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(C) Have been designated by the mill
to supply sugarcane replacing sugarcane
lost to the mill since the 2001 crop year,
(ii) Sugar production from base
acreage, as established under
§ 1435.312, but exclusive of the acreage
described in paragraph (b)(1)(i) of this
section, for producers who meet the
requirements of paragraph (b)(1)(i) of
this section, then
(iii) All other sugar production.
(2) If a mill cancels a producer’s
contract, the mill must permit the
producer to move an allocation
commensurate with the producer’s
production history to a mill of the
producer’s choice.
(3) In determining the payment
priority, a processor may aggregate the
acreage of an operator (producer making
the crop production decisions) across all
the operator’s farms delivering cane to
the processor.
(c) CCC will determine that a
processor not in a proportionate share
state, which is cooperatively owned by
producers, has met the conditions of
paragraph (a) of this section if the
processor shares its allocation with its
producers according to its cooperative
membership agreement.
(d) CCC will disclose farm base and
reported acres data in a proportionate
share state to processors upon their
request for growers delivering to their
mill. In the case of multiple producers
on a farm or growers delivering to more
than one mill, subject mills will be
responsible for coordinating
proportionate share data.
*
*
*
*
*
5. In § 1435.319, revise paragraph (b) to
read as follows:

■

§ 1435.319

Appeals and arbitration.

*

*
*
*
*
(b) For issues arising under section
359d establishing allocations for
marketing allotments, and sections
359f(b) and (c), and section 359i of the
Agricultural Adjustment Act of 1938, as
amended, after completion of the
process provided in paragraph (a) of this
section, a person adversely affected by
a reconsidered determination may
appeal such determination by filing a
written notice of appeal within 20 days
of the issuance of the reconsidered
determination with the Hearing Clerk,
USDA, Room 1081, South Building,
1400 Independence Ave., SW.,
Washington, DC 20250–9200. Any
hearing conducted under this paragraph
shall be in accordance with instructions
issued by USDA’s Judicial Officer.
*
*
*
*
*

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Signed in Washington, DC, on June 25,
2004.
James R. Little,
Executive Vice President, Commodity Credit
Corporation.
[FR Doc. 04–14900 Filed 6–30–04; 8:45 am]
BILLING CODE 3410–05–M

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 214, and 299
[ICE No. 2297–03]
RIN 1653–AA23

Authorizing Collection of the Fee
Levied on F, J, and M Nonimmigrant
Classifications Under Public Law 104–
208; SEVIS
Bureau of Immigration and
Customs Enforcement, DHS.
ACTION: Final rule.
AGENCY:

SUMMARY: On October 26, 2003, the
Department of Homeland Security
(DHS) published a proposed rule in the
Federal Register, to implement section
641 of the Illegal Immigration Reform
and Immigrant Responsibility Act of
1996 (IIRIRA), requiring the collection
of information relating to nonimmigrant
foreign students and exchange visitors,
and providing for the collection of the
required fee to defray the costs.
This rule amends the DHS regulations
to provide for the collection of a fee to
be paid by certain aliens who are
seeking status as F–1, F–3, M–1, or M–
3 nonimmigrant students or as J–1
nonimmigrant exchange visitors.
Generally, the rule levies a fee of $100,
although applicants for certain J–1
exchange visitor programs will pay a
reduced fee of $35, and certain other
aliens will be exempt from the fee
altogether. This final rule explains
which aliens will be required to pay the
fee, describes the consequences that an
alien seeking F–1, F–3, M–1, M–3, or J–
1 nonimmigrant status faces upon
failure to pay the fee, and specifies
which aliens are exempt from the fee.
This fee is being levied on aliens
seeking F–1, F–3, M–1, M–3, or J–1
nonimmigrant status to cover the costs
of administering and maintaining the
Student and Exchange Visitor
Information System (SEVIS), which
includes ensuring compliance with the
system’s requirements by individuals,
schools, and exchange visitor program
sponsors. The fee will also pay for the
continued operation of the Student and
Exchange Visitor Program (SEVP) and
offset the resources to ensure
compliance with SEVIS requirements,

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including funds to hire and train SEVIS
Liaison Officers and other Bureau of
Immigration and Customs Enforcement
(ICE) officers.
The rule will be effective on
September 1, 2004, and will apply to
potential nonimmigrants who are
initially issued a Form I–20 or Form
DS–2019 on or after that date. Potential
nonimmigrants, for purposes of this
rule, are those aliens who will apply to
the Department of State (DOS) or DHS
for initial attendance as an F, M, or J
nonimmigrant, certain nonimmigrants
in the United States that will apply for
a change of status to an F, M, or J
classification, and current J–1
nonimmigrants that will apply for a J–
1 category change on or after that date.
If a Form I–20 or Form DS–2019 for
initial status in a new program is issued
on or after the effective date, the
nonimmigrant traveling on that
document will be required to pay the
fee. Applicants, schools, and exchange
visitor program sponsors should refer to
the fee pay table contained in this rule
for more detailed information
concerning when a fee is required.
DATES: This final rule is effective
September 1, 2004.
FOR FURTHER INFORMATION CONTACT: Jill
Drury, Director’Student and Exchange
Visitor Program (SEVP), Bureau of
Immigration and Customs Enforcement,
Department of Homeland Security, 800
K Street, NW., Room 1000, Washington,
DC 20536, telephone (202) 305–2346.
SUPPLEMENTARY INFORMATION:
Background
On March 1, 2003, the former
Immigration and Naturalization Service
(Service) transferred from the
Department of Justice to DHS pursuant
to the Homeland Security Act of 2002
(HSA), Public Law 107–296, 116 Stat.
2135 (November 25, 2002). The
Service’s adjudication functions
transferred to the Bureau of Citizenship
and Immigration Services (CIS), and the
Service’s SEVIS function transferred to
the Bureau of Border Security, now the
Bureau of Immigration and Customs
Enforcement (ICE). For the sake of
simplicity, any reference to the Service
has been changed to DHS, even when
referencing events that preceded March
1, 2003.
What Are SEVP, SEVIS, and the SEVIS
Fee?
Section 641 of the Illegal Immigration
Reform and Immigrant Responsibility
Act of 1996, Public Law No. 104–208,
110 Stat. 3546 (September 30, 1996),
codified at 8 U.S.C. 1372, required the
creation of a program to collect

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Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations
information relating to nonimmigrant
foreign students and exchange visitor
program participants during the course
of their stay in the United States, using
electronic reporting technology to the
fullest extent practical. While the pilot
program initially involved a small
number of schools, the program has
been expanded and fully implemented
to cover all DHS-approved schools and
DOS-designated exchange visitor
program sponsors that enroll foreign
nationals. The program became known
as SEVP, and its core technology
became known as SEVIS. The
substantive requirements and
procedures for SEVIS have been
promulgated in separate rulemaking
proceedings. See 67 FR 34862 (May 16,
2002, proposed rule for implementing
SEVIS); 67 FR 44343 (July 1, 2002,
interim rule for schools to apply for
preliminary enrollment in SEVIS); 67
FR 60107 (September 25, 2002, interim
rule for certification of schools applying
for enrollment in SEVIS); 67 FR 76256
(December 11, 2002, DHS’s final rule
implementing SEVIS); and 67 FR 76307
(December 12, 2002, DOS interim final
rule implementing SEVIS). Under
section 442(a)(4) of the HSA, as
amended, responsibility over SEVIS
specifically transferred to ICE. Section
641(e) of IIRIRA requires that a fee be
established and charged to aliens
tracked in SEVIS to fund the program,
and further requires that the fee be used
only for SEVP related purposes.
Consistent with this mandate, a subaccount will be created within the
Immigration Examination Fee Account
into which SEVIS fees will be deposited
and maintained for exclusive use related
to SEVP.
Who Are the Nonimmigrants Affected
by IIRIRA Section 641?
The Immigration and Nationality Act
(Act) provides for the admission of
different classes of nonimmigrant aliens,
who are foreign nationals seeking
temporary admission to the United
States. The purpose of the alien’s
intended stay in the United States
determines his or her proper
nonimmigrant visa classification. Some
visa classifications permit the
nonimmigrant’s spouse and qualifying
children to accompany the
nonimmigrant to the United States, or to
join the nonimmigrant who is already in
the United States. To qualify, the alien’s
child must be unmarried and under the
age of 21.
F–1 nonimmigrants, as defined in
section 101(a)(15)(F) of the Act, are
foreign nationals who come to the
United States as foreign students to
pursue a full course of study in DHS-

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approved colleges, universities,
seminaries, conservatories, academic
high schools, private elementary
schools, other academic institutions, or
in language training programs in the
United States. For the purposes of this
rule, the term ‘‘school’’ refers to all of
these types of DHS-approved
institutions. Generally, F–1
nonimmigrants are subject to the SEVIS
fee and monitoring in SEVIS. An F–2
nonimmigrant is a foreign national who
is the spouse or qualifying child of an
F–1 student. While F–2 nonimmigrants
are subject to monitoring in SEVIS, as
an alien deriving his or her status from
that of the F–1 nonimmigrant, they are
not required to pay a separate SEVIS fee.
J–1 nonimmigrants, as defined in
section 101(a)(15)(J) of the Act, are
foreign nationals who have been
selected by an exchange visitor program
sponsor designated by the United States
DOS to participate in an exchange
visitor program in the United States.
The J–1 classification includes
nonimmigrants participating in
programs in which they will receive
graduate medical education or training.
Generally, J–1 nonimmigrants are
required to pay a SEVIS fee, and are
subject to monitoring in SEVIS. A J–2
nonimmigrant is a foreign national who
is the spouse or qualifying child of a J–
1 exchange visitor. While J–2
nonimmigrants are subject to
monitoring in SEVIS, as an alien
deriving his or her status from that of
the J–1 nonimmigrant, they are not
required to pay a separate SEVIS fee.
M–1 nonimmigrants, as defined in
section 101(a)(15)(M) of the Act, are
foreign nationals pursuing a full course
of study at a DHS-approved vocational
or other recognized nonacademic
institution (other than in language
training programs) in the United States.
The term ‘‘school’’ also encompasses
those institutions attended by M–1
students for the purposes of this rule.
Generally, M–1 nonimmigrants are
subject to the SEVIS fee and monitoring
in SEVIS. An M–2 nonimmigrant is a
foreign national who is the spouse or
qualifying child of an M–1 student.
While M–2 nonimmigrants are subject
to monitoring in SEVIS, as an alien
deriving his or her status from that of
the M–1 nonimmigrant, they are not
required to pay a separate SEVIS fee.
On November 2, 2002, Congress
passed the Border Commuter Student
Act of 2002, Public Law 107–274, 116
Stat. 1923 (2002), which created the F–
3 and M–3 nonimmigrant classifications
for certain aliens who are citizens of
Canada or Mexico and who continue to
reside in their home country while
commuting to the United States to

