Cite as "AILA InfoNet Doc. No. 03122915 (posted Dec. 29, 2003)"
American Immigration Lawyers Association
918 F Street, N.W. Washington, D.C. 20004 (202) 216-2400
December 29, 2003
Via email: email@example.com
Director, Regulations and Forms Services (RFS) Division
Department of Homeland Security
425 I Street, NW
Attn: ICE No. 2297-03
Washington, DC 20536
Re: Comments to Proposed Rule "Authorizing Collection of the Fee Levied on F, J, and M Nonimmigrant Classifications Under Public Law 104-208," ICE No. 2297-03; RIN 1653-AA23; 68 Fed. Reg. 61148, October 27, 2003.
Dear Sir or Madam:
The American Immigration Lawyers Association (AILA) submits the following comments on proposed regulations published in the Federal Register on October 27, 2003, authorizing collection of the fee levied on F, J, and M nonimmigrant classifications and authorized under Public Law 104-208. AILA is a voluntary bar association of more than 8,000 attorneys and law professors practicing and teaching in the field of immigration and nationality law.
AILA takes a very broad view on immigration matters because our member attorneys represent many types of persons seeking immigration and citizenship benefits in the U.S. Our members represent tens of thousands of U.S. families who have applied for permanent residence for their spouses, children, and other close relatives so they can lawfully enter and reside in the United States. AILA members also represent thousands of U.S. businesses and industries that sponsor highly skilled foreign professionals seeking to enter the United States on a temporary basis or, having proved the unavailability of U.S. workers if required, on a permanent basis. Our members also represent asylum seekers, often on a pro bono basis, as well as athletes, entertainers, and foreign students. Relevant to these comments, it is also important to note that AILA members often represent students and educational institutions and other organizations involved in international educational exchange and in sponsoring exchange visitor programs.
AILA would like to reiterate its strong support for policies that foster the national security of the United States, as well as its position that the benefits SEVIS purports to provide are in the public interest, namely greater security for the American people. AILA further acknowledges that SEVIS should be publicly financed, as is US-VISIT, which serves a similar purpose. However, if the system is to be fee-based, AILA sees several ways in which this regulation could be improved.
SUMMARY OF SEVIS FEE HISTORY
AILA is well aware that, since 1996, federal law has required that a fee structure be established to cover the costs for an information collection system for foreign students and exchange visitors in this country.
The initial statutory mandate to establish a fee to cover the costs of the information collection system for foreign students and exchange visitors was first signed into law in 1996 as part of Public Law 104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Section 641 created the mandate to collect the data and Section 641(e), to fund the information collection through a user fee. The obligation to create an information collection system has now been met, with the implementation in 2003 of SEVIS (Student and Exchange Visitor Information System). The particulars of the user fee collection system to pay for SEVIS have been substantially amended by intervening statutes following IIRIRA, including provisions of the Visa Waiver Permanent Program Act, and after September 11th, the Patriot Act, the Enhanced Border Security Act, and the Homeland Security Act. Most important to the fee collection issues, provisions of 2000 legislation (Public Law 106-396) and 2001 legislation (Public Law 107-56) impacted the fee review process started following the 1996 legislation (Public Law 104-208).
We recount this history, and refer to it below, because we believe that certain fundamental principles have inadvertently been "lost in translation" as legacy INS has passed on its obligations to DHS, as DHS works with the State Department on visa issuance under the new Memorandum of Understanding, and as SEVIS has been implemented.
COMMENTS ON THE PROPOSED REGULATIONS
Keeping in mind the subsequent amendments that changed the parameters of Section 641 of IIRIRA, we believe that DHS's current proposal to implement the fee collection system is off the mark in several important ways.
1. The fee is set higher than necessary and higher than permitted by statute.
There is no statutory allowance in either the initial 1996 law (Public Law 104-208), the 2000 legislation (Public Law 106-396), or the 2001 legislation (Public Law 107-56) that fees for the information collection system are for anything other than the program to collect the information identified in Section 641(c) of IRRIRA (the initial 1996 legislation). However, in these proposed regulations, in addition to funding the information collection program, DHS appears to be imposing 60% of other costs relating to enforcing and monitoring the status of foreign students and exchange visitors in the United States through the SEVIS fee.
The initial 1999 CIPRIS fee study (the Coordinated Interagency Partnership Regulating International Students, CIPRIS, was the predecessor of SEVIS) from EDS, legacy INS's contractor, recommended that the fee should recover all direct and indirect program costs to develop, deploy, operate, and maintain the program. This was envisioned to include all costs for government personnel (approximately 80 positions) responsible for providing information to designated programs and implementing the data collection program (now SEVIS). The initial 1999 proposed regulation (December 21, 1999) reiterated these findings and listed all of the costs incurred as a result of the information collection program. The 1999 rule proposed a fee level of $95 after considering all costs.
