[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Proposed Rules]
[Pages 71323-71331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32842]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103, 214, and 299
[INS No. 1991-99]
RIN 1115-AF56
Authorizing Collection of the Fee Levied on F, J, and M
Nonimmigrant Classifications Under Public Law 104-208
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: This rule proposes to amend the Immigration and Naturalization
Service's (Service) regulations to: Establish a $95 fee, that schools
and exchange visitor programs must collect and remit on behalf of F-1,
J-1, and M-1 nonimmigrants who are subject to this
[[Page 71324]]
fee when they first register or enroll in school or first commence
exchange program participation in the United States; explain which F-1,
J-1; and M-1 nonimmigrants are required to pay the fee; describe the
consequences that an F-1, J-1, or M-1 nonimmigrant faces upon failure
to pay the fee; specify the consequences that an approved school or
exchange program faces if it fails to collect the fee and remit it to
the Service; and to specify which F-1, J-1, and M-1 nonimmigrants are
exempt from the fee.
This rule is necessary to implement section 641 (regarding the
Program to Collect Information Relating to Nonimmigrant Foreign
Students and Other Exchange Program Participants) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
as well as the authority that the Service already has under sections
103 (regarding the Powers and Duties of the Commissioner of the
Service) and 214 (regarding Admission of Nonimmigrants) of the
Immigration and Nationality Act (Act) and under 31 U.S.C. 9701 and
section 286(m) of the Act.
DATES: Written comments must be submitted on or before February 22,
2000.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC
20536. To ensure proper handling, please references INS No. 1991-99 on
your correspondence. Comments are available at the above address by
calling (202) 514-3048 to arrange for an appointment.
FOR FURTHER INFORMATION CONTACT: Kristen L. Casa or Song Park, Program
Analysts, or Maurice R. Berez, Adjudications Officer, Adjudications
Division, Immigration and Naturalization Service, 415 I Street NW.,
Room 3214, Washington, DC 20536, telephone (202) 514-3228.
SUPPLEMENTARY INFORMATION:
Who are F, J, and M Nonimmigrants?
The Act provides for the admission of different classes of
nonimmigrants. The purpose of the nonimmigrant's intended stay in the
United States determines his or her proper nonimmigrant classification.
Some classifications permit the nonimmigrant's spouse and qualifying
child(ren) to accompany the nonimmigrant to the United States, or to
join the nonimmigrant here. To qualify, a child must be unmarried and
under the age of 21.
The F-1 nonimmigrants are foreign nationals enrolled as students in
Service-approved colleges, universities, seminaries, conservatories,
academic high schools, private elementary schools, other academic
institutions, and in language training programs in the United States.
For the purposes of this regulation, the term school refers to all of
these types of Service-approved institutions. An F-2 nonimmigrant is a
foreign national who is the spouse or qualifying child of an F-1
student.
The J-1 nonimmigrants are foreign nationals who have been selected
by a United States Information Agency (USIA) designated sponsor to
participate in an exchange visitor program in the United States. A J-2
nonimmigrant is a foreign national who is the spouse or qualifying
child of a J-1 exchange visitor.
The M-1 nonimmigrants are foreign nationals enrolled as students in
Service-approved vocational or other recognized nonacademic
institutions, other than in language training programs in the United
States. The term school also encompasses those institutions attended by
M-1 students for the purpose of this proposed rulemaking. An M-2
nonimmigrant is a foreign national who is the spouse or qualifying
child of an M-1 student.
What are institutions of higher education and designated exchange
visitor programs?
Section 641 of the IIRIRA refers to institutions of higher
education approved by the Service in consultation with the Department
of Education (ED) and exchange visitor programs designated by the USIA.
In consultation with the ED and the USIA, the Service has determined
definitions for the terms institution of higher education and
designated exchange visitor program drawing on generally accepted
definitions of these terms as well as definitions contained in the
Higher Education Act and other Service and USIA regulations. For the
purpose of this rule, institutions of higher education include those
defined as such under section 101(a) of the Higher Education Act of
1965; designated exchange visitor programs are those entities
designated pursuant to 22 CFR 514.6 by the USIA as authorized to bring
nonimmigrants to the United States to participate in a program
designated under section 101(a)(15)(J) of the Act and further
designated by the Service for the mandated reporting process.
Why is the Service proposing to collect information relating to
nonimmigrant foreign students and other exchange program
participants?
On September 30, 1996, President Clinton signed into law the
IIRIRA, Pub. L. 104-208, Division C. Subtitle D of Title VI of the
IIRIRA amended the Act and added new statutory provisions relating to
nonimmigrants admitted to or applying for classification under section
101(a)(15) (F), (J), and (M) of the Act. Section 641(a)(1) of the
IIRIRA, in particular, directs the Attorney General, in consultation
with the Secretary of State and the Secretary of Education, to develop
and conduct a program to collect information on nonimmigrant foreign
students and exchange visitors from approved institutions of higher
education and designated exchange visitor programs.
