AACRAO Comments
AACRAO Comments to INS on CIPRIS Proposed Rule
February 22, 2000
Director, Policy Directives and Instructions Branch
Immigration and Naturalization Service
424 I Street, NW, Room 5307
Washington, D.C. 20536
Re: Proposed Rule (INS No. 1991-99) Authorizing Collection of the Fee Levied on F, J, and M Nonimmigrant Classifications Under Public Law 104-208
Dear Director:
On December 21, 1999, the Immigration and Naturalization Service ("the Service") published a Proposed Rule to implement certain requirements of Section 641 of the Illegal Immigration Reform and Immigrant Responsibility Act 1996 (IIRIRA). On behalf of the American Association of Collegiate Registrars and Admissions Officers (AACRAO), I am pleased to submit comments on the proposed regulation.
AACRAO represents over 9,400 members at more than 2,500 U.S. and international institutions of higher education. Our members are campus administrators who serve in offices of the registrar, admissions, international programs, and information technology among others. AACRAO has long held a commitment to international education and our members have worked with the Service on various initiatives, including the ServiceÃs Coordinated Interagency Partnership Regulating International Students (CIPRIS) project. AACRAO supports the goals of the CIPRIS project, which, if properly implemented, would streamline and modernize the transmission of international student and scholar information between campuses and the Service.
In light of our long involvement in international education issues, as well as our general support of the CIPRIS project, we hope the Service will carefully consider the two sets of concerns outlined below. The first of these is our opposition to drafting institutions of higher education as federal fee collectors. Our second set of comments involves more technical aspects of the regulatory proposal.
1 - Institutions of Higher Education as Federal Collection Agents
The proposed rule would amend 8 CFR Parts 103, 214, and 299 to implement a congressionally mandated fee that higher education institutions and exchange visitor programs must collect from F-1, J-1, and M-1 nonimmigrants on behalf of the INS. AACRAO, like every other segment of the higher education community, opposes the fee collection mandate for practical and philosophical reasons.
First, collecting fees on behalf of a federal agency is an unprecedented requirement that would open the floodgates for other agencies to similarly use their regulatory authority to shift inappropriate burdens onto colleges and universities. Institutions of higher education do not view themselves as collection agents for the federal government, and believe that the collection of federally imposed fees is the direct responsibility of the federal government itself.
Second, collecting fees for the Service compromises the role of higher education officials who work with international students and exchange visitors. These campus officials serve in specific institutional roles as educational advisors and counselors; such roles are fundamentally incompatible with the law enforcement role mandated for them in the proposed rule.
Third, the intermediary role forcibly assigned to institutions of higher education in the proposed rule is inefficient. A centralized collection model, in which the federal government would directly collect any fees it may impose, is vastly more accountable and efficient for the federal government.
Fourth, the operational costs and compliance burden associated with the requirements of the proposed rule would require a significant commitment of resources, and constitutes an unfunded mandate. The implementation of the campus systems and business processes needed to carry out the mandate represents an unnecessary expenditure of institutional dollars that would be better used to support their proper mission of educating students.
Finally, the proposed process would create significant financial and legal liabilities for institutions. We are concerned that the severity of the consequences of mistakes in properly forwarding fees on behalf of students would expose institutions to lawsuits from individuals. Institutions could also be exposed to adverse action by the Service in cases of simple errors that result in nonpayment of fees.
In light of the associationÃs opposition to the CIPRIS fee collection, AACRAO will work with the rest of the higher education community and the Congress to seek a legislative remedy. It is inappropriate and inefficient for colleges and universities to collect the CIPRIS fee for operational expenses incurred by the Service, particularly since all other transaction fees for international students and scholars are paid directly to the Service or to the Department of State.
