Tracking Compliance Deadlines for Foreign Student Monitoring

June 2002

From CUACounselOnline at http://counselonline.cua.edu/

While computer staff and foreign student advisors (and some hyper-vigilant legal staff) are pondering a document entitled Interface Control Document for the Student and Exchange Visitor System, lawyers for colleges and universities across the country are trying to put a finger on what the actual compliance dates are with respect to both changes in the law made in 1996 and more recent legislation requiring the tracking of foreign students attending U.S. schools.[1]   It is possible that significant changes will have to be in place on campuses as early as this September.

On May 8^th, 2002 Congress approved HR 3525, The Enhanced Border Security and Visa Entry Reform Act of 2001.  This legislation impacts colleges and universities by requiring an interim tracking system on all F, J and M visa students.  The interim tracking system must be in place 120 days after adoption of the legislation. President Bush is expected to sign the legislation soon, and thus the interim system will need to be in place in early to mid September 2002. [2]
 

The interim legislation is only needed until the Student and Exchange Visitor Information System (SEVIS) is up and running and all schools have moved to using SEVIS.  SEVIS is an Internet-based application for electronically tracking, screening and reporting on foreign students and exchange visitors to the United States.  Through SEVIS schools and program sponsors will be required to transmit electronic event notifications regarding foreign students and scholars to the Immigration and Naturalization Service (INS) and the Department of State (DoS). 

Information collected ranges from issuance of documentation of acceptance, date and port of entry into the United States, date of enrollment, to a number of other items.  To get an idea of the range of information, which will actually be collected, see § 3.1.2.1. Data Assembly Characteristics, in the Interface Control Document linked above.  Data can be exchanged with the INS in one of two ways, either through something called the SEVIS Interactive System (real time on the web requiring no  specialized software system) or by the SEVIS Batch Interface. The latter will allow for transfer of information on more than one individual at a time.  Most schools will probably end up using a combination of the two.

SSL or Secure Socket Layers, the industry standard method for protecting web communications, will be used to provide data encryption, server authentication, file integrity and client authentication for the SEVIS Batch Interface. 

The target date set by law for the INS to have SEVIS fully functional is Jan. 1, 2003.  At a May 10 news conference on SEVIS, Attorney General Ashcroft stated that he was submitting for public comment a proposed regulation that required participation by schools on SEVIS  by Jan. 30th, 2002. A Los Angeles Times article on the same date stated that the Jan. 30th proposed deadline would be for new students by Jan. 30, 2003, with existing students phased in after that. The latest information is that the proposed regulation will be published in the Federal Register on Friday, May 17, 2002. The public will be given time to respond to the proposed regulation, and a firm date for mandatory compliance will then be published in the Federal Register.  

Under the interim system created by HR 3525, which will be mandatory in September, visas in the F, M or J categories will not be issued until the educational institution has provided the Department of State with electronic proof that the student has been accepted by the institution.  The INS in turn has a duty to notify the school when the student has been admitted to the U.S.  Finally, the school must let the INS know within 30 days after the end of the enrollment period if the student has failed to enroll at the university.  The specifics of how this will all be accomplished will not be known until the INS and the DoS address these issues in regulations.

HR 3525 also requires background checks before visas can be issued to students from countries listed by the State Department as sponsors of terrorism.  The list currently includes the following seven countries: Cuba, Iran, Iraq, Libya, North Korea, Sudan and Syria.

The INS and the State Department are tasked by the legislation to conduct biennial reviews to determine if institutions are in compliance with record keeping and reporting requirements imposed by immigration law with respect to foreign students and scholars.  The Senate added an amendment to HR 3525 addressing the failure of a school to comply with the reporting and tracking requirements imposed by federal law.  As amended by the Senate, a material failure to comply with the law "shall result in the suspension for at least one year or termination, at the election of the Commissioner of Immigration and Naturalization, of the institution's approval to receive such, or result in the suspension for at least one year or termination, at the election of the Secretary of State, of the other entity's designation to sponsor exchange visitor program participants, as the case may be."  Thus, once a serious breach of the regulations is established, suspension of a school’s authority to maintain foreign student or scholar programs would be mandatory.

The National Association of Foreign Student Advisors (NAFSA) has an excellent web page on this topic.  Electronic Data Systems (EDS) in conjunction with the INS has tentatively set June 13^th, 2002 as a date for a technical conference on the new version of the batch interface document, which will differ from what is linked to above.  The conference will most likely be held in Crystal City, Virginia. Schools that may not have gotten a head start on collecting data in anticipation of SEVIS may wish to refer to a list of seven questions compiled by Catheryn Cotten, Director of the International Office at Duke University and Medical Center in Durham, North Carolina.

For attorneys, at the NACUA annual conference in June in Boston, Carol Kaesebier (General Counsel at University of Notre Dame) and Greg Leonard and Erika Geeter (Boston University) will present a panel discussion on International Studies, Faculty and Staff, Post Sept. 11^th.  SEVIS is one of the topics that will be addressed.

On a related note, the New York Times, in an article posted May 7^th entitled New Rules to Screen Students reported that the Bush administration announced that foreign students seeking to do work in sensitive subjects and technologies taught only at America universities or laboratories will be screened by a special panel that will include representatives of intelligence and law enforcement agencies. The list of courses that would entail screening includes nuclear and missile technology, aircraft propulsion, information security, and marine technology. Under the proposed plan, the INS and State Department Officials would have the final say on whether to approve the visas. President Bush is expected to issue an Executive Order implementing this plan, and establishing a new federal board, the Inter-agency Panel on Advanced Science and Security, or IPASS.