[Federal Register Volume 68, Number 100 (Friday, May 23, 2003)]
[Rules and Regulations]
[Pages 28129-28132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12653]


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DEPARTMENT OF STATE

22 CFR Part 41

[Public Notice 4368]


Visas: Documentation of Nonimmigrants Under the Immigration and 
Nationality Act, as Amended: Student and Exchange Visitor Information 
System (SEVIS)

ACTION: Interim Rule; request for comments.

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SUMMARY: This rule amends the Department's regulations pertaining to 
foreign students and exchange visitors who enter the United States in 
F, M, or J nonimmigrant visa categories. The new regulations will 
establish the verification and reporting procedures required by the 
Department of Homeland Security (DHS) foreign student monitoring system 
known as Student and Exchange Visitor Information System (SEVIS). As 
SEVIS was fully implemented on February 15, 2003, the Department's 
transitional foreign student database known as Interim Student and 
Exchange Authentication System (ISEAS) is no longer available to the 
educational and exchange visitor communities. However, it remains 
available to consular sections in the field as a means of 
electronically verifying student and exchange visitor documentation 
issued prior to February 15, 2003.

DATES: This interim rule is effective on May 23, 2003. Comment date: 
Written comments must be submitted on or before July 22, 2003.

ADDRESSES: Submit comments in duplicate to Chief, Legislation and 
Regulations Division, Visa Services, Department of State, 20520-0106. 
Comments may also be forwarded via e-mail to [email protected] or 
faxed to 202-663-3898.

FOR FURTHER INFORMATION CONTACT: Nancy Altman, Legislation and 
Regulations Division, Visa Services, Department of State, Washington, 
DC 20520-0106, 202-261-8040.

SUPPLEMENTARY INFORMATION: 

What Is the Background for This Action?

    SEVIS is an internet-based DHS system that will track ``F'' and 
``M'' student visa recipients, and ``J'' visa exchange program 
participants from the time they receive their initial documentation 
(Form I-20 for F-visa academic students and for M-visa vocational 
students, or Form DS-2019 for exchange visitor program participants) 
until they graduate, leave school or a designated program, or depart 
the United States. The legislative mandate for SEVIS is section 641 of 
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(IIRIRA), Public Law 104-208, which requires that DHS, in consultation 
with the Secretary of State and the Secretary of Education, establish a 
reporting and tracking system for collecting and maintaining data and 
information on foreign students and exchange visitors. In response to 
this legislative mandate, the DHS established the Student and Exchange 
Visitor Program (SEVP) and the internet-based electronic information 
collection and reporting system known as the Student and Exchange 
Visitor Information System (SEVIS).
    Subsequent legislation has enhanced the foreign student tracking 
system mandated by IIRIRA. For example, on October 26, 2001, the 
President signed into law the ``Uniting and Strengthening America by 
Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism'' (USA Patriot Act),

[[Page 28130]]

Public Law 107-56. Section 416 of the USA Patriot Act allots $36.8 
million to support the nationwide deployment of SEVIS and requires that 
SEVIS be fully implemented by January 1, 2003.
    On May 14, 2002, the President signed into law the ``Enhanced 
Border Security and Visa Reform Act of 2002'' (Border Security Act), 
Public Law 107-173. To address heightened national security concerns, 
Title V of the Border Security Act mandates the Department to establish 
a transitional foreign student monitoring system to be in place within 
120 days of enactment and to remain in operation until such time as the 
system described in section 641 of IIRIRA (i.e. SEVIS) is fully 
implemented.
    The Bureau of Consular Affairs introduced the transitional database 
known as ISEAS on September 11, 2002. On September 18, 2002, the 
Department published an interim rule in the Federal Register at 67 FR 
181, which set forth the procedures for data sharing between schools 
and sponsors, the Department and the former INS. The Department's 
transitional database, ISEAS, has been phased-out now that SEVIS is 
fully implemented. The ISEAS internet site which was open to 
institutional users for the entry of ISEAS records, will no longer be 
available, and SEVIS has assumed the electronic student and exchange 
visitor status verification role for visa adjudication and visa 
issuances formerly served by ISEAS. ISEAS does, however, remain 
available to consular sections worldwide for the purpose of electronic 
student and exchange visitor status verification of visa applicants 
presenting Forms I-20 A-B, I-20 M-N or DS-2019 issued prior to the 
February 15, 2003 full implementation date of SEVIS.
    On December 11, 2002, the Immigration and Naturalization Service 
(INS, since taken over by the Department of Homeland Security (DHS); 
all subsequent references are to DHS, even if done by INS) published in 
the Federal Register (67 FR 238) its final rule regulating SEVIS 
participation by F and M visa-issuing institutions. On December 12, 
2002, the State Department's Bureau of Educational and Cultural Affairs 
(ECA) published a proposed rule in the Federal Register (67 FR 239) 
regulating SEVIS participation by Exchange Visitor Program Sponsors. 
Reference to these rules is recommended for additional background and 
other information about SEVIS.