This fee level was considered too high after subsequent statutory amendments expanded the pool of foreign nationals subject to a fee and provided public funding for the data collection system. In the 2002 KPMG fee study, the amendments of the 2000 legislation (Public Law 106-396) and the 2001 legislation (Public Law 107-56) were incorporated into a revised fee study. The new study especially noted the much larger pool of students and exchange visitors subject to the fee and the additional $36.8 million funded by Congress for the information collection system (now SEVIS). In September 2002, KPMG found that approximately 111 positions were necessary to implement SEVIS and that the fee should be set at $54 to cover all the statutory mandates.
Now only one year later, DHS proposes that the fee be set at nearly double that level and that over 240 positions must be funded. The proposal identifies a fee that, based on prior analysis of these same points, cannot be viewed as limited to government costs to collect, maintain, and utilize SEVIS--costs for the collection and maintenance of data; and the utilization of data to issue and monitor F, J, and M visas and status for foreign nationals based on the SEVIS data.
It is clear under the 2000 legislation (Public Law 106-396) that the costs to be covered by the SEVIS user fees should include State Department costs as well as legacy INS, now DHS, costs. Even accepting that both DHS and DOS costs must be recognized and that reimbursement will be disbursed to both DHS and DOS, nothing in the prior studies on this issue suggests that the $100 fee level is needed. The proposed rule text makes it clear that DHS feels constrained by the 1996 mandate (Public Law 104-208) to keep the fee at no more than $100. However, the proposed rule also implies that, in the fee review to be undertaken every two years, we can expect higher fees in the future as the entire enforcement cost relating to students and exchange visitors at DHS's ICE (Immigration and Customs Enforcement bureau) is supported for payment through the SEVIS fee.
The fee needs to be reviewed and recalculated, if anything other than the $54 fee recommended by the KPMG fee study is proposed: a fee that was established by an independent review by an independent accounting firm.
2. The fee should be eliminated or reduced for secondary (high school) students.
There has been ongoing confusion from the initial 1996 passage of IIRIRA about whether high school students should be subjected to the information collection fee. DHS should resolve this once and for all by exempting secondary (high school) students based on the nature of the program and congressional intent about fee collection; or, in the alternative, by reducing the fee for high school students to the $35 level.
There is no requirement in either the initial 1996 law (Public Law 104-208), the 2000 legislation (Public Law 106-396), or the 2001 legislation (Public Law 107-56) to charge an information collection fee to secondary students, although clearly DHS has the authority to include high school students in the fee collection scheme. DHS mistakenly cites the Patriot Act as establishing that all students, including high school students, must pay the fee. The Patriot Act (Section 416 of Public Law 107-56) establishes that the information collection system should apply to students at "other approved educational institutions" but clearly defines such institutions as:
[A]ny air flight school, language training school, or vocational school, approved by the Attorney General, in consultation with the Secretary of Education and the Secretary of State, under subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act.
See, Section 416(c)(4) of the Patriot Act codified at 8 USC Section 1372(h)(3).
Congressional intent here was to add students at certain other specified educational programs that sponsor F, J, or M visa holders, which were not previously required to provide data, into what is now SEVIS. However, the language of the statute shows that it was not congressional intent to add all educational institutions. The statute includes a specific list of educational institutions, none of which are high schools. Moreover, under any interpretation, this 2001 statutory language does not include any organizations that are not educational institutions, and many secondary school students come to the U.S. on J exchange programs to attend schools which are not themselves approved as a designated direct student sponsor.
Thus, high school students should be subject to the fee for information collection only if they are clearly subject based on the initial 1996 IIRIRA legislation. The fact that legacy INS did not view the 1996 IIRIRA legislation as mandating a fee collection from secondary students is evidenced in the fact that the initial CIPRIS fee study (referred to above in Comment 1) presumed no fee receipts from high school students. This presumption was based on the fact that the statute only referred to educational institutions of higher learning as well as all designated exchange visitor programs. This language points to the conclusion that schools authorized to sponsor F-1 high school students were fee-exempt, and, by extension, that J-1 high school students should likewise be deemed fee-exempt.
The DHS proposal and citation of the Patriot Act amendments for authority to collect the fee from high school students does not account for the fact that many, if not the majority, of high school students come to accredited public high schools for one year exchange programs sponsored by private, not-for-profit organizations whose mission is to coordinate secondary exchange. These students are not sponsored directly by the receiving public high school. While some private high schools also directly sponsor students, DHS would be creating a disparity between F-1 students at private high schools (all of which are directly sponsored by the school) and J-1 students at public high schools (most of which are not sponsored directly by the school), if it chose to expand the Patriot Act list of other approved educational institutions to include high school students. Thus, it appears that the better interpretation of congressional intent here is that all high school students are fee exempt.
