Web-based data entry, collection and reporting system. SEVIS
provides authorized users access to reliable information on F, J and M
nonimmigrants. DHS, DOS, and other government agencies, as well as
SEVP-certified schools and DOS-designated exchange visitor programs,
use SEVIS data to monitor nonimmigrants for the duration of their
authorized period of stay in the United States while in F, J, or M
nonimmigrant status. ICE requires certified schools and exchange
visitor programs to regularly update information on their approved F, J
and M nonimmigrants after the nonimmigrants' admission and during their
stay in the United States.
SEVIS data are used to verify the continued eligibility of
individuals applying for F, J and M nonimmigrant status, to facilitate
port of entry screening by U.S. Customs and Border Protection, as well
as to assist in the processing of immigration benefit applications,
monitoring of nonimmigrant status maintenance and, as needed,
facilitating timely removal.
As of October 1, 2012, SEVIS contained active records for the
1,275,285 F and M student or J exchange visitors in the United States
on that date. As April 1, 2012, SEVP-certified schools numbered 9,888,
and DOS had designated 1,426 sponsors for exchange visitor programs.
C. Importance of International Students to the United States
On September 16, 2011, Secretary of Homeland Security Janet
Napolitano announced a ``Study in the States'' initiative to encourage
the best and the brightest international students to study in the
United States. The initiative established the DHS Office of Academic
Engagement to focus on enhancing
[[Page 69780]]
coordination between federal agencies dealing with U.S. student visa
and exchange visitor programs; expanding and enhancing public
engagement with the student, academic, and business communities; and
improving current programs for international students and exchange
visitors, as well as related programs for international students who
have completed their course of study.\2\ In cooperation with the DHS
Office of Academic Engagement, ICE has analyzed and identified problem
areas and considered possible solutions, and is now pursuing regulatory
improvements to address some of the issues identified through ongoing
stakeholder engagement.
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\2\ See http://studyinthestates.dhs.gov.
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This rulemaking was initiated in support of Secretary Napolitano's
initiative, and reflects the Department's commitment to enhancing and
improving the Nation's nonimmigrant student programs. The proposed rule
will improve the capability of schools enrolling F and M students to
assist their students in maintaining nonimmigrant status and to provide
necessary oversight on behalf of the U.S. Government. The rule will
increase the attractiveness of studying in the United States for
foreign students by broadening study opportunities for their spouses
and improving quality of life for visiting families.
IV. Discussion of Proposed Rule
A. Removing the Limit on DSO Nominations
Designated school officials (DSOs) are essential to making
nonimmigrant study in the United States attractive to international
students and a successful experience overall. DSOs are regularly
employed members of a school administration who are located at the
school and generally serve as the main point of contact within the
school for F and M students and their spouses and children. See 8 CFR
214.3(l)(1). Consistent with DHS's authorities and responsibilities
discussed above, DHS charges DSOs with the responsibility of acting as
liaisons to nonimmigrant students on behalf of the schools that employ
the DSOs and on behalf of the U.S. Government. Significantly, DSOs are
responsible for making information and documents relating to F-1 and M-
1 nonimmigrant students, including academic transcripts, available to
DHS for the Department to fulfill its statutory responsibilities. 8 CFR
214.3(g).
ICE regulations at 8 CFR 214.3(l)(1)(iii) currently limit to ten
(10) the maximum number of DSOs that each certified school may have at
each campus at any one time, which includes up to nine DSOs and one
Principal Designated School Official (PDSO). This limit was established
by the former Immigration and Naturalization Service (INS) in 2002 in
order to control access to SEVIS. At the time, however, the INS noted
that once SEVIS was fully operational, it might reconsider the
numerical limits on the number of DSOs. See 67 FR 76256, 76260. Since
SEVIS is now fully operational and equipped to appropriately control
access to SEVIS, ICE seeks to revisit the DSO limitation in this
proposed rulemaking.