What Procedures Are Required by SEVIS?

    SEVIS is fully implemented and as of February 15, 2003, all new 
Forms I-20 issued by academic educational institutions, by vocational 
educational institutions, and all Forms DS-2019 issued by exchange 
visitor program sponsors, must be created within the SEVIS system. The 
SEVIS compliant versions of the I-20 are the SEVIS Form I-20, 
Certificate of Eligibility for Nonimmigrant (F-1) Student Status--For 
Academic and Language Students, and the SEVIS Form I-20, Certificate of 
Eligibility for Nonimmigrant (M-1) Student Status--For Vocational 
Students. These are one-page documents featuring a two-dimensional bar 
code on the right-hand side with a SEVIS Identification number in the 
top-right corner. The Form DS-2019 that is issued from SEVIS is a one-
page document that, like the SEVIS compliant form I-20, features a two-
dimensional bar code and SEVIS Identification number on the right-hand 
side.
    Both the DHS and ECA require all schools and program sponsors to 
use SEVIS to issue new forms I-20/DS-2019 as of February 15, 2003. 
Educational institutions and exchange visitor program sponsors are no 
longer able to enter records in ISEAS. However, the ISEAS database will 
remain available for consular employees to verify all forms I-20 A-B, 
I-2-M-N, and DS-2019 that were issued prior to February 15, 2003.
    Educational institutions and exchange visitor program sponsors will 
be given additional time to enter information concerning continuing 
foreign students and exchange visitors into SEVIS. Information on all 
continuing students and exchange visitors must be entered into SEVIS by 
August 1, 2003. Both the DHS and ECA rules identify certain reportable 
actions (e.g. issuance of SEVIS Forms I-20, and DS-2019, visa issuance, 
extension of status, employment authorization) that necessitate the 
issuance of a SEVIS document prior to that date.

How Does Compliance With SEVIS Requirements Affect Other Visa Issuance 
Requirements?

    Compliance with SEVIS requirements does not exempt a student or 
exchange visitor from complying with all other requirements for visa 
issuance. For example, all male nonimmigrant visa applicants between 
the ages of 16 and 45, regardless of nationality and regardless of 
where they apply, must fill out and submit to the post a form DS-157 to 
be submitted at the same time as the nonimmigrant visa application, 
form DS-156. Applicants seeking to enter the United States in F, M, or 
J classifications must meet all other requirements that are separate 
from, and in addition to, those pertaining to their student or exchange 
visitor status.

Are Border Commuter Students Subject to SEVIS Requirements?

    On November 2, 2002, the President signed into law the ``Border 
Commuter Student Act of 2002'' (Border Commuter Act) Public Law 107-
274. This legislation amended the Immigration and Nationality Act to 
create new nonimmigrant visa classifications (F-3 and M-3) for citizens 
and residents of Mexico or Canada who seek to commute into the United 
States for the purpose of attending an approved F or M school. Border 
commuter students are permitted to study on either a full-time or part-
time basis and are subject to the same reporting requirements and SEVIS 
processes as those required for F-1 and M-1 students. Border commuter 
students, however, may not obtain F-2 or M-2 status for their 
dependents. On August 27, 2002, the DHS published in the Federal 
Register (67 FR 166) an interim rule regulating the full or part-time 
study of certain Mexican and Canadian border commuter students. 
Reference to this regulation is recommended for additional background 
and other information relating to the border commuter student.

How Are F, M and J Dependents Processed Under SEVIS?

    Under SEVIS, every F-2, M-2 and J-2 dependent receives his or her 
individual Form I-20 or DS-2019 with a unique identification number. 
The SEVIS-generated forms issued to dependents reflect the name of the 
F-1, M-1 or J-1 participant and will also indicate their dependent 
status.