Independent of the requirements of section 641 of the IIRIRA, the
Service collects information on nonimmigrant students from educational
institutions pursuant to the authority under sections 103 and 214 of
the Act. These sections, that the Attorney General has delegated to the
Service, give the Service authority to establish regulations governing
the admission of nonimmigrants. Under this authority, the Service
requires educational institutions to maintain records on nonimmigrant
students and to provide information from the records to the Service
upon request of the Service. To the extent that these record collection
activities cause the Service to expend appropriated funds and yield
particularized benefits to program participants, 31 U.S.C. 9701
requires the Service to assess a fee for providing the benefit.
This proposed rule, therefore, rests on the authority that the
Service exercises under section 103 and 214 of the Act, as well as
section 641 of the IIRIRA.
Who will be included in the program to collect information relating
to nonimmigrant foreign students and other exchange program
participants?
The Service intends to include F-1, J-1, and M-1 nonimmigrants at
all educational levels in this program. Section 641 of the IIRIRA, by
its terms, expressly applied this reporting program to F-1 and M-1
students enrolled in institutions of higher education and to J-1
exchange visitors in all USIA designated exchange visitor programs that
the Attorney General selected for inclusion in the program. As noted,
however, sections 103 and 214 of the Act also authorize the collection
of this information. The Service anticipates that it will be better
[[Page 71325]]
able to serve all F-1, J-1, and M-1 immigrants as a result of this
program. For example, the information to be collected will assist the
Service and school or exchange visitor program in determining whether
the F-1, J-1, or M-1 nonimmigrant has maintained his or her lawful
nonimmigrant status. This information is important in the determination
of the nonimmigrant's eligibility for permanent residence or other
immigration benefits. Thus, the inclusion of all F-1, J-1, and M-1
nonimmigrants in this information collection program will benefit the
nonimmigrants themselves, as well as schools, exchange visitor
programs, and the Service.
It is the Service's desire to understand the needs and concerns of
the educational community to the best of its ability while completely
fulfilling its statutory requirements and obligations. The Service
would encourage and welcome comment from the educational community
regarding its proposal to include F-1, J-1, and M-1 nonimmigrants at
all educational levels in this program.
Why is the Service proposing a fee?
Section 641(e) of the IIRIRA requires that a Service-approved
institution of higher education and a USIA designated exchange visitor
program shall impose and collect a fee from each F-1 and
M-1 student and each J-1 exchange visitor identified under section
641(e)(3) of the IIRIRA to support the described information collection
program. Just as section 641 of the IIRIRA is not the only statutory
basis for this program, section 641(e) of the IIRIRA is not the only
statutory basis for assessing a fee. Under 31 U.S.C. 9701, the Service
must assess a fee for the participation in any program that affords a
particular benefit to an identifiable recipient. As noted, the Service
intends this program to benefit all F-1, J-1, and M-1 nonimmigrants by
creating a process for verifying their satisfactory compliance with the
conditions of their status. Since the program will benefit all of these
nonimmigrants and the schools and exchange visitor programs in which
they enroll, all F-1, J-1, and M-1 nonimmigrants, except those
specifically identified in the proposed rule, will, pursuant to 31
U.S.C. 9701, be subject to the fee. Under the first exception, J-1
nonimmigrants who participate in exchange programs sponsored by the
Federal Government will not have to pay the fee. This exception is
required by section 641(e)(3) of the IIRIRA.
Under the second exception, the Service has determined that it
should not impose the fee on F-1 and M-1 nonimmigrants who are enrolled
in private academic high schools or in other approved schools that are
not ``institutions of higher education'' as defined in section 101(a)
of the Higher Education Act of 1965, as amended. (It should be noted
that attendance of public elementary schools is prohibited for F-1 and
M-1 nonimmigrants under section 625 of the IIRIRA. Therefore, public
elementary schools are not addressed in this rulemaking.)
Section 641(e)(4)(B) of the IIRIRA does not clearly authorize the
Service to deposit to the Examinations Fee Account the fees that would
be paid under this proposed rule by schools on behalf of F-1 and M-1
students who are not enrolled in approved institutions of higher
education. Exempting these students is consistent with 31 U.S.C. 9701
because the Service believes that the funds that could be collected
from these nonimmigrants would not justify the costs of collecting and
accounting for the fees.
The Service invites comments on how it plans to impose the mandated
fee through this proposed rule. In addition, comments are invited
regarding who will be subject to the fee and who may be exempt from the
fee.
How will the Service handle the fees it collects?
The general principle, set forth in section 286(c) of the Act, is
that, except for fees collected from persons living in Guam or the
Virgin Islands, the Service, as the Attorney General's delegate, must
deposit with the Department of Treasury as miscellaneous receipts all
filing fees and other fees. Section 641(e)(4)(B) of the IIRIRA permits
the Service, as the Attorney General's delegate, to deposit the fees
that the Service would collect under this proposed rule into the
Examinations Fee Account established under section 286(m) of the Act.