To date, SEVP has certified nearly 10,000 schools with
approximately 30,500 DSOs. While the average SEVP-certified school has
fewer than three DSOs, SEVP recognizes that F and M students often
cluster at schools within states that attract a large percentage of
nonimmigrant student attendance within the United States. As such,
schools in the seven states with the greatest F and M student
enrollment currently represent 55 percent of the overall F and M
nonimmigrant enrollment in the United States.\3\ This has raised
concerns within the U.S. educational community that the current DSO
limit of ten per campus is too constraining, particularly in schools
where F and M students are heavily concentrated or where campuses are
in dispersed geographic locations. The Homeland Security Academic
Advisory Council (HSAAC)--an advisory committee composed of prominent
university and academic association presidents, which advises the
Secretary and senior DHS leadership on academic and international
student issues--included in its September 20, 2012 recommendations to
DHS a recommendation to increase the number of DSOs allowed per school
or eliminating the current limit of 10 DSOs per school. Upon review,
SEVP has concluded that, in many circumstances, the elimination of a
DSO limit may improve the capability of DSOs to meet their liaison,
reporting and oversight responsibilities, as required by 8 CFR
214.3(g).
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\3\ See SEVP, Student and Exchange Visitor Information System,
General Summary Quarterly Review for the quarter ending Mar. 31,
2012 (Apr. 2, 2012), available at http://www.ice.gov/doclib/sevis/pdf/quarterly_rpt.pdf.
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Accordingly, DHS proposes to eliminate the maximum limit of DSOs in
favor of a more flexible approach. The proposed rule would not set a
maximum number of permissible DSOs, but instead would allow school
officials to nominate an appropriate number of DSOs for SEVP approval
based upon the specific needs of the school. This proposed rule would
not alter SEVP's current authority to approve or reject a DSO or PDSO
nomination. See 214.3(l)(2). The proposed rule also would maintain
SEVP's authority to withdraw a previous DSO or PDSO designation by a
school of an individual. Id. In addition, SEVP would not permit DSO-
level access to SEVIS prior to SEVP approval of a DSO nomination
because that access would undermine the nomination process and open the
SEVIS program to possible misuse. The proposed rule codifies this
limitation. See proposed 8 CFR 214.3(l)(1)(iii).
The proposed flexibility in nominating DSOs will permit schools to
better meet students' needs as well as the Department's reporting and
other school certification requirements.
B. Study by F-2 and M-2 Spouses and Children
This rulemaking also proposes to amend the benefits allowable for
the accompanying spouse and children (hereafter referred to as F-2 or
M-2 nonimmigrants) of an F-1 or M-1 student. Prior to January 1, 2003,
there was no restriction on the classes or course of study that an F-2
or M-2 spouse or child could undertake.
On May 16, 2002, the former INS proposed to prohibit full time
study by F-2 and M-2 spouses and to restrict such study by F-2 and M-2
children to prevent an alien who should be properly classified as an F-
1 or M-1 nonimmigrant from coming to the United States as an F-2 or M-2
nonimmigrant and, without adhering to other legal requirements,
attending school full time. 67 FR 34862, 34871. The INS proposed to
permit avocational and recreational study for F-2 and M-2 spouses and
children and, recognizing that education is one of the chief tasks of
childhood, to permit F-2 and M-2 children to be enrolled full time in
elementary through secondary school (kindergarten through twelfth
grade). Id. The INS believed it unreasonable to assume that Congress
would intend that a bona fide nonimmigrant student could bring his or
her children to the United States but not be able to provide for their
primary and secondary education. Id.; see also 67 FR 76256, 76266. The
INS further proposed that if an F-2 or M-2 spouse wanted to enroll full
time in a full course of study, the F-2 or M-2 spouse should apply for
and obtain a change of his or her nonimmigrant classification to that
of an F-1, J-1, or M-1 nonimmigrant. Id.
[[Page 69781]]
The INS finalized these rules on December 11, 2002. 67 FR 76256,
codified at 8 CFR 214.2(f)(15)(ii) and 8 CFR 214.2(m)(17)(ii). In the
final rule, the INS noted that commenters suggested the INS remove the
language ``avocational or recreational'' from the types of study that
may be permitted by F-2 and M-2 dependents, as DSOs may have difficulty
determining what study is avocational or recreational and what is not.
In response to the comments, the INS clarified that if a student
engages in study to pursue a hobby or if the study is that of an
occasional, casual, or recreational nature, such study may be
considered as avocational or recreational. 67 FR at 76266.
