If you want green card lottery and diversity visa DV-2004 come to us.

Immigration News
Visa Bulletin
CA Processing Dates
VisaXPres™
ConsultXPres™
Guest Book
Home
Suggest This Site
Useful Links
Useful Definitions
Apply Now!!!
Application Status
FAQ's
Consumer Alert
Lottery Results
Lottery Winners
Section 203 C
Requirements
Testimonials

DV-2004 NEW DEADLINE ANNOUNCED! : NEW RULES APPLY--- REGISTER FOR THE GREEN CARD LOTTERY NOW-DO NOT BE LATE!

09-27-02 - Iraqis Eligible for Refugee Assistance: State Dept. designates refugees from Iraq as eligible for assistance under the Migration & Refugee Assistance Act of on the basis that such assistance will contribute to U.S. foreign policy interests.

09-27-02 - DOL Withdraws Agricultural Worker Regulation: The Labor Department withdraws a long deferred regulation that would have allowed DOL to adjudicate agricultural worker H-2A petitions. (67 FR 59779, 09/24/02).

09-27-02 - INS Interim Rule Requiring Re-Certification of All Schools: INS interim rule requires all F and M schools to apply on Form I-17 for re-authorization to issue I-20 forms. Re-authorization will be a pre-requisite to SEVIS participation, which in turn is a pre-requisite for continued issuance of I-20’s.

09-17-2002 - New Biometric BCCs Required Beginning October 1, 2002

NEWS RELEASE September 16, 2002

WASHINGTON - Beginning October 1, 2002, holders of the old non-biometric Mexican Border Crossing Card (BCC) will be required to present the new biometric BCC at all U.S. ports of entry along the U.S./Mexico border. Over the past year, the INS and the U.S. Department of State have encouraged Mexican nationals to apply in a timely manner for the new biometric card (Laser Visa), Form DSP-150. Since April 1998, the Department of State has issued more than five million new biometric cards.

On October 1, 2001, the Immigration and Naturalization Service began accepting only the new biometric BCC. This requirement was mandated by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The Enhanced Border Security Act of 2002 extended the date until October 1, 2002 to replace the old border crossing cards using Form I-186 or I-586 with the new biometric, machine-readable cards (Laser Visa) (DSP-150).

The BCC has a photo and machine-readable biometric information. Beginning October 1, 2002, the old BCC will no longer be a valid entry document.

Effective October 1, 2002, those persons seeking admission to the United States must possess one of the following:

· A valid biometric, machine readable, B1-B2 visa/BCC (DSP-150);

· A B1/B2 visa and BCC combination document issued by the Department of State before 1998, where the visa is still valid, along with a valid passport; or

· Other valid visa and passport.

The Department of State has been accepting applications for the new document since April 1, 1998. Persons must call a toll fee number in Mexico (listed below) to arrange for an appointment at a U.S. consulate. At their scheduled appointment, consular staff in Mexico will photograph and fingerprint the applicants. Upon approval, the Department of State will issue the new biometric card (Laser Visa) to the applicant.

The posts that are accepting biometric BCC applications are located in Mexico City, Ciudad Juarez, Guadalajara, Hermosillo, Merida, Matamoros, Monterrey, Nogales, Nuevo Laredo, Tijuana, and at the Tijuana and the Mexicali Temporary Processing Facilities.

9-13-02 California Service Center Processing Time Report 

CALIFORNIA SERVICE CENTER
PROCESSING TIME REPORT
As of 09/13/02

* 90 Day - (a)(6), (a)(13), (c)(1), (c)(2), (c)(3), (c)(4), (c)(5), (c)(6), (c)(7), (c)(8) replace/renewal
** Report will only reflect one oldest JIT date for all I-130 Immediate Relatives and all I-130 Pref. Cases until the re-sort initiative is complete. The re-sort will ensure that cases with visa availability are promptly adjudicated.

I-140 & I-485 dates reflect only those cases wherein a quota number is available

How to Read this Report
An application or petition with a Receipt Notice date listed above should be processed within 30 days of this notice. If the receipt date on your Receipt Notice shows an earlier date and thirty days have passed since that receipt date, iff you applied after the indicated date, we are not processing your case at this time.

Example: Look at the top lines of your receipt. If you filed Form I-90, and the report says that the service center is processing cases with your Receipt Notice date, you should hear from us within thirty days.

09-10-2002 - INS Memo on Self-Petitioning as the ‘Intended’ Spouse of an Abusive USC or LPR

In an 8/21/02 memo, INS Exec. Assoc. Comm’r for Field Operations, Johnny N. Williams, provides guidance on self-petitioning eligibility requirements for battered aliens who believed they were married to a USC/LPR but later discovered that the marriage was not valid due to the bigamy of the USC/LPR.

09-09-2002 - DOS Cable on Child Status Protection Act

1. Summary: This cable provides the text of a new law, the "Child Status Protection Act of 2002", signed into law by the President on AUGUST 6, 2002 and effective on that date. It also provides initial interpretative guidance regarding it, as well as procedures to be used to implement it. The new law radically changes the process for determining whether a child has "aged out" for the purpose of the issuance of visas and the adjustment of status of aliens in most immigrant categories. End summary.

2. The text of the law is as follows:

"SECTION 1. SHORT TITLE.
This Act may be cited as the `Child Status Protection Act'. SEC. 2. USE OF AGE ON PETITION FILING DATE, PARENT'S NATURALIZATION DATE, OR MARRIAGE TERMINATION DATE, IN DETERMINING STATUS AS IMMEDIATE RELATIVE. Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended by adding at the end the following:
`(f) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE IMMEDIATE RELATIVES-

`(1) AGE ON PETITION FILING DATE- Except as provided in paragraphs (2) and (3), for purposes of subsection (b)(2)(A)(i), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using the age of the alien on the date on which the petition is filed with the Attorney General under section 204 to classify the alien as an immediate relative under subsection (b)(2)(A)(i).
`(2) AGE ON PARENT'S NATURALIZATION DATE- In the case of a petition under section 204 initially filed for an alien child's classification as a family-sponsored immigrant under section 203(a)(2)(A), based on the child's parent being lawfully admitted for permanent residence, if the petition is later converted, due to the naturalization of the parent, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i), the determination described in paragraph (1) shall be made using the age of the alien on the date of the parent's naturalization.
`(3) AGE ON MARRIAGE TERMINATION DATE- In the case of a petition under section 204 initially filed for an alien's classification as a family-sponsored immigrant under section 203(a)(3), based on the alien's being a married son or daughter of a citizen, if the petition is later converted, due to the legal termination of the alien's marriage, to a petition to classify the alien as an immediate relative under subsection (b)(2)(A)(i) or as an unmarried son or daughter of a citizen under section 203(a)(1), the determination described in paragraph (1) shall be made using the age of the alien on the date of the termination of the marriage.'. SEC. 3. TREATMENT OF CERTAIN UNMARRIED SONS AND DAUGHTERS SEEKING STATUS AS FAMILY-SPONSORED, EMPLOYMENT-BASED, AND DIVERSITY IMMIGRANTS. Section 203 of the Immigration and Nationality Act (8 U.S.C. 1153) is amended by adding at the end the following:
`(h) RULES FOR DETERMINING WHETHER CERTAIN ALIENS ARE CHILDREN-
`(1) IN GENERAL- For purposes of subsections (a)(2)(A) and (d), a determination of whether an alien satisfies the age requirement in the matter preceding subparagraph (A) of section 101(b)(1) shall be made using--
`(A) the age of the alien on the date on which an immigrant visa number becomes available for such alien (or, in the case of subsection (d), the date on which an immigrant visa number became available for the alien's parent), but only if the alien has sought to acquire the status of an alien lawfully admitted for permanent residence within one year of such availability; reduced by
`(B) the number of days in the period during which the applicable petition described in paragraph (2) was pending.

`(2) PETITIONS DESCRIBED- The petition described in this paragraph is--
`(A) with respect to a relationship described in subsection (a)(2)(A), a petition filed under section 204 for classification of an alien child under subsection (a)(2)(A); or
`(B) with respect to an alien child who is a derivative beneficiary under subsection (d), a petition filed under section 204 for classification of the alien's parent under subsection (a), (b), or (c).
`(3) RETENTION OF PRIORITY DATE- If the age of an alien is determined under paragraph (1) to be 21 years of age or older for the purposes of subsections (a)(4) and (d), the alien's petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.'
SEC. 4. USE OF AGE ON PARENT'S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ASYLUM. Section 208(b)(3) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(3)) is amended to read as follows:
`(3) TREATMENT OF SPOUSE AND CHILDREN-
`(A) IN GENERAL- A spouse or child (as defined in section 101(b)(1) (A), (B), (C), (D), or (E)) of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.
`(B) CONTINUED CLASSIFICATION OF CERTAIN ALIENS AS CHILDREN- An unmarried alien who seeks to accompany, or follow to join, a parent granted asylum under this subsection, and who was under 21 years of age on the date on which such parent applied for asylum under this section, shall continue to be classified as a child for purposes of this paragraph and section 209(b)(2), if the alien attained 21 years of age after such application was filed but while it was pending.'
SEC. 5. USE OF AGE ON PARENT'S APPLICATION FILING DATE IN DETERMINING ELIGIBILITY FOR ADMISSION AS REFUGEE. Section 207(c)(2) of the Immigration and Nationality Act (8 U.S.C. 1157(c)(2)) is amended--
(1) by striking `(2)' and inserting `(2)(A)'; and (2) by adding at the end the following:

