[Federal Register Volume 64, Number 244 (Tuesday, December 21, 1999)]
[Proposed Rules]
[Pages 71323-71331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32842]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 214, and 299

[INS No. 1991-99]
RIN 1115-AF56


Authorizing Collection of the Fee Levied on F, J, and M 
Nonimmigrant Classifications Under Public Law 104-208

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to amend the Immigration and Naturalization 
Service's (Service) regulations to: Establish a $95 fee, that schools 
and exchange visitor programs must collect and remit on behalf of F-1, 
J-1, and M-1 nonimmigrants who are subject to this

[[Page 71324]]

fee when they first register or enroll in school or first commence 
exchange program participation in the United States; explain which F-1, 
J-1; and M-1 nonimmigrants are required to pay the fee; describe the 
consequences that an F-1, J-1, or M-1 nonimmigrant faces upon failure 
to pay the fee; specify the consequences that an approved school or 
exchange program faces if it fails to collect the fee and remit it to 
the Service; and to specify which F-1, J-1, and M-1 nonimmigrants are 
exempt from the fee.
    This rule is necessary to implement section 641 (regarding the 
Program to Collect Information Relating to Nonimmigrant Foreign 
Students and Other Exchange Program Participants) of the Illegal 
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 
as well as the authority that the Service already has under sections 
103 (regarding the Powers and Duties of the Commissioner of the 
Service) and 214 (regarding Admission of Nonimmigrants) of the 
Immigration and Nationality Act (Act) and under 31 U.S.C. 9701 and 
section 286(m) of the Act.

DATES: Written comments must be submitted on or before February 22, 
2000.
ADDRESSES: Please submit written comments, in triplicate, to the 
Director, Policy Directives and Instructions Branch, Immigration and 
Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 
20536. To ensure proper handling, please references INS No. 1991-99 on 
your correspondence. Comments are available at the above address by 
calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Kristen L. Casa or Song Park, Program 
Analysts, or Maurice R. Berez, Adjudications Officer, Adjudications 
Division, Immigration and Naturalization Service, 415 I Street NW., 
Room 3214, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

Who are F, J, and M Nonimmigrants?

    The Act provides for the admission of different classes of 
nonimmigrants. The purpose of the nonimmigrant's intended stay in the 
United States determines his or her proper nonimmigrant classification. 
Some classifications permit the nonimmigrant's spouse and qualifying 
child(ren) to accompany the nonimmigrant to the United States, or to 
join the nonimmigrant here. To qualify, a child must be unmarried and 
under the age of 21.
    The F-1 nonimmigrants are foreign nationals enrolled as students in 
Service-approved colleges, universities, seminaries, conservatories, 
academic high schools, private elementary schools, other academic 
institutions, and in language training programs in the United States. 
For the purposes of this regulation, the term school refers to all of 
these types of Service-approved institutions. An F-2 nonimmigrant is a 
foreign national who is the spouse or qualifying child of an F-1 
student.
    The J-1 nonimmigrants are foreign nationals who have been selected 
by a United States Information Agency (USIA) designated sponsor to 
participate in an exchange visitor program in the United States. A J-2 
nonimmigrant is a foreign national who is the spouse or qualifying 
child of a J-1 exchange visitor.
    The M-1 nonimmigrants are foreign nationals enrolled as students in 
Service-approved vocational or other recognized nonacademic 
institutions, other than in language training programs in the United 
States. The term school also encompasses those institutions attended by 
M-1 students for the purpose of this proposed rulemaking. An M-2 
nonimmigrant is a foreign national who is the spouse or qualifying 
child of an M-1 student.

What are institutions of higher education and designated exchange 
visitor programs?

    Section 641 of the IIRIRA refers to institutions of higher 
education approved by the Service in consultation with the Department 
of Education (ED) and exchange visitor programs designated by the USIA. 
In consultation with the ED and the USIA, the Service has determined 
definitions for the terms institution of higher education and 
designated exchange visitor program drawing on generally accepted 
definitions of these terms as well as definitions contained in the 
Higher Education Act and other Service and USIA regulations. For the 
purpose of this rule, institutions of higher education include those 
defined as such under section 101(a) of the Higher Education Act of 
1965; designated exchange visitor programs are those entities 
designated pursuant to 22 CFR 514.6 by the USIA as authorized to bring 
nonimmigrants to the United States to participate in a program 
designated under section 101(a)(15)(J) of the Act and further 
designated by the Service for the mandated reporting process.

Why is the Service proposing to collect information relating to 
nonimmigrant foreign students and other exchange program 
participants?

    On September 30, 1996, President Clinton signed into law the 
IIRIRA, Pub. L. 104-208, Division C. Subtitle D of Title VI of the 
IIRIRA amended the Act and added new statutory provisions relating to 
nonimmigrants admitted to or applying for classification under section 
101(a)(15) (F), (J), and (M) of the Act. Section 641(a)(1) of the 
IIRIRA, in particular, directs the Attorney General, in consultation 
with the Secretary of State and the Secretary of Education, to develop 
and conduct a program to collect information on nonimmigrant foreign 
students and exchange visitors from approved institutions of higher 
education and designated exchange visitor programs.
    Independent of the requirements of section 641 of the IIRIRA, the 
Service collects information on nonimmigrant students from educational 
institutions pursuant to the authority under sections 103 and 214 of 
the Act. These sections, that the Attorney General has delegated to the 
Service, give the Service authority to establish regulations governing 
the admission of nonimmigrants. Under this authority, the Service 
requires educational institutions to maintain records on nonimmigrant 
students and to provide information from the records to the Service 
upon request of the Service. To the extent that these record collection 
activities cause the Service to expend appropriated funds and yield 
particularized benefits to program participants, 31 U.S.C. 9701 
requires the Service to assess a fee for providing the benefit.
    This proposed rule, therefore, rests on the authority that the 
Service exercises under section 103 and 214 of the Act, as well as 
section 641 of the IIRIRA.