DHS maintains the long-standing view that an F-2 or M-2
nonimmigrant who wishes to engage in a full course of study in the
United States, other than elementary or secondary school study
(kindergarten through twelfth grade), should apply for and obtain
approval to change his or her nonimmigrant classification to F-1, J-1,
or M-1. See 8 CFR 214.2(f)(15)(ii). DHS recognizes, however, that the
United States is engaged in a global competition to attract the best
and brightest international students to study in our schools. Access of
F-2 or M-2 nonimmigrants (totaling approximately 83,932 individuals as
of June 2012) to education while in the United States in many instances
would enhance the quality of life for these visiting families. The
existing limitations on study to F-2 or M-2 nonimmigrant education
potentially deter high quality F-1 and M-1 students from studying in
the United States.\4\
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\4\ See Letter of April 13, 2011 from NAFSA: Association of
International Educators to DHS General Counsel Ivan Fong, available
in the federal rulemaking docket for this rulemaking at
www.regulations.gov, requesting that DHS eliminate the limitation on
study by F-2 spouses to only ``avocational or recreational'' study
because the limitation ``severely restricts the opportunities for F-
2 dependents, such as spouses of F-1 students, to make productive
use of their time in the United States.''
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Accordingly, DHS proposes to relax its prohibition on F-2 and M-2
nonimmigrant study by permitting F-2 and M-2 nonimmigrant spouses and
children to engage in study in the United States at SEVP-certified
schools that does not amount to a full course of study. Under the
proposed rule, F-2 and M-2 nonimmigrants would be permitted to enroll
in less than a ``full course of study,'' as defined at 8 CFR
214.2(f)(6)(i)(A) through (D) and 8 CFR 214.2(m)(9)(i)-(iv), at an
SEVP-certified school and in study described in 8 CFR 214.2(f)(6)(i)(A)
through (D) and 8 CFR 214.2(m)(9)(i)-(iv).\5\ As a point of
clarification, although 8 CFR 214.2(f)(6)(i)(B) and 8 CFR
214.2(m)(9)(i) define full course of study at an undergraduate college
or university (F nonimmigrants) or at a community college or junior
college (M nonimmigrants) to include lesser course loads if needed to
complete a course of study during a current term, this proposed rule
would view such study as authorized for F-2 or M-2 nonimmigrants. Over
time, such enrollment in less than a full course of study could lead to
attainment of a degree, certificate or other credential. To maintain
valid F-2 or M-2 status, however, the F-2 or M-2 nonimmigrant would not
be permitted at any time to enroll in a total number of credit hours
that would amount to a ``full course of study,'' as defined by
regulation.
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\5\ As a general matter, a full course of study for an F-1
academic student in an undergraduate program is 12 credit hours per
academic term. Similarly, a full course of study for an M-1
vocational student consists of 12 credit hours per academic term at
a community college or junior college. For other types of academic
or vocational study, the term ``full course of study'' is defined in
terms of ``clock hours'' per week depending on the specific program.
See 8 CFR 214.2(f)(6)(i)(A)-(D) and 8 CFR 214.2(m)(9)(i)-(iv).
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In addition, the proposed change would limit F-2 and M-2 study,
other than avocational or recreational study, to SEVP-certified
schools. This requirement would make it more likely that the
educational program pursued by the F-2 or M-2 nonimmigrant is a bona
fide program and that studies at the school are unlikely to raise
national security concerns, in light of their successful completion of
the SEVP certification process. Under the proposed rule, the F-2 or M-2
nonimmigrants could still participate full-time in avocational or
recreational study (i.e., hobbies and recreational studies). If an F-2
or M-2 nonimmigrant wanted to enroll in a full course of academic
study, however, he or she would need to apply for and obtain approval
to change his or her nonimmigrant classification to F-1, J-1 or M-1.
Similarly, as noted, the proposed rule would not change existing
regulations allowing full-time study by children in elementary or
secondary school (kindergarten through twelfth grade).
This proposed rule would not change the record keeping and
reporting responsibilities of DSOs with regard to F-2 or M-2
nonimmigrants to DHS. DSOs at the school the F-1 or M-1 student attends
currently have reporting responsibility for maintaining F-2 or M-2
nonimmigrant personal information in SEVIS. See 8 CFR 214.3(g)(1). In
addition, to facilitate maintenance of F or M nonimmigrant status and
processing of future applications for U.S. immigration benefits, F and
M nonimmigrants are encouraged to retain personal copies of the
information supplied for admission, visas, passports, entry, and
benefit-related documents indefinitely.\6\ Similarly, under this
proposed rule, DHS recommends an F-2 or M-2 nonimmigrant should
separately maintain (i.e., obtain and retain) his or her academic
records. Maintenance of these records is essential to verify whether or
not the enrollment is a full course of study and protects the F-2 or M-
2 nonimmigrant's ability to prove maintenance of status and eligibility
to apply for a change of status at a future time, should that be
desired, while not adding to the reporting responsibilities of DSOs. As
F and M nonimmigrants already are encouraged to keep a number of
immigration-related records, the suggested additional maintenance of
academic records in an already existing file of immigration records
would impose minimal marginal cost. However, DHS requests comment on
the burden of storing this additional record. This proposed rule would
not extend F-2 or M-2 nonimmigrants' access to any other nonimmigrant
benefits beyond those specifically identified in regulations applicable
to F-2 or M-2 nonimmigrants. See 8 CFR 214.2(f)(15) and 8 CFR
214.2(m)(17).
