We would like to thank Connie Burk, Immigration Specialist at the University of Tennessee-Memphis, for her assistance with this article.
In December 2002, the INS released the final rule changing the reporting requirements for foreign students on F, J and M visas, and implementing the new Student and Exchange Visitor Information System (SEVIS). The new system will apply to all students (F-1 and M-1) and exchange visitors, (J-1) including the new categories for border commuter students (F-3 and M-3). While SEVIS is meant to be a comprehensive system containing information about all students, the system does not exempt students from complying with any other reporting requirements, such as new rules on students at flight schools.
Schools and exchange visitor programs must be in compliance with SEVIS by January 30, 2003, or they will not be allowed to issue new I-20s or DS-2019s to any international students or scholars. While many commentators objected to this deadline, the INS believes that neither cost nor training considerations are such that implementation should be delayed. However, schools do not have to have all students and research scholars entered into the system until August 1, 2003, and I-20s and DS-2019s issued prior to January 30, 2003 will continue to be accepted for purposes of obtaining a visa, entering the US and obtaining a change of status until August 1, 2003. Dependents may use a non-SEVIS I-20 or DS-2019 to enter the US before August 1, 2003 if they can show exigent circumstances. However, upon any “reportable action,” such as extensions of status, practical training or new visa applications, will require a new SEVIS I-20. Also, schools that are approved for SEVIS before the January 30 deadline must issue SEVIS I-20s to all new students. While in the process of transferring student records to SEVIS, schools must continue to comply with all other current reporting requirements.
Schools may now have up to 10 Designated School Officials (DSOs), one of whom is the PDSO (Principal Designated School Official), per campus. K-12 school systems may only have 10 DSOs for the entire school system, however. Only US citizens or lawful permanent residents will be allowed to fill these positions. However, the INS has left open the possibility that it will develop a certification program, including a background check, and if it does, immigration status may be removed as a consideration for appointment as a DSO.
Under the new rules, F-1 students will be allowed to reduce their course load because of academic difficulties only once, and must resume a full course load at the start of the full academic term, including summer. M-1 students cannot reduce their course load based on academic difficulties. In the case of illness or another medical condition that prevents the student for pursuing a full course load, F-1 students may receive permission to take a reduced course load for an aggregate total of 12 months, which will not include any reductions based on academic difficulties. M-1 students may be authorized to pursue a reduced course load for up to five months. Academic difficulties and illness are the only reasons a student will be authorized to take less than a full course load. These limitations apply differently to F-3 and M-3 students, who are authorized to engage only in part-time studies.
Student transfers between schools will become much more complex under the new regulations. While the current provision allowing a student to transfer to a new school up to 60 days after completing a course of study at another institution remains in effect, many other rules will change. If students will be out of school or OPT work for more than five months, they cannot remain in the US to wait for courses to begin again. SEVIS will allow a student’s records to be available to only one school at a time, meaning that the student will not be issued the new I-20 until the date specified as the transfer release date. Once this date is reached, the original school will no longer have access to the student’s SEVIS records, so the student must be sure of the transfer request, or rescind it before that date.
M-1 students apply for transfers directly to the INS. Because of this, SEVIS will allow the transfer school access to the student’s records before the release date so that the new I-20 can be supplied to the INS. Also, M-1 students will be allowed to attend classes at the new school while the INS processes the transfer request. However, if the request is denied, the student’s status will be terminated and he or she will be out of status. Therefore, applications for transfer requests should be made as early as possible.
Students may enter the US up to 30 days before the start of their program (start date on the I-20). The INS rejected suggestions to extend this time, noting that the DSO can list a program start date far enough in advance of classes beginning to allow the student to make arrangement for living in the US. The INS is also considering revising the I-20 to list two separate start dates, one by which the student should enter the US and one on which classes begin.
A student who receives DSO permission to withdraw from classes will be given a 15-day grace period in which to make arrangements for departing the US. Students who have never registered, or who do not receive permission to withdraw will not receive this grace period.
The new rule limits credits for distance education that count toward full-time enrollment to 3 per term and allows students in elementary and secondary schools to include distance education and online courses as part of their full course of study. However, M-1 students and students engaged in English classes will not be allowed to do so. They can participate in such classes, but cannot count them toward their full course of study.
The rule changes the language specifying when a student can receive optional practical training from nine months to a full academic year in recognition of the fact that not every school has a nine-month year. Students will be allowed to apply for optional practical training up to 90 days before the end of their first full academic year, but the INS will not authorize employment to begin until they have actually completed the academic year. Schools will be required to continue updating a student’s SEVIS records while they pursue their optional practical training, so students will need to maintain contact with their DSO. Students who are authorized for on -campus employment, which does not require separate INS permission, will be allowed to begin work up to 30 days before the start of classes.
Under the SEVIS system, technological errors or errors caused by SEVIS that cause a student to fall out of status can be remedied administratively. The school DSO will need to contact the SEVIS system administrator, explain the situation, and the administrator will make the correction. Errors made by the DSO cannot be administratively corrected. If a DSO error causes a student to fall out of status, the student must file for reinstatement and show that the actions of the DSO were beyond the student’s control. The INS may withdraw authorization for DSOs found to have made repeated mistakes. Students who are out of status for more than five months face a rebuttable presumption that they are ineligible for reinstatement unless they can show a substantial reason for the delay and that they sought reinstatement as soon as possible.
Acknowledging that students who live on campus often have a mailing address that is different from their physical residence, the INS will allow SEVIS to accept a mailing address. There are future plans to modify the system to accept both addresses. Students will be required to notify both their DSOs and the INS of any address changes.
Currently F-2 and M-2 dependents are allowed to go to school. The new rule changes this significantly. While dependents will still be allowed to attend elementary, middle and high school, they will no longer be allowed to attend post-secondary schools without obtaining F-1 or M-1 status of their own. Those already enrolled will be allowed to continue studies but must apply for a change of status to F-1, J-1 or M-1 by March 11, 2003, in order to continue studies. Dependents will be allowed to engage in avocational or recreational study, which is defined as that in pursuit of a hobby or that which is occasional, casual or recreational.
The final major area the new rule deals with is the interaction between SEVIS and laws requiring schools to not disclose information about students. The rule makes it clear that these privacy laws do not apply to SEVIS.