`(B) An unmarried alien who seeks to accompany, or follow to join, a parent granted admission as a refugee under this subsection, and who was under 21 years of age on the date on which such parent applied for refugee status under this section, shall continue to be classified as a child for purposes of this paragraph, if the alien attained 21 years of age after such application was filed but while it was pending.' SEC. 6. TREATMENT OF CLASSIFICATION PETITIONS FOR UNMARRIED SONS AND DAUGHTERS OF NATURALIZED CITIZENS. Section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) is amended by adding at the end the following:
`(k) PROCEDURES FOR UNMARRIED SONS AND DAUGHTERS OF CITIZENS-
`(1) IN GENERAL- Except as provided in paragraph (2), in the case of a petition under this section initially filed for an alien unmarried son or daughter's classification as a family-sponsored immigrant under section 203(a)(2)(B), based on a parent of the son or daughter being an alien lawfully admitted for permanent residence, if such parent subsequently becomes a naturalized citizen of the United States, such petition shall be converted to a petition to classify the unmarried son or daughter as a family-sponsored immigrant under section 203(a)(1).
`(2) EXCEPTION- Paragraph (1) does not apply if the son or daughter files with the Attorney General a written statement that he or she elects not to have such
conversion occur (or if it has occurred, to have such conversion revoked). Where such an election has been made, any determination with respect to the son or daughter's eligibility for admission as a family- sponsored immigrant shall be made as if such naturalization had not taken place.
`(3) PRIORITY DATE- Regardless of whether a petition is converted under this subsection or not, if an unmarried son or daughter described in this subsection was assigned a priority date with respect to such petition before such naturalization, he or she may maintain that priority date.
`(4) CLARIFICATION- This subsection shall apply to a petition if it is properly filed, regardless of whether it was approved or not before such naturalization.'
SEC. 7. IMMIGRATION BENEFITS FOR CERTAIN ALIEN CHILDREN NOT AFFECTED. Section 204(a)(1)(D) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)(D)) is amended by adding at the end the following new clause:
`(iii) Nothing in the amendments made by the Child Status Protection Act shall be construed to limit or deny any right or benefit provided under this subparagraph.'

SEC. 8. EFFECTIVE DATE.
The amendments made by this Act shall take effect on the date of the enactment of this Act and shall apply to any alien who is a derivative beneficiary or any other
beneficiary of--
(1) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) approved before such date but only if a final determination has not been made on the beneficiary's application for an immigrant visa or adjustment of status to lawful permanent residence pursuant to such approved petition;
(2) a petition for classification under section 204 of the Immigration and Nationality Act (8 U.S.C. 1154) pending on or after such date; or
(3) an application pending before the Department of Justice or the Department of State on or after such date."

INTERPRETATION
--------------

3. The intent of this legislation (CSPA) is to preserve child status for certain alien children beneficiaries who age-out, and particularly with respect to section 3, age- out because of delays in processing. Age-out benefits are extended to applicants who should be processed as Immediate Relative children (IR-2, IR-3, IR-4) (note that although IR-3s and IR-4s are technically covered by the new law, application in those cases would appear to be very rare) and applicants who should be processed as Second Preference children (F2-A), but who attain the age of 21 before their cases are finalized, as well as derivative beneficiary children in all preference categories and DV cases.

4. The law also provides relief for F2B applicants in cases where the petitioner has naturalized and the applicant would be disadvantaged by a conversion to F1
status due to a less favorable F1 cut-off date. (This particular provision is only of interest to natives of those few countries (e.g., the Philippines) where the F1 cut-off date is earlier than the F2B cut-off date).

5. The CSPA also provides age-out relief for children of asylees and refugees, but these sections will not be addressed in this cable since interpretations regarding them must come from INS.

6. Because the language in some sections of the CSPA is extremely complicated, especially section 3, there may be refinements in interpretation with additional guidance to follow, as needed. To the extent possible, automated systems will be reworked to implement the new rules, but necessary adjustments likely will not be completed in the immediate future. Any new procedures or processes to be used in these cases will be the subject of future cables as they are developed.

Section 2- Immediate Relatives
-------------------------------

7. Section 2 establishes rules for determining whether certain aliens are Immediate Relatives. Under the new rules, consular officers will use the age of the beneficiary on the date of filing the Form I-130, Petition for Alien Relative, to determine whether the applicant qualifies as an IR-2, IR-3 or IR-4. For example, if a Form I-130 is filed for a child of an Amcit when the child is under 21, the child will permanently qualify as a child as long as he/she does not marry.

8. Section 2 also amends the Act to allow the age of an alien child who is a Second Preference beneficiary but whose parent/s naturalizes and whose petition is converted to Immediate Relative classification, to be considered the age on the date of naturalization. Consular officers will now use the child's age on the date of the parent's naturalization to determine whether the child will be eligible for Immediate Relative status. For example, if a LPR files a Form I-130 for a 17 year-old son and then naturalizes when the son is 20, the son will remain eligible for a visa as an IR-2, even if the son has attained the age of 22 on the date of visa application. The applicant should submit evidence of his parent's naturalization (a bona fide copy of the naturalization certificate) to establish eligibility for age-out relief
under this provision of the CSPA.

9. Section 2 also amends the Act to allow third preference married children of Amcits to use the age on the date of the termination of a marriage when applying for a visa. If the alien is under 21 at the time of the termination of his/her marriage, then his/her petition will convert to IR- 2. If the alien is 21 or older on the date his/her marriage is terminated, an F-3 will convert to F-1 status. For example, if the 19 year-old married son of an Amcit petitioner obtains a divorce before attaining 21, as long as he remains unmarried, the son will be classifiable as an IR-2, even if he does not apply for a visa until age 23.

10. Aliens who qualify as a K-4 child are eligible for child status protection under this section if a separate immediate relative petition has been filed in their name and they are accompanying a K-3 parent.

Section 3-Preference and DV Categories
--------------------------------------

11. Section 3 of the CSPA applies to:
-- F2A principal applicants;
-- derivative applicants in all family- and employment-based preference categories; and
-- derivative applicants in DV cases.

12. This section provides relief from age-out by establishing the alien's age as of the date a visa becomes available for the alien (or the alien's parent), minus the number of days that the petition was pending. Only those aliens who seek to acquire the status of an alien lawfully admitted for permanent residence within one year of visa availability are eligible for relief under this section. For this section, visa availability is defined to require both a current priority date and an approved petition. The number of days a petition has been pending is calculated from the date the petition was filed to the date the petition is adjudicated. "Seeks to acquire the status of an LPR" will be defined to mean apply for an immigrant visa, i.e., the date of visa application.

13. Advisory Opinions. Because the interpretation of Section 3 is the subject of ongoing discussions with the Service, the Department requests that, until advised otherwise, posts seek an Advisory Opinion from CA/VO/L/A on cases that fall within this section of the CSPA.

14. The Department's initial interpretation of this section can be illustrated by the following two examples.

-- If an LPR parent filed an I-130 in 1998 when his son/daughter was 20 and the visa became available today and the I-130 was never adjudicated until today, the beneficiary's "age" when determining preference category would be equal to the age of the alien on the date the priority date became current (24 years) minus the period the petition was pending adjudication (4 years), which would mean the alien's age would be deemed to be 20. The alien, however, would only benefit from this special treatment if s/he applies for a visa within one year of the visa becoming available. Even though the beneficiary in this example is chronologically age 24 today (the date on which his visa becomes available)-by applying the formula in section 3, he is only 20 because his chronological age on the date his visa becomes available has been reduced by the number of days his petition has been pending (4 years).

-- If, however, this same Form I-130 had been adjudicated in 2000, the beneficiary's "age" would be 22 when determining preference category. Although the beneficiary is chronologically 24 (his age on the date his visa becomes available), his petition was only pending for 2 years, so only two years are deducted from his age at the time the priority date became current, making the alien 22.

15. DV Applicants. Section 3 also applies to derivative DV applicants. Because the DV process differs substantially from the preference process, however, treatment of DV derivatives will also be somewhat different. For the purpose of calculating the period during which the "petition is pending", VO has decided to use the period between the first day of the DV mail-in application period for the program year in which the principal alien has qualified and the date on the letter notifying the principal applicant that his/her application has been selected (congratulatory letter). That period will be subtracted from the derivative alien's age on the date the visa becomes available to the principal alien. The date the visa becomes available will be the first day on which the Department determines the principal alien's selection number becomes eligible for visa processing.

16. V Applicants. While subject to revision, the Department interprets V visa applicants as ineligible for child status protection under this section.

17. Application to Pending cases. The age-out protections of the CSPA apply to the following three classes cases:
-- cases where the petition or visa application was filed on or after the date of enactment (August 6, 2002);
-- cases where the petition was filed prior to August 6, 2002 but was still pending (i.e., not yet approved) on that date; and
-- certain cases where the petition was approved prior to August 6, 2002, but only if a final determination has not been made on the beneficiary's (including derivative beneficiary's) application for a visa or adjustment of status prior to that date. At present, VO is interpreting this to mean that an alien whose IV application was denied prior to August 6 because s/he aged out or was otherwise found ineligible cannot benefit from Section 3. However, for this purpose a 221(g) denial will not be considered a final determination. Therefore, an alien whose application was filed prior to August 6, but was refused on 221(g) grounds will receive the benefit of Section 3 so long as the application was otherwise pending on August 6. Under this interpretation, beneficiaries (and derivative beneficiaries) of petitions approved prior to August 6, 2002 who never applied for a visa prior to August 6 because they had aged out will receive no benefit from Section 3 and cannot apply afterward in order to receive a benefit. (Note that these are preliminary interpretations and could change after further interagency discussions). DV applicants applying on or after August 6 or whose cases were pending on that date will receive the benefit of Section 3.

18. Applicability of Section 424 of the USA Patriot Act.
The 45 day age-out protection afforded by section 424 will continue to apply to all relevant cases. Where both are available to an applicant, the more generous benefit should be applied to the alien's case.



Section 6-Unmarried Sons and Daughters of Amcits
------------------------------------------------

19. Section 6 of the CSPA addresses the problem encountered by Philippine F2-B applicants whose parents naturalize. Automatic conversion from F2B to F1 at the time of their parent's naturalization disadvantages these beneficiaries because the cutoff date for Philippine F1s is earlier than the cutoff date for Philippine F2Bs. Although this section continues to allow for the automatic conversion of preference categories when a parent naturalizes, it also permits the son/daughter beneficiary to make a request to the Attorney General that such conversion not occur. At this time, it is not known how this request to the Attorney General will be made or what formalities will be required.