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\6\ ICE encourages retention of these records in the Supporting
Statement for SEVIS, OMB No. 1653-0038, Question 7(d). Additionally,
recordkeeping by F and M nonimmigrants is encouraged in existing
regulation, in particular for the Form I-20, Certificate of
Eligibility for Nonimmigrant Student (F-1 or M-1) Status. See 8 CFR
214.2(f)(2) and 214.2(m)(2). Moreover, nonimmigrant students may
wish to retain a copy of the Form I-901, Fee Remittance for Certain
F, J, and M Nonimmigrants, as proof of payment. See generally 8 CFR
214.13(g)(3).
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V. Regulatory Analyses
We developed this proposed rule after considering numerous statutes
and executive orders related to rulemaking. Below we summarize our
analyses based on 13 of these statutes or executive orders.
A. Executive Orders 13563 and 12866: Regulatory Planning and Review
Executive Orders 13563 and 12866 direct agencies to assess the
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and
[[Page 69782]]
equity). Executive Order 13563 emphasizes the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. This rule is a ``significant regulatory
action,'' although not an economically significant regulatory action,
under section 3(f) of Executive Order 12866. Accordingly, the Office of
Management and Budget (OMB) has reviewed this regulation.
1. Summary
The proposed rule would eliminate the limit on the number of DSOs a
school may have and establish eligibility for F-2 and M-2 nonimmigrants
to engage in less than a full course of study at SEVP-certified
schools. If a particular school does not wish to add additional DSOs,
this rule would impose no additional costs on that school. Based on
feedback from the SEVP-certified schools, however, DHS believes up to
88 schools may choose to take advantage of this flexibility and
designate additional DSOs. These SEVP-certified schools would incur
costs related to current DHS DSO training and documentation
requirements. DHS estimates the total 10-year discounted cost of
allowing additional DSOs to be approximately $127,000 at a seven
percent discount rate and approximately $150,000 at a three percent
discount rate. Regarding the provision of the rule that would establish
eligibility for less than a full course of study by F-2 and M-2
nonimmigrants, DHS is once again providing additional flexibilities. As
this rule would not require the F-2 or M-2 nonimmigrant to submit any
new documentation or fees to SEVIS or the SEVP-certified school to
comply with any DHS requirements, DHS does not believe there are any
costs associated with establishing eligibility for F-2 and M-2
nonimmigrants to engage in less than full courses of study at SEVP-
certified schools.
2. Designated School Officials
The only anticipated costs for SEVP-certified schools to increase
the number of DSOs above the current limit of ten per school or campus
derive from the existing requirements for the training and reporting to
DHS of additional DSOs. DHS anticipates the number of schools that will
avail themselves of this added flexibility will be relatively small. As
of April 2012, there are 9,888 SEVP-certified schools (18,733
campuses), with approximately 30,500 total DSOs, and an average of 3.08
DSOs per school. However, there are only 88 SEVP-certified schools that
currently employ the maximum number of DSOs.
DHS is unable to estimate with precision the number of additional
DSOs schools may choose to add. While some of the 88 SEVP-certified
schools that currently employ the maximum number of DSOs may not add
any additional DSOs, others may add several additional DSOs. DHS's best
estimate is that these 88 SEVP-certified schools will on average
designate three additional DSOs, for a total of 264 additional DSOs.
DHS estimates that current training and documentation requirements for
a DSO to begin his or her position equate to seven hours total in the
first year. DHS does not track wages paid to DSOs; however, according
to the U.S. Department of Labor, Bureau of Labor Statistics, the
average wage rate for the occupation ``Office and Administrative
Support Workers, All Other'' \7\ is estimated to be $15.67 per hour.\8\
DHS welcomes public comments as to whether there is any additional
training beyond the already identified 7 hours, that may be required as
a result of this proposed rule, and also whether the average wage rate
used to calculate the costs for DSOs is reasonable. When the costs for
employee benefits such as paid leave and health insurance are included,
the full cost to the employer for an hour of DSO time is estimated at
$21.94.\9\ Therefore, the estimated burden hour cost as a result of
designating 264 additional DSOs is estimated at $40,545 in the first
year (7 hours x 264 DSOs x $21.94). On a per school basis, DHS expects
these SEVP-certified schools to incur an average of $460 dollars in
costs in the initial year (7 hours x 3 new DSOs per school x $21.94).