Under section 641(h) of the IIRIRA, only those F-1 and M-1
nonimmigrants who are enrolled in approved institutions of higher
education and those J-1 nonimmigrants who participate in designated
exchange programs that the Service has selected for participation in
the program are within the scope of section 641 of the IIRIRA. Since
the Service has selected all approved institutions of higher education
and all designated exchange programs for participation in this program,
the Service will deposit to the Examinations Fee Account all fees paid
under this proposed rule.
What variables were used in determining the fee?
The Service conducted a fee study that considered all of the costs
incurred as a result of the foreign student and exchange visitor
information collection program in order to determine the amount of the
fee. Initially, section 641(e)(4)(A) of the IIRIRA sets the maximum
permissible fee at $100. The amount of the proposed fee is $95. The
amount of the fee is subject to change in the future based upon
periodic review and analysis of the cost of conducting the information
collection program, as required in section 641(f)(2) of the IIRIRA. The
following discussion provides a description of the calculation of the
fee.
The proposed fee was calculated based on the program and system
costs and the estimated population base of covered fee payers. The
calculated costs include those expenses incurred by the Government to
develop, produce, deploy, operate, and maintain the program and system.
In addition, the proposed fee will cover the costs associated with the
creation and population of new positions required to support this
program.
The revenue from the proposed fee will also cover the costs of
technical and program support that the Government needs to administer
benefits and to monitor schools, program sponsors, students, and
exchange visitors solely for the purpose of this reporting program. In
addition, a portion of the revenue from the proposed fee will be used
for the direct support of Service operations relating to student and
exchange visitor-related activities.
Program Costs
For the Fee Study, program costs were defined and organized into
nonrecurring costs and recurring costs.
Nonrecurring Costs
The following include the nonrecurring costs that total $12.3
million:
Development: Development costs are associated with
designing and developing the new program and associated system. The
system will utilize an Internet-based processing approach, with
electronic data transfer and electronic ``event'' notifications, to
maintain accurate electronic files on foreign students and exchange
visitors. School and exchange sponsors will submit to the Service, via
the Internet, ongoing electronic ``event'' notifications throughout the
individual's program in the United States. These notifications, made
electronically through the system,
[[Page 71326]]
will immediately inform the Service of changes in student or exchange
visitor status. The system is ultimately expected to improve the
timeliness for benefits processing as well as the accuracy of the
information used for processing foreign students and exchange visitors
from point of visa issuance, admission to the United States, and
throughout the course of their stay in the United States while pursuing
their program of education or exchange. System development will begin
after successful completion of the operational prototype. The Service
will incur system development costs from 1999 through 2001. These costs
include system and application design, development, integration,
applications testing, and verification and validation.
Deployment: Deployment funds will be expended to deliver
and install the new national system software at designated Service
regional offices (SROs), district offices (DOs), service centers (SCs),
ports-of-entry (POEs), Service Headquarters, DOS Headquarters and DOS
Consular Posts, U.S. Information Service (USIS) Offices, and the United
States Customs Service (USCS).
Development and deployment nonrecurring costs span several years
beyond fiscal Year (FY) 2001 at varying funding levels. For example,
the Service, in partnership with the USCS and DOS (including USIA
functions merged into DOS), will incur deployment expenses in FY 2002
and FY 2003. Partnership with USCS is necessary as the Service shares
information technology with that agency at POEs throughout the country,
and deployment of the program would not be complete without linkage to
these share systems. Subsequent fee studies will include cost
projections for the years beyond FY 2001 and may result in an
adjustment to the fee amount.
Recurring Costs
These recurring costs which total approximately $31 million are
provided for the period October 1, 1999, through September 30, 2001 and
consist of the following:
Service Personnel costs include funding support staff at
Service Headquarters, DOS Headquarters (for DOS and USIA expenditures
relating to work performed by DOS and USIA personnel to meet this new
Service requirement, including, but not limited to, USIA functions
merged into DOS), Service field offices, and Help Desk customer
support.
System Operations and Maintenance (O&M) costs include
expenses for ongoing operational support for the current operational
electronic reporting prototype and a planned Beta test of the national
electronic reporting program and system, including software and
equipment maintenance, such as server maintenance.
Program operations include those costs for full-scale
Program operation, such as the Operations Help Desk, coordination with
schools/programs, staffing Service offices and other Government
agencies, and computer system processing. These costs include, but are
not limited to, Service Headquarters and contract support.
Overhead costs relate to the management and administrative
(M&A) costs to support the planned electronic reporting program.
Calculation of the student/exchange visitor program contribution is
based upon comparing resources between the entire Service as an agency
and the information collection program for foreign students and
exchange visitors. An allocation was calculated based upon the
proportion of the program resources to total Service resources.
The cost projections use FY 1999 through FY 2001 budget estimates
as the base for determining the full cost to design and deploy the
program.
The Service is estimating the fee as proposed in this rule to be
$95, and invites comments on this proposed fee amount.
How was the user fee population base calculated?
The statute specifies that certain nonimmigrants are subject to the
proposed fee as follows: students and exchange visitors in the F-1, J-
1, and M-1 nonimmigrant categories. By statute, the only nonimmigrants
exempted from the fee are J-1 exchange visitors who are participants in
a program sponsored by the Federal Government and, as discussed above,
the Service has also exempted F-1 and M-1 nonimmigrants enrolled in
private elementary schools and public or private academic high schools.