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39815

attend an approved school. Such border
commuter students are not subject to the
existing requirement for F–1 and M–1
students to be pursuing a full course of
study. Instead, these border commuter
students are specifically permitted to
engage in either full-time or part-time
studies. DHS adopted regulations
relating to border commuter students,
67 FR 54941 (August 27, 2002) (codified
at 8 CFR 214.2(f)(18) and (m)(19)), and
will be amending those regulations in
the future to conform to the new
legislation. In this rule, DHS notes that
F–3 and M–3 students will be subject to
the same rules as F–1 and M–1 students
regarding the collection of the fee.
Response to Public Comments on the
Proposed Rule
DHS initially proposed a rule
implementing section 641(e) of IIRIRA,
requiring fee collection related to SEVIS
on December 21, 1999, at 64 FR 71323,
and received 4,617 comments in
response to this proposed rule. On
October 26, 2003, DHS published a
second proposed rule in the Federal
Register at 68 FR 61148. The October
26, 2003, proposed rule addressed the
4,617 comments, as well as setting forth
a new proposal for collection of the
SEVIS fee. Comments to the second
proposed rule were due to DHS on or
before December 26, 2003. DHS received
239 comments regarding the collection
of the required fee, as set forth in the
second proposed rule. The following
paragraphs will address each
substantive issue raised in comments
received in response to the October
2003 proposed rule. However, this
discussion will not describe in detail all
the provisions outlined in either of the
prior proposed rules. Rather, it will
address only those provisions relevant
to the October 2003 comments.
Commenters frequently addressed
identical issues in their comments and,
as a result, the number of comments
received exceeds the number of issues
discussed.
In general, commenters acknowledged
the Congressional mandate that DHS
collect this fee and stated that this 2003
proposed rule was a significant
improvement over the 1999 proposed
rule. A significant number of
commenters stated that they were
generally pleased with SEVIS and DHS
efforts to reach out to the schools and
exchange visitor program sponsors.
However, most of these commenters
further stated that they believed the
imposition of the fee would adversely
impact participation by foreign students
and exchange visitors. The commenters
discussed the fee amount, the collection
and remittance process, exemptions and

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reductions to the fee, the frequency of
the fee, the applicability of the fee, and
the propriety of the fee.
I. Fee Amount
The October 2003 proposed rule set
the fee amount at $100, with the
exception of specific J–1 exchange
visitor programs. Although several
commenters stated that the $100 fee was
not overly burdensome, the majority of
commenters stated that the fee was
excessive and should be set at $54,
based upon the fee study conducted in
September 2002 by an independent
contractor for DHS. Some commenters
expressed concern regarding the use of
the SEVIS fee to pay for SEVIS-related
enforcement and compliance costs.
Additionally, some commenters
expressed concern that excessive fee
receipts would become a moneygenerating tool for DHS, subsidizing
other, unrelated programs.
DHS reviewed and considered all
comments on the fee amount, but has
made the decision not to change the
amount of the $100 proposed fee.
Comments in response to the 1999 rule
raised concerns about the proposed $95
fee, which had been determined by a fee
study done in conjunction with the
1999 rule making. An independent fee
study, carried out in September 2002,
was done to respond to those
commenter concerns, and to reassess the
amount of the fee, based on changes in
the SEVIS project funding since the
publication of the 1999 proposed rule.
An independent consulting firm was
hired to conduct an objective fee review
and ensure that applicable Federal law
and fee guidance were followed. The fee
review included the recovery of
historical costs and costs over the FY
2003/2004 time period, as well as the
appropriated monies received. The fee
review also included costs for increased
staffing and training for DHS personnel
involved in the SEVP at DHS
headquarters, district offices, service
centers, and regional offices, as well as
training for DOS personnel. The fee
study determined that the fee should be
set at $54.
DHS arrived at the final rule fee
amount of $100 by taking the fee
recommended in the independent study
($54) and adding estimated compliance
and enforcement costs, which the fee
study did not include. DHS has
determined that this fee should offset
the resources necessary to ensure
compliance with regulations, since
compliance and maintenance of system
integrity are an integral part of SEVP.
Indeed, Congress, in placing SEVIS
within ICE, specifically directed that the
information collected in the program be

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used for enforcement purposes; thus,
the use of the SEVIS fee for enforcement
purposes is consistent with the HSA.
See HSA 442(a)(4). This application of
user fees as a funding source for
compliance activities is also consistent
with the introduction of user fees in the
early 1980s. A Federal agency is
authorized to recoup the ‘‘full cost’’ of
providing special benefits, including the
costs of enforcement, collection,
research, as well as establishment of
standards and regulations, when
calculating its fees. DHS currently
recoups some of the costs of detecting
and deterring fraud and protecting the
integrity of benefits and documents
through its immigration benefit
application fees.
One important program benefit to be
funded by the $100 fee is the
establishment of localized personnel, or
SEVIS Liaison Officers. These SEVIS
Liaison Officers will be a local resource
for schools and students, providing
timely and accurate information or
assistance in meeting the requirements
of the program. SEVIS Liaison Officers
may visit schools, interview school
officials, review records, compare
system information to school
information, and assist schools with
SEVP issues. They will also coordinate
with local school representatives and
assist with local training program
development and implementation.
Finally, SEVIS Liaison Officers will be
available to assist immigration and other
law enforcement officials who may have
a need for information derived from
SEVIS.
As previously noted, consistent with
the HSA mandate to utilize the
information collected in SEVIS for
enforcement purposes, also included in
the fee calculation are funds that will be
used to offset the total cost of SEVP
enforcement. A portion of the fee will be
used to fund new positions and to
support officers in existing positions
who are performing SEVIS enforcement,
as well as to pay for any training,
equipment, technical systems, or other
items necessary to enhance their ability
to enforce SEVIS. The ICE officers
supported by the SEVIS fee will conduct
investigations to ensure compliance
with student and exchange visitor
regulations. These officers are essential
to ensuring data integrity in SEVIS. In
addition, these officers will work in
conjunction with SEVIS Liaison Officers
on school reviews and re-certifications.
As noted in the 2003 proposed rule,
while the fee will fund only a portion
of the ICE officer positions needed to
ensure SEVP integrity, DHS intends to
staff all of the ICE officers necessary to

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ensure the success of compliance
efforts.
This rule sets the fee at the maximum
amount initially authorized by IIRIRA
($100) for all F, M, and J
nonimmigrants, with the exception of
exchange visitors admitted as au pairs,
camp counselors, or participants in
summer work/travel programs who will
be subject to a fee of $35, and those
exempt from the fee altogether. IIRIRA
also provides that the Secretary of
Homeland Security may, on a periodic
basis, revise the amount of the fee
imposed and collected to take into
account changes in the cost of carrying
out the SEVP. Pursuant to the Chief
Financial Officers Act of 1990, DHS will
review this fee amount at least every 2
years. Upon review, if DHS finds that
the fee is either too high or too low, the
fee amount may be adjusted.
Adjustments will be made subject to the
Federal rulemaking process.
Fee reviews to determine the
appropriate amount of the fee and any
adjustments required typically look at
historical costs as well as anticipated
costs based upon programmatic
changes. Since DHS is establishing a
dedicated sub-account for SEVIS fees
within the Immigration Examination
Fee Account, any excess revenue will
accrue until the next scheduled fee
review and will then be factored into
the establishment of the new fee. As
required by section 641 of IIRIRA, DHS
will not use the proceeds from SEVIS
fees except for SEVIS-related purposes,
and will not generate revenue for other
programs from this source. DHS notes
that several commenters suggested that
future fee studies be conducted by
independent contractors and DHS
acknowledges the value of this
suggestion. However, DHS will not
specifically comment in this rule on
how future fee studies will be
conducted.
Several commenters objected to both
the concept of a fee and the fee amount
proposed. Some commenters stated that
the imposition of a fee would deter
participation and adversely affect the
position of the United States in the
international student/exchange visitor
market, and that the regulations
authorizing collection of such a fee will
interfere with important cultural
exchanges. DHS acknowledges these
concerns; however, Congress has
mandated that DHS set the SEVIS fee at
an amount sufficient to cover the costs
associated with the SEVP, including
recouping the historical costs of
program implementation, and ongoing
costs of program maintenance. Thus,
DHS is required to impose a fee on the
nonimmigrants for whom the system

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was developed and maintained. DHS set
the fee amount based upon program
costs and is statutorily prohibited from
lowering the fee to an amount that does
not fund the program in order to address
these concerns.
Some commenters expressed concern
that imposition of a SEVIS fee might
lead to fraudulent use of visitor visa
classifications to attend non-SEVIScertified schools (particularly short-term
English language programs). However,
DHS cannot fail to implement the
statutorily mandated fee because of
potential fraud. Rather, DHS
enforcement officers will continue to
work to ensure that all nonimmigrant
entries and stays in the United States
are legal and based upon appropriate
visa classifications.
II. The Fee Collection and Remittance
Process
The 1999 proposed rule required that
educational institutions and exchange
visitor program sponsors collect the fee,
based upon then existing law, and
mandated that the fee be collected prior
to visa issuance. Congress subsequently
amended the law to permit DHS to
collect the fee directly from the F–1, F–
3, J–1, M–1, or M–3 nonimmigrants.
Based upon these amendments to the
law, the October 2003 proposed rule
provided for fee collection by DHS and
required that proof of payment be
presented during the visa application
process or prior to submitting a change
of status request.
A number of the comments DHS
received focused on the DHS fee
collection process. The majority of
commenters suggested that DOS collect
the fee at the time of the visa interview,
similar to the payment methodology
used for collecting visa fees. Many
commenters felt that without this
change, nonimmigrants would
experience difficulties and delays with
payment methods that required use of
the Internet, use of credit cards, use of
checks drawn on U.S. banks and
payable in U.S. dollars, and/or use of
foreign mail delivery systems which
may not be timely or reliable. A few
commenters proposed the collection of
the fee at the ports-of-entry when
students and exchange visitors entered
the United States, as an alternative
payment method.
DHS has considered the concerns
raised by the commenters and will
continue to work on alternate fee
payment methodologies. DHS will not
be able to establish a workable
arrangement for fee collection by DOS
prior to the effective date of this rule.
However, a pilot DOS fee collection
methodology is being developed at this