Who will be included in the program to collect information relating 
to nonimmigrant foreign students and other exchange program 
participants?

    The Service intends to include F-1, J-1, and M-1 nonimmigrants at 
all educational levels in this program. Section 641 of the IIRIRA, by 
its terms, expressly applied this reporting program to F-1 and M-1 
students enrolled in institutions of higher education and to J-1 
exchange visitors in all USIA designated exchange visitor programs that 
the Attorney General selected for inclusion in the program. As noted, 
however, sections 103 and 214 of the Act also authorize the collection 
of this information. The Service anticipates that it will be better

[[Page 71325]]

able to serve all F-1, J-1, and M-1 immigrants as a result of this 
program. For example, the information to be collected will assist the 
Service and school or exchange visitor program in determining whether 
the F-1, J-1, or M-1 nonimmigrant has maintained his or her lawful 
nonimmigrant status. This information is important in the determination 
of the nonimmigrant's eligibility for permanent residence or other 
immigration benefits. Thus, the inclusion of all F-1, J-1, and M-1 
nonimmigrants in this information collection program will benefit the 
nonimmigrants themselves, as well as schools, exchange visitor 
programs, and the Service.
    It is the Service's desire to understand the needs and concerns of 
the educational community to the best of its ability while completely 
fulfilling its statutory requirements and obligations. The Service 
would encourage and welcome comment from the educational community 
regarding its proposal to include F-1, J-1, and M-1 nonimmigrants at 
all educational levels in this program.

Why is the Service proposing a fee?

    Section 641(e) of the IIRIRA requires that a Service-approved 
institution of higher education and a USIA designated exchange visitor 
program shall impose and collect a fee from each F-1 and 
M-1 student and each J-1 exchange visitor identified under section 
641(e)(3) of the IIRIRA to support the described information collection 
program. Just as section 641 of the IIRIRA is not the only statutory 
basis for this program, section 641(e) of the IIRIRA is not the only 
statutory basis for assessing a fee. Under 31 U.S.C. 9701, the Service 
must assess a fee for the participation in any program that affords a 
particular benefit to an identifiable recipient. As noted, the Service 
intends this program to benefit all F-1, J-1, and M-1 nonimmigrants by 
creating a process for verifying their satisfactory compliance with the 
conditions of their status. Since the program will benefit all of these 
nonimmigrants and the schools and exchange visitor programs in which 
they enroll, all F-1, J-1, and M-1 nonimmigrants, except those 
specifically identified in the proposed rule, will, pursuant to 31 
U.S.C. 9701, be subject to the fee. Under the first exception, J-1 
nonimmigrants who participate in exchange programs sponsored by the 
Federal Government will not have to pay the fee. This exception is 
required by section 641(e)(3) of the IIRIRA.
    Under the second exception, the Service has determined that it 
should not impose the fee on F-1 and M-1 nonimmigrants who are enrolled 
in private academic high schools or in other approved schools that are 
not ``institutions of higher education'' as defined in section 101(a) 
of the Higher Education Act of 1965, as amended. (It should be noted 
that attendance of public elementary schools is prohibited for F-1 and 
M-1 nonimmigrants under section 625 of the IIRIRA. Therefore, public 
elementary schools are not addressed in this rulemaking.)
    Section 641(e)(4)(B) of the IIRIRA does not clearly authorize the 
Service to deposit to the Examinations Fee Account the fees that would 
be paid under this proposed rule by schools on behalf of F-1 and M-1 
students who are not enrolled in approved institutions of higher 
education. Exempting these students is consistent with 31 U.S.C. 9701 
because the Service believes that the funds that could be collected 
from these nonimmigrants would not justify the costs of collecting and 
accounting for the fees.
    The Service invites comments on how it plans to impose the mandated 
fee through this proposed rule. In addition, comments are invited 
regarding who will be subject to the fee and who may be exempt from the 
fee.

How will the Service handle the fees it collects?

    The general principle, set forth in section 286(c) of the Act, is 
that, except for fees collected from persons living in Guam or the 
Virgin Islands, the Service, as the Attorney General's delegate, must 
deposit with the Department of Treasury as miscellaneous receipts all 
filing fees and other fees. Section 641(e)(4)(B) of the IIRIRA permits 
the Service, as the Attorney General's delegate, to deposit the fees 
that the Service would collect under this proposed rule into the 
Examinations Fee Account established under section 286(m) of the Act. 
Under section 641(h) of the IIRIRA, only those F-1 and M-1 
nonimmigrants who are enrolled in approved institutions of higher 
education and those J-1 nonimmigrants who participate in designated 
exchange programs that the Service has selected for participation in 
the program are within the scope of section 641 of the IIRIRA. Since 
the Service has selected all approved institutions of higher education 
and all designated exchange programs for participation in this program, 
the Service will deposit to the Examinations Fee Account all fees paid 
under this proposed rule.