The remainder of nonimmigrants in the F-1, J-1, and M-1 nonimmigrant
categories are subject to the proposed fee. For the purposes of this
regulation, the only students and exchange visitors who will be
required to pay the proposed fee will be those who have a program start
date occurring on or after August 1, 1999.
In the user base calculation, the proposed fee is levied on new
students and exchange visitors whose programs begin on or after August
1, 1999. In subsequent years, those initial students or exchange
visitors who transfer into a new school, institution or program, or
change program category will again pay the proposed fee to their new
school, institution, or program for remittance on their behalf by the
new school, institution or exchange visitor program. Upon transfer they
will be paying as new students or exchange visitors in the new school,
institution, program or category, together with the initial students
and exchange visitors admitted each year. The user base, including all
F-1, J-1, and M-1 nonimmigrants, was calculated to the approximately
251,000 in both FY 2000 and FY 2001. The total population for this 2-
year period is 501,000 paying students and exchange visitors.
How were enrollment figures projected?
Available data was analyzed based on trends experienced by the
Service in other programs as well as trends projected by the aggregate
totals estimated for students and exchange visitors. The analysis also
reflects the following assumptions.
The student and exchange visitors population base will not
change dramatically over the next 2 years (2000 and 2001).
The data on the student and exchange visitor population
found in the 1996 Statistical Yearbook for the Immigration and
Naturalization Service and the Institute for International Education's
(IIE) ``Open Doors 1996-1997'' publication are the best available data
at present.
The USIA-provided data on the exchange visitor population
are the best available.
A portion of the student/exchange visitor population is
not subject to the proposed fee.
When must a school or exchange visitor program collect and remit
the fee?
For those F-1, J-1, and M-1 nonimmigrants who are subject
to the fee and who first register at a school, commence participation
in an exchange visitor program, transfer to a new school/program, or
change exchange visitor category between August 1, 1999, and the date
on which the Service publishes the final rule in the Federal Register,
the fee must be collected and remitted to the Service by not later than
the end of a grace period, to be specified by the Service, after the
date of publication of the final rule. The Service invites comments and
suggestions as to the amount of time that would constitute an adequate
and reasonable grace period for students and exchange visitors who
qualify as outlined above in this paragraph.
For those F-1, J-1, and M-1 nonimmigrants who are subject
to the
[[Page 71327]]
fee and who first register at a school, commence participation in an
exchange visitor program, transfer to a new school/program, or change
exchange visitor category after the date on which the Service publishes
the final rule in the Federal Register, the fee must be collected and
remitted to the Service not later than 90 calendar days from the first
date cited in block 5 of the Form I-20 or block 3 of the Form IAP-66.
A detailed description and set of procedures delineating the entire
payment remittance process, including the provision for a grace period
as described above, and the definition of a valid form of payment will
be provided in a Federal Register Notice that will be published
concurrently with the final rule.
Under what circumstances must an
F-1, J-1 or M-1 nonimmigrant pay the fee again?
The fee must be paid whenever a new Form I-20, Certificate of
Eligibility for a Nonimmigrant Academic or Vocational Student, or a new
Form IAP-66, Certificate of Eligibility for an Exchange Visitor, is
issued by a Service approved school or a designated exchange program
for any of the following purposes to an F-1, J-1, or M-1 nonimmigrant
who is subject to the fee:
Transfer to a new school/exchange visitor program;
Commencement of a new program after completion of the
initial program; or
Change of exchange visitor category.
Under the above three circumstances, the proposed fee must be
collected and remitted by the school or exchange visitor program not
later than 90 days after:
The report date indicated in block 5 of the new Form I-20,
Certificate of Eligibility for Nonimmigrant Student Status, for F-1 and
M-1 students, or
The begin date indicated in block 3 of the new Form IAP-
66, Certificate of Eligibility for Exchange Visitor Status, for J-1
exchange visitors.
Who is responsible for collection and remittance of the fee to the
Service?
Section 641(e) of the IIRIRA stipulates that ``an approved
institution of higher education and a designated exchange visitor
program ``must collect the proposed fee from each F-1, J-1, and M-1
nonimmigrant who is subject to the fee and must then remit the fees to
the Service. Each approved institution or program that is subject to
this requirement, therefore, must actually collect and remit the fees.
The Service recognizes that this aspect of the law gives rise to
concerns among members of the educational community and other
stakeholder groups. Predominant among these concerns are a perceived
expansion in the role of the Designated School Official/Responsible
Officer (DSO/RO) as an agent of the Federal Government, and the short
timeline provided for public institutions to coordinate with State
educational authorities and local governments to authorize them to
assume the proposed fee collection and remittance responsibility.