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time. Additionally, DHS is unable to
implement fee collection at ports-ofentry due to the statutory mandate that
the SEVIS fee be paid prior to visa
issuance. Aliens who are exempt from
the F, M, or J visa requirement, as
described in section 212(d)(4) of the Act
(e.g., Canadians), will be required to pay
the fee and have the fee processed prior
to applying for admission at a U.S. portof-entry. Ports-of-entry will not be
equipped to collect fees or provide
mechanisms for nonimmigrants to
submit fee payments. Also, consistent
with the requirements of section 641 of
IIRIRA, nonimmigrants who are already
located in the United States will be
required to pay the fee prior to being
approved for a change of classification
to an F or M student or J exchange
visitor, unless specifically exempt by
DHS due to extenuating circumstances
as determined by SEVP.
A. Payment Options on Implementation
In order to allow for fee collection by
DHS under the constraints outlined in
the preceding paragraph, this rule
establishes the same fee payment
methods discussed in the proposed rule.
However, recognizing that aliens abroad
will be required to pay the fee prior to
obtaining an F, J, or M visa at a U.S.
embassy or consulate, DHS has sought
to build in as much flexibility as
possible for the payment of the fee.
Accordingly, DHS establishes two
options for fee payment:
(1) The fee may be paid by mail, by
submitting Form I–901, Fee Remittance
for Certain F, M, and J Nonimmigrants,
together with a check or money order
drawn on a U.S. bank and payable in
U.S. currency; or
(2) The fee may be paid electronically,
by completing Form I–901 through the
Internet and using a credit card.
These options are similar to the
means currently used by nonimmigrants
abroad to pay fees and expenses to a
school or exchange visitor program
sponsor, as well as methods used by
aliens in other circumstances to pay fees
to DHS for immigration purposes.
DHS acknowledges the commenters’
concerns that some aliens may have
difficulty making these payments. To
alleviate these problems as much as
possible, DHS will accept fee payment
from a third party, either in the United
States or abroad, using the methods
outlined previously. This allows schools
and exchange visitor program sponsors
to pay for some or all of their
participants, as they choose. Friends,
family, or other interested parties may
also make the fee payment on behalf of
an alien.

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Additionally, some commenters
requested a bulk or batch fee payment
system that would allow exchange
visitor program sponsors to pay the fee
for their participants. In response, DHS
has established a bulk fee payment
process that will allow an exchange
visitor program sponsor to pay the fee
for large numbers of individuals at one
time. This automated fee payment
system has been successfully pilot
tested. At this time, only exchange
visitor program sponsors have expressed
an interest in making bulk payments on
behalf of affected aliens. As a result,
DHS has only developed the bulk
payment option for exchange visitor
program sponsors. Although this
regulation does not provide for a bulk
payment option for schools enrolling F
and M nonimmigrants, should schools
express an interest in bulk payments in
the future, DHS will assess the
feasibility of developing this option for
them.
DHS wishes to clarify that the
requirement that a check or money
order be drawn on a U.S. bank does not
necessitate that the student or potential
exchange visitor living outside the
United States approach a U.S. bank to
make a payment. As provided in 8 CFR
103.7(a)(1), an application fee submitted
from outside the United States, ‘‘may be
made by bank international money
order or foreign draft drawn on a
financial institution in the United
States,’’ and payable in U.S. currency.
Many foreign banks are able to issue
checks or money orders drawn on a U.S.
bank. Accordingly, students or potential
exchange visitors may obtain checks
from banks chartered or operated in the
United States, from foreign subsidiaries
of U.S. banks, or from foreign banks that
have an arrangement with a U.S. bank
to issue a check, money order, or foreign
draft that is drawn on a U.S. bank.
DHS also clarifies that any Visa,
MasterCard, or American Express credit
card, whether issued in the United
States or overseas, can be used to pay
the fee over the Internet.
B. Payment Options in the Future
DHS will continue to explore
alternate fee payment methods that
might ease potential difficulties
associated with fee payment from
foreign countries. Most significantly,
DHS is working closely with DOS to
establish a pilot project for DOS
collection of the SEVIS fee overseas.
This pilot is being developed to explore
the feasibility of SEVIS fee collection at
both consular offices with outsourced
fee collection using foreign financial
institutions and at consular offices with
internal cashiers. The pilot will be

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conducted in a small number of
consulates.
A number of issues surround the
implementation of SEVIS fee collection
at DOS consulates. It is important to
note that fee settlement costs are
distributed among all fee-payers. DHS
will avoid implementing collection
solutions that result in excessively high
fee collection costs. The very real
possibility of excessive costs associated
with fee collections performed by some
foreign financial institutions may make
this method untenable in some
locations. It is also possible that DHS
and DOS will not be able to reach a
negotiated agreement with foreign
financial institutions to collect the fees
in some locations where the Machine
Readable Visa Fee is currently collected.
The visa application fee is collected
from all visa applicants every time they
apply for a visa with no reductions or
exceptions; the SEVIS fee is collected
from a select group of nonimmigrants,
does not apply each time a new visa is
sought, and the amount varies
depending upon several factors. Further,
the SEVIS fee must be associated with
an I–901 form so that the payment can
be linked to a specific nonimmigrant in
the SEVIS system. Because these factors
may complicate collection, some foreign
financial institutions may not be
interested in collecting the fee. Further
difficulties may arise with foreign
government regulations limiting the
ability of the Consulate Offices to
transfer funds to the United States.
Additionally, a needs analysis will be
done to document the requirement for
an alternative fee collection method in
each individual country being
considered. To avoid increased fee
settlement costs that would be spread
among all fee payers, the DOS pilot
would be extended only post-by-post,
country-by-country, on the basis of
documented need. For these reasons,
DHS will assess the feasibility,
efficiency, and effectiveness of these
pilot projects to determine whether and
how SEVIS fee collection can occur
through DOS consulates.
Two additional methods being
explored are the use of payment
clearinghouses and the establishment of
direct contractual relationships with
foreign financial institutions to allow
the potential nonimmigrant to pay that
financial institution in foreign funds,
similar to the process used by DOS for
visa fee payments. While DHS remains
committed to providing many options
for fee payment, DHS can only allow for
two avenues for fee remittance at this
time. The alternative types of fee
remittance discussed in this section will
be fully explored and piloted as

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appropriate; however they will not be
fully implemented without a costbenefit analysis and a needs analysis.
DHS will issue further guidance and a
Federal Register notice relating to
alternative collection methods when
they become feasible.
C. Verification of Fee Payment
Several commenters expressed
concerns that, due to the timeframes
involved in the visa application process,
requiring fee payment prior to visa
issuance creates an undue burden on F,
M, and J visa applicants. DHS wishes to
clarify that fee payment does not need
to be completed prior to scheduling an
interview with the consulate, or any
other activities undertaken prior to the
in-person application process at the
consulate. However, in order to assure
that fee payment can be verified for
purposes of visa issuance, the fee
payment must be processed at least 3
business days prior to the date upon
which the alien reports to the consulate
to submit the visa application and
undergo a visa interview. For
nonimmigrants paying the fee
electronically using the Internet, and
who choose to rely on electronic fee
verification at the consulate, the fee
must be submitted at least 3 days in
advance of the interview. However, a
nonimmigrant paying the fee
electronically by using the Internet is
able to print out a receipt at the time of
fee payment, and will be able to use that
printed fee receipt for immediate
verification of payment. For
nonimmigrants paying the fee by mail,
the fee must be submitted in a manner
that assures arrival at the DHS address
listed on the Form I–901 at least 3
business days before the scheduled
interview. This timeframe is also
required for aliens who are exempt from
the F, M, or J visa requirement, as
described in section 212(d)(4) of the Act
(e.g., Canadians). For the fee to be
verified electronically, the
nonimmigrant must pay the fee either
electronically via the Internet or by mail
so that it arrives at the address listed on
the I–901 form at least 3 business days
prior to applying for admission at a U.S.
port-of-entry. Again, a nonimmigrant
paying electronically using the Internet
who is able to print out the receipt at
the time of fee payment will
immediately be able to use that printed
fee receipt for verification of payment.
Other commenters expressed concern
that the use of paper receipts would
lead to fraud. DHS acknowledges this
concern, but also must make receipts
available to nonimmigrants because the
statute requires that nonimmigrants be
able to present proof of fee payment

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before being granted certain benefits,
such as admission, a visa, or change of
status. At this time, certain SEVIS users
(e.g., DHS service centers processing
change of status requests, SEVP
telephone hotline) will be able to
electronically verify fee payment status
for nonimmigrants. DHS is working
with DOS to finalize the interface that
will allow consular officers overseas to
see fee payment status electronically in
the DOS data management system.
Unfortunately, not every DOS consulate
and embassy is anticipated to have
electronic fee verification upon the
effective date of this final rule.
However, DHS believes that if fee
collection were delayed until such time
as paper receipts can be eliminated this
would be inconsistent with
Congressional statements favoring
expeditious implementation of a SEVIS
fee, and also with the Congressional
requirement that nonimmigrants be able
to present proof of fee payment before
receiving benefits. See Visa Waiver
Permanent Program Act of 2000 404(6),
Public Law 106–396, 114 Stat 1637
(October 30, 2000); 8 U.S.C. 1372(e)(5).
Therefore, at this time, DHS will issue
an official paper receipt acknowledging
every payment regardless of payment
method used. The paper receipt will be
mailed or sent via express delivery
service to the address provided on the
Form I–901. Additionally, anyone who
submits an individual fee electronically
will be able to print out an electronic
receipt immediately at the time of
payment for use pending the mail
delivery of the official paper receipt.
Exchange visitor program sponsors who
submit Form I–901s and pay the fee via
the bulk filing process will receive
receipts via express delivery for
distribution to their program
participants.
While DHS will continue to provide
a paper fee receipt, consular officials
will use the DOS system to verify fee
payment when validating Form I–20 or
Form DS–2019 information, wherever
possible. Even in cases where DOS can
generally use the system to verify fee
payment, the paper receipts will
continue to serve as a secondary means
of fee verification. Paper receipts will
serve to assist students in demonstrating
that the fee has been paid. However, a
paper receipt is not required for the visa
interview, admission at the port-ofentry, or any other part of the SEVIS
process when proof of payment can be
verified electronically. This dual system
will ensure that, in instances where
paper receipts sent by mail are either
delayed in transit or not received at all,
the issuance of the nonimmigrant visa