What variables were used in determining the fee?

    The Service conducted a fee study that considered all of the costs 
incurred as a result of the foreign student and exchange visitor 
information collection program in order to determine the amount of the 
fee. Initially, section 641(e)(4)(A) of the IIRIRA sets the maximum 
permissible fee at $100. The amount of the proposed fee is $95. The 
amount of the fee is subject to change in the future based upon 
periodic review and analysis of the cost of conducting the information 
collection program, as required in section 641(f)(2) of the IIRIRA. The 
following discussion provides a description of the calculation of the 
fee.
    The proposed fee was calculated based on the program and system 
costs and the estimated population base of covered fee payers. The 
calculated costs include those expenses incurred by the Government to 
develop, produce, deploy, operate, and maintain the program and system. 
In addition, the proposed fee will cover the costs associated with the 
creation and population of new positions required to support this 
program.
    The revenue from the proposed fee will also cover the costs of 
technical and program support that the Government needs to administer 
benefits and to monitor schools, program sponsors, students, and 
exchange visitors solely for the purpose of this reporting program. In 
addition, a portion of the revenue from the proposed fee will be used 
for the direct support of Service operations relating to student and 
exchange visitor-related activities.

Program Costs

    For the Fee Study, program costs were defined and organized into 
nonrecurring costs and recurring costs.

Nonrecurring Costs

    The following include the nonrecurring costs that total $12.3 
million:
     Development: Development costs are associated with 
designing and developing the new program and associated system. The 
system will utilize an Internet-based processing approach, with 
electronic data transfer and electronic ``event'' notifications, to 
maintain accurate electronic files on foreign students and exchange 
visitors. School and exchange sponsors will submit to the Service, via 
the Internet, ongoing electronic ``event'' notifications throughout the 
individual's program in the United States. These notifications, made 
electronically through the system,

[[Page 71326]]

will immediately inform the Service of changes in student or exchange 
visitor status. The system is ultimately expected to improve the 
timeliness for benefits processing as well as the accuracy of the 
information used for processing foreign students and exchange visitors 
from point of visa issuance, admission to the United States, and 
throughout the course of their stay in the United States while pursuing 
their program of education or exchange. System development will begin 
after successful completion of the operational prototype. The Service 
will incur system development costs from 1999 through 2001. These costs 
include system and application design, development, integration, 
applications testing, and verification and validation.
     Deployment: Deployment funds will be expended to deliver 
and install the new national system software at designated Service 
regional offices (SROs), district offices (DOs), service centers (SCs), 
ports-of-entry (POEs), Service Headquarters, DOS Headquarters and DOS 
Consular Posts, U.S. Information Service (USIS) Offices, and the United 
States Customs Service (USCS).
    Development and deployment nonrecurring costs span several years 
beyond fiscal Year (FY) 2001 at varying funding levels. For example, 
the Service, in partnership with the USCS and DOS (including USIA 
functions merged into DOS), will incur deployment expenses in FY 2002 
and FY 2003. Partnership with USCS is necessary as the Service shares 
information technology with that agency at POEs throughout the country, 
and deployment of the program would not be complete without linkage to 
these share systems. Subsequent fee studies will include cost 
projections for the years beyond FY 2001 and may result in an 
adjustment to the fee amount.

Recurring Costs

    These recurring costs which total approximately $31 million are 
provided for the period October 1, 1999, through September 30, 2001 and 
consist of the following:
     Service Personnel costs include funding support staff at 
Service Headquarters, DOS Headquarters (for DOS and USIA expenditures 
relating to work performed by DOS and USIA personnel to meet this new 
Service requirement, including, but not limited to, USIA functions 
merged into DOS), Service field offices, and Help Desk customer 
support.
     System Operations and Maintenance (O&M) costs include 
expenses for ongoing operational support for the current operational 
electronic reporting prototype and a planned Beta test of the national 
electronic reporting program and system, including software and 
equipment maintenance, such as server maintenance.
     Program operations include those costs for full-scale 
Program operation, such as the Operations Help Desk, coordination with 
schools/programs, staffing Service offices and other Government 
agencies, and computer system processing. These costs include, but are 
not limited to, Service Headquarters and contract support.
     Overhead costs relate to the management and administrative 
(M&A) costs to support the planned electronic reporting program. 
Calculation of the student/exchange visitor program contribution is 
based upon comparing resources between the entire Service as an agency 
and the information collection program for foreign students and 
exchange visitors. An allocation was calculated based upon the 
proportion of the program resources to total Service resources.
    The cost projections use FY 1999 through FY 2001 budget estimates 
as the base for determining the full cost to design and deploy the 
program.
    The Service is estimating the fee as proposed in this rule to be 
$95, and invites comments on this proposed fee amount.

How was the user fee population base calculated?