To meet its responsibility under this proposal, the institution,
school, or exchange program must:
Establish a means to collect, remit, and account for all
fees collected from nonimmigrants who are subject to the fee;
Inform each F-1, J-1, or M-1 nonimmigrant who is subject
to the fee of his/her obligation to pay the fee;
Verify that a Form I-901 has been completed, either
manually or electronically, by or in behalf of each
F-1, J-1, or M-1 nonimmigrant who is subject to the fee;
Collect the required fee from each F-1, J-1, or M-1
nonimmigrant who is subject to the fee;
Remit the form and fee together to the Service in
accordance with Sec. 103.2(a); and
Verify fee payment as a prerequisite for any and all
administrative or benefit applications through the DSO/RO, or to the
Service subsequent to commencement of the program.
For example, a DSO or RO must verify that any F-1, J-1, or M-1
nonimmigrant who is subject to the fee has paid the fee before the DSO
or RO may take any of the following actions: endorsing a Form I-20 or
Form IAP-66; recommending to the Service/USIA that a benefit be
granted; or granting a benefit to a student/exchange visitor through
authority that has been delegated by Government regulation. It should
be noted that failure by a DSO or RO to comply with these requirements
may constitute grounds for withdrawal of school approval or program
designation under existing Service regulations at 8 CFR 214.4(a) and
USIA regulations at 22 CFR 514.60.
The Service welcomes and encourages comment from the educational
community on this entire regulation, particularly in regard to the
proposed requirement that schools and exchange visitor programs collect
and remit the fee. It is the Service's desire to understand and meet
the needs of the educational community to the best of its ability while
completely fulfilling its statutory requirements and obligations.
How will the fee be remitted to the Service?
Service-approved schools and USIA designated exchange visitor
programs will collect the proposed fee when an F-1, J-1, or M-1
nonimmigrant who is subject to the fee first registers, enrolls, or
transfers into a program of study at the school, or changes exchange
visitor category, or begins participation in the designated exchange
visitor program. If an F-1, J-1, or M-1 nonimmigrant who is subject to
the fee transfers to a new school or program, or otherwise commences a
new program or changes category, the nonimmigrant will once again be
subject to the proposed fee, even if the same institution conducts the
new program. The following instances are examples provided for
reference:
If a nonimmigrant F-1 student in a bachelor degree program
at university ``A'' transfers to university ``B'' to continue to pursue
his/her bachelors degree at university ``B,'' university ``B'' would be
required to collect and remit the proposed fee on behalf of the F-1
student.
Two additional examples would be if a nonimmigrant student
completes his/her undergraduate course of studies, and then enters a
graduate program at the same university, or if a J-1 exchange visitor
changes category from a research scholar to a student at the same
institution, the school, or exchange visitor program must again collect
and remit the proposed fee on behalf of the described nonimmigrant.
Because section 641(e)(1) mandates that the Service receive the
proposed fee through the school or exchange visitor program only at the
time the nonimmigrant first registers or first commences participating
in the exchange, the amount of the proposed fee will be set to recover
the cost of providing the services related to section 641 of the
IIRIRA, based on the average length of an F-1, J-1, or M-1
nonimmigrant's program in the United States. If a particular
nonimmigrant leaves earlier, the Service will not refund the balance of
the proposed fee.
Form I-901 will be available to schools and designated exchange
programs from the Service's website. Valid payment of the fee is
required in order for an F-1, J-1, or M-1 nonimmigrant who is subject
to the fee to maintain status. However, payment of the proposed fee
alone does not create or maintain F-1, J-1, or M-1 status for any
nonimmigrant who is subject to the fee and who fails to comply fully
with all applicable regulations under 8 CFR
[[Page 71328]]
214.2(f), 214.2(j), 214.2(m), and 22 CFR part 514.
Will the Service furnish a receipt to paying nonimmigrants?
Yes. As evidence of payment, a receipt will be furnished to both
the institution or exchange visitor program collecting and remitting
the fee as well as to each F-1, J-1, and M-1 nonimmigrant who is
subject to and has paid the fee. The receipt must be retained and
produced by the student, exchange visitor, school, or program upon
request by the Service. A detailed description and set of procedures
delineating the entire payment remittance process and definition of
valid form of payment will be provided in a Federal Register Notice
that will be published concurrently with the final rule.
What happens if a school or exchange visitor program fails to
collect and remit the fee on behalf of an F-1, J-1, or M-1
nonimmigrant who is subject to the fee?
Failure to collect and remit the fee as required will result in the
nonimmigrant's loss of status. For any nonimmigrant who is subject to
the fee, formal reinstatement will be necessary in order to regain
lawful nonimmigrant status as an F-1 or M-1 student and valid program
status as a J-1 exchange visitor. Application for reinstatement should
be conducted as prescribed at Sec. 214.2(f)(16), 62 FR 19925, and
Sec. 214.2(m)(16) for F, J, and M nonimmigrants respectively.
In addition, a copy of the receipt evidencing payment of the fee
must also be included as supporting evidence of valid status with all
subsequent applications for benefits. This includes benefits
authorized, recommended or endorsed by a DSO or RO as well as
applications for benefits filed with the Service by an F-1, J-1, or M-1
nonimmigrant who is subject to the fee, and/or his/her dependents, or
with USIA by a J-1 nonimmigrant and/or his/her dependents.