2 - Technical Issues
Absence of Statutory Authority for Proposed Regulatory Amendments to 8 CFR 214.2 (f)(17)(iv) and (m)(18)(iv): There is no statutory authority for imposing the fee on F-1 and M-1 nonimmigrants who begin new programs at the same institution. Throughout Sec. 641 of IIRIRA, new requirements regarding F-1 and M-1 students are clearly tied to their first-time attendance at "institutions," while the new requirements regarding J-1 exchange visitors are tied to their first-time participation in "programs." The statute employs "program" as a term of art synonymous with "designated exchange visitor program." The Service, in an arbitrary departure from the statute, broadens the meaning of the term "program" to include "academic program" offered at institutions of higher education. The Service has no statutory authority to re-impose the fee on F-1 and M-1 students who begin new programs at institutions of higher education where they have already paid the fee once. Sec. 641(e)(1)(A) of IIRIRA clearly stipulates that the fee should be paid by the student or exchange visitor "when the alien first registers with the institution or program after entering the United States."
In (B) of that same subsection, the law states that the fee must be collected "where a registration under subparagraph (A) does not exist, when the alien first commences activities in the United States with the institution or program." IIRIRA does not authorize collecting fees for F-1 or M-1 students who go from one program of study to another within the same institution or for J-1 changes of category in the same program.
Recommendation: AACRAO suggests that the language cited above in 8 CFR 214.2 (f)(17)(iv) and (m)(18)(iv) be removed from the rule.
Inaccurate Calculation of the Fee Amount: Section 641(e)(4)(A) of IIRIRA requires the Attorney General to set the fee on the basis of the estimated cost per alien of conducting the information collection program." In the preamble to the proposed rule, the Service describes through which it arrived at the proposed amount of $95. In view of the erroneous application of the fee to F-1 and M-1 students who transfer programs within the same institution, we believe that the Service must re-estimate the proper amount of the fee.
In addition, we believe the Service is exceeding its authority in including "operations relating to student and exchange visitor-related activities." Section 641(e)(4)(B) of the statute limits the use of the fees collected to expenses incurred in carrying out the international student and exchange visitor tracking system, and does not allow for the Service to subsidize "related" activities.
Recommendation: AACRAO recommends that the fee amount be recalculated.
Retroactive Imposition of the Fee: Proposed regulatory amendments to 8 CFR 214.2 (f)(17)(i), (j)(5)(i) and (m)(18)(i), would require that F-1, J-1 and M-1 nonimmigrants who began a program of study "on or after August 1, 1999" be subject to the "fee payable to the Service." The retroactive mandate for payment of the fee will result in international students and exchange visitors paying a "tax" for service not yet rendered since the CIPRIS project has yet to be implemented. In addition, the Service, in imposing this retroactive mandate, would create great operational difficulties for higher education institutions, which would have to locate former students and scholars who are no longer enrolled.
Recommendation: We urge the Service to consider delaying the imposition of the fee until such time as the CIPRIS project is operational. We believe that upon implementation of the CIPRIS project, however, the benefits of the system may justify the fee.
Over-broad Interpretation of Statute: The proposed regulatory amendment to 8 CFR 214.2 (f)(17)(ii) and (m)(18)(ii), stipulates that "Failure by the school to impose, collect and remit the fee is conduct that does not comply with Service regulations~" In mandating not only the imposition, but also the collection and remittance of the fee, the Service is, in effect, passing the fee onto institutions. AACRAO opposes this language since it would in fact hold institutions of higher education liable for payment of the fee if the international student or scholar fails to remit the fee¤even if an institution exerts due diligence to collect it. Nowhere does Sec. 641 of IIRIRA specify that institutions must remit fees to the Service on behalf of the international students who fail to remit the fee to institutions of higher education. Only "collected" fees are to be forwarded to the Service according to the statute.
Recommendation: The Service has actually provided appropriate language in another section of the proposed rule under 8 CFR 214.2 (j)(5)(ii): "Failure by the exchange visitor program to attempt to collect and remit the fee may cause the Service to request the USIA to terminate the program designation~" AACRAO recommends that the Service duplicate this language in 8 CFR 214.2 (f)(17)(ii) and (m)(18)(ii).
On behalf of the AACRAO membership, I thank the Service for its efforts, and look forward to working with you on the proper implementation of CIPRIS.
Sincerely,
Jerome H. Sullivan
Executive Director