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will proceed unimpeded; additionally,
in instances where paper receipts are
presented as proof of fee payment, the
electronic records will serve as fraud
prevention. As part of the regulatory
implementation and during this initial
period of dual paper and electronic fee
payment verification, DHS will also
initiate and maintain a telephone
hotline to be used by DOS consular
officers, DHS inspectors at ports-ofentry, and DHS officers adjudicating
change of status cases at service centers
as a backup means to allow these
officials to verify the electronic record
of fee payment. This dual process, in
which paper receipts may be relied
upon for fee verification until electronic
verification is available at every
consulate, is necessary to assure a
timely and effective implementation of
the fee payment validation process. DHS
may issue a notice in the Federal
Register to eliminate the paper receipt
at some time in the future, if it has been
clearly demonstrated that it is no longer
necessary. In summation, nonimmigrants affected by this rule are
encouraged to present a paper receipt in
the following cases:
• Nonimmigrants applying for an F,
M, or J visa abroad should present a
paper receipt to verify fee payment until
such time that all consular officers can
electronically verify fee payment. DHS
will inform all schools and program
sponsors when an electronic fee
verification capability has been
established at all consulates.
• Nonimmigrants exempt from the
visa requirement (pursuant to section
212(d)(4) of the Act) should present a
paper receipt to verify fee payment at
the port-of-entry, prior to being
admitted to the United States as an F,
M, or J nonimmigrant, although all DHS
inspectors should be able to
electronically verify fee payment if a
paper receipt is not available.
• Nonimmigrants applying for a
change of status to F, M, or J from
within the United States will not be
required to send the paper receipt with
their change of status application.
Rather, the adjudicating officer will
access SEVIS to verify payment of the
fee. However, students and exchange
visitors should note that if the
adjudicating officer does not find
verification of fee payment in SEVIS,
the applicant will receive a request for
evidence from the service center and the
applicant may be required to submit a
paper receipt in response to this request.
D. The I–901 Form
Finally, in response to the notice
published in the Federal Register (68
FR 59800) on October 17, 2003, some

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III. Fee Exemption and Reduction

identification designator prefix of G–1,
G–2, or G–3.
Commenters suggested that other
students and/or exchange visitors
should be exempt from the fee.
Similarly, a number of commenters
suggested that the fee be reduced below
$100 for other programs to mirror the
reduction Congress expressly provided
to certain J–1 participants, including
lower fees for short-term English
language programs, for all English
language programs, for some or all
short-term programs, for part-time and
full-time commuter students, and for
secondary school students. As noted in
the 2003 proposed rule, Congress
specifically exempted from the SEVIS
fee only J–1 nonimmigrants who are
participating in an exchange visitor
program sponsored by the Federal
government, and explicitly reduced it
only for certain other J–1
nonimmigrants. DHS interprets the
Congressional mandate such that no
other groups of nonimmigrants should
be exempted from the SEVIS fee or have
a reduced SEVIS fee based upon the
principle of expressio unius: when one
or more things of a class are expressly
mentioned, others of the same class are
necessarily excluded.
Additionally, DHS cannot adopt the
suggestion made by some commenters,
that secondary school students and
exchange visitors should be exempt
from the fee payment because they were
not initially required to be tracked in
SEVIS. DHS is requiring that all
elementary and secondary nonimmigrant students on F–1 and J–1 visas
be tracked in SEVIS, based upon
amendments to section 641(e)(1) of
IIRIRA made by section 416 of the
Uniting and Strengthening America by
Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism
(USA PATRIOT) Act of 2001, Public
Law 107–56, 115 Stat 272 (October 26,
2001). Since these students are required
to be tracked in SEVIS and are not
expressly exempted from paying fees by
Congress, DHS requires fee payment
from them.

IIRIRA section 641provides that an
alien seeking J–1 status to participate in
an exchange visitor program that is
sponsored by the Federal government is
exempt from paying a fee. Several
commenters requested clarification on
how to determine which programs the
Federal government sponsors. DHS
clarifies that those potential J–1
exchange visitors exempt from the fee as
participants in a Federal government
sponsored exchange visitor program are
those participating in an exchange
visitor program with a program

IV. The Frequency of the Fee
In the 2003 proposed rule, DHS
suggested that aliens who paid the fee
and were denied a visa would not have
to pay another fee to apply for the same
visa classification for a period of 9
months, and specifically sought
comments on this timeframe. The
majority of commenters felt that this
timeframe should be extended to 12
months to accommodate the academic
and program-specific annual calendars.
This suggestion was accepted and
adopted in this final rule.

commenters expressed concern about
the Form I–901, Fee Remittance For
Certain F, J, and M Nonimmigrants.
Commenters were concerned that a fee
payment was linked to a single SEVIS
identification number, since a
nonimmigrant may apply to more than
one school or exchange visitor program,
and, therefore, may have multiple I–20s
or DS–2019s with multiple SEVIS
identification numbers. DHS clarifies
that fee verification will allow for a fee
payment made on one SEVIS
identification number to be applied to
another SEVIS identification number
issued to the same individual.
Nonimmigrants are strongly encouraged
to bring proof of both SEVIS
identification numbers to the consulate
or port-of-entry when payment has been
made on a SEVIS identification number
that is different than the one being used
to obtain a visa or entry. DHS notes that
if a new fee payment is required, as
explained fully below, it must be paid,
regardless of payments made on the
same or different SEVIS identification
numbers. In the future, multiple SEVIS
identification numbers for a single
nonimmigrant are likely to be
augmented with the unique biometric
identifier used by the United States
Visitor and Immigrant Status Indicator
Technology Program (US–VISIT). This
will enable positive matches where
more than one record exists for a single
person.
In response to comments, several
minor changes are being made to the I–
901 form. The titles for the name blocks
are being further clarified. DHS is
amending the instructions to clarify that
a credit card may be used to pay the fee
when the Internet version of the form is
used. In addition, DHS is changing the
form so that an ‘‘N’’ will automatically
populate the first space of the SEVIS
identification number to help prevent
data entry errors. And finally, DHS is
adding a street address to the form to
allow for courier delivery of the form
and payment to DHS.

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Although DHS provided an
explanation of when a new fee payment
would be required in the 2003 proposed
rule, several commenters requested a
more detailed clarification. In the
following paragraphs, DHS re-states and
further clarifies exactly when a fee is
initially required, and when an
additional fee payment would be
subsequently required by the same
individual. The SEVIS fee is a one-time
fee for each nonimmigrant program in
which the student or exchange visitor
participates. For purposes of this fee, a
‘‘single program’’ for an F or M student
generally extends from the time that the
student is granted a particular
nonimmigrant status, until such time
that the nonimmigrant falls out of
status, changes status, or departs the
United States for an extended period of
time. For a J exchange visitor, a single
program is defined by the category and/
or sponsor at the time of initial program
participation, and extends until a
change of category, a transfer from a feeexempt sponsor to a non-fee-exempt
sponsor, or until such time as the
nonimmigrant falls out of status or
changes status. In general:
• An F or M student will be required
to pay only one fee if he/she maintains
continuous status in a single visa
classification, or if he/she is granted a
reinstatement to student status in a
timely manner following a violation of
status;
• A J exchange visitor will be
required to pay only one fee if he/she
maintains status while participating in a
single exchange visitor program, or if
he/she resumes status within the same
program following a violation of status;
• A student or exchange visitor will
be required to pay a new fee if he/she
violates status and cannot or does not
resume status in a program, in
accordance with 8 CFR 214.2 (f)(16) and
(m)(16) or 22 CFR 62.45, and
subsequently returns to the United
States to participate in another program;
• A student or exchange visitor will
be required to pay a new fee if he/she
wishes to change to another student or
exchange visitor status, unless explicitly
exempt; and,
• An exchange visitor will be
required to pay a new fee prior to
applying for a change of category.
This final rule further clarifies that an
F or M student will not be required to
pay a new fee upon transfer to a new
school, extension of stay, change in
educational level, when obtaining a new
visa for re-entry for program
continuation, upon a temporary absence
of less than 5 months, or upon a period
of approved absence in which the
student is engaged in overseas study as

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a part of his/her U.S. educational
program requirements. Further, a
student will not have to pay a new fee
if he/she falls out of status and files for
reinstatement prior to the presumptive
ineligibility deadline set forth in 8 CFR
214.2(f)(16)(i)(A) or (m)(16)(i)(A). An
exchange visitor will not generally be
required to pay a new fee upon transfer
between programs within the same
exchange visitor category. However, an
exchange visitor that transfers from a
fee-exempt program to a non-fee-exempt
program under the same exchange
visitor category, e.g., a program with a
prefix of G–1, G–2 or G–3, to another
program with a program prefix that is
not G–1, G–2 or G–3, but is within the
same program category (e.g., research
scholar), will be required to pay the fee
upon transfer. Further, as previously
stated, a change of J–1 exchange visitor
category will require payment of a new
fee. An intending J–1 nonimmigrant will
be required to pay a new fee if, after
completion of an exchange visitor
program, he/she wishes to return to the
United States to begin a new program,
even if it is in the same category. An
exchange visitor will not be required to
pay a new fee if he/she falls out of valid
program status due to a minor or
technical infraction. However, an
exchange visitor will be required to pay
the SEVIS fee prior to applying for
reinstatement under 22 CFR 62.45 with
DOS.
As previously noted, this final rule
extends the period of time from 9
months to 12 months during which an
alien does not need to repay the fee
when re-applying for the same category
of visa after initial denial. Additionally,
DHS clarifies that this 12-month
exemption applies to a student or
exchange visitor who has been denied a
change of status within the United
States, and whose application is
subsequently re-opened and approved.
However, DHS wishes to clarify that if
a visa is denied for a particular J–1
exchange visitor category, and the alien
is applying for a visa in a different J–1
category, the alien will have to pay a
new fee in conjunction with that visa
application, even if the second
application is made within the 12month period identified previously.
This restriction on J–1 applications also
applies to applications for change of
status to a J–1 exchange visitor program.
Where an F or M nonimmigrant is
applying for reinstatement to student
status, and has been out of status for a
period that exceeds 5 months at the time
of filing, the nonimmigrant will be
required to pay a new fee to DHS prior
to the adjudication of the reinstatement
request. This 5-month time limit is set