20. The following will illustrate what a beneficiary would consider before deciding whether to opt-out of an automatic conversion from second to first preference:

-- Assume that for August 2002, the F2B cutoff date for French unmarried sons and daughters of LPRs is December 8, 1993 and the F1 cutoff date for French unmarried sons and daughters of Amcits is July 1, 1996. Thus, if a LPR files a Form I-130 for his 14-year old, unmarried French son and then naturalizes, the son's immigrant category would automatically convert from the second preference to the first preference. In this example, this would work to the advantage of the beneficiary and he would likely not request that the automatic conversion be prevented in his case.

-- In the cases involving Filipino unmarried sons or daughters, the outcome of automatic conversion from second to first preference is very different. For example, for August 2002, the F2 cutoff date for Filipino unmarried sons and daughters of LPRs is December 3, 1993, but the F1 cutoff date for Filipino unmarried sons and daughters of Amcits is November 1, 1989. In this instance, the son would likely request that the automatic conversion from second to first preference not occur.

IMPLEMENTATION
---------------

21. As with the 45-day age-out cases described in ref B, there will not be any short-term fix made to the IV system for processing these visas. Currently, the IV system locks cases for children who become 21 years old and converts age-out cases to an adult son or daughter category on an applicant's twenty-first birthday. Posts will therefore manually issue by typewriter any case that might qualify under the Child Status Protection Act, as the system will not adjust to allow consular processing for these cases. The Department is studying changes to the IV software that will allow the system to be used to issue these visas. The following are instructions on how to issue IVs manually for these cases: Use NIV to do the requisite CLASS namecheck. Print out the namecheck results. Retain one copy of the namecheck at post and insert a second copy into the IV packet normally produced for IV applicants; the adjudicating consular officer should initial both copies of the name check results. Type all the information normally required on a blank OF- 155F form. Add the notation: P.L. 107-208, Child Status Protection Act to IVs issued under this act. Use the space on the OF-155A directly under Immigrant Visa and Alien Registration at the top center of the form. For K-4 beneficiaries, the MRV should be similarly annotated. 22. To avoid problems for these applicants at POEs, posts will include a memorandum as follows and place the memo on top of the manually issued IV foil: (begin text of memo)

To: INS Inspector, POE From: US Embassy/Consulate (Name)
Date: Subject: Child Status Protection Act, Age-outs. This visa was issued manually due to the constraints of the Child Status Protection Act, and information will not appear in IV DataShare. If you have any questions, please contact the originating U.S. Embassy or Consulate or the INS Forensic Document Lab. (end text of memo to INS). 23. Posts must report all manual issuances under the Child Status Protection Act to the Department before the issued visa foil is given to the applicant. For all IVs manually issued under Section 424, post should send an e-mail to the CA Support Desk and ask that a ticket be opened to make a change in post's database. Provide name and DOB of applicant, visa class, case number, A-number (IV foil number), date of issuance, date of expiration, foreign state chargeability, and USERID of authorizing/adjudicating officer.

24. In order to avoid unnecessary work for posts and to minimize the possibility of issuances not making it into the database in a timely fashion, visas should be issued to expire after the actual 21st birthday only when the applicant has either already reached his or her 21st birthday or post believes that the applicant will likely not be able to enter the U.S. prior to turning 21.

25. In order to ensure that applicants do not lose a benefit to which they are legally entitled, in cases where posts issue visas expiring on the actual 21st birthday to applicants who can benefit from the Child Status Protection Act, the applicants should be provided with a letter or other written statement informing them that, should they be unable to enter U.S. prior to turning 21, they are entitled to issuance of a new visa with a later expiration date. In such cases posts should issue a replacement visa without charging the applicant for the new visa. Details of the replacement visa should be reported to the CA Support Desk as per instructions in reftel. The letter provided to the applicant should include the following language:

"Eligibility in the immigrant visa category under which your visa has been issued would normally terminate on your 21st birthday. The visa you are being issued today allows you to enter the United States only until the day prior to your 21st birthday. However, under the provisions of the Child Status Protection Act you can continue to qualify for immigration benefits past your 21st birthday. If for any reason you are unable to enter the United States with your immigrant visa prior to turning 21, this office can issue you a replacement visa valid for a limited additional period past your 21st birthday. If you find that you will be unable to travel prior to your 21st birthday, please contact this office prior to your 21st birthday by (post should insert contact information here) so that we can issue you a replacement visa."

26. NVC will attempt to determine if it is holding "age-out" cases that meet the criteria of the CSPA and should now be forwarded to post. Posts should also make every effort to identify files held at post which include applicants who can benefit form the CSPA, in particular:
--Cases in which post denied a visa on or after August 6 because an applicant aged out;
--Cases pending final adjudication from which derivative beneficiaries have been excluded because they turned 21.
--Cases pending at post which have been reclassified from IR-2 to F-1 or from F-2A to F-2B because an applicant turned 21.

27. Minimize considered.
POWELL

09-09-2002 - AGMA to Charge Fee & Forward Visa Petitions to FBI

The American Guild of Musical Artists announces that it will charge $250 for each petition it is asked to review from non-AGMA signatory employers (presumably for O and P consultations), and that all petitions will be forwarded to the Nat'l Security Threat List Unit of the FBI.

09-09-2002 - INS Issues News Release, Fact Sheets on TPS Re-registration for Salvadoran Nationals

The INS has issued a News Release and two Fact Sheets concerning TPS re-registration for nationals of El Salvador. The re-registration period closes on 11/12/02. One Fact Sheet reminds employers that the validity of existing TPS-related employment authorization documents for eligible Salvadorans has been extended through 3/9/03.

09-05-2002 - US & Canada Agree to Final Draft of Safe Third Country Agreement

On August 30, negotiators from the U.S. and Canada initialed a final draft of a Safe Third Country Agreement. If signed, the agreement will allocate responsibility among the two countries for asylum claims made at land border ports of entry on the U.S./Canada border.

09-05-2002 - Five Countries Designated for Special Registration

A Federal Register notice scheduled to be published on September 6 will designate Iran, Iraq, Libya, Sudan and Syria as countries whose nationals and citizens are subject to the special registration requirements of the final regulation published on August 12, 2002. Arriving nonimmigrants who are citizens or nationals of those countries will be required to fingerprinted and photographed upon arrival in the U.S., and to comply with the 30-day in-person registration, annual registration, and departure control requirements of the August 12 regulations. The Notice does not appear to subject individuals from those countries who are already in the U.S. to the registration requirements. No details are provided as to how or where the various steps of the special registration are to take place.

WASHINGTON, D.C. - The Department of Justice today announced a one-year extension to the Temporary Protected Status (TPS) for nationals of Sudan. This extension, which covers approximately 552 Sudanese individuals, will be in effect from November 2, 2002 until November 2, 2003.

Section 244 of the Immigration and Nationality Act authorizes the Attorney General to grant TPS to aliens in the United States who are nationals of countries where armed conflict, natural disaster or other extraordinary conditions have created a temporary situation to which return is either unsafe or unfeasible. In the case of Sudan, an ongoing armed conflict might seriously threaten the personal safety of nationals returning to the country.

Re-registration is available only to individuals who registered under the initial Sudan TPS designation, which ends November 2, 2002. Nationals of Sudan who are currently registered under the TPS program must re-register during the 60-day period from August 30, 2002 through October 29, 2002. Under the extension, those who already have TPS will be eligible to reside and work in the United States for an additional year.

To re-register for the TPS extension, an applicant must submit Form I-821 (Application for Temporary Protected Status), Form I-765 (Application for Employment Authorization) and two identification photographs to the local INS district office by October 29, 2002.

If the applicant is only seeking to re-register for TPS, there is no filing fee. However, all applicants who also seek an extension of employment authorization must submit a $120 filing fee with Form I-765 by October 29, 2002.

Applicants for an extension of TPS benefits do not need to submit new fingerprints nor the $50 fee. Children who are beneficiaries of this status and have reached the age of 14, but have not been previously fingerprinted, must pay the $50 fingerprint fee with their application for extension. Applicants may request a fee waiver in accordance with the regulations.

Nationals of Sudan (or aliens having no nationality who last habitually resided in Sudan) who previously have not applied for TPS may be eligible to apply under late initial registration provisions.

A late initial registrant must file a complete application package, including supporting documentation and all applicable fees, in accordance with the regulations. In addition to the requirements described above, a late initial registrant must submit the $50 processing fee with Form I-821 and, if 14 years of age or older, the $50 fingerprint fee.

TPS beneficiaries who need to travel outside the United States during the coming year must receive advance parole from their local INS office prior to departing the United States. Advance parole allows an individual to travel abroad and return to the United States, and is issued on a case-by-case basis. Individuals who are granted Temporary Protected Status may apply for advance parole by filing Form I-131 at their local INS district office.

09-04-2002 - INS News Release on TPS Extension for Nationals of Burundi

Department of Justice Grants 12-Month Extension of Temporary Protected Status for Nationals of Burundi

WASHINGTON, D.C. - The Department of Justice today announced a one-year extension to the Temporary Protected Status (TPS) for nationals of Burundi. This extension, which covers approximately 13 Burundi nationals, will be in effect from November 2, 2002 until November 2, 2003.

Section 244 of the Immigration and Nationality Act authorizes the Attorney General to grant TPS to aliens in the United States who are nationals of countries where armed conflict, natural disaster or other extraordinary conditions have created a temporary situation to which return is either unsafe or unfeasible. In the case of Burundi, an ongoing armed conflict might seriously threaten the personal safety of nationals returning to the country.

Re-registration is available only to individuals who registered under the initial Burundi TPS designation, which ends November 2, 2002. Nationals of Burundi who are currently registered under the TPS program must re-register during the 60-day period from August 30, 2002 through October 29, 2002. Under the extension, those who already have TPS will be eligible to reside and work in the United States for an additional year.

To re-register for the TPS extension, an applicant must submit Form I-821 (Application for Temporary Protected Status), Form I-765 (Application for Employment Authorization) and two identification photographs to the local INS district office by October 29, 2002.