    The statute specifies that certain nonimmigrants are subject to the 
proposed fee as follows: students and exchange visitors in the F-1, J-
1, and M-1 nonimmigrant categories. By statute, the only nonimmigrants 
exempted from the fee are J-1 exchange visitors who are participants in 
a program sponsored by the Federal Government and, as discussed above, 
the Service has also exempted F-1 and M-1 nonimmigrants enrolled in 
private elementary schools and public or private academic high schools. 
The remainder of nonimmigrants in the F-1, J-1, and M-1 nonimmigrant 
categories are subject to the proposed fee. For the purposes of this 
regulation, the only students and exchange visitors who will be 
required to pay the proposed fee will be those who have a program start 
date occurring on or after August 1, 1999.
    In the user base calculation, the proposed fee is levied on new 
students and exchange visitors whose programs begin on or after August 
1, 1999. In subsequent years, those initial students or exchange 
visitors who transfer into a new school, institution or program, or 
change program category will again pay the proposed fee to their new 
school, institution, or program for remittance on their behalf by the 
new school, institution or exchange visitor program. Upon transfer they 
will be paying as new students or exchange visitors in the new school, 
institution, program or category, together with the initial students 
and exchange visitors admitted each year. The user base, including all 
F-1, J-1, and M-1 nonimmigrants, was calculated to the approximately 
251,000 in both FY 2000 and FY 2001. The total population for this 2-
year period is 501,000 paying students and exchange visitors.

How were enrollment figures projected?

    Available data was analyzed based on trends experienced by the 
Service in other programs as well as trends projected by the aggregate 
totals estimated for students and exchange visitors. The analysis also 
reflects the following assumptions.
     The student and exchange visitors population base will not 
change dramatically over the next 2 years (2000 and 2001).
     The data on the student and exchange visitor population 
found in the 1996 Statistical Yearbook for the Immigration and 
Naturalization Service and the Institute for International Education's 
(IIE) ``Open Doors 1996-1997'' publication are the best available data 
at present.
     The USIA-provided data on the exchange visitor population 
are the best available.
     A portion of the student/exchange visitor population is 
not subject to the proposed fee.

When must a school or exchange visitor program collect and remit 
the fee?

     For those F-1, J-1, and M-1 nonimmigrants who are subject 
to the fee and who first register at a school, commence participation 
in an exchange visitor program, transfer to a new school/program, or 
change exchange visitor category between August 1, 1999, and the date 
on which the Service publishes the final rule in the Federal Register, 
the fee must be collected and remitted to the Service by not later than 
the end of a grace period, to be specified by the Service, after the 
date of publication of the final rule. The Service invites comments and 
suggestions as to the amount of time that would constitute an adequate 
and reasonable grace period for students and exchange visitors who 
qualify as outlined above in this paragraph.
     For those F-1, J-1, and M-1 nonimmigrants who are subject 
to the

[[Page 71327]]

fee and who first register at a school, commence participation in an 
exchange visitor program, transfer to a new school/program, or change 
exchange visitor category after the date on which the Service publishes 
the final rule in the Federal Register, the fee must be collected and 
remitted to the Service not later than 90 calendar days from the first 
date cited in block 5 of the Form I-20 or block 3 of the Form IAP-66.
    A detailed description and set of procedures delineating the entire 
payment remittance process, including the provision for a grace period 
as described above, and the definition of a valid form of payment will 
be provided in a Federal Register Notice that will be published 
concurrently with the final rule.

Under what circumstances must an 
F-1, J-1 or M-1 nonimmigrant pay the fee again?

    The fee must be paid whenever a new Form I-20, Certificate of 
Eligibility for a Nonimmigrant Academic or Vocational Student, or a new 
Form IAP-66, Certificate of Eligibility for an Exchange Visitor, is 
issued by a Service approved school or a designated exchange program 
for any of the following purposes to an F-1, J-1, or M-1 nonimmigrant 
who is subject to the fee:
     Transfer to a new school/exchange visitor program;
     Commencement of a new program after completion of the 
initial program; or
     Change of exchange visitor category.
    Under the above three circumstances, the proposed fee must be 
collected and remitted by the school or exchange visitor program not 
later than 90 days after:
     The report date indicated in block 5 of the new Form I-20, 
Certificate of Eligibility for Nonimmigrant Student Status, for F-1 and 
M-1 students, or
     The begin date indicated in block 3 of the new Form IAP-
66, Certificate of Eligibility for Exchange Visitor Status, for J-1 
exchange visitors.

Who is responsible for collection and remittance of the fee to the 
Service?