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in accordance with the 5-month
presumptive ineligibility deadline at 8
CFR 214.2(f)(16)(i)(A) and (m)(16)(i)(A).
Similarly, pursuant to 22 CFR 62.45,
where an exchange visitor applies for
reinstatement after a substantive
violation or after falling out of his/her
valid J program status for longer than
120 days but less than 270 days, the
exchange visitor will be required to pay
a new fee prior to applying with DOS
for reinstatement.
A new fee would also be required if
an F, M, or J nonimmigrant changes to
a non-student/exchange visitor visa
classification and then wishes to return
to the previously held F, M, or J status.
Finally, a new fee is needed if an alien
re-applies for the same visa status or for
the same change in status more than 12
months after a denial is issued either
overseas at a U.S. embassy or consulate,
or within the United States.
The following charts outline who is
exempt from paying a fee, who is
required to pay a fee and when a fee
payment is required, and who may pay
a reduced fee:
Chart I—Fee payment not required if
applicant is:
A continuing F, M, or J nonimmigrant
who maintains that status, and whose
initial Form I–20 or DS–2019 was issued
before September 1, 2004, as evidenced
by their SEVIS record and the issuance
date on their form.
An F–2, J–2, or M–2 dependent .
A J–1 participant in an exchange
visitor program sponsored by the
Federal government. A program
sponsored by the Federal government is
identified by a program designation
prefix of G–1, G–2, or G–3 .
An F–1, F–3, J–1, M–1, or M–3
nonimmigrant applying for a visa to
return to the United States as a
continuing student or a continuing
participant of an exchange visitor
program.
• This provision applies only to
nonimmigrants returning to the United
States to resume participation in a
program that was previously begun, in
which he or she has maintained status,
and which has not yet been completed.
• This includes F or M
nonimmigrants who will return as
continuing students after a temporary
absence from the United States for a
period of less than 5 months in
duration.
• This provision also includes F or M
students returning as continuing
students after working towards
completion of the U.S. program in
authorized overseas study.
An F–1 or F–3, nonimmigrant
maintaining continuous status and

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changing educational levels. Examples
include F students:
• Moving directly from high school to
college.
• Moving directly from a masters
degree program to a doctoral program.
An F–1, F–3, M–1, or M–3
nonimmigrant transferring between
approved schools at the same
educational level.
A J–1 nonimmigrant transferring
between programs in the same exchange
visitor category where no differential fee
exists. Examples include transfers:
• Between two fee-exempt programs
(a transfer between G–1, G–2, or G–3
programs).
• Between two non-fee-exempt
programs.
• From a non-fee-exempt program to
a fee-exempt program (G–1, G–2, or G–
3 program).
A nonimmigrant applying for a
change of classification from within the
United States between an F–1 and F–3
status, or between M–1 and M–3 status.
An F–1, F–3, J–1, M–1, or M–3
nonimmigrant requesting/applying for
an extension of stay in a single program.
• ‘‘Extension’’ for purposes of this
example applies to students who have
maintained participation in a program
when additional time is needed for
program completion.
An alien who paid an initial fee when
seeking an F–1, F–3, M–1, or M–3 visa
from an embassy or consulate abroad,
was denied a visa, and is applying again
for a visa for the same type of program
within 12 months of the initial denial.
An alien who paid an initial fee when
seeking a J–1 visa from an embassy or
consulate abroad, was denied a visa,
and is applying again for a visa in the
same J–1 exchange visitor category
within 12 months of the initial visa
denial.
• This provision does NOT apply to
J–1 applicants who initially applied for
a fee exempt program (e.g., a program
with a program identifier designation
prefix of G–1, G–2 or G–3), and who,
after visa denial, apply for a program
that is not fee exempt.
A nonimmigrant who has applied for
a change of status in the United States
to an F, M, or J classification, had the
initial application for the change of
status denied for a reason other than
failure to pay the SEVIS fee, and is
applying for a motion to re-open the
case within 12 months of the original
denial.
Pursuant to SEVP discretion, certain
nonimmigrants changing between F and
M status due solely to a change in
school classification during their course
of study.
An F or M nonimmigrant applying for
reinstatement of student status, who has

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not been out of student status for a
period exceeding the presumptive
ineligibility requirement set forth in 8
CFR 214.2(f)(16)(A) or 214.2(m)(16)(A).
Chart II—Fee payment of $100 is
required if the applicant is:
An alien seeking an initial F–1, F–3,
J–1, M–1, or M–3 visa from an embassy
or consulate abroad for initial
attendance at a DHS-approved school or
initial participation in a Department of
State-designated exchange visitor
program that is subject to the $100 fee
amount. (Specific J–1 programs not
subject to the $100 fee are described in
both Chart I and Chart III.)
The fee must be processed 3 business
days before the consular interview,
unless the applicant has a printed
receipt from Internet payment. Fees will
not be payable at the consulate.
An alien exempt from the visa
requirement described in section
212(d)(4) of the Act, who will be
applying for admission at a United
States port-of-entry to begin initial
attendance at a DHS-approved school or
initial participation in a Department of
State-designated exchange visitor
program that is subject to the $100 fee
amount. (Specific J–1 programs not
subject to the $100 fee are described in
both Chart I and Chart III.) Such fee
must be processed at least 3 business
days prior to making an application for
admission at the port-of-entry, unless
the applicant has a printed receipt from
Internet payment. Fees will not be
payable at the port-of-entry.
An alien in the United States seeking
a change of status to F–1, F–3, J–1, M–
1, or M–3 . Exceptions are listed in
Chart I for instances not requiring fee
payment.
A nonimmigrant who was initially
granted J–1 status as a participant in an
exchange visitor program sponsored by
the Federal government, (i.e., with a
program identifier designation prefix of
G–1, G–2, or G–3), and who is now
transferring to another J–1 program in
the same category that is not similarly
sponsored (i.e., has a program identifier
designation prefix other than G–1, G–2,
or G–3).
A J–1 nonimmigrant who is applying
for a change of category within the
United States, with the exception of a
change to a J–1 program specifically
requiring an alternate fee, as indicated
in Chart III, or a program whose
program identifier designation prefix is
G–1, G–2, or G–3.
A J–1 nonimmigrant who is applying
for reinstatement after a substantive
violation, or who has been out of
program status for longer than 120 days
but less than 270 days during the course
of his or her program.

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39821

An F or M nonimmigrant applying for
reinstatement of student status, who has
been out of student status for a period
exceeding the presumptive ineligibility
requirement set forth in 8 CFR
214.2(f)(16)(A) or 214.2(m)(16)(A).
An F or M nonimmigrant, including
an F–3 or M–3 nonimmigrant, who has
been absent from the United States for
a period exceeding 5 months, was not
working towards completion of
curriculum in authorized overseas
study, and now wishes to re-enter for a
new F or M program of study in the
United States.
Chart III—Fee payment is reduced to
$35 if applicant is:
A J–1 nonimmigrant applying for
participation in a summer work/travel,
au pair, or camp counselor program.
V. Applicability of the Fee Requirement
A number of commenters to the
proposed rule stated that the fee should
not be implemented without adequate
notice. Generally, commenters
suggested that implementation be
delayed to not earlier than September
2004, although one commenter felt that
January 2005 would be most
appropriate. Additionally, various
commenters stated that fee
implementation should not take place in
the spring, summer, or fall due to
considerations with academic and
program calendars. However, Congress
mandated in section 641 of the IIRIRA
that the Student and Exchange Visitor
Program information collection effort be
funded by those aliens included in the
program, and made express provisions
to expedite implementation and
collection of the fee. See, e.g., Visa
Waiver Permanent Program Act of 2000,
404, Public Law 106–396, 114 Stat. 1637
(October 30, 2000) (exempting the
SEVIS fee from the Administrative
Procedures Act rulemaking process in
order to ‘‘ensure the expeditious, initial
implementation of this section’’). SEVIS
is currently operational and DHS is
incurring associated operating costs. As
such, while the fee is not being imposed
retroactively, this fee must be collected
as soon as feasible. This final rule
imposes the fee requirement for
students and exchange visitors whose
Form I–20 or Form DS–2019 is initially
issued on or after September 1, 2004. In
general, nonimmigrants maintaining F,
M, or J status will not be subject to the
fee. Further, intending F, M, or J
nonimmigrants issued an I–20 or DS–
2019 prior to September 1, 2004, (as
evidenced by the issuance date on the
form) will not be subject to the fee
except as defined in the preceding
charts. While some school and exchange
visitor programs requested more time to

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prepare for the implementation of the
fee, a proposed rule on this fee was
initially published in 1999 and, most
recently, a revised proposal was
published in October 2003. The
statutory provisions and proposed rules
have informed the schools and exchange
visitor programs that this fee collection
will occur. Moreover, DHS is collecting
the fee, which is a change to the 1999
proposal that schools and exchange
visitor program sponsors collect this fee.
Thus, DHS believes that there has been
sufficient time to prepare for fee
implementation.
As noted, this rule will be effective on
September 1, 2004, and will apply to
potential nonimmigrants that are
initially issued a Form I–20 or Form
DS–2019 on or after that date. Potential
nonimmigrants, for purposes of this
rule, are those aliens who will apply to
DOS or DHS for initial attendance as an
F, M, or J nonimmigrant, certain
nonimmigrants in the United States that
will apply for a change of status to an
F, M, or J classification, and current
J–1 nonimmigrants that will apply for a
J–1 category change, on or after that
date. If a Form I–20 or Form DS–2019
for initial status in a new program is
issued on or after the effective date, the
nonimmigrant traveling on that
document will be required to pay the
fee. Applicants, schools, and exchange
visitor program sponsors should refer to
the fee pay table contained in this rule
for more detailed information
concerning when a fee is required.
VI. Propriety of the Fee Requirement
Some commenters stated that it is
unfair to charge fees to nonimmigrants
who were denied a visa, stating that
these nonimmigrants receive no benefit
from the program. A few commenters
further stated that the fee should only be
paid by those who choose to actually
come to the United States, regardless of
whether or not a visa is issued. These
recommendations, while acknowledged,
cannot be adopted by DHS. Pursuant to
statutory mandate, the fee payment
must be processed prior to obtaining a
nonimmigrant visa.
DHS has modified the proposed rule
to make the fee payable prior to
obtaining a visa, rather than prior to
starting the visa application process.
Likewise, for aliens who are exempt
from the visa requirements, the fee must
be paid and processed prior to making
an application for admission at a portof-entry. However, DHS wishes to
further clarify this distinction. Fee
payment does not need to be completed
prior to scheduling an interview with
the consulate or any other activities
undertaken prior to the in-person