If the applicant is only seeking to re-register for TPS, there is no filing fee. However, all applicants who also seek an extension of employment authorization must submit a $120 filing fee with Form I-765 by October 29, 2002.

Applicants for an extension of TPS benefits do not need to submit new fingerprints nor the $50 fee. Children who are beneficiaries of this status and have reached the age of 14, but have not been previously fingerprinted, must pay the $50 fingerprint fee with their application for extension. Applicants may request a fee waiver in accordance with the regulations.

Nationals of Burundi (or aliens having no nationality who last habitually resided in Burundi) who previously have not applied for TPS may be eligible to apply under late initial registration provisions.

A late initial registrant must file a complete application package, including supporting documentation and all applicable fees, in accordance with the regulations. In addition to the requirements described above, a late initial registrant must submit the $50 processing fee with Form I-821 and, if 14 years of age or older, the $50 fingerprint fee.

TPS beneficiaries who need to travel outside the United States during the coming year must receive advance parole from their local INS office prior to departing the United States. Advance parole allows an individual to travel abroad and return to the United States, and is issued on a case-by-case basis. Individuals who are granted Temporary Protected Status may apply for advance parole by filing Form I-131 at their local INS district office.

08-28-2002 - INS News Release on New Commuter Student Rule

August 26, 2002

Washington, DC- The Immigration and Naturalization Service today announced an interim rule to allow Mexican and Canadian commuter students to study on a part-time basis at schools located within 75 miles of the United States border. This new rule will clarify that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part-time basis within the F-1 or M-1 nonimmigrant visa category. These changes are being made to facilitate and legitimize certain part-time study in border communities while ensuring that all applicable requirements and safeguards are met.

“Clarifying the legal manner in which part-time students enter the U.S. will benefit not only the students but American schools in the border communities,” said Attorney General John Ashcroft. “This new rule will prevent the significant disruption of the part-time study that has become an accepted fact of life along our borders with Mexico and Canada,” he added.

“The purpose of this rule is to acknowledge the special relationship between the United States and its neighbors and to legitimize such study by border commuter students, while placing it within a regulated, controlled process, said INS Commissioner James Ziglar. To qualify under this new rule, they must attend an INS -approved school located no more than 75-miles from the border and obtain the appropriate Form I-20 Certificate of Eligibility for Nonimmigrant Student Status, and obtain the appropriate visa, unless exempt. By January, the INS will have in place an on-line reporting system known as the Student and Exchange Visitor Information System (SEVIS). Schools will be required to report through SEVIS on foreign students, including these part-time commuters.

The immigration law prohibits the admission as visitors of aliens seeking to attend school part-time as commuters. However, it had become commonplace for these students to enter as visitors on a daily basis. Since September 11, the INS has more closely scrutinized the purpose of entry of these Mexican and Canadian visitors. Tighter enforcement of our laws has led to concerns that part-time commuter students are no longer eligible to pursue their studies on the U. S. side of the border.

Recognizing the need to serve the educational interests of students living on both sides of our northern and southern borders and the economic prosperity of these border communities, the INS instructed immigration officers to parole Canadian and Mexican nationals who have already enrolled in U.S. schools until December 31, 2002. This rule will ensure that those students may continue their education in the U.S. The rule will also benefit commuter students who wish to commence part-time study at a border school once they have obtained the necessary documentation.

08-28-2002 - INS Fact Sheet on New Commuter Student Rule
INS Announces New Rule to Assist Part-time Commuter Students

· The Immigration and Naturalization Service announced an interim rule to allow Mexican and Canadian commuter students to study on a part-time basis at schools located within 75 miles of the United States border.

· The immigration law prohibits the admission as visitors of aliens seeking to attend school part-time as commuters. However, it had become commonplace for these students to enter as visitors on a daily basis.

· Since September 11, the INS has more closely scrutinized the purpose of entry of these Mexican and Canadian visitors. Tighter enforcement of our laws has led to concerns that part-time commuter students are no longer eligible to pursue their studies on the U. S. side of the border.

· This rule will clarify that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part-time basis within the F-1 or M-1 nonimmigrant visa category.

· The purpose of this rule is to acknowledge the special relationship between the United States and its neighbors and to legitimize such study by border commuter students, while placing it within a regulated, controlled process.

· These changes are being made to facilitate and legitimize certain part-time study in border communities while ensuring that all applicable requirements and safeguards are met.

· To qualify under this new rule, they must attend an INS -approved school located no more than 75-miles from the border and obtain the appropriate Form I-20 Certificate of Eligibility for Nonimmigrant Student Status, and obtain the appropriate visa, unless exempt.

· By January, the INS will have in place an on-line reporting system known as the Student and Exchange Visitor Information System (SEVIS). Schools will be required to report through SEVIS on foreign students, including these part-time commuters.

· Recognizing the need to serve the educational interests of students living on both sides of our northern and southern borders and the economic prosperity of these border communities, the INS instructed immigration officers to parole Canadian and Mexican nationals who have already enrolled in U.S. schools until December 31, 2002.

· This rule will ensure that those students may continue their education in the U.S. The rule will also benefit commuter students who wish to commence part-time study at a border school once they have obtained the necessary documentation

New INS Rule Assists Part-time Commuter Students

Cite as "Posted on AILA InfoNet at Doc. No. 02082841 (Aug. 28, 2002) ."

(67 FR 54941 8/27/02)

[Federal Register: August 27, 2002 (Volume 67, Number 166)]
[Rules and Regulations]
[Page 54941-54946]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr27au02-1]
===============================================
Rules and Regulations Federal Register
_____________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week.

===============================================

[[Page 54941]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 2220-02]
RIN 1115-AG75

Reduced Course Load for Certain F and M Nonimmigrant Students in Border Communities

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations governing F and M nonimmigrants. This rule will clarify that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part-time basis within the F or M nonimmigrant category. These changes are being made to facilitate and legitimize certain part- time study along border communities while ensuring that all applicable requirements and safeguards are met.

DATES: Effective date: This interim rule is effective August 27, 2002.
Comment date: Written comments must be submitted on or before October 28, 2002.

ADDRESSES: Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2220-02 on your correspondence. Comments may also be submitted electronically to the Service at insregs@usdoj.gov <mailto:insregs@usdoj.gov>. When submitting comments electronically, you must include INS No. 2220-02 in the subject heading so that the comments can be electronically routed to the appropriate office for review. Comments may be inspected at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Maura Deadrick, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3040, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

Who Are F and M Nonimmigrants?

The Immigration and Nationality Act (Act) provides for the admission of various classifications of nonimmigrant aliens who are foreign nationals having a residence in a foreign country which they have no intention of abandoning, and who are seeking temporary admission to the United States. The purpose of the nonimmigrant alien's intended stay in the United States determines his or her proper nonimmigrant classification.
F-1 nonimmigrant aliens, as defined in section 101(a)(15)(F) of the Act, are foreign students who have been admitted to the United States to pursue a full course of study in a college, university, seminary, conservatory, academic high school, private elementary school, other academic institution, or language training program in the United States that has been approved by the Service to enroll foreign students. For the purposes of this rule, the term ``school'' refers to all of these types of Service-approved institutions.
An F-2 nonimmigrant alien is a foreign national who has been admitted to the United States as the spouse or qualifying child (under the age of 21) of an F-1 nonimmigrant alien.
M-1 nonimmigrant aliens, as defined in section 101(a)(15)(M) of the Act, are foreign nationals who have been admitted to the United States to pursue a full course of study at a Service-approved vocational school or other recognized nonacademic institution (other than in language training programs) in the United States. The term ``school'' for the purposes of this interim rule also encompasses all institutions approved for attendance by M-1 students. An M-2 nonimmigrant alien is a foreign national who is the spouse or qualifying child (under the age of 21) of an M-1 nonimmigrant alien.

Why Is the Service Promulgating This Rule?

Recognizing the unique nature of border communities and the need to serve the educational interests of students living on both sides of the U.S./Canada and U.S./Mexico borders, this rule expands the circumstances under which a border commuter student who is a national of Canada or Mexico may be admitted as an F-1 or M-1 nonimmigrant alien to engage in a full course of study, albeit with a reduced course load.
Historically, the Service has not officially sanctioned such part- time study for border commuter students. First, the statutory definition of the B nonimmigrant visitor classification, in section 101(a)(15)(B) of the Act, precludes admission of an individual coming to the United States to study. Moreover, the Service has always interpreted the statutory definitions of the F and M classifications, relating to students pursuing a full course of study, to require enrollment on a full-time basis as defined in the regulations, which did not cover part-time border commuter students.
However, this regulatory scheme has aligned poorly with the realities of the border communities, effectively creating a ``Catch- 22'' situation for bona fide part-time border commuter students. This has resulted in uneven application of this policy on the border. In fact, it has become commonplace for aliens residing in Canada or Mexico to enroll part-time in border institutions and enter the United States as visitors on a daily basis to pursue part-time study.
The response to the terrorist attacks of September 11, 2001, has resulted in increased scrutiny at ports-of-entry and in renewed focus on the integrity of our immigration system. There has been particular attention to the proper use of the B visitor classification. When the principal purpose for entering the United States is to attend school, the immigration laws intend that aliens be classified as nonimmigrant students, not as B visitors for business or pleasure.
Therefore, the purpose of this rule is to recognize the special relationship between the United States and its neighbors and to legitimize such study by border commuter students, while placing it within a regulated, controlled

[[Page 54942]]

process. As nonimmigrant students, they will be authorized to attend only schools approved by the Service to accept foreign students. A border commuter student is subject to all requirements applicable to the F or M nonimmigrant classification and will be processed through the existing framework for these classifications. This includes, among other things, obtaining the appropriate Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, and obtaining the appropriate visa, unless exempt. The schools will be required to comply with the same reporting and recordkeeping requirements for these part- time border commuter students as for full-time F-1 or M-1 students.
This rule will prevent the significant disruption of part-time study that has become an accepted fact of life along the border and a settled expectation. For example, it is reported that the El Paso Community College has an enrollment of some 2,400 part-time border commuter students, who generate approximately $700,000 in tuition. The loss of these students would cause the school, and other similarly- situated schools, to lose state funding based on enrollment levels, thus affecting all of the remaining students. In Detroit, it is reported that Wayne State University stands to lose approximately 500 students and $1 million in fees and tuition. Media reports show that enrollment in the University of Texas at Brownsville's English language program dropped 50% over the summer, costing the institution $150,000. In Washington State, media reports state that Bellingham Technical College stands to lose $100,000 in tuition this year. Niagara University in Lewiston, New York, reportedly stands to lose $250,000 in tuition revenue, and D'Youville College in Buffalo could lose up to $900,000 in the next year. These are only a few examples of the extent to which the practice of part-time study by commuter students is woven into life on the border.