What Role Does SEVIS Play in the Visa Adjudication and Visa Issuance 
Process?

    SEVIS is an internet-based reporting and tracking system that is 
accessible by DHS, the Department, and certified educational 
institution and exchange visitor program sponsors. Data and information 
is collected and maintained on foreign students and exchange visitors 
throughout their stay in the United States.
    Aliens who wish to study or participate in an exchange program in 
the United States must first apply to an educational institution that 
has been approved by the DHS, or to an exchange visitor program 
approved by the

[[Page 28131]]

Department's Bureau of Educational and Cultural Affairs. When a student 
or exchange visitor accepts an offer to study or participate in an 
exchange program, the designated educational institution or program 
official will access SEVIS to enter the information electronically, 
collecting the student or exchange visitor data in a central database 
prior to issuing a Form I-20 or DS-2019.
    The SEVIS-compliant versions of the I-20 are the SEVIS Form I-20, 
Certificate of Eligibility for Nonimmigrant (F-1) Student Status-For 
Academic and Language Students, and SEVIS Form I-20, Certificate of 
Eligibility for Nonimmigrant (M-1) Student Status-For Vocational 
Students. The SEVIS compliant form for the exchange visitor is the 
SEVIS Form DS-2019, ``Certificate of Eligibility for Exchange Visitor 
(J-1) Status. Visa applicants will present their SEVIS-generated form 
to the consular officer when applying for a visa.
    Authorized consular officials will use SEVIS' data to verify in the 
Consolidated Consular Database (CCD) Forms I-20 and DS-2019, and to 
report the associated F, M, and J visa issuances to the DHS. SEVIS acts 
as a verification mechanism much like ISEAS, in that prior to visa 
issuance the SEVIS Form I-20 or DS-2019 presented with a visa 
application must be verified against the SEVIS data. After the 
authorized consular official verifies the provenance of the form 
presented by the visa applicant, and the appropriate F, M or J visa is 
issued, the existing State Department-DHS ``datashare'' link will be 
utilized to notify SEVIS of visa issuance. Once DHS implements the 
SEVIS user fee, authorized consular officials may also verify the 
payment of that fee by inspecting the appropriate receipt or reviewing 
the applicable data in SEVIS.
    For Forms I-20 and DS-2019 issued prior to February 15, 2003, 
consular officials and academic advisors in the field as well as DHS 
Inspectors at the ports of entry will continue to receive and accept as 
valid pre-SEVIS ``paper'' Forms I-20 A-B, Certificate of Eligibility 
for Nonimmigrant (F-1) Student Status-For Academic and Language 
Students, Forms I-20 M-N, Certificate of Eligibility for Nonimmigrant 
(M-1) Student Status-For Vocational Students, and Forms DS-2019, 
Certificate of Eligibility for Exchange Visitor (J-1) Status until 
August 1, 2003.

How Is the Department Amending Its Regulations?

    The Department is amending its regulations at 22 CFR 41.61 and 
41.62 regarding students and exchange visitors by adding the 
requirement that authorized consular officials verify the provenance of 
SEVIS-generated Forms I-20 or DS-2019 against SEVIS data in the CCD. It 
is also amending its regulations by adding the requirement that 
authorized consular officials verify the payment of any applicable 
SEVIS fee, and to make Border Commuter Students (F-3 and M-3) subject 
to SEVIS requirements. No F-1, F-2, F-3, M-1, M-2, M-3, J-1 or J-2 visa 
may be issued unless an authorized consular official has verified the 
provenance of the student or exchange visitor acceptance documentation 
against SEVIS data in the CCD, or via direct access to SEVIS.

Regulatory Analysis and Notices

Administrative Procedure Act

    The Department's implementation of this regulation as an interim 
rule with request for comments is based upon the ``good cause'' 
exceptions found at 5 U.S.C. 553(b) and (d)(3). The U.S.A. Patriot Act, 
Public Law 107-56, mandates that SEVIS be fully implemented and 
expanded prior to January 1, 2003. The DHS intends to have the SEVIS 
database fully operational as soon as is practicable after the January 
1, 2003 implementation deadline. The Department determined that it had 
insufficient time to publish a proposed rule with a request for 
comments, given the need to promulgate regulations prior to the time 
constraints imposed by the statutory implementation deadline.