DHS notes that there are no recurrent annual training requirements
mandated by DHS for DSOs once they have been approved as a DSO.
---------------------------------------------------------------------------
\7\ The existing Paperwork Reduction Act control number OMB No.
1653-0038 for SEVIS uses the occupation ``Office and Administrative
Support Workers, All Other'' as a proxy for DSO employment.
\8\ May 2010 Occupational Employment and Wage Estimates,
National Cross-Industry Estimates, ``43-9799 Office and
Administrative Support Workers, All Other*,'' Hourly Mean ``H-
mean,'' Retrieved Mar. 12, 2012, from http://www.bls.gov/oes/oes_dl.htm.
\9\ Employer Costs for Employee Compensation, Dec. 2010,
Retrieved Mar. 12, 2012, from http://www.bls.gov/news.release/archives/ecec_03092011.pdf. Calculated by dividing total private
employer compensation costs of 27.75 per hour by average private
sector wage and salary costs of $19.64 per hour (yields a benefits
multiplier of approximately 1.4 x wages).
---------------------------------------------------------------------------
After the initial year, DHS expects the SEVP-certified schools that
designate additional DSOs to incur costs for replacements, as these 264
new DSOs experience normal turnover. Based on information from the
Bureau of Labor Statistics, we estimate an average annual turnover rate
of approximately 36 percent.\10\ Based on our estimate of 264
additional DSOs as a result of this rulemaking, we expect these schools
will designate 95 replacement DSOs annually (264 DSOs x 36% annual
turnover) in order to maintain these 264 additional DSOs. As current
training and documentation requirements are estimated at seven hours
per DSO, these SEVP-certified schools would incur total additional
costs of $14,590 annually (7 hours x 95 replacement DSOs x $21.94)
after the initial year. On a per school basis, DHS expects these
schools to incur an average of $165 dollars of recurring costs related
to turnover after the initial year (7 hours x 3 new DSOs per school x
36% annual turnover x $21.94).
---------------------------------------------------------------------------
\10\ Job Openings and Labor Turnover--Jan. 2011, page 5,
Retrieved Mar. 12, 2012 from http://www.bls.gov/news.release/archives/jolts_03112011.pdf reported that for 2010, annual total
separations were 35.7 percent of employment.
---------------------------------------------------------------------------
This rule will address concerns within the U.S. education community
that the current DSO limit of 10 is too constraining. For example,
allowing schools to request additional staff able to handle DSO
responsibilities will increase flexibility in school offices and enable
them to better manage their programs. This flexibility is particularly
important in schools where F and M nonimmigrants are heavily
concentrated or where instructional sites are in dispersed geographic
locations. It will also assist schools in coping with seasonal surges
in data entry requirements (e.g., start of school year reporting).
3. F-2 and M-2 Nonimmigrants
As of June 2012, SEVIS records indicate that there are 83,354 F-2
nonimmigrants in the United States, consisting of approximately 54
percent spouses and 46 percent children. Though both spouses and
children may participate in study that is less than a full course of
study at SEVP-certified schools under the proposed rule, DHS assumes
that spouses are more likely to avail themselves of this opportunity
because most children are likely to be enrolled full-time in elementary
or secondary education (kindergarten through twelfth grade). Though
there may be exceptions to this assumption, for example, a child in
high school taking a college course, the majority of F-2 nonimmigrants
benefitting from this provision are likely to be spouses. DHS only uses
this assumption to assist in estimating the number of F-2 nonimmigrants
likely to benefit from the proposed rule, which could be as high
[[Page 69783]]
as 45,011 (83,354 x 54%), if 100 percent of F-2 spouses participate,
but is likely to be lower as DHS does not expect that all F-2 spouses
would take advantage of the opportunity. DHS requests comment on these
assumptions and estimates. DHS does not believe there are any direct
costs associated with establishing eligibility for F-2 nonimmigrants to
engage in less than full courses of study at SEVP-certified schools.
The rule would not require the F-2 nonimmigrant to submit any new
documentation or fees to SEVIS or the SEVP-certified school to comply
with any DHS requirements.
