Federal Register: August 27, 2002
(Volume 67, Number 166)
[Pages 54941-54946]
NASFAA Note: The following text is excerpted from the complete INS interim rule. The complete interim rule is available on-line in PDF format. An INS news release and fact sheet on the interim rule are also available on-line.
The Immigration and Naturalization Service (INS) has issued an interim rule with request for comments on the reduced course load for certain F and M nonimmigrant students in border communities. This rule amends the INS regulations governing F and M nonimmigrants by clarifying that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part-time basis within the F or M nonimmigrant category. These changes are being made to facilitate and legitimize certain part-time study along border communities while ensuring that all applicable requirements and safeguards are met. The effective date for this interim rule is August 27, 2002. Written comments must be submitted on or before October 28, 2002.
As nonimmigrant students, border commuter students will be authorized to attend only schools approved by the INS to accept foreign students. A border commuter student is subject to all requirements applicable to the F or M nonimmigrant classification and will be processed through the existing framework for these classifications. This includes, among other things, obtaining the appropriate Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, and obtaining the appropriate visa, unless exempt. The schools will be required to comply with the same reporting and recordkeeping requirements for these part-time border commuter students as for full-time F-1 or M-1 students.
The INS will restrict application of this provision to schools located within 75 miles of the U.S. border. The INS believes this 75-mile zone is consistent with the general commuter travel provisions and will accommodate the needs of students and institutions. Canadian or Mexican nationals enrolling at a school outside this 75-mile zone, or who maintain a residence in the United States in connection with their attendance at any approved school, will remain subject to the established rules for F or M nonimmigrants student status.
Definitions of Nonimmigrant Students
The different classifications of nonimmigrant students studying in the United States are as follows:
- F-1 nonimmigrant aliens are foreign students who have been admitted to the United States to pursue a full course of study in a college, university, seminary, conservatory, academic high school, private elementary school, other academic institution, or language training program in the United States that has been approved by the INS to enroll foreign students.
- F-2 nonimmigrant aliens are foreign nationals who have been admitted to the United States as the spouse or qualifying child (under the age of 21) of an F-1 nonimmigrant alien.
- M-1 nonimmigrant aliens are foreign nationals who have been admitted to the United States to pursue a full course of study at a INS-approved vocational school or other recognized nonacademic institution (other than in language training programs) in the United States.
- M-2 nonimmigrant aliens are foreign nationals who are the spouse or qualifying child (under the age of 21) of an M-1 nonimmigrant alien.
Changes to Regulations
This interim rule:
- Adds a provision permitting certain border commuter students to enroll in an approved school with a lesser course load than is otherwise required for F and M students, on account of their unique educational circumstances.
Specifically, for a nonimmigrant alien who meets all other requirements applicable to the F or M classification and who is commuting to a school in the United States within 75 miles of the border, the school's designated school official (DSO) may approve the student's attendance with a course load below that otherwise required under the general rules. However, the student must still be enrolled in a "full course of study" at the school, that is, a course of study that leads to the attainment of a specific educational, professional, or vocational objective although at a reduced course load for each semester or term.
- Adds new provisions to include special provisions defining a full course of study for border commuter students. To be eligible to be authorized by a school's DSO based on the border commuter student provision, the alien must be:
- A national of Canada or Mexico who maintains an actual residence and place of abode in the alien's country of nationality;
- Attending a school located within 75 miles of the border;
- Registered as a border commuter student; and
- Matriculating in a full course of study, albeit on a part-time basis.
- Adds a new provision to place in effect the reasonable limitation that border commuter students attending an approved school on a part-time basis as F-1 students will be admitted for a fixed admission period for each semester, quarter, or term.
Under current regulations, only M-1 students are admitted for a fixed period of admission, while full-time F-1 student are admitted for "duration of status," while the student pursues a full course of study or authorized practical training. By setting a fixed period of admission for F-1 border commuter students that reflects the current semester or quarter of the school's academic calendar, INS will be able to maintain greater control and oversight to ensure that the student does in fact remain a border commuter student. The school's DSO will be required to specify on the Form I-20 the term-by-term completion date, and a new Form I-20 will be required for each new quarter or semester that the commuter student attends at the school. Conforming amendments further clarify that border commuter students will be admitted for a fixed period rather than for duration of status.
- Clarifies that the provision allowing an additional 30-day period in which to depart the United States following the completion of an M-1 student's course of study (in order to make final arrangements before departure) does not apply to border commuter students.
Full Course of Study
Canadian or Mexican nationals attending school in the United States on a full-time basis continue to be governed by the rules that apply to their respective classifications. A Canadian or Mexican national admitted to attend school in the United States on a full-time basis as an F-1 or M-1 student may seek authorization from a DSO for a reduced course load, but must comply with the aspects of this rule requiring residence in Canada or Mexico, or otherwise qualify for reduced course load.
The statutory definitions of the F-1 and M-1 classifications relate to foreign students coming to the United States temporarily and solely for the purpose of pursuing a full course of study at an approved school. The INS's current regulations set forth specific requirements for defining a "full course of study" in various contexts.
The regulations also permit a school to authorize a student to engage in a reduced course load under certain circumstances while still maintaining status as a student enrolled in a "full course of study." The school's DSO may approve a reduced course load due to initial difficulties with the English language or reading requirements, unfamiliarity with American teaching methods, or improper course level placement, or because of illness or medical reasons.
Moreover, there is another context in which the INS has authorized DSOs to approve a reduced course load in special circumstances for students who still wish to pursue a full course of study. In 1998, several Asian countries experienced a severe devaluation of their currencies, which caused a hardship upon nonimmigrant students in the United States dependent on currency from those countries for support. In response, INS amended its regulations and published a Federal Register notice authorizing affected F-1 aliens to accept employment in excess of the ordinary 20-hour per week maximum, in cases of severe economic hardship, and to drop below the usual course load in order to pursue the additional employment.
Employment
Under this rule, Canadian or Mexican nationals approved as F-1 border commuter students for a part-time course load may only be authorized to accept employment in a curricular practical training program or a post-completion optional practical training program, using existing authorization procedures. In the case of an M-1 border commuter student, employment will only be authorized as provided for practical training as provided in existing regulations. Border commuter students admitted to pursue a course of study on a part-time basis under this rule will not be approved for any other employment in the United States (whether on-campus or off-campus) in connection with their F or M student status.
The purpose of the F-1 and M-1 classification is completion of an educational objective, and the categories of work authorization allowed by this rule are closely related to that objective. For this reason,
this rule retains the eligibility for non-resident border commuter students to engage in curricular practical training programs and post-completion optional practical training programs, but not in other types of employment in connection with their student status.
Finally, because a border commuter student admitted under this rule is maintaining his or her actual place of abode in Canada or Mexico and, by definition, would not be residing in the United States, INS does not believe that employment in the U. S. is economically necessary. The student would be able, of course, to find employment in his or her own country where the he or she continues to reside.
A border commuter student who wishes to engage in employment in the United States that is not authorized by this rule must obtain the appropriate visa, or enroll as a full-time F-1 or M-1 student, in which case the student will not be governed by the limitations of this rule.
Posted August 27, 2002 on www.NASFAA.org, Web Site of the
National Association of Student Financial Aid Administrators (NASFAA).
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