    Section 641(e) of the IIRIRA stipulates that ``an approved 
institution of higher education and a designated exchange visitor 
program ``must collect the proposed fee from each F-1, J-1, and M-1 
nonimmigrant who is subject to the fee and must then remit the fees to 
the Service. Each approved institution or program that is subject to 
this requirement, therefore, must actually collect and remit the fees. 
The Service recognizes that this aspect of the law gives rise to 
concerns among members of the educational community and other 
stakeholder groups. Predominant among these concerns are a perceived 
expansion in the role of the Designated School Official/Responsible 
Officer (DSO/RO) as an agent of the Federal Government, and the short 
timeline provided for public institutions to coordinate with State 
educational authorities and local governments to authorize them to 
assume the proposed fee collection and remittance responsibility.
    To meet its responsibility under this proposal, the institution, 
school, or exchange program must:
     Establish a means to collect, remit, and account for all 
fees collected from nonimmigrants who are subject to the fee;
     Inform each F-1, J-1, or M-1 nonimmigrant who is subject 
to the fee of his/her obligation to pay the fee;
     Verify that a Form I-901 has been completed, either 
manually or electronically, by or in behalf of each 
F-1, J-1, or M-1 nonimmigrant who is subject to the fee;
     Collect the required fee from each F-1, J-1, or M-1 
nonimmigrant who is subject to the fee;
     Remit the form and fee together to the Service in 
accordance with Sec. 103.2(a); and
     Verify fee payment as a prerequisite for any and all 
administrative or benefit applications through the DSO/RO, or to the 
Service subsequent to commencement of the program.
    For example, a DSO or RO must verify that any F-1, J-1, or M-1 
nonimmigrant who is subject to the fee has paid the fee before the DSO 
or RO may take any of the following actions: endorsing a Form I-20 or 
Form IAP-66; recommending to the Service/USIA that a benefit be 
granted; or granting a benefit to a student/exchange visitor through 
authority that has been delegated by Government regulation. It should 
be noted that failure by a DSO or RO to comply with these requirements 
may constitute grounds for withdrawal of school approval or program 
designation under existing Service regulations at 8 CFR 214.4(a) and 
USIA regulations at 22 CFR 514.60.
    The Service welcomes and encourages comment from the educational 
community on this entire regulation, particularly in regard to the 
proposed requirement that schools and exchange visitor programs collect 
and remit the fee. It is the Service's desire to understand and meet 
the needs of the educational community to the best of its ability while 
completely fulfilling its statutory requirements and obligations.

How will the fee be remitted to the Service?

    Service-approved schools and USIA designated exchange visitor 
programs will collect the proposed fee when an F-1, J-1, or M-1 
nonimmigrant who is subject to the fee first registers, enrolls, or 
transfers into a program of study at the school, or changes exchange 
visitor category, or begins participation in the designated exchange 
visitor program. If an F-1, J-1, or M-1 nonimmigrant who is subject to 
the fee transfers to a new school or program, or otherwise commences a 
new program or changes category, the nonimmigrant will once again be 
subject to the proposed fee, even if the same institution conducts the 
new program. The following instances are examples provided for 
reference:
     If a nonimmigrant F-1 student in a bachelor degree program 
at university ``A'' transfers to university ``B'' to continue to pursue 
his/her bachelors degree at university ``B,'' university ``B'' would be 
required to collect and remit the proposed fee on behalf of the F-1 
student.
     Two additional examples would be if a nonimmigrant student 
completes his/her undergraduate course of studies, and then enters a 
graduate program at the same university, or if a J-1 exchange visitor 
changes category from a research scholar to a student at the same 
institution, the school, or exchange visitor program must again collect 
and remit the proposed fee on behalf of the described nonimmigrant.
    Because section 641(e)(1) mandates that the Service receive the 
proposed fee through the school or exchange visitor program only at the 
time the nonimmigrant first registers or first commences participating 
in the exchange, the amount of the proposed fee will be set to recover 
the cost of providing the services related to section 641 of the 
IIRIRA, based on the average length of an F-1, J-1, or M-1 
nonimmigrant's program in the United States. If a particular 
nonimmigrant leaves earlier, the Service will not refund the balance of 
the proposed fee.
    Form I-901 will be available to schools and designated exchange 
programs from the Service's website. Valid payment of the fee is 
required in order for an F-1, J-1, or M-1 nonimmigrant who is subject 
to the fee to maintain status. However, payment of the proposed fee 
alone does not create or maintain F-1, J-1, or M-1 status for any 
nonimmigrant who is subject to the fee and who fails to comply fully 
with all applicable regulations under 8 CFR

[[Page 71328]]

214.2(f), 214.2(j), 214.2(m), and 22 CFR part 514.

Will the Service furnish a receipt to paying nonimmigrants?

    Yes. As evidence of payment, a receipt will be furnished to both 
the institution or exchange visitor program collecting and remitting 
the fee as well as to each F-1, J-1, and M-1 nonimmigrant who is 
subject to and has paid the fee. The receipt must be retained and 
produced by the student, exchange visitor, school, or program upon 
request by the Service. A detailed description and set of procedures 
delineating the entire payment remittance process and definition of 
valid form of payment will be provided in a Federal Register Notice 
that will be published concurrently with the final rule.

What happens if a school or exchange visitor program fails to 
collect and remit the fee on behalf of an F-1, J-1, or M-1 
nonimmigrant who is subject to the fee?

    Failure to collect and remit the fee as required will result in the 
nonimmigrant's loss of status. For any nonimmigrant who is subject to 
the fee, formal reinstatement will be necessary in order to regain 
lawful nonimmigrant status as an F-1 or M-1 student and valid program 
status as a J-1 exchange visitor. Application for reinstatement should 
be conducted as prescribed at Sec. 214.2(f)(16), 62 FR 19925, and 
Sec. 214.2(m)(16) for F, J, and M nonimmigrants respectively.
    In addition, a copy of the receipt evidencing payment of the fee 
must also be included as supporting evidence of valid status with all 
subsequent applications for benefits. This includes benefits 
authorized, recommended or endorsed by a DSO or RO as well as 
applications for benefits filed with the Service by an F-1, J-1, or M-1 
nonimmigrant who is subject to the fee, and/or his/her dependents, or 
with USIA by a J-1 nonimmigrant and/or his/her dependents.
    An F-1, J-1, or M-1 nonimmigrant who is subject to the fee would be 
required to provide a copy of his/her receipt evidencing payment of the 
proposed fee in order to apply for benefits that include, but are not 
limited to: change of status, authorization for curricular practical 
training, recommendation for and authorization of optional practical 
training, recommendation for employment authorization based on severe 
economic hardship, reduction in course load, extension in program 
length, authorization for off-campus employment, endorsement for 
academic training, and application for reinstatement.
    Failure by an authorized institution or designated exchange visitor 
program to impose, collect, and remit the fee may also result in 
withdrawal of school approval from the Service to issue Form I-20 under 
8 CFR 214.4(a) or termination of program designation by USIA under 22 
CFR 514.60. The Service in cooperation with USIA may decide to review 
fee payer data against various government and school records to analyze 
compliance by schools, exchange programs, students, and exchange 
visitors. The Service may bill schools or exchange visitor sponsors for 
fees not remitted.