As of June 2012, SEVIS records indicate that there are 578 M-2
nonimmigrants in the United States. Pursuant to this rulemaking, these
M-2 spouses and children would be eligible to take advantage of the
option to participate in study that is less than a full course of study
at SEVP-certified schools. Approximately 39 percent of M-2
nonimmigrants are spouses and 61 percent are children. Again, DHS
assumes that spouses would comprise the majority of M-2 nonimmigrants
to benefit from this provision. This number could be as high as 225 M-2
nonimmigrants (578 x 39%), but is likely to be lower as DHS does not
expect that all M-2 spouses would take advantage of the opportunity.
DHS requests comment on these assumptions and estimates. Under the same
procedures governing F-2 nonimmigrants, the M-2 nonimmigrants would not
be required to submit any new documentation or fees to SEVIS or the
SEVP-certified school to comply with any DHS requirements.
The rule would provide greater incentive for international students
to study in the United States by permitting accompanying spouses and
children of academic and vocational nonimmigrant students in F-1 or M-1
status to enroll in study at a SEVP-certified school if not a full
course of study. DHS recognizes that the United States is engaged in a
global competition to attract the best and brightest international
students to study in our schools. The ability of F-2 or M-2
nonimmigrants to have access to education while in the United States is
in many instances central to maintaining a satisfactory quality of life
for these visiting families.
3. Conclusion
The proposed rule would eliminate the limit on the number of DSOs a
school may have and establish eligibility for F-2 and M-2 nonimmigrants
to engage in less than a full course of study at SEVP-certified
schools. If a particular school does not wish to add additional DSOs,
this rule would impose no additional costs on that school. DHS believes
up to 88 schools may choose to take advantage of this flexibility and
designate additional DSOs. These SEVP-certified schools would incur
costs related to current DHS DSO training and documentation
requirements; DHS estimates the total 10-year discounted cost to be
approximately $127,000 at a seven percent discount rate and
approximately $150,000 at a three percent discount rate. DHS does not
believe there are any costs associated with establishing eligibility
for F-2 and M-2 nonimmigrants to engage in less than full courses of
study at SEVP-certified schools as this rule would not require the F-2
or M-2 nonimmigrant to submit any new documentation or fees to SEVIS or
the SEVP-certified school to comply with any DHS requirements.
The table below summarizes the total costs and benefits of the
proposed rule to allow additional DSOs at schools and permit
accompanying spouses and children of nonimmigrant students of F-1 or M-
1 status to enroll in study at a SEVP-certified school if not a full
course of study. We welcome public comments that specifically address
the nature and extent of any potential economic impacts of the proposed
amendments that we may not have identified.
----------------------------------------------------------------------------------------------------------------
Total
DSOs F-2 and M-2 nonimmigrants rulemaking
----------------------------------------------------------------------------------------------------------------
10-Year Cost, Discounted at 7%.......... $127,000.................. $0........................ $127,000
Monetized Benefits...................... N/A....................... N/A....................... N/A
Non-monetized Benefits.................. Increased flexibility in Greater incentive for
school offices to enable international students to
them to better manage study in the U.S.
their programs.
Net Benefits............................ N/A....................... N/A....................... N/A
----------------------------------------------------------------------------------------------------------------
B. Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this proposed rule would have a significant economic
impact on a substantial number of small entities. The term ``small
entities'' comprises small businesses, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. This proposed rule would eliminate the limit on the number of
DSOs a school may nominate and permits F-2 and M-2 nonimmigrants to
engage in less than a full course of study at SEVP-certified schools.
Although some of the schools impacted by these proposed changes may be
considered as small entities as that term is defined in 5 U.S.C.
601(6), the effect of this rule would be to benefit those schools by
expanding their ability to nominate DSOs and to enroll F-2 and M-2
nonimmigrants for less than a full course of study.
In the subsection above, DHS has discussed the costs and benefits
of this rule. The purpose of this rule is to provide additional
regulatory flexibilities, not impose costly mandates on small entities.
DHS again notes that the decision by schools to avail themselves of
additional DSOs or F-2 or M-2 nonimmigrants who wish to pursue less
than a full course of study is an entirely voluntary one and schools
will do so only if the benefits to them outweigh the potential costs.
In particular, removing the limit on the number of DSOs a school may
designate allows schools the flexibility to better cope with seasonal
surges in data entry requirements due to start of school year
reporting. Accordingly, DHS certifies this rule will not have a
significant economic impact on a substantial number of small entities.
