August 27, 2004

Mr. Jerome H. Sullivan

Executive Director

American Association of Collegiate Registrars

and Admissions Officers

One Dupont Circle, NW, Suite 520

Washington, DC 20036

Dear Mr. Sullivan:

This is in response to your letter to the Family Policy Compliance
Office (FPCO), as well as follow-up to telephone conversation between
Ms. Shelley Rodgers of your staff with Dr. Stephen Hunt of the
International Affairs Office, in the Office of the Secretary. You asked
certain questions about the applicability of the Family Educational
Rights and Privacy Act (FERPA) to disclosures to the Immigration and
Naturalization Service (INS). On March 1, 2003, INS ceased to exist and
its responsibilities relating to student visas transferred to the
Department of Homeland Security (DHS), Immigration and Customs
Enforcement (ICE).

As you are aware, on April 12, 2002, FPCO issued guidance relating to
disclosure of personally identifiable information from students'
education records relative to anti-terrorism investigations of law
enforcement officials. We noted in that Dear Colleague Letter that we
anticipated that there may be a need for additional guidance in the
future on ICE disclosure issues. Since that time, the Department has
worked closely with ICE on several matters of mutual concern, including
the applicability of FERPA to disclosures of information to ICE
employees. We provided comments on ICE regulations published in the
Federal Register on December 11, 2002, regarding the Student and
Exchange Visitor Information System (SEVIS), and will continue to work
with them as we develop additional guidance on issues relating to
foreign students and exchange visitor program participants. In the
interim, we believe, as is explained more fully below, that FERPA does
not prohibit the disclosure of information to ICE contractors in order
to certify an institution as eligible to participate in SEVIS.

 

Preliminarily, with regard to your apparent concern about disclosure of
student information to ICE contractors rather than directly to the ICE,
this Office has previously advised that FERPA does not prevent schools
from outsourcing various functions. In particular, schools may disclose
FERPA protected information, without consent, to contractors and other
agents who have been retained to perform administrative and other
professional services so long as the disclosure would be proper if made
to a school official performing the same service. Similarly, FERPA does
not prevent lawful recipients of protected education records, such as
ICE, from using the services of outside contractors to perform services
in place of regular employees, such as these site visits to certify
institutions for participation in SEVIS. Accordingly, disclosures to ICE
contractors retained to perform SEVIS certification visits should be
treated as disclosure to ICE itself.

With regard to the broader question concerning access by ICE to
education records of foreign students and exchange visitor program
participants, § 641(c)(2) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), as amended, (8 U.S.C. §
1372) provides that FERPA shall not apply to aliens described in
subsection (a) of § 641 to the extent that the Attorney General
determines necessary to carry out the SEVIS program. In the December
11^th^ regulations, the Attorney General made such a determination. 67
Fed. Reg. 76256, 76270 (December 11, 2002).[^1] In effect, ICE
regulations, 8 C.F.R. § 214.1(h), state that with respect to F and M
nonimmigrant students and J nonimmigrant exchange visitors, the FERPA
provisions that might impede the proper implementation of 8 U.S.C. §
1372 and 8 C.F.R. § 214.3(g) are waived to the extent that 8 U.S.C. §
1372 or 8 C.F.R. § 214.3(g) requires the educational agency or
institution to report the information.

 

We also note that § 502 of the Enhanced Border Security and Visa Entry
Reform Act of 2002, Pub. L. 107-173, requires ICE, in consultation with
the Department of Education, to conduct a review of institutions
certified to receive nonimmigrants under § 101(a)(15)(F), (M), or (J) of
the Immigration and Nationality Act (8 U.S.C. § 1101(a)(15)(F)(M), or
(J)) to determine whether the institutions are in compliance with the
recordkeeping and reporting requirements of the Immigration and
Nationality Act and IIRIRA.

 

We believe that Congress did not intend for the privacy protections
under FERPA to impede ICE in carrying out the SEVIS program. Therefore,
our advice to AACRAO is that institutions generally may not use FERPA in
order to refuse to comply with requests from ICE relative to
participation in SEVIS.

However, you specifically asked about the collection by ICE of the
following information:

> Common data elements being requested by the INS (now ICE) site-visit
> contractors are (a) all directory information for international
> students (b) citizenship (c) list of courses taken by each student (d)
> reason for separation from an institution if the student is no longer
> enrolled, etc. Information is being requested on enrolling students
> without status yet and enrolled students with active current status.
> Some of the requested information is required by SEVIS, some \-- like
> schedule of classes for each student \-- is not.