Who is exempt from the fee?

    The only nonimmigrants in F, J, and M status exempt from the fee 
are:
     J-1 nonimmigrants who come to the United States as 
participants in programs sponsored by the Federal Government,
     F-1 and M-1 nonimmigrants enrolled in private elementary 
schools and public or private academic high schools, and
     F-2, J-2, and M-2 dependents.
    If the fee is remitted in error by any nonimmigrant, it will not be 
refunded.

Regulatory Flexibility Act

    The Commissioner, in accordance with the Regulatory Flexibility Act 
(15 U.S.C. 605(b)), has reviewed this regulation and, by approving it, 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities. The regulation levies an annual 
fee in the amount of $95 on nonimmigrant students and exchange visitors 
initially arriving or continuing a program in the United States. The 
volume of fee payers expected is approximately 251,000 in each of the 
first 2 years of program operation. The total projected revenues for 
each fiscal year, therefore, amount to approximately $24 million. 
Individuals as opposed to small businesses file these applications.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, or $100 million or more in any one year, and it will not 
significantly or uniquely effect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Act of 1996. This rule will 
not result in an annual effect on the economy of $100 million or more; 
a major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Assessment of Regulatory Impact on the Family

    As provided by section 654 of the 1999 Treasury and General 
Government Appropriations Act, Pub. L. 105-277, Division A, 101(h), 112 
Stat. 2681-528, the Commissioner has determined that this proposed rule 
will not have an adverse impact on the strength or stability of the 
family.

Executive Order 12866

    This proposed rule is considered by the Department of Justice, 
Immigration and Naturalization Service, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, this regulation has been 
submitted to the Office of Management and Budget (OMB) for review. 
While the economic impact of this proposed rule is expected to be an 
annual revenue approximately $23.87 million to the Service, such an 
impact does not meet the threshold to be considered economically 
significant as specified under Executive Order 12866.

Executive Order 13132

    This proposed rule will not have substantial direct effects on the 
States, or the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of Government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism survey impact statement.

Executive Order 12988 Civil Justice Reform

    This proposed rule meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    The information required by the proposed Form I-901, Fee Remittance

[[Page 71329]]

Form for Certain F-1, J-1, and M-1 Nonimmigrants, is considered an 
information collection and subject to review and clearance under the 
Paperwork Reduction Act procedures. The information collection 
requirement contained in this rule has been submitted to the OMB under 
the Paperwork Reduction Act for review and approval. The OMB control 
number for this collection is contained in 8 CFR 299.5, Display of 
control numbers.
    Since the rulemaking action needs to be completed in an expedited 
manner to comply with statutory mandates, the Service is providing for 
the review of the form I-901 as part of the proposed rule. Therefore, 
the Service solicits public comments for 60 days on the information 
collection requirement in order to:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The Service, in calculating the overall burden this requirement 
will place upon the public, estimates that approximately 251,000 forms 
will be submitted annually. The Service also estimates that it will 
take a given nonimmigrant approximately 19 minutes to comply with the 
requirements. This calculation amounts to 79,483 total burden hours.
    As required by section 3507(d) of the Paperwork Reduction Act of 
1995, the Service has submitted a copy of this proposed rule to OMB for 
its review of the information requirement. Other organizations and 
individuals interested in submitting comments regarding this burden 
estimate or any aspect of this information collection requirement, 
including suggestions for reducing the burden should direct them to: 
Stuart Shapiro, OMB, Office of Information and Regulatory Affairs, 725 
17th Street, NW., Washington, DC 20503, and Director, Policy Directives 
and Instructions Branch, Immigration and Naturalization Service, 425 I 
Street, NW., Room 5307, Washington, DC 20536. The comments or 
suggestions should be submitted within 60 days of publication of this 
rulemaking.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Freedom of Information, Privacy, Reporting and 
recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, 
Reporting and recordkeeping requirements, Students.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS: AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552(a): 8 U.S.C. 1101, 1103, 1201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    2. In Sec. 103.7, paragraph (b)(1) is amended by adding the entry 
for ``Form I-901'' to the listing of fees, in proper numerical 
sequence, to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-901. for remittance of the fee levied on specified F-1, J-1, 
and M-1 nonimmigrant aliens required under section 641(e) of Public Law 
104-208--$95. This fee may not be waived.
* * * * *

PART 214--NONIMMIGRANT CLASSES

    3. The authority citation for part 214 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 
1281, 1282; 8 CFR part 2.

    4. Section 214.2 is amended by:
    a. Adding a new paragraph (f)(17);
    b. Adding a new paragraph (j)(5);
    c. Adding a new paragraph (m)(18), to read as follows:


