[NASFAA Note: The following text is excerpted from the complete ED notice. The complete text is available online in PDF format.]
Federal Register: September 25, 2002
(Volume 67, Number 186)
[Pages 60107-60112]
The Department of Justice has issued an interim rule, with requests for comments, on requiring certification of all service approved schools for enrollment in the Student and Exchange Visitor Information System (SEVIS). This rule will amend the Immigration and Naturalization Service (INS) regulations governing review and certification of INS-approved schools and will continue the implementation of the process by which schools may be approved to obtain access to SEVIS.
This interim rule is effective September 25, 2002. Comments must be submitted on or before November 25,
2002. Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2217-02 on your correspondence. Comments may also be submitted electronically to the Service at insregs@usdoj.gov. When submitting comments electronically, you must include INS No. 2217-02 in the subject heading so that your comments can be routed to the appropriate program office. Comments may be inspected at the above address by calling (202) 514-3291 to arrange for an appointment.
Schools that have begun to fill out Form I-17 in SEVIS and saved the form as a draft, but who have not electronically submitted the form in SEVIS prior to September 25, 2002, will be required to pay the certification fee prior to certification in SEVIS in accordance with this rule.
This interim rule implements Phase II of the transition to SEVIS and provides that all schools not already approved to use SEVIS--including a school that would have been eligible for preliminary enrollment under 8 CFR 214.12 but did not apply for preliminary enrollment--must undergo a certification review, and pay the associated fee, prior to enrollment in SEVIS.
This rule requires each school that is currently approved for attendance by F and M nonimmigrants to undergo a review by the INS for approval in SEVIS no later than the SEVIS mandatory compliance date. This opportunity to review currently-approved schools will help ensure the integrity of the SEVIS program.
Petition for Initial Approval for Use of SEVIS
The school should begin the review process by accessing the SEVIS Web site at www.ins.usdoj.gov/sevis. By entering the basic contact information required, the school official that will be filing the petition for access to SEVIS will be issued a temporary user ID and password for SEVIS. Using this ID and password, the school official will access SEVIS on-line and complete and electronically submit the Form I-17 and the required fee.
In order to be reviewed by INS and be granted access to SEVIS prior to the mandatory compliance date, schools are strongly encouraged to submit an electronic Form I-17 to INS using SEVIS no less than 75 days prior to the compliance deadline. INS cannot guarantee timely final action on any Form I-17 petition not filed at least 75 days prior to the SEVIS mandatory compliance deadline. In general, Forms I-17 will be adjudicated in a timely manner within 6 months of filing in accordance with INS's backlog reduction plan. A school that has a Form I-17 pending adjudication in SEVIS after the mandatory compliance date will be unable to issue Forms I-20 until approved and granted SEVIS access.
A school's approval will be automatically withdrawn as of the day following the SEVIS mandatory compliance date if the school has not submitted an electronic Form I-17 to initiate the certification review process by then. If a school's approval is withdrawn, the school may not issue any Forms I-20 for new F or M nonimmigrant students. Currently enrolled students must transfer to an INS-approved school no later than the next semester, quarter, trimester or other academic term.
Review of Petitions for Initial Certification and Enrollment in SEVIS
The current regulations provide for a paper-based application process, in which the school seeking INS approval must submit a paper Form I-17 together with specific forms of documentation. With the advent of electronic filing of the Form I-17, the school will not be required to present the accompanying documentation until the time of the on-site visit, as discussed below.
The purpose of certification review under this rule is two-fold:
- both to establish the bona fides of the school with regard to its educational or vocational programs, and
- to review the adequacy of the school's past and current efforts to comply with the existing requirements governing foreign students.
INS recognizes that many schools are already accredited by educational organizations recognized by the ED, or are approved by state education agencies. Accordingly, INS will coordinate with ED and other appropriate education agencies regarding the documentation needed to establish the bona fides of such schools. However, neither ED nor other education agencies currently maintain information regarding the compliance of each school with the existing requirements of the INS's regulations governing foreign students. Accordingly, INS will still need to conduct a certification review for such schools to determine the adequacy of the school's compliance with the foreign student requirements. The INS will review and adjudicate the electronic Form I-17, as supplemented by the results of the completed on-site visit. During the on-site visit any signatures or supporting documentation will be collected and will be provided to the INS with the on-site report. Schools will receive notice of full certification approval, denial, or request for evidence via a SEVIS-generated electronic mail.
If an INS Officer requires clarification, updated documentation or further evidence to properly adjudicate the Form I-17, a request for evidence will be issued. Schools will receive notice of a request for evidence via a SEVIS-generated electronic mail, which will identify specific information or clarification the INS requires.
Approved schools will be enrolled in SEVIS and the Designated School Officials (DSO) listed on the electronic Form I-17 will be issued permanent user ID and passwords. If denied, the petitioner will receive e-mail notification through SEVIS and written notification from the INS.
If a school is denied certification, the school will receive written notice of the reasons for the denial and of the process for seeking review of such denial. The INS intends to issue a notice of proposed rulemaking in the near future to revise the withdrawal and appeal processes for schools in the foreign student program.