An F-1, J-1, or M-1 nonimmigrant who is subject to the fee would be
required to provide a copy of his/her receipt evidencing payment of the
proposed fee in order to apply for benefits that include, but are not
limited to: change of status, authorization for curricular practical
training, recommendation for and authorization of optional practical
training, recommendation for employment authorization based on severe
economic hardship, reduction in course load, extension in program
length, authorization for off-campus employment, endorsement for
academic training, and application for reinstatement.
Failure by an authorized institution or designated exchange visitor
program to impose, collect, and remit the fee may also result in
withdrawal of school approval from the Service to issue Form I-20 under
8 CFR 214.4(a) or termination of program designation by USIA under 22
CFR 514.60. The Service in cooperation with USIA may decide to review
fee payer data against various government and school records to analyze
compliance by schools, exchange programs, students, and exchange
visitors. The Service may bill schools or exchange visitor sponsors for
fees not remitted.
Who is exempt from the fee?
The only nonimmigrants in F, J, and M status exempt from the fee
are:
J-1 nonimmigrants who come to the United States as
participants in programs sponsored by the Federal Government,
F-1 and M-1 nonimmigrants enrolled in private elementary
schools and public or private academic high schools, and
F-2, J-2, and M-2 dependents.
If the fee is remitted in error by any nonimmigrant, it will not be
refunded.
Regulatory Flexibility Act
The Commissioner, in accordance with the Regulatory Flexibility Act
(15 U.S.C. 605(b)), has reviewed this regulation and, by approving it,
certifies that this rule will not have a significant economic impact on
a substantial number of small entities. The regulation levies an annual
fee in the amount of $95 on nonimmigrant students and exchange visitors
initially arriving or continuing a program in the United States. The
volume of fee payers expected is approximately 251,000 in each of the
first 2 years of program operation. The total projected revenues for
each fiscal year, therefore, amount to approximately $24 million.
Individuals as opposed to small businesses file these applications.
Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, and tribal governments, in the aggregate, or by the private
sector, or $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 proposed 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 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 United States-based companies to compete with foreign-
based companies in domestic and export markets.
Assessment of Regulatory Impact on the Family
As provided by section 654 of the 1999 Treasury and General
Government Appropriations Act, Pub. L. 105-277, Division A, 101(h), 112
Stat. 2681-528, the Commissioner has determined that this proposed rule
will not have an adverse impact on the strength or stability of the
family.
Executive Order 12866
This proposed rule is considered by the Department of Justice,
Immigration and Naturalization Service, 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.
While the economic impact of this proposed rule is expected to be an
annual revenue approximately $23.87 million to the Service, such an
impact does not meet the threshold to be considered economically
significant as specified under Executive Order 12866.
Executive Order 13132
This proposed rule will not have substantial direct effects on the
States, or 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 survey impact statement.
Executive Order 12988 Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
The information required by the proposed Form I-901, Fee Remittance
[[Page 71329]]
Form for Certain F-1, J-1, and M-1 Nonimmigrants, is considered an
information collection and subject to review and clearance under the
Paperwork Reduction Act procedures. The information collection
requirement contained in this rule has been submitted to the OMB under
the Paperwork Reduction Act for review and approval. The OMB control
number for this collection is contained in 8 CFR 299.5, Display of
control numbers.
Since the rulemaking action needs to be completed in an expedited
manner to comply with statutory mandates, the Service is providing for
the review of the form I-901 as part of the proposed rule. Therefore,
the Service solicits public comments for 60 days on the information
collection requirement in order to:
Evaluate whether the proposed collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
Evaluate the accuracy of the agency's estimate of the
burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhance the quality, utility, and clarity of the
information to be collected; and
Minimize the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The Service, in calculating the overall burden this requirement
will place upon the public, estimates that approximately 251,000 forms
will be submitted annually. The Service also estimates that it will
take a given nonimmigrant approximately 19 minutes to comply with the
requirements. This calculation amounts to 79,483 total burden hours.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, the Service has submitted a copy of this proposed rule to OMB for
its review of the information requirement. Other organizations and
individuals interested in submitting comments regarding this burden
estimate or any aspect of this information collection requirement,
including suggestions for reducing the burden should direct them to:
Stuart Shapiro, OMB, Office of Information and Regulatory Affairs, 725
17th Street, NW., Washington, DC 20503, and Director, Policy Directives
and Instructions Branch, Immigration and Naturalization Service, 425 I
Street, NW., Room 5307, Washington, DC 20536. The comments or
suggestions should be submitted within 60 days of publication of this
rulemaking.
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 recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS: AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552(a): 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. In Sec. 103.7, paragraph (b)(1) is amended by adding the entry
for ``Form I-901'' to the listing of fees, in proper numerical
sequence, to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-901. for remittance of the fee levied on specified F-1, J-1,
and M-1 nonimmigrant aliens required under section 641(e) of Public Law
104-208--$95. This fee may not be waived.
* * * * *
PART 214--NONIMMIGRANT CLASSES
3. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221,
1281, 1282; 8 CFR part 2.