Regulatory Flexibility Act

    The Department, in accordance with the Regulatory Flexibility Act 
(5 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 entities.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect 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 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.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. In addition, the Department is 
exempt from Executive Order 12866 except to the extent that it is 
promulgating regulations in conjunction with a domestic agency that are 
significant regulatory actions. The Department has nevertheless 
reviewed the regulation to ensure its consistency with the regulatory 
philosophy and principles set forth in that Executive Order.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States on 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 require consultations or warrant 
the preparation of a federalism summary impact statement.

Paperwork Reduction Act

0
This rule does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

PART 41--[AMENDED]

0
1. The authority citation for part 41 continues to read as follows:

    Authority: 8 U.S.C. 1104; Pub. L. 105-277, 112 Stat. 2681 et 
seq.


0
2. Amend paragraphs (b)(1), (b)(1)(i), (b)(1)(iii) and (d) of 
Sec. 41.61 to read as follows:


Sec.  41.61  Students-academic and nonacademic.

* * * * *
    (b) Classification. (1) An alien is classifiable under INA 
101(a)(15)(F) (i)

[[Page 28132]]

or (iii) or INA 101(a)(15)(M) (i) or (iii) if the consular officer is 
satisfied that the alien qualifies under one of those sections, and:
    (i) The alien has been accepted for attendance for the purpose of 
pursuing a full course of study, or, for students classified under INA 
101(a)(15) (F)(iii) and (M)(iii) Border Commuter Students, full or 
part-time course of study, in an academic institution approved by the 
Attorney General for foreign students under INA 101(a)(15)(F)(i) or a 
nonacademic institution approved under 101(a)(15)(M)(i). The alien has 
presented a SEVIS Form I-20, Form I-20A-B/I-20ID. Certificate of 
Eligibility For Nonimmigrant Student Status--For Academic and Language 
Students, or Form I-20M-N/I-20ID, Certificate of Eligibility for 
Nonimmigrant Student Status--For Vocational Students, properly 
completed and signed by the alien and a designated official as 
prescribed in regulations found at 8 CFR 214.2(F) and 214.2(M);
* * * * *
    (iii) The alien, unless coming to participate exclusively in an 
English language training program, has sufficient knowledge of the 
English language to undertake the chosen course of study or training. 
If the alien's knowledge of English is inadequate, the consular officer 
may nevertheless find the alien so classifiable if the accepting 
institution offers English language training, and has accepted the 
alien expressly for a full course of study (or part-time course of 
study for Border Commuter Students) in a language with which the alien 
is familiar, or will enroll the alien in a combination of courses and 
English instruction which will constitute a full course of study if 
required; and
* * * * *
    (d) Electronic verification and notification. A student's 
acceptance documentation must be verified by a consular official's 
review of the SEVIS data in the Consolidated Consular Database or via 
direct access to SEVIS or ISEAS prior to the issuance of an F-1, F-2, 
M-1 or M-3 visa. Evidence of the payment of any applicable fees, if not 
presented with other documentation, may also be verified through the 
Consolidated Consular Database or direct access to SEVIS. Upon issuance 
of an F or M visa, notification of such issuance must be entered into 
the SEVIS database.

0
3. Amend paragraphs (a)(1) and (5) of Sec.  41.62 to read as follows:


Sec.  41.62  Exchange Visitors.

    (a) * * *
    (1) Has been accepted to participate, and intends to participate, 
in an exchange visitor program designated by the Department of State, 
as evidenced by the presentation of a properly executed Form DS-2019, 
Certificate of Eligibility for Exchange Visitor (J-1) Status as 
prescribed in regulations found at 22 CFR 41.62 and 41.63;
* * * * *
    (5) Electronic verification and notification. An exchange visitor's 
acceptance documentation and payment of any applicable fees must be 
verified by a consular official's review of the SEVIS database or via 
direct access to SEVIS or ISEAS prior to the issuance of a J-1 or J-2 
visa. Evidence of the payment of any applicable fees, if not presented 
with other documentation, may also be verified through the Consolidated 
Consular Database or direct access to SEVIS. Upon issuance of a J-1 or 
J-2 visa, notification of such issuance must be entered into the SEVIS 
database.

    Dated: April 9, 2003.
Maura Harty,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 03-12653 Filed 5-22-03; 8:45 am]
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