On-Site Reviews
This rule provides for an on-site visit as part of the certification. At the time of the on-site review, the school will be able to present supporting documentation evidencing its eligibility for INS approval.
The INS will determine by risk analysis the order in which schools will undergo an on-site review. All vocational (M) schools, flight schools, and language schools will be required to complete an on-site review before the INS will allow them to enroll in SEVIS. However, upon the discretion of the INS, the INS may allow conditional enrollment in SEVIS for accredited schools or for public secondary schools, prior to an on-site visit. Such schools will still be required to pay the associated on-site review fee when filing their Form I-17. If the INS does conditionally enroll schools in SEVIS, prior to an on-site visit, those schools will be subject to the full-scale review and on-site visit at a later date. The INS may request certain supporting information from schools in making a determination for conditional enrollment. Schools granted conditional enrollment may ultimately be denied certification based upon the results of the on-site review.
In general, all schools need to establish that they are bona fide institutions of learning with the financial ability to remain a viable institution. The INS will utilize ED information, as appropriate, to assist in the verification of the school's bona fides. The required supporting documentation is specific to the type of school petitioning. More detailed information and examples of the evidentiary documentation that the INS will accept from each school type will be made available on the INS's website.
Upon review of the findings of the on-site visit and any supporting documentation, a INS officer will determine the school's eligibility for approval. If the school was required to undergo the certification review, including an on-site visit, prior to enrollment in SEVIS, the school will be enrolled in SEVIS if approved. Schools that were approved for preliminary enrollment by the INS under 8 CFR 214.12, or that are conditionally enrolled in SEVIS under the INS's discretionary authority as provided in this rule under 8 CFR 214.3(h)(2) without an on-site visit, must complete the full certification review process prior to May 14, 2004. Until an on-site visit is conducted, a school enrolled in SEVIS under preliminary enrollment or conditional enrollment will be permitted to operate in SEVIS. After an on-site visit is conducted and the review process is completed, if approved, the school will be fully certified and may continue in SEVIS. If, after the on-site visit, the INS denies full certification, the INS will send electronic notification through SEVIS to the school indicating the reasons for the denial and the process for seeking review of such denial.
Subsequent Certification Reviews Every 2 Years
This interim rule only governs the initial process for certification of schools prior to enrollment in SEVIS (or, for schools previously approved for preliminary enrollment in SEVIS pursuant to 8 CFR 214.12, for initial certification prior to May 2004). However, both the Homeland Security Directive No. 2 (Directive 2) and the Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act) require the INS to conduct periodic reviews of all INS-approved schools. Accordingly, every school that completes the certification process under this rule must be reviewed every 2 years thereafter. This is a departure from the current practice, in which a school's approval continues indefinitely, unless the INS affirmatively withdraws the approval. For this reason, the INS is striking the provision in 8 CFR 214.3(e)(2) relating to indefinite approval and inserting a reference to clarify that schools must be approved every two years.
At this time, this rule simply amends 8 CFR 214.3(h) to note that the Border Security Act requires a review of all approved schools every 2 years. The INS will implement, in a separate rulemaking proceeding, more specific procedures for schools to apply for a subsequent certification review--after having completed the initial certification process under this rule.
Fee for the Initial Filing of Form I-17
As the INS will be requiring on-site reviews prior to the initial approval of Form I-17, a new fee is necessary to support the review. The new fee includes the current internal INS cost, $230, for the review of the Form I-17, as well as the cost of the on-site review, $350, for a total of $580.
The primary difference between the Internet system and the paper system is how the school submits Form I-17. Instead of the current, paper-based process of the school having to request the form, fill out the form, and mail to the INS, the school will now electronically complete and submit the form to the INS. As stated above, the $580 fee includes both the base cost of processing of the Form I-17 and the on-site visit. In addition, the cost of the on-site review must be paid for each additional campus listed on the Form I-17B, with the exception of secondary public school systems. The per-campus cost is due to the fact that each campus will be subject to an on-site review. For instance, if School X, when submitting the Form I-17, lists two additional campuses, the total fee paid by School X is $1280 ($580 + $350 + $350). Instructions for electronic payment of the fee will be included on the Internet for schools when applying for review and enrollment in SEVIS.
Calculation of the New Fee
Federal guidelines require the INS to establish and collect application fees to recover the full cost of providing immigration and naturalization services, rather than supporting these services with tax revenue. This rule requires all schools not already approved to use SEVIS to pay the certification fee prior to certification in SEVIS. If a school pays this fee and is granted enrollment in SEVIS prior to the on-site review, the school will not be required to pay the fee again at the time of that on-site review. All schools must pay the same certification fee.
The fee for initial certification is $580. A certification fee also will be charged for each subsequent 2-year re-certification. While the fee will be re-visited every 2 years to assure that the INS is charging no more and no less than the full costs of the school review, the INS anticipates a fee for re-certification that is comparable to the initial certification fee.
This fee is based on the internal INS cost, $230, plus the average cost of a required site visit to the school to perform a compliance verification, $350. The $230 internal INS cost was established previously and is not changed by this interim rule.