Alternatively, if DHS concludes that a fee is needed for all J-1 high school participants, the fee should be set at the lower $35 rate, since no prior fee studies counted fees from high school students, who are minors age 18 and under.
3. The reduced fee of $35 should also apply to any F, J, or M alien whose program is for a short period or who is a trainee or English language student.
While the 2000 law (Public Law 106-396) mandates that the maximum fee for certain aliens be set at no higher than $35, there is nothing in the 1996 provisions (Public Law 104-208) that mandates that fee be set at the same level for all remaining groups. The $35 fee applies to certain categories of F, J, or M status holders. We propose that DHS apply the same, lower fee to individuals with certain periods of program status, regardless of category, and for all trainees and English language students. The $100 fee is not appropriate for short-term students or exchange visitors in any category, or for trainees or English language students. Trainees have other options for their international internships, and the U.S. should not take steps to price itself out of this market. The same logic applies to English language programs, which are almost universally short-term programs of a few months, for which the US is in competition with Canada, the UK, and Australia, among other countries.
We would hope that all programs where the program period noted in an individual's SEVIS record is 120 days or less, as well as all for all trainee programs and English language student programs, would be subject to the lower fee. As DHS should know, the 120-day period resulting in the lower fee is an idea that has been discussed by legacy INS and the exchange community since IIRIRA and SEVIS's predecessor, CIPRIS, were first analyzed.
4. The fee can more easily be collected concurrently with a visa application, an application for change of nonimmigrant status, or at the border.
The 2000 law (Public Law 106-396) specifically requires that proof of payment of the IIRIRA fees under Section 641 be provided before an F, J, or M alien can be granted a visa, granted admission to the United States, or granted a change of nonimmigrant classification in the United States. Nothing in the law either suggests or mandates that proof of IIRIRA fees must be provided prior to acceptance of one of these three types of applications.
The DHS proposal reflects a high degree of misunderstanding about the day-to-day realities of visa processing at the Department of State's (DOS) 215 visa issuing posts around the world, the border and international airport admission processes within DHS (the U.S. Customs and Border Protection bureau or CBP) for visa exempt nationals, and at the regional benefit adjudication centers which process change of nonimmigrant status requests within DHS (the U.S. Citizenship and Immigration Services Bureau or USCIS).
Rather than creating an entirely new fee payment process, parallel to and duplicative of the current systems already in place, it would be a relatively simple process for DOS, CBP, and USCIS to collect the additional SEVIS fee and I-901 form as part of the existing fee payment process.
Visa application SEVIS fee: Each DOS consular post issuing visas has already set up a system for payment of fees, because every nonimmigrant visa requires a $100 machine-readable visa fee. Due to this requirement, a system to address the exchange rate and payment in foreign currency has already been established for the many foreign nationals seeking initial F, J, and M status through initial visa issuance abroad. DHS now has a presence at many consular posts under both the September 30, 2003, Memorandum of Understanding and the Homeland Security Act, and has ultimate visa issuance authority. Thus, DHS and DOS can easily develop a fee transmittal system whereby DOS collects the SEVIS fee as part of the already existing visa application process, and transmits the SEVIS fee to DHS.
Visa-exempt entry SEVIS fee: Each CBP inspection post already has the capability to collect filing and entry fees and forms. CBP already processes forms and fees for L-1s and TNs for visa-exempt Canadian citizens at the time the applicant applies for admission at the border, prior to entering the United States. Also, now that customs and immigration functions have been merged into "one face at the border", the long-standing capacity of customs officials to collect fees and duties can be utilized for immigration functions as well.
SEVIS fee in connection with change of status: USCIS, at its regional benefits centers, likewise has the ability to issue multiple receipts for simultaneously requested benefits. Every day USCIS centers review and approve benefits applications that require, as a prerequisite, another form and/or fee that must be reviewed and adjudicated concurrently.
The DHS proposes a cumbersome, time-consuming, and expensive additional fee collection system, which is inappropriate in light of already existing delays in SEVIS processing; which will create inequities for nationals of certain countries and regions in processing visa applications; and, most importantly, which are completely unnecessary, given the existing systems already in place. The fee does not need to be paid prior to application (whether it is visa application, change of status application, or admission application). Instead should be paid at the time of application, consistent with already existing systems.
5. The fee should only be paid once per alien per program, except for aliens seeking J reinstatement for substantive violation or seeking F reinstatement after a 5 month violation; authorized transfers between programs should not be subject to additional fees.