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application process at the consulate. In
order to assure that fee payment can be
verified for purposes of visa issuance,
the fee payment should be processed at
least 3 business days prior to the date
upon which the alien reports to the
consulate to submit the visa application
and undergo a visa interview, unless the
alien can present a printed receipt from
Internet payment. Similarly, 3 business
days also must elapse between the
processing of a fee and submitting an
application for admission at a port-ofentry for aliens exempt from the visa
provisions, as described in section
212(d)(4) of the Act, unless the alien can
present a printed receipt from Internet
payment. As stated in previous sections,
if the visa or admission is subsequently
denied and the alien applies again
within 12 months, no new SEVIS fee
will be required.
DHS further wishes to clarify that
those nonimmigrants who are denied a
visa or who are granted a visa and then
choose not to come to the United States
have already benefited from SEVIS. A
nonimmigrant seeking F, M, or J status
must prove to the consular officer
granting his or her visa that he or she
has been admitted by a DHS certified
school or DOS designated exchange
visitor program sponsor. Prior to SEVIS,
nonimmigrants used hard copy forms
issued by the schools or sponsors to
verify their claim. These forms were
subject to fraud and difficult to verify.
This led to abuse of these nonimmigrant
classifications as well as delays and
denials of visa applications when
consular officers suspected fraud. SEVIS
allows nonimmigrant information to be
entered into the system by certified
schools or designated sponsors. The
nonimmigrant is then granted a Form I–
20 or Form DS–2019, which he or she
can then use to apply for an F, M, or J
visa. SEVIS allows for immediate
electronic verification of an alien’s I–20
or DS–2019 information, assisting
consular officers as they determine the
alien’s eligibility for F, M, or J status.
This constitutes a benefit for every
applicant seeking student or exchange
visitor status.
Further, some commenters argued
that the tracking of F, M, and J
nonimmigrants while they are in the
United States does not benefit
individuals, but rather benefits the
population as a whole by increasing the
security of the United States. DHS
disagrees. SEVIS was developed
subsequent to the discovery that some of
the terrorists participating in the 1993
World Trade Center bombing and the
September 11, 2001 attacks were
nonimmigrants using student visas. At a
time when some Americans felt that

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student and exchange visitor visas ought
to be severely curtailed or eliminated,
the development of SEVIS with its
ability to maintain information on F, M,
and J nonimmigrants allowed for the
continued use of these visa
classifications. Thus, SEVIS benefits the
individual nonimmigrants able to obtain
and use visas of these classifications.
Additionally, when an F, M, or J
nonimmigrant seeks further benefits
such as employment, change of status,
or reinstatement, SEVIS is used to verify
their eligibility.
Further, enforcement of F, M, or J
status violations benefits all F, M, or J
nonimmigrants. DHS notes that these
visa classifications allow
nonimmigrants to enter the United
States for long periods of time with
benefits (such as employment
opportunities) not available for many
other visa classifications. Prior to
SEVIS, there was widespread abuse of
these visa classifications, including
overstays. Widespread abuse of the F,
M, and J visa classifications undermines
the legitimacy of the entire foreign
student and exchange visitor program.
An effective enforcement program that
relies upon SEVIS information to
identify and initiate investigations of
status violations enhances the integrity
of the entire program. Enforcement
oversight leads to the increased integrity
of the program; it is possible to
differentiate between legitimate
students and exchange visitors and the
status violators. This benefits the
individual F, M, or J nonimmigrants
who are legitimate.
SEVIS allows each F, M, or J
nonimmigrant to provide easily
verifiable documentation that confirms
that he or she is abiding by the
requirements of his or her student or
exchange visitor status. Further, SEVIS
creates alerts when certified schools or
designated sponsors provide or fail to
provide certain required information.
These alerts are used to initiate
investigations in which ICE enforcement
officers verify whether or not a violation
of status has occurred. By enforcing
status violations, DHS helps ensure that
the majority of students and exchange
visitors in SEVIS are legitimately in
status and that the data in SEVIS is
reliable. Without enforcement, the
violations of status that undermined the
student and exchange visitor program in
the past would occur again. With
enforcement ensuring the integrity of
SEVIS data, legitimate students and
exchange visitors can provide reliable
documentation of their status and avoid
difficulties and delay when seeking
benefits.

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As previously stated, some
nonimmigrants may not be granted visas
or may choose not to come to the United
States after their visas are granted. DHS
will not refund the fee in these cases.
However, fees paid in error will be
refunded.
VII. Miscellaneous Comments and
Concerns
A number of commenters suggested
that the proposed fee will deter
participation by foreign students and
exchange visitors. In particular, it was
noted that participation in short-term or
intensive English language programs has
already dropped significantly. DHS
recognizes that there have been
significant changes in the national
security environment since September
11, 2001. However, DHS notes that
while the demand for foreign student
and exchange visitor visas has been
down in the past 2 years, so has the
demand for visas in general. Therefore,
there is little reason to believe that this
downward trend for students and
exchange visitors is based solely upon
the implementation of SEVIS. Similarly,
future reduced participation (especially
that already evidenced by reduced
applications) will not necessarily be
linked directly to the implementation of
the SEVIS fee. It is noted that in many
cases, compared with the overall cost of
a U.S. education or participation in an
exchange visitor program, the
imposition of the SEVIS fee does not
significantly increase the financial
burden on foreign students and
exchange visitor program participants.
Additionally, a few commenters
expressed a belief that the imposition of
this fee would deter the participation of
students and exchange visitors with the
most limited resources, particularly
those from the least developed
countries. While DHS acknowledges
this possibility, the statute mandating
the implementation of the fee allows for
no specific fee reductions, exemptions,
or delayed payments based upon a
nonimmigrant’s available resources or
the infrastructure limitations of his/her
country. Further, F, M, and J
nonimmigrants are required by DHS and
DOS regulations to provide evidence of
sufficient financial resources to support
themselves throughout their program.
When considering the average cost of a
temporary stay in the United States,
including all related program costs, DHS
does not believe that the SEVIS fee
presents an additional cost burden
sufficient to act as a deterrent to F, M,
or J program participation. DHS notes
that many schools and exchange visitor
program sponsors, as well as other
interested third party organizations

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(such as advocacy groups), already make
special efforts to assist these
nonimmigrants. DHS commends and
encourages this assistance and, to
facilitate such assistance, DHS will
accept fee payment from third parties.
Regulatory Flexibility Act
I have reviewed this final rule in
accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)) and, by
approving it, I preliminarily certify that
this rule will not have a significant
economic impact on a substantial
number of small entities. The students
and exchange visitors impacted by this
rule are not considered ‘‘small entities,’’
as that term is defined in 5 U.S.C.
601(6).
Since Congress changed the law to
provide that DHS will collect the fee
directly from the nonimmigrant, rather
than having the school or exchange
visitor program sponsor collect and
remit the fee, schools and exchange
visitor program sponsors will no longer
need to be involved in any way with
respect to the collection of the fee.
However, they are free to offer
assistance to their students or potential
exchange visitors if they choose to do
so. Exchange visitor program sponsors
who choose to participate in the bulk
payment process to pay the fee on
behalf of their participants may incur
costs associated with establishing their
batch file connection with the fee
payment system, as well as the costs of
the fees. However, the program
sponsor’s assumption of these costs on
behalf of their participants is voluntary
and, therefore, not subject to the
Regulatory Flexibility Act.
Unfunded Mandates Reform Act of
1995
This rule will not result in the
expenditure by State, local, and tribal
governments (in the aggregate) or by the
private sector of $100 million or more
in any 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 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 U.S. 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 U.S.-based companies

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39823

to compete with foreign-based
companies in domestic and export
markets. As mandated by Congress, this
rule levies a fee in the amount of $100
on some nonimmigrant students and
exchange visitors, and a fee in the
amount of $35 for exchange visitors
admitted as au pairs, camp counselors,
or participants in a summer work/travel
program.
Executive Order 12866
DHS is required to implement this
rule under section 641(e) of IIRIRA, 8
U.S.C. 1372. This rule is considered by
DHS 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. In
particular, DHS has assessed both the
costs and benefits of this rule, as
required by Executive Order 12866,
section 1(b)(6), and has made a reasoned
determination that the benefits of this
regulation justify its costs.
How Was the Amount of the Fee
Determined?
The costs to the public that this rule
imposes are primarily the fees that must
be paid by nonimmigrant students and
exchange visitors that will be processed
through SEVIS prior to being admitted
to the United States. DHS is required by
section 641 of IIRIRA to collect a fee to
recover the cost of collecting student
and exchange visitor information
electronically. After careful evaluation
of the costs to design, develop, and
accurately maintain the statutorily
mandated information collection
system, DHS is now imposing a fee of
$100 for nonimmigrant students and
most intending exchange visitors, and
$35 for potential exchange visitors
admitted as au pairs, camp counselors,
or participants in a summer work/travel
program. The fees imposed under this
final rule will support personnel costs,
ongoing system operation and
maintenance costs, training costs, and
other costs related to the program, as
well as offset the resources necessary to
ensure compliance with the regulations.
Approximately 362,400 F–1 students
and 312,400 J–1 exchange visitors are
expected to enter the United States in
Fiscal Year 2004. Based upon historical
trends, it is further estimated that as
many as 10% may subsequently violate
the terms of their nonimmigrant status
each year. However, in an effort to
compensate for the possible
inaccuracies of earlier systems and data
on student and exchange visitor
noncompliance, the estimated number
of violators has been reduced to 5%.