DHS, however, welcomes comments on these conclusions. Members of
the public should please submit a comment, as described in this
proposed rule under ``Public Participation,'' if they think that their
business, organization, or governmental jurisdiction qualifies as a
small entity and that this proposed rule would have a significant
economic impact on it. It would be helpful if commenters provide DHS
with as much of the following information as possible. Is the
commenter's school currently SEVP-certified? If not, does the school
plan to seek certification? Please describe the type and extent of the
direct impact on the commenter's
[[Page 69784]]
school. Please describe any recommended alternative measures that would
mitigate the impact on a small school.
C. Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult the SEVP at the
FOR FURTHER INFORMATION CONTACT information above. The Department will
not retaliate against small entities that question or complain about
this rule or any policy or action of the SEVP.
D. Collection of Information
This information collection is covered under the existing Paperwork
Reduction Act control number OMB No. 1653-0038 for the Student and
Exchange Visitor Information System (SEVIS). This proposed rule would
call for no new collection of information under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501-3520).
E. Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this proposed rule
under that Order and have determined that it does not have implications
for federalism.
F. Unfunded Mandates Reform Act
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 (adjusted for inflation) or more in any one year, and it will
not significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
G. Taking of Private Property
This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference With Constitutionally Protected
Property Rights.
H. Civil Justice Reform
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this proposed rule under Executive Order 13045,
Protection of Children From Environmental Health Risks and Safety
Risks. This rule is not an economically significant rule and would not
create an environmental risk to health or risk to safety that might
disproportionately affect children.
J. Indian Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination With Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
K. Energy Effects
We have analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order, because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
L. Technical Standards
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
with an explanation of why using these standards would be inconsistent
with applicable law or otherwise impractical. Voluntary consensus
standards are technical standards (e.g., specifications of materials,
performance, design, or operation; test methods; sampling procedures;
and related management systems practices) that are developed or adopted
by voluntary consensus standards bodies. This proposed rule does not
use technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
M. Environment
U.S. Department of Homeland Security Management Directive (MD) 023-
01 establishes procedures that the Department and its components use to
comply with the National Environmental Policy Act of 1969 (NEPA), 42
U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ)
regulations for implementing NEPA, 40 CFR Parts 1500-1508. CEQ
regulations allow federal agencies to establish categories of actions
that do not individually or cumulatively have a significant effect on
the human environment and, therefore, do not require an Environmental
Assessment or Environmental Impact Statement. 40 CFR 1508.4. The MD
023-01 lists the Categorical Exclusions that the Department has found
to have no such effect. MD 023-01 app. A tbl.1.
For an action to be categorically excluded, MD 023-01 requires the
action to satisfy each of the following three conditions:
(1) The entire action clearly fits within one or more of the
Categorical Exclusions;
(2) The action is not a piece of a larger action; and
(3) No extraordinary circumstances exist that create the potential
for a significant environmental effect. MD 023-01 app. A Sec. 3.B(1)-
(3).
Where it may be unclear whether the action meets these conditions,
MD 023-01 requires the administrative record to reflect consideration
of these conditions. MD 023-01 app. A Sec. 3.B.
Here, the proposed rule would amend 8 CFR parts 214.2 and 214.3
relating to the U.S. Immigration and Customs Enforcement Student and
Exchange Visitor Program. This proposed rule would remove the
regulatory cap of ten designated school officials per campus
participating in the SEVP and would permit certain dependents to enroll
in less than a full course of study at SEVP-certified schools.
ICE has analyzed this proposed rule under MD 023-01. ICE has made a
preliminary determination that this action is one of a category of
actions that do not individually or cumulatively have a significant
effect on the human environment. This proposed rule clearly fits within
the Categorical Exclusion found in MD 023-01, Appendix A, Table 1,
number A3(d): ``Promulgation of rules . . . that interpret or amend an
existing regulation without changing its environmental effect.'' This
proposed rule is not part of a larger action. This proposed rule
presents no extraordinary circumstances creating the potential for
significant environmental effects.
[[Page 69785]]
Therefore, this proposed rule is categorically excluded from further
NEPA review.
ICE seeks any comments or information that may lead to the
discovery of any significant environmental effects from this proposed
rule.
List of Subjects in 8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
For the reasons discussed in the preamble, DHS proposes to amend
Chapter I of Title 8 of the Code of Federal Regulations as follows:
PART 214 -- NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec.643, Pub. L. 104-208, 110
Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; 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; 48 U.S.C. 1806; 8 CFR part 2.