There is no statutory mandate in the initial 1996 law (Public Law 104-208), the 2000 legislation (Public Law 106-396), or the 2001 legislation (Public Law 107-56) that suggests that fees for the information collection system should be collected more than once per participating alien. The DHS proposal states that the sole reason why it cannot adopt a one time only fee is that "with each event that occurs during the course of a student's or exchange visitor's stay in the United States the data collection system mandated by section 641 of IIRIRA will require updates by the school official or program officer and/or require adjudication by a government official, all of which require resources to be expended and funded."
DHS is well aware that not a penny of the fees collected goes to the programs employing the school officials or program officers making SEVIS entries. Therefore, whether or not a SEVIS-mandated event requires updates by school officials or program officers is totally irrelevant to the SEVIS fee regulation. DHS should also be sufficiently knowledgeable about SEVIS and the F, J, and M classifications to know that many data collection requirements and changes in program mandated by SEVIS require no adjudication by a government official under the controlling regulations of USCIS or DOS, for example, when an individual is remaining with the same program sponsor or is transferring programs.
There are many SEVIS-mandated "events" related to an individual's on-going sponsorship by the same authorized F, M, or J program, which require that individuals be issued new SEVIS DS-2019 or SEVIS I-20 forms or that new records be issued in SEVIS, such as when an individual is changing categories or majors or changing the nature of his U.S. activity. These events require no adjudication by a government official. Similarly, an individual could be continuing an identical activity at the identical site but need an authorized program transfer to a different sponsor in the same category due to such considerations as changed funding.
In order to avoid confusion, no one should be required to pay the SEVIS fee more than once for participation in the same sponsoring program or to complete an authorized transfer of programs. The only exceptions should be for reinstatement: J reinstatement for substantive violations and F reinstatement after a 5 month violation. These do require officer adjudication and are, in a sense, a beginning of a new program. In these cases, it makes sense that a second SEVIS fee should be charged.
By having the fee payment tied to program sponsorship, DHS avoids complicated analyses of various program events and maintains the consistent role of SEVIS. Only where an alien is issued a new SEVIS DS-2019 or SEVIS I-20 by a different authorized program outside of the regulatory, non-adjudicative, transfer process should any new fees attach.
We also recommend that an individual who is denied a visa, admission or a change of status to participate in a particular sponsoring program should not have to pay the SEVIS fee again, if she re-applies during the 12 months following denial for a visa, admission, or a change of status to participate in the same program.
6. Clarification must be provided as to when a duplicate fee is required.
The DHS proposal does not provide sufficient guidance as to when a SEVIS fee payment is required. There is a list in the proposed rule concerning events that do not require fee payment, but no mention is made in the list or the proposed regulations to explain the regulatory text that a new fee is required "when an individual begins a new course of study or new program." Does this include a change in major at the same sponsoring institution, change in degree level at the same sponsoring institution, or change in category at the same sponsoring institution? It would seem, as discussed in Comment 5 above, that these three types of events should not trigger a duplicate fee.
7. SEVIS fee collection should be as simple as possible in acknowledgment of the U.S.'s long-standing commitment to the value of international educational exchange.
It should not go unmentioned that while AILA strongly supports SEVIS as an information gathering effort that fosters the national security of the United States, we believe that DHS has completely ignored, at least in its published SEVIS fee rule proposal, the importance of foreign students and exchange visitors to the United States' long-standing commitment to mutual cooperation and international exchange, and the negative impact the fee collection, as proposed, will have on this important commitment.
DHS, as did legacy INS before it, has consistently engaged in outreach on SEVIS and the fee collection issue, but its published fee collection proposal does not reflect recognition that the proposal is unworkable for a statistically significant portion of the hundreds of thousands F, J, and M students and exchange visitors who will be mandated to use it. This will result in additional negative impact on the US image abroad, as well as create additional barriers to the ease, interest, and ability of Fs, Js, and Ms to timely participate in the exchange and study programs in the U.S.
Surprisingly, DHS's preamble to the proposed fee rule specifically discounts commentators' concerns about such adverse consequences, stating "no supporting documentation was provided by the commentators to demonstrate that the imposition of a fee will have the adverse effects suggested in the comments." DHS should take the concerns clearly stated in 4,617 comments filed in response to the predecessor 1999 proposed rule as evidence of the adverse effect, and take public notice of this position, which has also been the subject of academic and forum studies and publications in many newspaper, magazine, and journal articles.
We urge the Department of Homeland Security to revisit the proposed rule on fee collection in light of these comments.
AMERICAN IMMIGRATION LAWYERS ASSOCIATION