4. Section 214.2 is amended by:
a. Adding a new paragraph (f)(17);
b. Adding a new paragraph (j)(5);
c. Adding a new paragraph (m)(18), to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(f) * * *
(17) Remittance of the fee. (i) An
F-1 nonimmigrant who begins a program of study at a Service-approved
institution of higher education, as defined in section 101(a) of the
Higher Education Act of 1965, as amended, on or after August 1, 1999,
is subject to a fee payable to the Service. The fee and Form I-901, Fee
Remittance Form for Certain F-1, J-1, and M-1 Nonimmigrants, will be
collected and remitted to the Service by the school on behalf of the F-
1 student. The fee will be due 90 days from publication of a final rule
in the Federal Register or 90 days after the first date appearing in
block 5 of the Form I-20, whichever date is later. An F-1 nonimmigrant
described in paragraph (f)(17)(v) of this section is not subject to
this fee.
(ii) A Service-approved school must collect the fee from an F-1
nonimmigrant described in paragraph (f)(17)(i) of this section when he
or she first registers at the school and remits it directly to the
Service in order for the F-1 student and his or her F-2 dependents to
remain in lawful nonimmigrant status. Failure by the school to impose,
collect, and remit the fee is conduct which does not comply with
Service regulations and may cause the Service to initiate action to
withdraw approval pursuant to Sec. 214.4(a)(1)(v). Failure by such an
F-1 student to pay the fee as required is a violation of status for the
F-1 principal as well as any F-2 dependents, and neither the F-1 nor F-
2 nonimmigrant will be considered to have gone out of status ``through
no fault of his or her own'' or ``for technical reasons.'' Payment of
the fee does not, however, preserve the lawful status of any F-1 or F-2
nonimmigrant who has violated his or her status in some other way.
(iii) Any F-1 student who is out of status for late payment or
nonpayment of the required fee must also apply for reinstatement as
provided under paragraph (f)(16) of this section. The Form I-539,
Application to Extend Status/Change Nonimmigrant Status, must be
submitted together with a copy of a valid receipt from the Service as
evidence of having paid the fee in order to be eligible to apply for
reinstatement to F-1 status. Approval of the Form I-539 also reinstates
the status of any F-2 dependents.
(iv) If an F-1 nonimmigrant is subject to the fee, the F-1
nonimmigrant and his/her F-2 dependents must present a copy of the
receipt evidencing payment
[[Page 71330]]
of the fee in order to be eligible for any benefit endorsed or
authorized by a DSO or with applications for benefits filed with the
Service by the F-1 nonimmigrant and/or his/her dependents, including
change of status. A DSO's failure to verify that an F-1 nonimmigrant
who is subject to the fee has paid the fee before endorsing or
authorizing any application for benefits is conduct which does not
comply with Service regulations and may cause the Service to initiate
action to withdraw approval pursuant to Sec. 214.4(a)(1)(v). If an F-1
nonimmigrant subject to this fee transfers to a new institution of
higher education or begins a new program at the same institution, the
F-1 nonimmigrant must pay the fee when the F-1 nonimmigrant begins
studies at the new institution or in the new program.
(v) An F-1 nonimmigrant is not subject to the requirements of this
paragraph if the F-1 nonimmigrant is enrolled in a private elementary
school or a public or private academic high school in the United
States.
* * * * *
(j) * * *
(5) Remittance of the fee. (i) A nonimmigrant in J-1 status
commencing participation in a USIA-designated exchange visitor program
on or after August 1, 1999, is subject to a fee payable to the Service.
The fee and Form I-901, Fee Remittance Form for Certain F-1, J-1, and
M-1 Nonimmigrants, will be collected and remitted to the Service by the
exchange visitor program on behalf of the J-1 exchange visitor. The fee
will due 90 days from publication of the final rule in the Federal
Register or 90 days after the first date appearing in block 3 of the
Form IAP-66, whichever date is later. A J-1 nonimmigrant described in
paragraph (j)(5)(v) of the section is not subject to this fee.
(ii) A designated exchange visitor program must collect the fee
from a J-1 nonimmigrant who is subject to the fee described in
paragraph (j)(5)(i) of this section in order for the J-1 exchange
visitor and his or her J-2 dependents to remain in valid program
status. Failure by such a J-1 exchange visitor to pay the fee as
required is a violation of valid J-1 program status for the J-1
principal as well as any J-2 dependents, and neither the J-1 principal
nor the J-2 dependents will be considered to have gone out of status
``through no fault of his or her own'' or ``for technical reasons.''
Payment of the fee does not, however, preserve the lawful status of any
J-1 or J-2 nonimmigrant who has violated his or her status in some
other way. Failure by the exchange visitor program to attempt to
collect and remit the fee may cause the Service to request the USIA to
terminate program designation pursuant to 22 CFR 514.60.