How Does the Service Define a ``Full Course of Study'' for Border Commuter Students?

As noted, the statutory definitions of the F-1 and M-1 classifications relate to foreign students coming to the United States temporarily and solely for the purpose of pursuing a full course of study at an approved school. The Service's current regulations at 8 CFR 214.2(f)(6) and (m)(9) set forth specific requirements for defining a ``full course of study'' in various contexts.
However, the regulations at 8 CFR 214.2(f)(6)(iii) also permit a school to authorize a student to engage in a reduced course load under certain circumstances while still maintaining status as a student enrolled in a ``full course of study''. The school's designated school official (DSO) may approve a reduced course load due to initial difficulties with the English language or reading requirements, unfamiliarity with American teaching methods, or improper course level placement, or because of illness or medical reasons.
Moreover, there is another context in which the Service has authorized DSOs to approve a reduced course load in special circumstances for students who still wish to pursue a full course of study. In 1998, several Asian countries experienced a severe devaluation of their currencies, which caused a hardship upon nonimmigrant students in the United States dependent on currency from those countries for support. In response, the Service amended its regulations, 8 CFR 214.2(f)(6)(i)(F), allowing the Commissioner to publish a Federal Register notice authorizing affected F-1 aliens to accept employment in excess of the ordinary 20-hour per week maximum, in cases of severe economic hardship, and to drop below the usual course load in order to pursue the additional employment.
This rule adds an additional provision permitting certain border commuter students to enroll in an approved school with a lesser course load than is otherwise required for F and M students, on account of their unique educational circumstances. Specifically, for a nonimmigrant alien who meets all other requirements applicable to the F or M classification and who is commuting to a school in the United States within 75 miles of the border, the school's DSO may approve the student's attendance with a course load below that otherwise required under the general rules. However, the student must still be enrolled in a ``full course of study'' at the school, that is, a course of study that leads to the attainment of a specific educational, professional, or vocational objective, as prescribed in the introductory language in Sec. 214.2(f)(6)(i) and (m)(9)(i), although at a reduced course load for each semester or term.

Why Is This Change Only Applicable to Border Commuters?

This reflects the special and unique relationship the United States shares with its bordering neighbors and is consistent with the numerous statutory and regulatory provisions that accommodate the special demands in regulating the flow of Canadian and Mexican nationals across our borders. For example, under section 101(a)(6) of the Act, provision is made for border crossing cards to be issued to aliens resident in foreign contiguous territory in order to facilitate the lawful crossing of our borders.
Although there is no border crossing card currently issued to Canadian nationals, the Service, together with the Department of State, has implemented procedures to issue border crossing cards to Mexican nationals consistent with the Act as amended by section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C (Sept. 30, 1996) and section 601 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 107-173 (May 14, 2002). Mexican nationals presenting a valid, unexpired Border Crossing Card may be admitted to the United States without other documentation for a period not to exceed 72 hours to visit within 25 miles of the border, or in the case of visits to certain areas in the State of Arizona, within 75 miles of the border. See 8 CFR 235.1(f)(1)(iii) and (f)(1)(v).
Another example, section 212(d)(4)(B) of the Act authorizes the Attorney General and the Secretary of State, on the basis of reciprocity, to waive the passport and visa requirements of nationals of foreign contiguous territory and adjacent islands. The special relationship between the United States and its border neighbors is also reflected in the special procedures contained in the North American Free Trade Agreement (NAFTA) and codified under section 214(e) of the Act.
Administratively, the Service has regulated the special circumstances of frequent border crossers and made allowance for the peculiarities of daily life in border communities. In addition to regulatory provisions controlling the unique documentary requirements for admission of Canadian and Mexican nationals found at 8 CFR 212.1 and 212.6, the Service has established automated inspection services to provide access to the United States for a group of identified, low-risk border crossers. See 8 CFR 235.7. Other examples address circumstances surrounding temporary workers to the United States such as the regulatory provision found at 8 CFR 214.2(l)(12)(ii). This provision, commonly known as the ``commuter L-1,'' recognizes the exception to statutory limits on the period of stay for intracompany transferees who reside outside the United States and regularly

[[Page 54943]]

commute to engage in part-time employment in this country. Another special provision in the regulations for L nonimmigrants (intracompany transferees), 8 CFR 214.2(l)(17), allows Canadian citizens to file the employer's petition for L classification at the time of applying for admission at the port-of-entry, rather than having to obtain approval of the petition in advance from a Service Center. Also, for nearly 20 years, the Service and the Department of Labor have authorized exceptions for Canadian musicians entering under the H-2B temporary worker program. These musicians, if entering the United States to perform within 50 miles of the U.S. Canada border, are pre-certified by the Secretary of Labor.
This rule is necessary to take account of the unique educational situation of bona fide commuter students seeking to attend United States schools along the U.S./Canada and U.S./Mexico borders. The Service understands that certain border states have undertaken measures to facilitate attendance by Mexican and Canadian nationals.
The Service will restrict application of this provision to schools located within 75 miles of the U.S. border. The Service believes this 75-mile zone is consistent with the general commuter travel provisions and will accommodate the needs of students and institutions. Since 1953, Mexico and the United States have agreed to make special accommodations for Mexican nationals who cross the border into the immediate border area to promote the economic stability of the region, and the United States and Canada have a longstanding accommodation for citizens to cross the common border without requiring passports or visas. The Service therefore believes this 75-mile zone, which is the maximum distance currently allowed for Mexican nationals entering the immediate border area, pursuant to 8 CFR 235.1(f)(1)(v), is consistent with the many border accommodations established over time and will meet the needs of students and institutions. The Service does not believe a larger zone is warranted to address the problem.
Canadian or Mexican nationals enrolling at a school outside this 75-mile zone, or who maintain a residence in the United States in connection with their attendance at any approved school, will remain subject to the established rules for F or M nonimmigrants student status.

What Changes Does This Rule Make?

This rule adds new provisions in the Service's regulations at 8 CFR 214.2(f)(18) and (m)(19) to include special provisions defining a full course of study for border commuter students. To be eligible to be authorized by a school's DSO based on the border commuter student provision, the alien must be:

A national of Canada or Mexico who maintains an actual residence and place of abode in the alien's country of nationality;
Attending a school located within 75 miles of the border; Registered as a border commuter student; and
Matriculating in a full course of study, albeit on a part- time basis.

This interim rule also adds a new provision, 8 CFR 214.2(f)(18)(iii), to place in effect the reasonable limitation that border commuter students attending an approved school on a part-time basis as F-1 students will be admitted for a fixed admission period for each semester, quarter, or term. Under current regulations, only M-1 students are admitted for a fixed period of admission, while full-time F-1 student are admitted for ``duration of status'', as provided in 8 CFR 214.2(f)(5) and (f)(7), while the student pursues a full course of study or authorized practical training. By setting a fixed period of admission for F-1 border commuter students that reflects the current semester or quarter of the school's academic calendar, the Service will be able to maintain greater control and oversight to ensure that the student does in fact remain a border commuter student. The school's DSO will be required to specify on the Form I-20 the term-by-term completion date, and a new Form I-20 will be required for each new quarter or semester that the commuter student attends at the school. Conforming amendments to paragraphs (f)(1)(i), (f)(5)(i), and (f)(7)(i) of Sec. 214.2 further clarify that border commuter students will be admitted for a fixed period rather than for duration of status.
This rule also clarifies in Sec. 214.2(m)(19)(iii) that the provision in Sec. 214.2(m)(5), allowing an additional 30-day period in which to depart the United States following the completion of an M-1 student's course of study (in order to make final arrangements before departure), does not apply to border commuter students.
The Service notes that, in a separate rulemaking, 67 FR 34862 (May 16, 2002) (proposed rule), the Service is implementing section 641 of IIRIRA to establish an information collection system for nonimmigrant alien students. This system, the Student and Exchange Visitor Information System (SEVIS), will require the DSO to report when a reduced course load has been authorized for a particular student. SEVIS will enable the Service to provide more efficient oversight of this special authority for border commuter students to enroll at an approved school with a reduced course load.

Will Border Commuter Students Be Authorized for On-Campus Employment or Practical Training?

Under this rule, Canadian or Mexican nationals approved as F-1 border commuter students for a part-time course load may only be authorized to accept employment in a curricular practical training program or a post-completion optional practical training program, using existing authorization procedures. The regulatory provisions governing curricular and post-completion optional practical training are contained at 8 CFR 214.2(f)(10)(i) and(f)(10)(ii)(A)(3), respectively. In the case of an M-1 border commuter student, employment will only be authorized as provided for practical training as provided in existing 8 CFR 214.2(m)(14). Border commuter students admitted to pursue a course of study on a part-time basis under this rule will not be approved for any other employment in the United States (whether on-campus or off- campus) in connection with their F or M student status.
The Service believes this position is appropriate for several reasons. First, student employment (unrelated to training) often serves to help students meet living expenses while they are away from their home country and living in the United States, and that rationale does not apply to border commuter students. Also, although on-campus employment pursuant to a fellowship or scholarship would normally be available to an F-1 student, a part-time border commuter student is, by definition, not in the same situation as other F-1 students. The purpose of the F-1 and M-1 classification is completion of an educational objective, and the categories of work authorization allowed by this rule are closely related to that objective. For this reason, this rule retains the eligibility for non-resident border commuter students to engage in curricular practical training programs and post- completion optional practical training programs, but not in other types of employment in connection with their student status.
Finally, because a border commuter student admitted under this rule is maintaining his or her actual place of abode in Canada or Mexico and, by definition, would not be residing in the United States, the Service does not believe that employment in the United States is economically necessary. The

[[Page 54944]]

alien would be able, of course, to find employment in his or her own country where the student continues to reside.
A border commuter student who wishes to engage in employment in the United States that is not authorized by this rule must obtain the appropriate visa, or enroll as a full-time F-1 or M-1 student, in which case the student will not be governed by the limitations of this rule.