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Using this percentage, DHS estimates
33,720 foreign students and exchange
visitors might be subject to enforcement
actions on an annual basis, although no
actual measure of the number of student
and exchange visitors who have violated
their immigration status has ever been
conducted. While remaining within the
initial $100 statutory limitation, DHS
has calculated the fee to cover the costs
of systems and program office
operations and maintenance, training,
and personnel, including SEVIS liaison
officers and ICE officers in the field.
Based upon estimates of the total F, M,
and J visa population and estimates of
the total staff-hours that will be needed
to ensure compliance with SEVIS
requirements, DHS has estimated that
the fee will fund approximately 60% of
the personnel resources needed for
compliance efforts.
Why Is the SEVIS Fee Necessary?
If DHS failed to assess a SEVIS fee, it
would be in violation of the law.
Additionally, should DHS either not
assess the fees under this rule or assess
the fees at a lesser amount, DHS would
be unable to continue to implement and
operate SEVIS or, at a minimum, be
forced to sustain a more limited
capability to ensure compliance by
foreign students and exchange visitors
with the requirements of SEVIS. This
would be contrary to the intent of
Congress in giving ICE responsibility
over SEVIS. If the fees are not imposed
or are imposed at a lesser amount, the
public could incur the intangible impact
of reduced security, as a result of a more
limited ability to ensure compliance.
The imposition of this fee shifts the
burden of funding program operating
and compliance efforts to the
population whose data is actually
entered and tracked in SEVIS. If the fees
are not imposed, or are imposed at a
lesser amount, the general public would
become responsible for bearing the
shortage in the funding of program
implementation and conformity. This
would be contrary to the explicit
directive of Congress, as set out in
section 641 of IIRIRA, and subsequent
amendments.
What Are the Benefits of Establishing
the SEVIS Fee?
SEVIS is a vital tool in protecting the
public by: (1) Enhancing the process by
which nonimmigrants seeking to be
foreign students and exchange visitors
gain admission to the United States; and
(2) increasing the ability of DHS to track
and monitor foreign students and
exchange visitors to ensure that they
arrive in the United States, show up and
register at the school or be validated as

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participating in their exchange visitor
program activity, and properly maintain
their status during their stay in this
country. SEVIS enables a proper balance
between openness in admitting foreign
students and exchange visitors into the
United States and preserving the
security enhanced by enforcing the law.
What Are the Costs of Establishing the
SEVIS Fee?
The projected time per response for
this collection of information were
derived by first breaking the process
into three basic components:
Learning about the Law and the
Form—5 Minutes
Completion of the Form—9 Minutes
Assembling and Filing the Form—5
Minutes
Total Time per Response—19 Minutes
For all components, DHS used tests to
determine completion times. People
who were not conversant with
immigration processes were used to
determine average completion times.
The Total annual reporting burden
hours is 192,000. This figure was
derived by multiplying the number of
respondents (600,000) × frequency of
response (1) × 19 minutes or (.32 hours)
per response. The estimated annual
public cost is $61,920,000. This figure is
based on the number of respondents
600,000 multiplied by 19 minutes (.32),
multiplied by $10 (average hourly rate);
plus the number of respondents
(600,000) × fee of $100.
Conclusion
Balanced against the costs and
requirements to collect information
electronically, the burden imposed by
this regulation is fully justified by the
benefits it provides.

Paperwork Reduction Act
This final rule requires the use of the
Form I–901, Fee Remittance Form for
Certain F, J, and M Nonimmigrants. This
form is considered an information
collection document and subject to
review and clearance under Paperwork
Reduction Act procedures. On October
17, 2003, at 68 FR 59800, DHS
published a notice in the Federal
Register, soliciting public comments on
the Form I–901 for a period of 60 days.
The comments that were filed by the
public and OMB have been addressed
and reconciled in the preamble of this
final rule. DHS has received OMB
approval for proposed information
collection, Form I–901, Fee Remittance
for Certain F, J, and M Nonimmigrants
(OMB No. 1653–0034) that is contained
in this final rule. The costs and benefits
of Form I–901 have been fully set out in
the supporting statement for the Form I–
901 that will be published separately in
the Federal Register.
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 amended
as follows:
PART 103—POWERS AND DUTIES;
AVAILABILITY OF RECORDS

Executive Order 13132
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.

■

Executive Order 12988 Civil Justice
Reform

*

This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.

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1. The authority citation for part 103
continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C.
1101, 1103, 1304, 1356; 31 U.S.C. 9701; Pub.
L. 107–296 116, Stat. 2135 (6 U.S.C. 1 et.
seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR,
1982 Comp., p. 166; 8 CFR part 2.

2. Section 103.7(b)(1) is amended by
adding the entry for Form I–901 to the
listing of fees, in proper alpha/numeric
sequence, to read as follows:

■

§ 103.7

Fees.

*
*
*
*
(b) * * *
(1) * * *
*
*
*
*
*
Form I–901. For remittance of the
SEVIS fee levied on certain F, J, and M

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Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations
nonimmigrant aliens—$100. For
remittance of the SEVIS fee levied for J–
1 au pairs, camp counselors, and
participants in a summer work/travel
program—$35.
*
*
*
*
*
PART 214—NONIMMIGRANT CLASSES
3. The authority citation for part 214 is
revised to read as follows:

■

Authority: 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1185 (pursuant to E.O. 13323, 69 FR
241), 1186a, 1187, 1221, 1281, 1282, 1301–
1305, 1372, 1379, 1731–32; section 643, Pub.
L. 104–208, 110 Stat. 3009–708; section 141
of the Compacts of Free Association with the
Federated States of Micronesia and the
Republic of the Marshall Islands, and with
the Government of Palau, 48 U.S.C. 1901,
note, and 1931 note, respectively; 8 CFR part
2.

4. Section 214.2 is amended by:
a. Adding a new paragraph (f)(19);
b. Adding a new paragraph (j)(5); and
by
■ c. Adding a new paragraph (m)(20).
The additions read as follows:
■
■
■

§ 214.2 Special requirements for
admission, extension, and maintenance of
status.

*

*
*
*
*
(f) * * *
(19) Remittance of the fee. An alien
who applies for F–1 or F–3
nonimmigrant status in order to enroll
in a program of study at a Department
of Homeland Security (DHS)-approved
educational institution is required to
pay the Student and Exchange Visitor
Information System (SEVIS) fee to DHS,
pursuant to 8 CFR 214.13, except as
otherwise provided in that section.
*
*
*
*
*
(j) * * *
(5) Remittance of the fee. An alien
who applies for J–1 nonimmigrant status
in order to commence participation in a
Department of State-designated
exchange visitor program is required to
pay the SEVIS fee to DHS, pursuant to
8 CFR 214.13, except as otherwise
provided in that section.
*
*
*
*
*
(m) * * *
(20) Remittance of the fee. An alien
who applies for M–1 or M–3
nonimmigrant status in order to enroll
in a program of study at a DHSapproved vocational educational
institution is required to pay the SEVIS
fee to DHS, pursuant to 8 CFR 214.13,
except as otherwise provided in that
section.
*
*
*
*
*
■ 5. Section 214.13 is added to read as
follows:

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§ 214.13 SEVIS fee for certain F, J, and M
nonimmigrants.

(a) Applicability. Except as otherwise
provided for in this section, the
following aliens are required to submit
a payment of $100 to the Department of
Homeland Security (DHS) in advance of
obtaining nonimmigrant status as a
student or exchange visitor, in addition
to any other applicable fees:
(1) An alien who applies for F–1 or F–
3 nonimmigrant status in order to enroll
in a program of study at a DHSapproved institution of higher
education, as defined in section 101(a)
of the Higher Education Act of 1965, as
amended, or in a program of study at
any other DHS-approved academic or
language-training institution including
private elementary and secondary
schools and public secondary schools;
(2) An alien who applies for J–1
nonimmigrant status in order to
commence participation in an exchange
visitor program designated by the
Department of State (DOS), with a
reduced fee for certain exchange visitor
categories as provided in paragraphs
(b)(1) and (c) of this section; and
(3) An alien who applies for M–1 or
M–3 nonimmigrant status in order to
enroll in a program of study at a DHSapproved vocational educational
institution, including a flight school.
(b) Aliens not subject to a fee. No
SEVIS fee is required with respect to:
(1) A J–1 exchange visitor who is
coming to the United States as a
participant in an exchange visitor
program sponsored by the Federal
government, identified by a program
identifier designation prefix of G–1, G–
2, or G–3;
(2) Dependents of F, M, or J
nonimmigrants. The principal alien
must pay the fee, when required under
this section, in order for his/her
qualifying dependents to obtain F–2, J–
2, or M–2 status. However, an F–2, J–2,
or M–2 dependent is not required to pay
a separate fee under this section in order
to obtain that status or during the time
he/she remains in that status.
(3) A nonimmigrant described in
paragraph (a) of this section whose
Form I–20 or Form DS–2019 for initial
attendance was issued on or before May
31, 2004.
(c) Special Fee for Certain J–1
Nonimmigrants. A J–1 exchange visitor
coming to the United States as an au
pair, camp counselor, or participant in
a summer work/travel program is
subject to a fee of $35.
(d) Time for payment of SEVIS fee. An
alien who is subject to payment of the
SEVIS fee must remit the fee directly to
DHS as follows:

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39825

(1) An alien seeking an F–1, F–3, J–
1, M–1, or M–3 visa from a consular
officer abroad for initial attendance at a
DHS-approved school or to commence
participation in a Department of Statedesignated exchange visitor program,
must pay the fee to DHS before issuance
of the visa.
(2) An alien who is exempt from the
visa requirement described in section
212(d)(4) of the Act must pay the fee to
DHS before the alien applies for
admission at a U.S. port-of-entry to
begin initial attendance at a DHSapproved school or initial participation
in a Department of State-designated
exchange visitor program.
(3) A nonimmigrant alien in the
United States seeking a change of status
to F–1, F–3, J–1, M–1, or M–3 must pay
the fee to DHS before the alien is
granted the change of nonimmigrant
status, except as provided in paragraph
(e)(4) of this section.
(4) A J–1 nonimmigrant who is
applying for a change of program
category within the United Status, in
accordance with 22 CFR 62.42, must
pay the fee associated with that new
category, if any, prior to being granted
such a change.
(5) A J–1 nonimmigrant initially
granted J–1 status to participate in a
program sponsored by the Federal
government, as defined in paragraph
(b)(1) of this section, and transferring in
accordance with 22 CFR 62.42 to a
program that is not similarly sponsored,
must pay the fee associated with the
new program prior to completing the
transfer.
(6) A J–1 nonimmigrant who is
applying for reinstatement after a
substantive violation of status, or who
has been out of program status for
longer than 120 days but less than 270
days during the course of his/her
program must pay a new fee to DHS, if
applicable, prior to being granted a
reinstatement to valid J–1 status.
(7) An F or M student who is applying
for reinstatement of student status
because of a violation of status, and who
has been out of status for a period of
time that exceeds the presumptive
ineligibility deadline set forth in 8 CFR
214.2(f)(16)(i)(A) or (m)(16)(i)(A), must
pay a new fee to DHS prior to being
granted a return to valid status.
(8) An F–1, F–3, M–1, or M–3
nonimmigrant who has been absent
from the United States for a period that
exceeds 5 months in duration, and
wishes to reenter the United States to
engage in further study in the same
course of study, with the exception of
students who have been working toward
completion of a U.S. course of study in
authorized overseas study, must pay a