(iii) Any J-1 exchange visitor who is out of program status for
late payment or nonpayment of the required fee must also apply for
reinstatement as provided under 22 CFR Part 514. The application or
request for reinstatement to valid program status must be submitted to
the USIA together with a copy of a valid receipt from the Service as
evidence of having paid the fee in order to be eligible to apply for
reinstatement to valid J-1 program status. Reinstatement of the J-1's
status also reinstates the status of any J-2 dependents.
(iv) If a J-1 nonimmigrant is subject to the fee, the J-1
nonimmigrant and his/her J-2 dependents must present a copy of the
receipt evidencing payment of the fee with all subsequent benefits
endorsed or authorized by an RO as well as applications for benefits
filed with the Service or USIA by the J-1 nonimmigrant and/or his/her
dependents, including change of status. If a J-1 nonimmigrant transfers
to a new exchange visitor program, or to a different exchange visitor
program or category at the same institution, the J-1 nonimmigrant must
pay the fee when participation at the new institution or in the new
program or category commences.
(v) A J-1 nonimmigrant is not subject to the requirements of this
paragraph if the J-1 nonimmigrant comes to the United States as a
participant in a program sponsored by the Federal Government.
* * * * *
(m) * * *
(18) Remittance of the fee. (i) An
M-1 nonimmigrant who begins a program of study at a Service-approved
institution of higher education, as defined by section 101(a) of the
Higher Education Act of 1965, as amended, on or after August 1, 1999,
is subject to a fee payable to the Service. The fee and Form I-901, Fee
Remittance Form for Certain F-1, J-1, and M-1 Nonimmigrants, will be
collected and remitted to the Service by the school on behalf of the M-
1 student. The fee will be due 90 days from publication of the final
rule in the Federal Register or 90 days after the first date appearing
in block 5 of the Form I-20, whichever date is later. An M-1
nonimmigrant described in paragraph (m)(18)(v) of this section is not
subject to the is fee.
(ii) A Service-approved school must collect the fee from an M-1
nonimmigrant described in paragraph (m)(18)(i) of this section and
remit it directly to the Service in order for an M-1 student and any M-
2 dependents to remain in lawful nonimmigrant status. Failure by the
school to impose, collect, and remit the fee is conduct that does not
comply with Service regulations, and may cause the Service to initiate
action to withdraw approval pursuant to Sec. 214.4(a)(1)(v). Failure by
such an M-1 student to pay the fee as required is a violation of status
for the M-1 principal as well as any M-2 dependents, and neither the M-
1 student nor any M-2 dependent will be considered to have gone out of
status ``through no fault of his or her own'' or ``for technical
reasons.'' Payment of the fee does not, however, preserve the lawful
status of any M-1 or M-2 nonimmigrant who has violated his or her
status in some other way.
(iii) Any M-1 student who is out of status for late payment or
nonpayment of the required fee must also apply for reinstatement as
provided under paragraph (m)(16) of this section. The Form I-539,
Application to Extend Status/Change Nonimmigrant Status, must be
submitted together with a copy of a valid receipt from the Service as
evidence of having paid the fee for all applicable programs in order to
be eligible to apply for reinstatement to
M-1 status. Approval of the Form I-539 also reinstates the lawful
status of any M-2 dependents.
(iv) If an M-1 nonimmigrant is subject to this fee, the M-1
nonimmigrant and his/her M-2 dependents must include a copy of the
receipt evidencing payment of the fee with all subsequent requests for
benefits endorsed or authorized by a DSO as well as applications for
benefits filed with the Service by the M-1 nonimmigrant and/or his/her
dependents, including change of status. A DSO's failure to verify that
an M-1 nonimmigrant who is subject to the fee has paid the fee before
endorsing or authorizing any application for benefits is conduct which
does not comply with Service regulations and may cause the Service to
initiate action to withdraw approval pursuant to Sec. 214.4(a)(1)(v).
If an M-1 nonimmigrant transfers to a new institution of higher
education, or begins a new program at the same institution, the M-1
nonimmigrant must pay the fee when the M-1 nonimmigrant begins training
at the new institution or in the new program.
(v) An M-1 nonimmigrant is not subject to the requirements of this
paragraph if the M-1 nonimmigrant is enrolled in a private elementary
school
[[Page 71331]]
or a public or private academic high school in the United States.
* * * * *
PART 299--IMMIGRATION FORMS
5. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
6. Section 299.1 is amended in the table by adding, in proper
numerical sequence, the entry for From ``I-901'' to read as follows:
Sec. 299.1 Prescribed forms.
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * * *
I-901................ XXXXX................... Remittance of the fee
required for certain F-
1, J-1, and M-1
nonimmigrant aliens.
------------------------------------------------------------------------
* * * * *
6. Section 299.5 is amended in the table by adding, in proper
numerical sequence, the entry for Form ``I-901'' to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently assigned OMB
INS Form No. INS form title control No.
------------------------------------------------------------------------
* * * * *
I-901................ Remittance of the fee 1115-
required for certain F-
1, J-1, and M-1
nonimmigrant aliens.
------------------------------------------------------------------------
* * * * *
Dated: December 14, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-32842 Filed 12-20-99; 8:45 am]
BILLING CODE 4410-10-M