Does This Rule Affect Canadian or Mexican Nationals Who Are Authorized To Enter and Work in the U.S. Under the Provisions of NAFTA?

This rule simply provides a means for certain Canadian and Mexican nationals who commute into the U.S. to attend school on a part-time basis to be able to obtain proper status as an F-1 or M-1 nonimmigrant.
The United States Government's obligations under NAFTA do not address students and this rule in no way affects the rights of Canadian or Mexican nationals to temporary entry and employment in the U.S. under NAFTA. Canadian or Mexican nationals are admitted as TN nonimmigrants, or in some cases in a different work-related nonimmigrant classification under NAFTA depending on their circumstances. If a Canadian or Mexican national has been already admitted to the United States in a work-related nonimmigrant classification pursuant to NAFTA, it is permissible for them to attend school incidental to their NAFTA-based classification, and that is not affected by this interim rule.

Does This Rule Affect Canadian or Mexican Nationals Attending School on a Full-Time Basis?

No. Canadian or Mexican nationals attending school in the United States on a full-time basis continue to be governed by the rules that apply to their respective classifications. A Canadian or Mexican national admitted to attend school in the United States on a full-time basis as an F-1 or M-1 student may seek authorization from a DSO for a reduced course load, but must comply with the aspects of this rule requiring residence in Canada or Mexico, or otherwise qualify for reduced course load under 8 CFR 214.2(f)(6)(iii).

Will Canadian or Mexican Nationals Be Eligible for Nonimmigrant Student Status To Attend Public Elementary or Secondary Schools or Publicly- Funded Adult Education Programs?

Section 214(m) of the Act prohibits an F-1 student from attending a public high school for more than 12 months in the aggregate. Because of the statutory limitation, an F-1 student at a public high school can only be admitted for an aggregate of 12 months of study. Section 214(m) also requires that the alien, prior to being issued the F-1 visa, demonstrate that he or she has reimbursed the local school district for the full, unsubsidized per capita cost of providing the high school education for the period of the alien's attendance.
Also, under section 214(m) of the Act, as amended by sections 625 and 107(e)(2) of IIRIRA, a nonimmigrant may not be accorded status as an F-1 student to pursue a course of study at a public elementary school or a publicly funded adult education program.

Does This Rule Affect Any Other Processes and Procedures Applicable to the F and M Classifications?

No. Except for the change this rule makes regarding enrollment in a full course of study for border commuter students, all other requirements, processes, and procedures remain in effect. For example, a border commuter student may transfer between qualifying institutions within the 75-mile limit under the same rules as any other F-1 student. Such a student would also be able to transfer to a school outside the 75-mile limit, under the established procedures, but the student would not be eligible, at the new school, for the special part-time provision created by this rule. Similarly, a Canadian or Mexican national who is currently a full-time student may transfer to a qualifying school as a border commuter student provided that he or she meets the requirements of this rule.

Good Cause Exception

The Service's implementation of this rule as an interim rule is based on the ``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reason and necessity for the immediate promulgation of this rule are as follows:
Adherence to the notice and comment period normally required under 5 U.S.C. 553(b) by promulgation of a proposed rule prior to an interim rule would cause a disruption in studies. As noted in the supplementary information to this rule, the emphasis on the proper classification for the activity affected by this rule has led to increased enforcement and has had the effect of ceasing studies by affected students. In order to allow those students to recommence studies in a proper and regulated format in time for the upcoming fall academic term, an interim rule is necessary.
Furthermore, this rule enhances security and reduces risk because it places the activity it governs in a regulated context. As noted in this rule, the activity sanctioned by this rule has taken place on the border for some time, but has taken place in a classification, such as the B nonimmigrant classification, that is not appropriate. Thus, to avoid disruption it is necessary that this rule be designated an interim rule.
Therefore, the Service finds that it would be impractical and contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b).
This rule is also made effective upon publication in the Federal Register. This action is necessary in order to avoid the disruption in the enrollment of border community students in the upcoming academic term, as discussed above. It will also facilitate the use of this provision by the affected communities as soon as possible after publication. Because this rule removes a restriction and imposes no new burdens or requirements on the public, the Service is not required to delay the effective date of this rule for 30 days under 5 U.S.C. 553(d), and concludes that it would be contrary to the public interest to do so.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This rule allows border community students to enroll part-time in United States schools who accept them for admission. Although some of these border-area schools may be considered as small entities as that term is defined in 5 U.S.C. 601(6), the effect of this rule would be to benefit those schools by allowing them to continue to enroll certain part-time students who commute into the United States to attend school. 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 affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

[[Page 54945]]

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 economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign- based companies in domestic and export markets.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, this regulation has been submitted to the Office of Management and Budget (OMB) for review.

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.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB) for review and approval any reporting requirements inherent in a final rule. This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

List of Subjects in 8 CFR Part 214

Administrative practice and procedure, Aliens, Employment, Reporting and recordkeeping requirements, Students.

PART 214--NONIMMIGRANT CLASSES

1. The authority citation for part 214 continues to read as follows:

Authority: 8 U.S.C. 1101, 1101 note, 1103, 1182, 1184, 1187, 1221, 1281, 1282; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; 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.

2. Section 214.2 is amended by:
a. Removing the term ``for duration of status'' in paragraph (f)(1)(i) introductory text;
b. Adding a new sentence at the beginning of paragraph (f)(5)(i);
c. Removing the first sentence and revising the current second sentence in paragraph (f)(7)(i);
d. Adding and reserving a new paragraph (f)(17);
e. Adding a new paragraph (f)(18);
f. Adding and reserving new paragraph (m)(18); and by
g. Adding a new paragraph (m)(19).
The revision and additions read as follows:

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

* * * * *
(f) * * *
* * * * *
(5) * * *
(i) * * * Except for border commuter students who are covered by the provisions of paragraph (f)(18) of this section, an F-1 student is admitted for duration of status. * * *
* * * * *
(7) * * *
(i) * * * An F-1 student who is admitted for duration of status is not required to apply for extension of stay as long as the student is maintaining status and making normal progress toward completion of his or her educational objective. * * *
* * * * *
(17) Reserved.
(18) Special rules for certain border commuter students.
(i) Applicability. For purposes of the special rules in this paragraph (f)(18), the term ``border commuter student'' means a national of Canada or Mexico who is admitted to the United States as an F-1 nonimmigrant student to enroll in a full course of study, albeit on a part-time basis, in an approved school located within 75 miles of a United States land border. A border commuter student must maintain actual residence and place of abode in the student's country of nationality, and seek admission to the United States at a land border port-of-entry. These special rules do not apply to a national of Canada or Mexico who is:
(A) Residing in the United States while attending an approved school as an F-1 student, or
(B) Enrolled in a full course of study as defined in paragraph (f)(6) of this section.
(ii) Full course of study. The border commuter student must be enrolled in a full course of study at the school that leads to the attainment of a specific educational or professional objective, albeit on a part-time basis. A designated school official at the school may authorize an eligible border commuter student to enroll in a course load below that otherwise required for a full course of study under paragraph (f)(6) of this section, provided that the reduced course load is consistent with the border commuter student's approved course of study.
(iii) Period of admission. An F-1 nonimmigrant student who is admitted as a border commuter student under this paragraph (f)(18) will be admitted until a date certain. The DSO is required to specify a completion date on the Form I-20 that reflects the actual semester or term dates for the commuter student's current term of study. A new Form I-20 will be required for each new semester or term that the border commuter student attends at the school. The provisions of paragraphs (f)(5) and (f)(7) of this section, relating to duration of status and extension of stay, are not applicable to a border commuter student.
(iv) Employment. A border commuter student may not be authorized to accept any employment in connection with his or her F-1 student status, except for curricular practical training as provided in paragraph (f)(10)(i) of this section or post-completion optional practical training as provided in paragraph (f)(10)(ii)(A)(3) of this section.
* * * * *
(m) * * *
(18) Reserved.
(19) Special rules for certain border commuter students.
(i) Applicability. For purposes of the special rules in this paragraph (m)(19), the term ``border commuter student'' means a national of Canada or Mexico who is admitted to the United States as an M-1 student to enroll in a full course of study, albeit on a part-time basis, in an approved school located within 75 miles of a United States land border. The border commuter student must maintain actual residence and place of

[[Page 54946]]

abode in the student's country of nationality, and seek admission to the United States at a land border port-of-entry. These special rules do not apply to a national of Canada or Mexico who is:
(A) Residing in the United States while attending an approved school as an M-1 student, or
(B) Enrolled in a full course of study as defined in paragraph (m)(9) of this section.
(ii) Full course of study. The border commuter student must be enrolled in a full course of study at the school that leads to the attainment of a specific educational or vocational objective, albeit on a part-time basis. A designated school official at the school may authorize an eligible border commuter student to enroll in a course load below that otherwise required for a full course of study under paragraph (m)(9) of this section, provided that the reduced course load is consistent with the border commuter student's approved course of study.
(iii) Period of stay. An M-1 border commuter student is not entitled to an additional 30-day period of stay otherwise available under paragraph (m)(5) of this section.
(iv) Employment. A border commuter student may not be authorized to accept any employment in connection with his or her M-1 student status, except for practical training as provided in paragraph (m)(14) of this section.
* * * * *

Dated: August 22, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-21823 Filed 8-26-02; 8:45 am]
BILLING CODE 4410-10-P

New INS Rule Assists Part-time Commuter Students

Cite as "Posted on AILA InfoNet at Doc. No. 02082841 (Aug. 28, 2002) ."