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new fee to DHS prior to being granted
student status.
(e) Circumstances where no new fee is
required. (1) Extension of stay, transfer,
or optional practical training for
students. An F–1, F–3, M–1, or M–3
nonimmigrant is not required to pay a
new fee in connection with:
(i) An application for an extension of
stay, as provided in 8 CFR 214.2(f)(7) or
(m)(10);
(ii) An application for transfer, as
provided in 8 CFR 214.2(f)(8) or (m)(11);
(iii) A change in educational level, as
provided in 8 CFR 214.2(f)(5)(ii); or
(iv) An application for postcompletion practical training, as
provided in 8 CFR 214.2(f)(10)(ii) or
(m)(14).
(2) Extension of program or transfer
for exchange visitors. A J–1
nonimmigrant is not required to pay a
new fee in connection with:
(i) An application for an extension of
program, as provided in 22 CFR 62.43;
or
(ii) An application for transfer of
program, as provided in 22 CFR 62.42.
(3) Visa issuance for a continuation of
study. An F–1, F–3, J–1, M–1, or M–3
nonimmigrant who has previously paid
the fee is not required to pay a new fee
in order to be granted a visa to return
to the United States as a continuing
student or exchange visitor in a single
course of study, so long as the
nonimmigrant is not otherwise required
to pay a new fee in accordance with the
other provisions in this section.
(4) Certain changes in student
classification.
(i) No fee is required for changes
between the F–1 and F–3 classifications,
and no fee is required for changes
between the M–1 and M–3
classifications.
(ii) Institutional reclassification. DHS
retains the discretionary authority to
waive the additional fee requirement
when a nonimmigrant changes
classification between F and M, if the
change of status is due solely to
institutional reclassification by the
Student and Exchange Visitor Program
during that nonimmigrant’s course of
study.
(5) Re-application following denial of
application by consular officer. An alien
who fully paid a SEVIS fee in
connection with an initial application
for an F–1, F–3, M–1, or M–3 visa, or

a J–1 visa in a particular program
category, whose initial application was
denied, and who is reapplying for the
same status, or the same J–1 exchange
visitor category, within 12 months
following the initial notice of denial is
not required to repay the SEVIS fee.
(6) Re-application following denial of
an application for a change of status. A
nonimmigrant who fully paid a SEVIS
fee in connection with an initial
application for a change of status within
in the United States to F–1, F–3, M–1,
or M–3 classification, or for a change of
status to a particular J–1 exchange
visitor category, whose initial
application was denied, and who is
granted a motion to reopen the denied
case is not required to repay the SEVIS
fee if the motion to reopen is granted
within 12 months of receipt of initial
notice of denial.
(f) [Reserved]
(g) Procedures for payment of the
SEVIS fee. (1) Options for payment. An
alien subject to payment of a fee under
this section may pay the fee by any
procedure approved by DHS, including:
(i) Submission of Form I–901, to DHS
by mail, along with the proper fee paid
by check, money order, or foreign draft
drawn on a financial institution in the
United States and payable in United
States currency, as provided by 8 CFR
103.7(a)(1);
(ii) Electronic submission of Form I–
901 to DHS using a credit card or other
electronic means of payment accepted
by DHS; or,
(iii) A designated payment service
and receipt mechanism approved and
set forth in future guidance by DHS.
(2) Receipts. DHS will provide a
receipt for each fee payment under
paragraph (g)(1) of this section until
such time as DHS issues a notice in the
Federal Register that paper receipts will
no longer be necessary. Further receipt
provisions include:
(i) DHS will provide for an expedited
delivery of the receipt, upon request and
receipt of an additional fee;
(ii) If payment was made
electronically, both DHS and the
Department of State will accept a
properly completed receipt that is
printed-out electronically, in lieu of the
receipt generated by DHS;
(iii) If payment was made through an
approved payment service, DHS and the
Department of State will accept a

Form No.
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PART 299—IMMIGRATION FORMS
6. The authority citation for part 299
continues to read as follows:

■

Authority: 8 U.S.C. 1101, 1103; 8 CFR part
2.

7. Section 299.1 is amended in the
table by adding, in proper alpha/numeric
sequence, the entry for ‘‘Form I–901’’ to
read as follows:
■

§ 299.1

*

Prescribed forms.

*

Edition date
*
02–09–04

I–901

VerDate jul<14>2003

properly completed receipt issued by
the payment service, in lieu of the
receipt generated by DHS.
(3) Electronic record of fee payment.
DHS will maintain an electronic record
of payment for the alien as verification
of receipt of the required fee under this
section. If DHS records indicate that the
fee has been paid, an alien who has lost
or did not receive a receipt for a fee
payment under this section will not be
denied an immigration benefit,
including visa issuance or admission to
the United States, solely because of a
failure to present a paper receipt of fee
payment.
(4) Third-party payments. DHS will
accept payment of the required fee for
an alien from an approved school or a
designated exchange visitor program
sponsor, or from another source, in
accordance with procedures approved
by DHS.
(h) Failure to pay the fee. The failure
to pay the required fee is grounds for
denial of F, M, or J nonimmigrant status
or status-related benefits. Payment of
the fee does not preserve the lawful
status of any F, J, or M nonimmigrant
that has violated his or her status in
some other manner.
(1) For purposes of reinstatement to F
or M status, failure to pay the required
fee will be considered a ‘‘willful
violation’’ under 8 CFR 214.2(f)(16) or
(m)(16), unless DHS determines that
there are sufficient extenuating
circumstances (as determined at the
discretion of the Student and Exchange
Visitor Program).
(2) For purposes of reinstatement to
valid J program status, failure to pay the
required fee will not be considered a
‘‘minor or technical infraction’’ under
22 CFR 62.45.

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Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations
8. Section 299.5 is amended by:
a. Revising the term ‘‘INS form No.’’ to
read ‘‘Form No.’’ in the table heading;
■ b. Revising the term ‘‘INS form title’’
to read ‘‘Title’’ in the table heading; and
by
■
■

c. Adding the entry for Form ‘‘I–901’’
to the table, in proper alpha/numeric
sequence.
The addition reads as follows:

■

Form No.

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*

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BILLING CODE 4410–10–P

NATIONAL CREDIT UNION
ADMINISTRATION
12 CFR Parts 703 and 704
Investment in Exchangeable
Collateralized Mortgage Obligations
National Credit Union
Administration.
ACTION: Final rule.
AGENCY:

SUMMARY: The National Credit Union
Administration (NCUA) is issuing final
revisions to its regulations regarding
investment in collateralized mortgage
obligations (CMOs) to authorize all
federal credit unions (FCUs) and
corporate credit unions to invest in
exchangeable CMOs representing
interests in one or more SMBS subject
to certain safety and soundness
limitations. Currently, NCUA
regulations prohibit FCUs and certain
corporate credit unions from investing
in stripped mortgage backed securities
(SMBS) and exchangeable CMOs that
represent interests in one or more
SMBS. NCUA has safety and soundness
concerns with direct investment in
SMBS, but recognizes that some
exchangeable CMOs representing
interests in one or more SMBS may be
safe investments for credit unions. This
rule will also authorize FCUs and
corporate credit unions to accept
exchangeable CMOs as assets in a
repurchase transaction or as collateral
on a securities lending transaction
regardless of whether the CMO contains
SMBS. Finally, this rule contains
miscellaneous technical corrections and
minor changes to NCUA’s Investment
and Deposit Activities rule and
Corporate Credit Unions rule.

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Display of control numbers.

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Currently assigned
OMB control No.

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Fee Remittance For Certain F, J, and M Nonimmigrants. .....

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Dated: June 25, 2004.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 04–14961 Filed 6–30–04; 8:45 am]

VerDate jul<14>2003

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Title

I–901
*

§ 299.5

*

DATES:

*

This rule is effective August 2,

2004.
FOR FURTHER INFORMATION CONTACT:
Steve Sherrod, Senior Investment
Officer, Office of Strategic Program
Support and Planning (OSPSP) at the
above address or telephone (703) 518–
6620; Kim Iverson, Senior Investment
Officer, Office of Strategic Program
Support and Planning, at the above
address or telephone (703) 518–6620;
George Curtis, Corporate Program
Specialist, Office of Corporate Credit
Unions at the above address or
telephone (703) 518–6640; or Paul
Peterson, Staff Attorney, Office of
General Counsel, at the above address or
telephone (703) 518–6555.
SUPPLEMENTARY INFORMATION:

A. Background
The Federal Credit Union Act permits
FCUs and corporate credit unions to
purchase mortgage related securities
(MRS) subject to such regulations as the
NCUA Board may prescribe. 12 U.S.C.
1757(15)(B). NCUA regulations
generally permit the purchase of CMOs,
a multi-class MRS, but not if the CMO
is a stripped mortgage backed security
(SMBS). 12 CFR 703.14(d) and
703.16(e); 704.5(c)(5) and (h)(4). SMBS
include interest-only CMOs (IOs) and
principal-only CMOs (POs).
Currently, many CMO issues contain
one or more classes of exchangeable
CMOs. An exchangeable CMO
represents a beneficial ownership
interest in a combination of two or more
underlying CMOs, and the owner may
pay a fee and take delivery of the
underlying CMOs. In many cases, these
underlying CMOs include IOs and POs.
Because NCUA regulations prohibit
investment in SMBS, the regulations
also prohibit investment in an
exchangeable CMO that represents an
interest in one or more IOs or POs.
Certain exchangeable CMOs
representing IOs or POs, however, do
not carry the risk or raise the same
safety and soundness concerns

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1653–0034
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associated with direct investment in an
SMBS.
On January 22, 2004, the NCUA Board
issued a notice of proposed rulemaking
to amend NCUA rules to authorize FCUs
and corporate credit unions to invest in
an exchangeable CMO representing
interests in one or more IOs or POs if
the exchangeable CMO meets certain
conditions. 69 FR 4886 (February 2,
2004).
The first condition concerned the rate
of amortization of the underlying IOs
and POs. For an exchangeable CMO
representing one or more IOs, the Board
proposed that the notional principal of
each IO must decline at the same rate as
the principal on one or more non-IO
CMOs included in the combination. For
an exchangeable CMO representing one
or more POs, the Board proposed that
the principal of each PO must decline
at the same rate as the notional
principal of one or more IOs included
in the combination or at the same rate
as the principal on one or more interestbearing CMOs included in the
combination. The Board also proposed a
second condition: that, at the time of
purchase, the ratio of the market price
of the CMO to its remaining principal
balance is between .8 and 1.2, meaning
that the discount or premium of the
market price to par must be less than 20
points. The proposed rule also stated
that credit unions may not exercise the
right to exchange an exchangeable CMO
if it represents an interest in one or
more SMBS that would be
impermissible for that credit union to
hold as a separate investment.
The Board’s proposal also contained
several definitional changes and other
technical corrections to Parts 703 and
704 of NCUA’s rules and regulations. In
Part 703, the Board proposed to add a
definition of ‘‘collateralized mortgage
obligation;’’ amend the definitions of
‘‘put,’’ ‘‘call,’’ ‘‘custodial agreement,’’
‘‘derivative,’’ and ‘‘european financial
options;’’ and change the phrase
‘‘nationally recognized statistical rating

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