The additional $350 cost for an on-site visit and compliance verification was calculated, and procurement strategy formulated, as follows: The INS will hire contractors to make the site visits and produce standard reports for the INS to consider before approving any school's use of SEVIS. The INS intends to award multiple contracts to ensure that there is enough capacity to handle a large number of school applicants.
In early June 2002, the INS issued a request for proposals to six vendors who have "schedule contracts" with the General Services Administration (GSA) and are available to perform services of this type for federal departments and agencies. The GSA requires agencies to request proposals from at least three vendors before entering an agreement with a vendor for services, but in this case the INS elected to solicit proposals from six vendors. The statement of work for the vendors describes the type of site visits required. Site visits will include collection of supporting documentation submitted by the school, a tour of the campus, an interview with school officials, and a review of selected school records relating to the school's compliance with applicable standards under 8 CFR 214.3. The statement of work also includes a template to be used on site by the vendor to collect the above mentioned information and prepare a report. In order to expedite the certification process, vendors will be required to deliver these reports to the INS within 10 working days from the time that the site visit is requested. The information in this report will assist the INS in verifying both the bona fides of the school and, in the case of currently approved schools, the continued compliance with recordkeeping and reporting requirements. Each vendor is required to have a nationwide network of qualified and trustworthy employees available to perform these site visits. On this basis, five vendors submitted proposals to the INS to perform these services, with a fixed price per on-site review.
The INS derived the on-site review portion of the fee by taking the three lowest-priced proposals and taking the average of their fixed prices proposed for the first 2 years of the contract. The INS did not take the lowest bid with one contractor, because using only one contractor would not provide sufficient assurance that a large number of reviews could be completed within a short period of time and with the level of quality that is required. The INS also did not give preferential weight to any one bid when calculating this average cost because the INS cannot anticipate the geographic or numerical capacity, quality, or timeliness of any one vendor. The INS believes that this method will take advantage of the economies offered by competitive pricing, without sacrificing quality or capacity to conduct a large number of on-site reviews during a short period of time. In addition, the calculation excluded the highest bid proposed because the INS believes that three vendors should be sufficient. The calculation excluded years 3 through 5 of the vendor proposals because Federal guidelines require the INS to reconsider all fees on a 2 year cycle. Therefore, the INS will review the certification/re-certification fee in 2 years to ensure that it is charging no more and no less than the full costs of providing this service.
Certification Fee for Public Schools
While the current regulations at 8 CFR 103.7(b)(1) exempt all publicly owned or operated institutions from the payment of the Form I- 17 fee, because the INS will be conducting an on-site review of all approved schools every 2 years, as well as for any schools applying for initial approval, a fee payment is now necessary to fund this comprehensive plan for review. Although public schools were historically exempt from the Form I-17 adjudication fee, there is no adequate basis to continue such an exemption. The INS incurs processing and internal review costs for adjudicating any Form I-17, regardless of whether a school is a public or private institution.
A public secondary school or school system owned or operated as a public educational institution or system by the United States or a state or political subdivision thereof is required to pay only the $580 fee for the entire school system, and not an additional fee for each school within that system. However, public, postsecondary schools with more than one campus must pay a fee for each school or campus.
Initial Form I-17 Petitions for School Approval That Were Filed by Schools Prior to September 25, 2002, But Have Not Yet Been Adjudicated
A school that filed an initial petition for school approval, Form I-17, with the INS, but not via SEVIS under preliminary enrollment, prior to September 25, 2002, and whose petition is still pending approval before the INS on that date, has two options.
The INS will contact the school to determine whether the school would like to re-file the Form I-17 electronically through SEVIS. If the school does intend to re-file electronically, the school would be required to undergo a full-scale review, including an on-site visit prior to being granted enrollment in SEVIS. The school would not have to pay the internal INS cost portion of the Form I-17 processing fee, $230, as it paid that portion of the fee at the time of filing the original Form I-17. However, as such a school would still have to undergo an on-site review, the school would be required to pay the cost of that review, $350 per campus. This additional fee would be paid as part of the electronic Form I-17 submission process.
If the school informs the INS that it does not wish to re-file in SEVIS, the INS will review and adjudicate the paper Form I-17 petition as submitted. If it wishes to enroll foreign students after the mandatory compliance date, such a school must still apply for certification in SEVIS, pay the full amount of the certification fee, and undergo a full scale review in accordance with this rule if it wishes to enroll foreign students after the mandatory compliance date.
All schools will be required to submit a Form I-17 electronically in SEVIS. One of the primary purposes of SEVIS is to transition to electronic filing and reporting. As an e-Gov system, SEVIS requires additional information that was not required in the older, paper-based, process, such as e-mail addresses. However, once a school has entered their Form I-17 electronically and been approved, the INS believes that utilizing SEVIS will reduce the school's burden, for example, by facilitating certain updates to the Form I-17 directly via SEVIS. Accordingly, schools must enter their own data into SEVIS.
Posted September 25, 2002 on www.NASFAA.org, Web Site of the
National Association of Student Financial Aid Administrators (NASFAA).
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