0
2. In Sec. 214.2 revise paragraph (f)(15)(ii) and paragraph
(m)(17)(ii) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(f) * * *
(15) * * *
(i) * * *
(ii) Study.
(A) F-2 post-secondary/vocational study.
(1) Authorized Study at SEVP-Certified Schools. An F-2 spouse or F-
2 child may enroll in less than a full course of study, as defined in 8
CFR 214.2(f)(6)(i)(A)-(D) and 8 CFR 214.2(m)(9)(i)-(iv), in any course
of study described in 8 CFR 214.2(f)(6)(i)(A)-(D) or 214.2(m)(9)(i)-
(iv) at an SEVP-certified school. Notwithstanding 8 CFR
214.2(f)(6)(i)(B) and 8 CFR 214.2(m)(9)(i), study at an undergraduate
college or university or at a community college or junior college is
not a full course of study solely because the F-2 nonimmigrant is
engaging in a lesser course load to complete a course of study during
the current term. An F-2 spouse or F-2 child enrolled in less than a
full course of study is not eligible to engage in employment pursuant
to paragraphs (9) and (10) of this subsection.
(2) Full Course of Study. Subject to paragraph (f)(15)(ii)(B) and
(18), an F-2 spouse and child may engage in a full course of study only
by applying for and obtaining a change of status to F-1, M-1 or J-1
nonimmigrant status, as appropriate, before beginning a full course of
study. However, an F-2 spouse and child may engage in study that is
avocational or recreational in nature, up to and including on a full-
time basis.
(B) F-2 elementary or secondary study. An F-2 child may engage in
full-time study, including any full course of study, in any elementary
or secondary school (kindergarten through twelfth grade).
(C) An F-2 spouse and child violates his or her nonimmigrant status
by enrolling in any study except as provided in paragraph
(f)(15)(ii)(A)(2) or (B) of this section.
* * * * *
(m) * * *
(17) * * *
(i) * * *
(ii) Study.
(A) M-2 post-secondary/vocational study.
(1) Authorized Study at SEVP-Certified Schools. An M-2 spouse or M-
2 child may enroll in less than a full course of study, as defined in 8
CFR 214.2(f)(6)(i)(A)-(D) or 214.2(m)(9)(i)-(v), in any course of study
described in 8 CFR 214.2(m)(9)(i)-(v) at an SEVP-certified school.
Notwithstanding 8 CFR 214.2(f)(6)(i)(B) and 8 CFR 214.2(m)(9)(i), study
at an undergraduate college or university or at a community college or
junior college is not a full course of study solely because the M-2
nonimmigrant is engaging in a lesser course load to complete a course
of study during the current term. An M-2 spouse or M-2 child enrolled
in less than a full course of study is not eligible to engage in
employment pursuant to paragraph (14) of this subsection.
(2) Full Course of Study. Subject to paragraph (m)(17)(ii)(B), an
M-2 spouse and child may engage in a full course of study only by
applying for and obtaining a change of status to F-1, M-1, or J-1
status, as appropriate, before beginning a full course of study.
However, an M-2 spouse and M-2 child may engage in study that is
avocational or recreational in nature, up to and including on a full-
time basis.
(B) M-2 elementary or secondary study. An M-2 child may engage in
full-time study, including any full course of study, in any elementary
or secondary school (kindergarten through twelfth grade).
(C) An M-2 spouse or child violates his or her nonimmigrant status
by enrolling in any study except as provided in paragraph
(m)(17)(ii)(A) or (B) of this section.
* * * * *
0
3. Revise section 214.3 paragraph (l)(1)(iii) to read as follows:
Sec. 214.3 Approval of schools for enrollment of F and M
nonimmigrants.
(l) * * *
(1) * * *
(i) * * *
(ii) * * *
(iii) School officials may nominate as many DSOs in addition to
PDSOs as they determine necessary to adequately provide recommendations
to F and/or M students enrolled at the school regarding maintenance of
nonimmigrant status and to support timely and complete recordkeeping
and reporting to DHS, as required by this section. School officials
must not permit a DSO or PDSO nominee access to SEVIS until DHS
approves the nomination.
* * * * *
Rand Beers,
Acting Secretary of Homeland Security.
[FR Doc. 2013-27898 Filed 11-20-13; 8:45 am]
BILLING CODE 9111-28-P