(67 FR 54941 8/27/02)

[Federal Register: August 27, 2002 (Volume 67, Number 166)]
[Rules and Regulations]
[Page 54941-54946]
From the Federal Register Online via GPO Access
[wais.access.gpo.gov]
[DOCID:fr27au02-1]
===============================================
Rules and Regulations Federal Register
_____________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week.

===============================================

[[Page 54941]]

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Part 214

[INS No. 2220-02]
RIN 1115-AG75

Reduced Course Load for Certain F and M Nonimmigrant Students in Border Communities

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

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

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations governing F and M nonimmigrants. This rule will clarify that Mexican or Canadian nationals who reside outside the United States and regularly commute across a land border to study may do so on a part-time basis within the F or M nonimmigrant category. These changes are being made to facilitate and legitimize certain part- time study along border communities while ensuring that all applicable requirements and safeguards are met.

DATES: Effective date: This interim rule is effective August 27, 2002.
Comment date: Written comments must be submitted on or before October 28, 2002.

ADDRESSES: Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW., Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2220-02 on your correspondence. Comments may also be submitted electronically to the Service at insregs@usdoj.gov <mailto:insregs@usdoj.gov>. When submitting comments electronically, you must include INS No. 2220-02 in the subject heading so that the comments can be electronically routed to the appropriate office for review. Comments may be inspected at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Maura Deadrick, Adjudications Division, Immigration and Naturalization Service, 425 I Street NW., Room 3040, Washington, DC 20536, telephone (202) 514-3228.

SUPPLEMENTARY INFORMATION:

Who Are F and M Nonimmigrants?

The Immigration and Nationality Act (Act) provides for the admission of various classifications of nonimmigrant aliens who are foreign nationals having a residence in a foreign country which they have no intention of abandoning, and who are seeking temporary admission to the United States. The purpose of the nonimmigrant alien's intended stay in the United States determines his or her proper nonimmigrant classification.
F-1 nonimmigrant aliens, as defined in section 101(a)(15)(F) of the Act, are foreign students who have been admitted to the United States to pursue a full course of study in a college, university, seminary, conservatory, academic high school, private elementary school, other academic institution, or language training program in the United States that has been approved by the Service to enroll foreign students. For the purposes of this rule, the term ``school'' refers to all of these types of Service-approved institutions.
An F-2 nonimmigrant alien is a foreign national who has been admitted to the United States as the spouse or qualifying child (under the age of 21) of an F-1 nonimmigrant alien.
M-1 nonimmigrant aliens, as defined in section 101(a)(15)(M) of the Act, are foreign nationals who have been admitted to the United States to pursue a full course of study at a Service-approved vocational school or other recognized nonacademic institution (other than in language training programs) in the United States. The term ``school'' for the purposes of this interim rule also encompasses all institutions approved for attendance by M-1 students. An M-2 nonimmigrant alien is a foreign national who is the spouse or qualifying child (under the age of 21) of an M-1 nonimmigrant alien.

Why Is the Service Promulgating This Rule?

Recognizing the unique nature of border communities and the need to serve the educational interests of students living on both sides of the U.S./Canada and U.S./Mexico borders, this rule expands the circumstances under which a border commuter student who is a national of Canada or Mexico may be admitted as an F-1 or M-1 nonimmigrant alien to engage in a full course of study, albeit with a reduced course load.
Historically, the Service has not officially sanctioned such part- time study for border commuter students. First, the statutory definition of the B nonimmigrant visitor classification, in section 101(a)(15)(B) of the Act, precludes admission of an individual coming to the United States to study. Moreover, the Service has always interpreted the statutory definitions of the F and M classifications, relating to students pursuing a full course of study, to require enrollment on a full-time basis as defined in the regulations, which did not cover part-time border commuter students.
However, this regulatory scheme has aligned poorly with the realities of the border communities, effectively creating a ``Catch- 22'' situation for bona fide part-time border commuter students. This has resulted in uneven application of this policy on the border. In fact, it has become commonplace for aliens residing in Canada or Mexico to enroll part-time in border institutions and enter the United States as visitors on a daily basis to pursue part-time study.
The response to the terrorist attacks of September 11, 2001, has resulted in increased scrutiny at ports-of-entry and in renewed focus on the integrity of our immigration system. There has been particular attention to the proper use of the B visitor classification. When the principal purpose for entering the United States is to attend school, the immigration laws intend that aliens be classified as nonimmigrant students, not as B visitors for business or pleasure.
Therefore, the purpose of this rule is to recognize the special relationship between the United States and its neighbors and to legitimize such study by border commuter students, while placing it within a regulated, controlled

[[Page 54942]]

process. As nonimmigrant students, they will be authorized to attend only schools approved by the Service to accept foreign students. A border commuter student is subject to all requirements applicable to the F or M nonimmigrant classification and will be processed through the existing framework for these classifications. This includes, among other things, obtaining the appropriate Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, and obtaining the appropriate visa, unless exempt. The schools will be required to comply with the same reporting and recordkeeping requirements for these part- time border commuter students as for full-time F-1 or M-1 students.
This rule will prevent the significant disruption of part-time study that has become an accepted fact of life along the border and a settled expectation. For example, it is reported that the El Paso Community College has an enrollment of some 2,400 part-time border commuter students, who generate approximately $700,000 in tuition. The loss of these students would cause the school, and other similarly- situated schools, to lose state funding based on enrollment levels, thus affecting all of the remaining students. In Detroit, it is reported that Wayne State University stands to lose approximately 500 students and $1 million in fees and tuition. Media reports show that enrollment in the University of Texas at Brownsville's English language program dropped 50% over the summer, costing the institution $150,000. In Washington State, media reports state that Bellingham Technical College stands to lose $100,000 in tuition this year. Niagara University in Lewiston, New York, reportedly stands to lose $250,000 in tuition revenue, and D'Youville College in Buffalo could lose up to $900,000 in the next year. These are only a few examples of the extent to which the practice of part-time study by commuter students is woven into life on the border.

How Does the Service Define a ``Full Course of Study'' for Border Commuter Students?

As noted, the statutory definitions of the F-1 and M-1 classifications relate to foreign students coming to the United States temporarily and solely for the purpose of pursuing a full course of study at an approved school. The Service's current regulations at 8 CFR 214.2(f)(6) and (m)(9) set forth specific requirements for defining a ``full course of study'' in various contexts.
However, the regulations at 8 CFR 214.2(f)(6)(iii) also permit a school to authorize a student to engage in a reduced course load under certain circumstances while still maintaining status as a student enrolled in a ``full course of study''. The school's designated school official (DSO) may approve a reduced course load due to initial difficulties with the English language or reading requirements, unfamiliarity with American teaching methods, or improper course level placement, or because of illness or medical reasons.
Moreover, there is another context in which the Service has authorized DSOs to approve a reduced course load in special circumstances for students who still wish to pursue a full course of study. In 1998, several Asian countries experienced a severe devaluation of their currencies, which caused a hardship upon nonimmigrant students in the United States dependent on currency from those countries for support. In response, the Service amended its regulations, 8 CFR 214.2(f)(6)(i)(F), allowing the Commissioner to publish a Federal Register notice authorizing affected F-1 aliens to accept employment in excess of the ordinary 20-hour per week maximum, in cases of severe economic hardship, and to drop below the usual course load in order to pursue the additional employment.
This rule adds an additional provision permitting certain border commuter students to enroll in an approved school with a lesser course load than is otherwise required for F and M students, on account of their unique educational circumstances. Specifically, for a nonimmigrant alien who meets all other requirements applicable to the F or M classification and who is commuting to a school in the United States within 75 miles of the border, the school's DSO may approve the student's attendance with a course load below that otherwise required under the general rules. However, the student must still be enrolled in a ``full course of study'' at the school, that is, a course of study that leads to the attainment of a specific educational, professional, or vocational objective, as prescribed in the introductory language in Sec. 214.2(f)(6)(i) and (m)(9)(i), although at a reduced course load for each semester or term.

Why Is This Change Only Applicable to Border Commuters?

This reflects the special and unique relationship the United States shares with its bordering neighbors and is consistent with the numerous statutory and regulatory provisions that accommodate the special demands in regulating the flow of Canadian and Mexican nationals across our borders. For example, under section 101(a)(6) of the Act, provision is made for border crossing cards to be issued to aliens resident in foreign contiguous territory in order to facilitate the lawful crossing of our borders.
Although there is no border crossing card currently issued to Canadian nationals, the Service, together with the Department of State, has implemented procedures to issue border crossing cards to Mexican nationals consistent with the Act as amended by section 104 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. C (Sept. 30, 1996) and section 601 of the Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law 107-173 (May 14, 2002). Mexican nationals presenting a valid, unexpired Border Crossing Card may be admitted to the United States without other documentation for a period not to exceed 72 hours to visit within 25 miles of the border, or in the case of visits to certain areas in the State of Arizona, within 75 miles of the border. See 8 CFR 235.1(f)(1)(iii) and (f)(1)(v).
Another example, section 212(d)(4)(B) of the Act authorizes the Attorney General and the Secretary of State, on the basis of reciprocity, to waive the passport and visa requirements of nationals of foreign contiguous territory and adjacent islands. The special relationship between the United States and its border neighbors is also reflected in the special procedures contained in the North American Free Trade Agreement (NAFTA) and codified under section 214(e) of the Act.
Administratively, the Service has regulated the special circumstances of frequent border crossers and made allowance for the peculiarities of daily life in border communities. In addition to regulatory provisions controlling the unique documentary requirements for admission of Canadian and Mexican nationals found at 8 CFR 212.1 and 212.6, the Service has established automated inspection services to provide access to the United States for a group of identified, low-risk border crossers. See 8 CFR 235.7. Other examples address circumstances surrounding temporary workers to the United States such as the regulatory provision found at 8 CFR 214.2(l)(12)(ii). This provision, commonly known as the ``commuter L-1,'' recognizes the exception to statutory limits on the period of stay for intracompany transferees who reside outside the United States and regularly

