CIPRIS Proposed Rule

CIPRIS (Coordinated Interagency Partnership Regulating International Students) Proposed Rule

[Federal Register: December 21, 1999 (Volume 64, Number 244)]
[Proposed Rules]
[Page 71323-71331]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de99-20]

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.

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 y 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

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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 forreinstatement.

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

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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 onimmigrant 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 feerequired 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