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

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 214, and 299

[INS No. 1991-99]

RIN 1115-AF56

Authorizing Collection of the Fee Levied on F, J, and M

Nonimmigrant Classifications Under Public Law 104-208

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This rule proposes to amend the Immigration and Naturalization

Service's (Service) regulations to: Establish a $95 fee, that schools

and exchange visitor programs must collect and remit on behalf of F-1,

J-1, and M-1 nonimmigrants who are subject to this

[[Page 71324]]

fee when they first register or enroll in school or first commence

exchange program participation in the United States; explain which F-1,

J-1; and M-1 nonimmigrants are required to pay the fee; describe the

consequences that an F-1, J-1, or M-1 nonimmigrant faces upon failure

to pay the fee; specify the consequences that an approved school or

exchange program faces if it fails to collect the fee and remit it to

the Service; and to specify which F-1, J-1, and M-1 nonimmigrants are

exempt from the fee.

This rule is necessary to implement section 641 (regarding the

Program to Collect Information Relating to Nonimmigrant Foreign

Students and Other Exchange Program Participants) of the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),

as well as the authority that the Service already has under sections

103 (regarding the Powers and Duties of the Commissioner of the

Service) and 214 (regarding Admission of Nonimmigrants) of the

Immigration and Nationality Act (Act) and under 31 U.S.C. 9701 and

section 286(m) of the Act.

DATES: Written comments must be submitted on or before February 22,

2000.

ADDRESSES: Please submit written comments, in triplicate, to the

Director, Policy Directives and Instructions Branch, Immigration and

Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC

20536. To ensure proper handling, please references INS No. 1991-99 on

your correspondence. Comments are available at the above address by

calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Kristen L. Casa or Song Park, Program

Analysts, or Maurice R. Berez, Adjudications Officer, Adjudications

Division, Immigration and Naturalization Service, 415 I Street NW.,

Room 3214, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

Who are F, J, and M Nonimmigrants?

The Act provides for the admission of different classes of

nonimmigrants. The purpose of the nonimmigrant's intended stay in the

United States determines his or her proper nonimmigrant classification.

Some classifications permit the nonimmigrant's spouse and qualifying

child(ren) to accompany the nonimmigrant to the United States, or to

join the nonimmigrant here. To qualify, a child must be unmarried and

under the age of 21.

The F-1 nonimmigrants are foreign nationals enrolled as students in

Service-approved colleges, universities, seminaries, conservatories,

academic high schools, private elementary schools, other academic

institutions, and in language training programs in the United States.

For the purposes of this regulation, the term school refers to all of

these types of Service-approved institutions. An F-2 nonimmigrant is a

foreign national who is the spouse or qualifying child of an F-1

student.

The J-1 nonimmigrants are foreign nationals who have been selected

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