[[Page 54943]]

commute to engage in part-time employment in this country. Another special provision in the regulations for L nonimmigrants (intracompany transferees), 8 CFR 214.2(l)(17), allows Canadian citizens to file the employer's petition for L classification at the time of applying for admission at the port-of-entry, rather than having to obtain approval of the petition in advance from a Service Center. Also, for nearly 20 years, the Service and the Department of Labor have authorized exceptions for Canadian musicians entering under the H-2B temporary worker program. These musicians, if entering the United States to perform within 50 miles of the U.S. Canada border, are pre-certified by the Secretary of Labor.
This rule is necessary to take account of the unique educational situation of bona fide commuter students seeking to attend United States schools along the U.S./Canada and U.S./Mexico borders. The Service understands that certain border states have undertaken measures to facilitate attendance by Mexican and Canadian nationals.
The Service will restrict application of this provision to schools located within 75 miles of the U.S. border. The Service believes this 75-mile zone is consistent with the general commuter travel provisions and will accommodate the needs of students and institutions. Since 1953, Mexico and the United States have agreed to make special accommodations for Mexican nationals who cross the border into the immediate border area to promote the economic stability of the region, and the United States and Canada have a longstanding accommodation for citizens to cross the common border without requiring passports or visas. The Service therefore believes this 75-mile zone, which is the maximum distance currently allowed for Mexican nationals entering the immediate border area, pursuant to 8 CFR 235.1(f)(1)(v), is consistent with the many border accommodations established over time and will meet the needs of students and institutions. The Service does not believe a larger zone is warranted to address the problem.
Canadian or Mexican nationals enrolling at a school outside this 75-mile zone, or who maintain a residence in the United States in connection with their attendance at any approved school, will remain subject to the established rules for F or M nonimmigrants student status.

What Changes Does This Rule Make?

This rule adds new provisions in the Service's regulations at 8 CFR 214.2(f)(18) and (m)(19) to include special provisions defining a full course of study for border commuter students. To be eligible to be authorized by a school's DSO based on the border commuter student provision, the alien must be:

A national of Canada or Mexico who maintains an actual residence and place of abode in the alien's country of nationality;
Attending a school located within 75 miles of the border; Registered as a border commuter student; and
Matriculating in a full course of study, albeit on a part- time basis.

This interim rule also adds a new provision, 8 CFR 214.2(f)(18)(iii), to place in effect the reasonable limitation that border commuter students attending an approved school on a part-time basis as F-1 students will be admitted for a fixed admission period for each semester, quarter, or term. Under current regulations, only M-1 students are admitted for a fixed period of admission, while full-time F-1 student are admitted for ``duration of status'', as provided in 8 CFR 214.2(f)(5) and (f)(7), while the student pursues a full course of study or authorized practical training. By setting a fixed period of admission for F-1 border commuter students that reflects the current semester or quarter of the school's academic calendar, the Service will be able to maintain greater control and oversight to ensure that the student does in fact remain a border commuter student. The school's DSO will be required to specify on the Form I-20 the term-by-term completion date, and a new Form I-20 will be required for each new quarter or semester that the commuter student attends at the school. Conforming amendments to paragraphs (f)(1)(i), (f)(5)(i), and (f)(7)(i) of Sec. 214.2 further clarify that border commuter students will be admitted for a fixed period rather than for duration of status.
This rule also clarifies in Sec. 214.2(m)(19)(iii) that the provision in Sec. 214.2(m)(5), allowing an additional 30-day period in which to depart the United States following the completion of an M-1 student's course of study (in order to make final arrangements before departure), does not apply to border commuter students.
The Service notes that, in a separate rulemaking, 67 FR 34862 (May 16, 2002) (proposed rule), the Service is implementing section 641 of IIRIRA to establish an information collection system for nonimmigrant alien students. This system, the Student and Exchange Visitor Information System (SEVIS), will require the DSO to report when a reduced course load has been authorized for a particular student. SEVIS will enable the Service to provide more efficient oversight of this special authority for border commuter students to enroll at an approved school with a reduced course load.

Will Border Commuter Students Be Authorized for On-Campus Employment or Practical Training?

Under this rule, Canadian or Mexican nationals approved as F-1 border commuter students for a part-time course load may only be authorized to accept employment in a curricular practical training program or a post-completion optional practical training program, using existing authorization procedures. The regulatory provisions governing curricular and post-completion optional practical training are contained at 8 CFR 214.2(f)(10)(i) and(f)(10)(ii)(A)(3), respectively. In the case of an M-1 border commuter student, employment will only be authorized as provided for practical training as provided in existing 8 CFR 214.2(m)(14). Border commuter students admitted to pursue a course of study on a part-time basis under this rule will not be approved for any other employment in the United States (whether on-campus or off- campus) in connection with their F or M student status.
The Service believes this position is appropriate for several reasons. First, student employment (unrelated to training) often serves to help students meet living expenses while they are away from their home country and living in the United States, and that rationale does not apply to border commuter students. Also, although on-campus employment pursuant to a fellowship or scholarship would normally be available to an F-1 student, a part-time border commuter student is, by definition, not in the same situation as other F-1 students. The purpose of the F-1 and M-1 classification is completion of an educational objective, and the categories of work authorization allowed by this rule are closely related to that objective. For this reason, this rule retains the eligibility for non-resident border commuter students to engage in curricular practical training programs and post- completion optional practical training programs, but not in other types of employment in connection with their student status.
Finally, because a border commuter student admitted under this rule is maintaining his or her actual place of abode in Canada or Mexico and, by definition, would not be residing in the United States, the Service does not believe that employment in the United States is economically necessary. The

[[Page 54944]]

alien would be able, of course, to find employment in his or her own country where the student continues to reside.
A border commuter student who wishes to engage in employment in the United States that is not authorized by this rule must obtain the appropriate visa, or enroll as a full-time F-1 or M-1 student, in which case the student will not be governed by the limitations of this rule.

Does This Rule Affect Canadian or Mexican Nationals Who Are Authorized To Enter and Work in the U.S. Under the Provisions of NAFTA?

This rule simply provides a means for certain Canadian and Mexican nationals who commute into the U.S. to attend school on a part-time basis to be able to obtain proper status as an F-1 or M-1 nonimmigrant.
The United States Government's obligations under NAFTA do not address students and this rule in no way affects the rights of Canadian or Mexican nationals to temporary entry and employment in the U.S. under NAFTA. Canadian or Mexican nationals are admitted as TN nonimmigrants, or in some cases in a different work-related nonimmigrant classification under NAFTA depending on their circumstances. If a Canadian or Mexican national has been already admitted to the United States in a work-related nonimmigrant classification pursuant to NAFTA, it is permissible for them to attend school incidental to their NAFTA-based classification, and that is not affected by this interim rule.

Does This Rule Affect Canadian or Mexican Nationals Attending School on a Full-Time Basis?

No. Canadian or Mexican nationals attending school in the United States on a full-time basis continue to be governed by the rules that apply to their respective classifications. A Canadian or Mexican national admitted to attend school in the United States on a full-time basis as an F-1 or M-1 student may seek authorization from a DSO for a reduced course load, but must comply with the aspects of this rule requiring residence in Canada or Mexico, or otherwise qualify for reduced course load under 8 CFR 214.2(f)(6)(iii).

Will Canadian or Mexican Nationals Be Eligible for Nonimmigrant Student Status To Attend Public Elementary or Secondary Schools or Publicly- Funded Adult Education Programs?

Section 214(m) of the Act prohibits an F-1 student from attending a public high school for more than 12 months in the aggregate. Because of the statutory limitation, an F-1 student at a public high school can only be admitted for an aggregate of 12 months of study. Section 214(m) also requires that the alien, prior to being issued the F-1 visa, demonstrate that he or she has reimbursed the local school district for the full, unsubsidized per capita cost of providing the high school education for the period of the alien's attendance.
Also, under section 214(m) of the Act, as amended by sections 625 and 107(e)(2) of IIRIRA, a nonimmigrant may not be accorded status as an F-1 student to pursue a course of study at a public elementary school or a publicly funded adult education program.

Does This Rule Affect Any Other Processes and Procedures Applicable to the F and M Classifications?

No. Except for the change this rule makes regarding enrollment in a full course of study for border commuter students, all other requirements, processes, and procedures remain in effect. For example, a border commuter student may transfer between qualifying institutions within the 75-mile limit under the same rules as any other F-1 student. Such a student would also be able to transfer to a school outside the 75-mile limit, under the established procedures, but the student would not be eligible, at the new school, for the special part-time provision created by this rule. Similarly, a Canadian or Mexican national who is currently a full-time student may transfer to a qualifying school as a border commuter student provided that he or she meets the requirements of this rule.

Good Cause Exception

The Service's implementation of this rule as an interim rule is based on the ``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reason and necessity for the immediate promulgation of this rule are as follows:
Adherence to the notice and comment period normally required under 5 U.S.C. 553(b) by promulgation of a proposed rule prior to an interim rule would cause a disruption in studies. As noted in the supplementary information to this rule, the emphasis on the proper classification for the activity affected by this rule has led to increased enforcement and has had the effect of ceasing studies by affected students. In order to allow those students to recommence studies in a proper and regulated format in time for the upcoming fall academic term, an interim rule is necessary.
Furthermore, this rule enhances security and reduces risk because it places the activity it governs in a regulated context. As noted in this rule, the activity sanctioned by this rule has taken place on the border for some time, but has taken place in a classification, such as the B nonimmigrant classification, that is not appropriate. Thus, to avoid disruption it is necessary that this rule be designated an interim rule.
Therefore, the Service finds that it would be impractical and contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b).
This rule is also made effective upon publication in the Federal Register. This action is necessary in order to avoid the disruption in the enrollment of border community students in the upcoming academic term, as discussed above. It will also facilitate the use of this provision by the affected communities as soon as possible after publication. Because this rule removes a restriction and imposes no new burdens or requirements on the public, the Service is not required to delay the effective date of this rule for 30 days under 5 U.S.C. 553(d), and concludes that it would be contrary to the public interest to do so.

Regulatory Flexibility Act

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regu