Sec. 214.2   Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (f) * * *
    (17) Remittance of the fee. (i) An 
F-1 nonimmigrant who begins a program of study at a Service-approved 
institution of higher education, as defined in section 101(a) of the 
Higher Education Act of 1965, as amended, on or after August 1, 1999, 
is subject to a fee payable to the Service. The fee and Form I-901, Fee 
Remittance Form for Certain F-1, J-1, and M-1 Nonimmigrants, will be 
collected and remitted to the Service by the school on behalf of the F-
1 student. The fee will be due 90 days from publication of a final rule 
in the Federal Register or 90 days after the first date appearing in 
block 5 of the Form I-20, whichever date is later. An F-1 nonimmigrant 
described in paragraph (f)(17)(v) of this section is not subject to 
this fee.
    (ii) A Service-approved school must collect the fee from an F-1 
nonimmigrant described in paragraph (f)(17)(i) of this section when he 
or she first registers at the school and remits it directly to the 
Service in order for the F-1 student and his or her F-2 dependents to 
remain in lawful nonimmigrant status. Failure by the school to impose, 
collect, and remit the fee is conduct which does not comply with 
Service regulations and may cause the Service to initiate action to 
withdraw approval pursuant to Sec. 214.4(a)(1)(v). Failure by such an 
F-1 student to pay the fee as required is a violation of status for the 
F-1 principal as well as any F-2 dependents, and neither the F-1 nor F-
2 nonimmigrant will be considered to have gone out of status ``through 
no fault of his or her own'' or ``for technical reasons.'' Payment of 
the fee does not, however, preserve the lawful status of any F-1 or F-2 
nonimmigrant who has violated his or her status in some other way.
    (iii) Any F-1 student who is out of status for late payment or 
nonpayment of the required fee must also apply for reinstatement as 
provided under paragraph (f)(16) of this section. The Form I-539, 
Application to Extend Status/Change Nonimmigrant Status, must be 
submitted together with a copy of a valid receipt from the Service as 
evidence of having paid the fee in order to be eligible to apply for 
reinstatement to F-1 status. Approval of the Form I-539 also reinstates 
the status of any F-2 dependents.
    (iv) If an F-1 nonimmigrant is subject to the fee, the F-1 
nonimmigrant and his/her F-2 dependents must present a copy of the 
receipt evidencing payment

[[Page 71330]]