First, we note that SEVIS is not limited to enrolled students with
active current status. Rather, the IRRIRA, as amended, applies to aliens
who either have status or are applying for the status of nonimmigrants
under § 101(a)(15)(F), (M), or (J) of the Immigration and Nationality
Act.

8 U.S.C. § 1372(a)(1). The IRRIRA, as amended, also requires
institutions to report to ICE any failure of an alien to enroll in an
institution of higher education or other approved educational
institution or the scheduled commencement of participation by an alien
in a designated exchange visitor program. 8 U.S.C. § 1372(a)(4).

Second, the issue of "directory information" is not relevant in this
situation. In the instant case, ICE has broad, independent authority
under the IRRIRA, as amended, (and does not need to request directory
information) to receive the following information on foreign students
and exchange program participants: A) the identity and current address
in the United States of the alien; B) the non-immigrant classification
of the alien and the date on which a visa under the classification was
issued or extended or the date on which a change to such classification
was approved by the Attorney General; C) in the case of a student at an
approved institution of higher education, or other educational
institution, the current academic status of the alien, including whether
the alien is maintaining status as a full-time student, or in the case
of a participant in a designated exchange visitor program, whether the
alien is satisfying the terms and conditions of the program; D) in the
case of a student at an approved institution of higher education, or
other educational institution, any disciplinary action taken by the
institution against the alien as a result of the alien's being convicted
of a crime, or, in the case of a participant in a designated exchange
visitor program, any change in the alien's participation as a result of
the alien's being convicted of a crime; E) the date of entry and port of
entry; F) the date of the alien\'s enrollment in an approved institution
of higher education, other approved educational institution, or
designated exchange visitor program in the United States; G) the degree
program, if applicable, and field of study; and, H) the date of the
alien\'s termination of enrollment and the reason for such termination
(including graduation, disciplinary action, and failure to re-enroll). 8
U.S.C. § 1372(c)(1).

The ICE regulations further specify that: "an approved school must keep
records containing certain specific information and documents relating
to each F-1 or M-1 student to whom it has issued a Form I-20A or I-20M
while the student is attending the school and until the school notifies
the Service, ... that the student is not pursuing a full course of
study.... The designated school official must make the information and
documents required by this paragraph available to and furnish them to
any ICE officer upon request. The information and documents that the
school must keep on each student are as follows:

\(i\) Name.

\(ii\) Date and place of birth.

\(iii\) Country of citizenship.

\(iv\) Current address where the student and his or her dependents
physically reside. In the event the student of his or her dependents
reside on or off campus and cannot receive mail at that location, the
school may provide a mailing address .... .

\(v\) The student's current academic status.

\(vi\) Date of commencement of studies.

\(vii\) Degree program and field of study.

\(viii\) Whether the student has been certified for practical training,
and the beginning and end dates of certification.

\(ix\) Termination date and reason, if known.

\(x\) The documents referred to in paragraph (k) of this section.

\(xi\) The number of credits completed each semester.

\(xii\) A photocopy of the student\'s I-20 ID Copy."

8 C.F.R. 214.3(g), as amended by 67 Fed. Reg. 76256 (December 11, 2002).

Thus, FERPA does not prohibit the nonconsensual release to ICE of the
alien's field of study, degree program, number of credits, and other
items of information enumerated in § 214.3(g). In addition, we are
informed that the Department of Homeland Security is presently drafting
regulations governing the SEVIS certification process and identifying
additional reporting requirements incident to that process. During the
pendancy of that rulemaking process, the Department will refrain from
any enforcement action under FERPA under circumstances where an
educational agency or institution has provided any education records to
officers of the Department of Homeland Security at its request to carry
out the SEVIS program.

I trust that this is responsive to your inquiry.

Sincerely,

/s/

LeRoy S. Rooker

Director

Family Policy Compliance Office

[^1]: The Homeland Security Act of 2002, Public Law No: 107-296, Title
    IV, Section 442, transferred to the Assistant Secretary of the
    Bureau of Border Security the responsibility for administering the
    program to collect information relating to nonimmigrant foreign
    students and other exchange program participants described in
    section 641 of the Illegal Immigration Reform and Immigrant
    Responsibility Act of 1996 (8 U.S.C. 1372), including the Student
    and Exchange Visitor Information System established under that
    section.