of the fee in order to be eligible for any benefit endorsed or 
authorized by a DSO or with applications for benefits filed with the 
Service by the F-1 nonimmigrant and/or his/her dependents, including 
change of status. A DSO's failure to verify that an F-1 nonimmigrant 
who is subject to the fee has paid the fee before endorsing or 
authorizing any application for benefits is conduct which does not 
comply with Service regulations and may cause the Service to initiate 
action to withdraw approval pursuant to Sec. 214.4(a)(1)(v). If an F-1 
nonimmigrant subject to this fee transfers to a new institution of 
higher education or begins a new program at the same institution, the 
F-1 nonimmigrant must pay the fee when the F-1 nonimmigrant begins 
studies at the new institution or in the new program.
    (v) An F-1 nonimmigrant is not subject to the requirements of this 
paragraph if the F-1 nonimmigrant is enrolled in a private elementary 
school or a public or private academic high school in the United 
States.
* * * * *
    (j) * * *
    (5) Remittance of the fee. (i) A nonimmigrant in J-1 status 
commencing participation in a USIA-designated exchange visitor program 
on or after August 1, 1999, is subject to a fee payable to the Service. 
The fee and Form I-901, Fee Remittance Form for Certain F-1, J-1, and 
M-1 Nonimmigrants, will be collected and remitted to the Service by the 
exchange visitor program on behalf of the J-1 exchange visitor. The fee 
will due 90 days from publication of the final rule in the Federal 
Register or 90 days after the first date appearing in block 3 of the 
Form IAP-66, whichever date is later. A J-1 nonimmigrant described in 
paragraph (j)(5)(v) of the section is not subject to this fee.
    (ii) A designated exchange visitor program must collect the fee 
from a J-1 nonimmigrant who is subject to the fee described in 
paragraph (j)(5)(i) of this section in order for the J-1 exchange 
visitor and his or her J-2 dependents to remain in valid program 
status. Failure by such a J-1 exchange visitor to pay the fee as 
required is a violation of valid J-1 program status for the J-1 
principal as well as any J-2 dependents, and neither the J-1 principal 
nor the J-2 dependents will be considered to have gone out of status 
``through no fault of his or her own'' or ``for technical reasons.'' 
Payment of the fee does not, however, preserve the lawful status of any 
J-1 or J-2 nonimmigrant who has violated his or her status in some 
other way. Failure by the exchange visitor program to attempt to 
collect and remit the fee may cause the Service to request the USIA to 
terminate program designation pursuant to 22 CFR 514.60.
    (iii) Any J-1 exchange visitor who is out of program status for 
late payment or nonpayment of the required fee must also apply for 
reinstatement as provided under 22 CFR Part 514. The application or 
request for reinstatement to valid program status must be submitted to 
the USIA together with a copy of a valid receipt from the Service as 
evidence of having paid the fee in order to be eligible to apply for 
reinstatement to valid J-1 program status. Reinstatement of the J-1's 
status also reinstates the status of any J-2 dependents.
    (iv) If a J-1 nonimmigrant is subject to the fee, the J-1 
nonimmigrant and his/her J-2 dependents must present a copy of the 
receipt evidencing payment of the fee with all subsequent benefits 
endorsed or authorized by an RO as well as applications for benefits 
filed with the Service or USIA by the J-1 nonimmigrant and/or his/her 
dependents, including change of status. If a J-1 nonimmigrant transfers 
to a new exchange visitor program, or to a different exchange visitor 
program or category at the same institution, the J-1 nonimmigrant must 
pay the fee when participation at the new institution or in the new 
program or category commences.
    (v) A J-1 nonimmigrant is not subject to the requirements of this 
paragraph if the J-1 nonimmigrant comes to the United States as a 
participant in a program sponsored by the Federal Government.
* * * * *
    (m) * * *
    (18) Remittance of the fee. (i) An 
M-1 nonimmigrant who begins a program of study at a Service-approved 
institution of higher education, as defined by section 101(a) of the 
Higher Education Act of 1965, as amended, on or after August 1, 1999, 
is subject to a fee payable to the Service. The fee and Form I-901, Fee 
Remittance Form for Certain F-1, J-1, and M-1 Nonimmigrants, will be 
collected and remitted to the Service by the school on behalf of the M-
1 student. The fee will be due 90 days from publication of the final 
rule in the Federal Register or 90 days after the first date appearing 
in block 5 of the Form I-20, whichever date is later. An M-1 
nonimmigrant described in paragraph (m)(18)(v) of this section is not 
subject to the is fee.
    (ii) A Service-approved school must collect the fee from an M-1 
nonimmigrant described in paragraph (m)(18)(i) of this section and 
remit it directly to the Service in order for an M-1 student and any M-
2 dependents to remain in lawful nonimmigrant status. Failure by the 
school to impose, collect, and remit the fee is conduct that does not 
comply with Service regulations, and may cause the Service to initiate 
action to withdraw approval pursuant to Sec. 214.4(a)(1)(v). Failure by 
such an M-1 student to pay the fee as required is a violation of status 
for the M-1 principal as well as any M-2 dependents, and neither the M-
1 student nor any M-2 dependent will be considered to have gone out of 
status ``through no fault of his or her own'' or ``for technical 
reasons.'' Payment of the fee does not, however, preserve the lawful 
status of any M-1 or M-2 nonimmigrant who has violated his or her 
status in some other way.
    (iii) Any M-1 student who is out of status for late payment or 
nonpayment of the required fee must also apply for reinstatement as 
provided under paragraph (m)(16) of this section. The Form I-539, 
Application to Extend Status/Change Nonimmigrant Status, must be 
submitted together with a copy of a valid receipt from the Service as 
evidence of having paid the fee for all applicable programs in order to 
be eligible to apply for reinstatement to 
M-1 status. Approval of the Form I-539 also reinstates the lawful 
status of any M-2 dependents.
    (iv) If an M-1 nonimmigrant is subject to this fee, the M-1 
nonimmigrant and his/her M-2 dependents must include a copy of the 
receipt evidencing payment of the fee with all subsequent requests for 
benefits endorsed or authorized by a DSO as well as applications for 
benefits filed with the Service by the M-1 nonimmigrant and/or his/her 
dependents, including change of status. A DSO's failure to verify that 
an M-1 nonimmigrant who is subject to the fee has paid the fee before 
endorsing or authorizing any application for benefits is conduct which 
does not comply with Service regulations and may cause the Service to 
initiate action to withdraw approval pursuant to Sec. 214.4(a)(1)(v). 
If an M-1 nonimmigrant transfers to a new institution of higher 
education, or begins a new program at the same institution, the M-1 
nonimmigrant must pay the fee when the M-1 nonimmigrant begins training 
at the new institution or in the new program.
    (v) An M-1 nonimmigrant is not subject to the requirements of this 
paragraph if the M-1 nonimmigrant is enrolled in a private elementary 
school

[[Page 71331]]

or a public or private academic high school in the United States.
* * * * *

PART 299--IMMIGRATION FORMS

    5. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

    6. Section 299.1 is amended in the table by adding, in proper 
numerical sequence, the entry for From ``I-901'' to read as follows:


Sec. 299.1  Prescribed forms.

------------------------------------------------------------------------
       Form No.              Edition date                 Title
------------------------------------------------------------------------
 
                  *        *        *        *        *
I-901................  XXXXX...................  Remittance of the fee
                                                  required for certain F-
                                                  1, J-1, and M-1
                                                  nonimmigrant aliens.
------------------------------------------------------------------------

* * * * *
    6. Section 299.5 is amended in the table by adding, in proper 
numerical sequence, the entry for Form ``I-901'' to read as follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                 Currently  assigned OMB
     INS Form No.           INS form title              control No.
------------------------------------------------------------------------
                  *        *        *        *        *
I-901................  Remittance of the fee     1115-
                        required for certain F-
                        1, J-1, and M-1
                        nonimmigrant aliens.
------------------------------------------------------------------------

* * * * *
    Dated: December 14, 1999.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 99-32842 Filed 12-20-99; 8:45 am]
BILLING CODE 4410-10-M