Foreign Students in the United States: Policies and Legislation
Released: 2009-02-23T00:00:00

In the midst of an economic downturn, colleges and universities in the United States are finding themselves confronting economic difficulties. Many schools rely on endowments to help fund activities, programs, and expenses. The marked decrease in schools' endowments due to investment losses could potentially mean that many schools would need to cut programs and costs, as well as become more reliant on other sources of revenue to cover shortfalls. Foreign students have historically been an important source of revenue for colleges and universities because unlike many of their native counterparts, foreign students frequently do not receive financial aid from the university—particularly at the undergraduate level. Consequently, numerous college and university administrators will likely advocate that maintaining or increasing foreign student levels is an important element to remaining financially viable through their economic difficulties.

Despite the financial justifications for admitting large numbers of foreign students, critics of foreign student admissions generally raise two objections. The first objection is that foreign students are potentially displacing United States citizens at top-tier institutions, thereby putting the United States labor force at a competitive disadvantage. Moreover, if these students are allowed to stay and become employed in the U.S. economy, critics argue, they displace U.S. citizens from employment opportunities. The second objection is that foreign students could potentially constitute a security risk. Although security systems for tracking foreign students have been implemented, critics will note that these systems have loopholes. Additionally, the historical record of terrorist exploitation of foreign student visas for many observers means that the categories could be subject to future attempted terrorist admissions to the United States.

The tension over whether to legislate foreign student admissions levels is part of a broader set of competing policy agendas surrounding economic development and national security. Foreign students sit at the nexus of these competing policies due to their linkage to both the emerging labor force and their historical ties to security-based vulnerabilities. Thus, a potential issue for the 111 th Congress is whether foreign student visas should be numerically limited, or if they should remain uncapped. Additionally, Congress may need to consider whether it should legislate programs that either promote or deter additional admissions of foreign students to the United States.

Background

Since the Immigration Act of 1924, the United States has expressly permitted foreign students to study in U.S. institutions. Most foreign students are at least 18 years old and are enrolled in higher education programs. If they attend public high schools in the United States, the law requires that foreign students pay tuition, with some exceptions. It also bars the admission of foreign students for the purpose of attending public elementary schools. Although foreign students are also barred from receiving federal financial assistance, many are successful at gaining financial assistance from the colleges and universities they attend.

Foreign students are generally considered to enrich cultural diversity of the educational experience for U.S. residents as well as enhance the reputation of U.S. universities as world-class institutions. Concerns have arisen in recent years that have caused Congress to take a new look at the Immigration and Nationality Act (INA) provisions that govern their admission. The September 11, 2001 terrorist attacks conducted by foreign nationals—including several terrorists on foreign student visas—raised a series of questions about foreign students in the United States, their rights and privileges, the extent to which the U.S. government monitors their presence in this country, and whether U.S. policy hampers the ability of domestic higher education institutions to attract foreign students.

Foreign Student Visas

There are three main avenues for students from other countries to temporarily come to the United States to study, and each involves admission as a nonimmigrant. A nonimmigrant is an alien legally in the United States for a specific purpose and a temporary period of time. There are more than 20 major nonimmigrant visa categories, and they are commonly referred to by the letter that denotes their subsection in the law. The three visa categories generally used by foreign students are F visas for academic study; M visas for vocational study; and J visas for cultural exchange.

F Visa

The most common visa for foreign students is the F-1 visa. It is tailored for international students pursuing a full-time academic education. The F-1 student is generally admitted as a nonimmigrant for the period of the program of study, referred to as the duration of status. The law requires that the student have a foreign residence that they have no intention of abandoning. Their spouses and children may accompany them as F-2 nonimmigrants.

To obtain an F-1 visa, prospective students also must demonstrate that they have met several criteria:

They must be accepted by a school that has been approved by the Attorney General. They must document that they have sufficient funds or have made other arrangements to cover all of their expenses for 12 months. They must demonstrate that they have the scholastic preparation to pursue a full course of study for the academic level to which they wish to be admitted and must have a sufficient knowledge of English (or have made arrangements with the school for special tutoring, or study in a language the student knows).

Once in the United States on an F visa, nonimmigrants are generally barred from off-campus employment. Exceptions are for extreme financial hardship that arises after arriving in the United States and for employment with an international organization. F students are permitted to engage in on-campus employment if the employment does not displace a U.S. resident. In addition, F students are permitted to work in practical training that relates to their degree program, such as paid research and teaching assistantships. An alien on an F visa who otherwise accepts employment violates the terms of the visa and is subject to removal and other penalties discussed later in this report.

J Visa

Foreign students are just one of many types of aliens who may enter the United States on a J-1 visa, sometimes referred to as the Fulbright program. Others admitted under this cultural exchange visa include scholars, professors, teachers, trainees, specialists, foreign medical graduates, international visitors, au pairs, and participants in student travel/work programs. Those seeking admission as a J-1 nonimmigrant must be participating in a cultural exchange program that the U.S. Department of State's Bureau of Educational and Cultural Affairs (BECA) has designated. They are admitted for the period of the program. Their spouses and children may accompany them as J-2 nonimmigrants.

Responsible officers of the sponsoring organizations must be U.S. citizens. The programs that wish to sponsor J visas also must satisfy the following criteria:

be a bona fide educational and cultural exchange program, with clearly defined purposes and objectives; have at least five exchange visitors annually; provide cross-cultural activities; be reciprocal whenever possible; if not sponsored by the government, have a minimum stay for participants of at least three weeks (except for those designated as "short term" scholars); provide information verifying the sponsoring program's legal status, citizenship, accreditation, and licensing; show that they are financially stable, able to meet the financial commitments of the program, and have funds for the J nonimmigrant's return airfare; ensure that the program is not to fill staff vacancies or adversely affect U.S. workers; assure that participants have accident insurance, including insurance for medical evacuations; and provide full details of the selection process, placement, evaluation, and supervision of participants. As with F visas, those seeking J visas must have a foreign residence they have no intention of abandoning. However, many of those with J visas have an additional foreign residency requirement in that they must return abroad for two years if they wish to adjust to any other nonimmigrant status or to become a legal permanent resident in the United States. This foreign residency requirement applies to J nonimmigrants who meet any of the three following conditions: An agency of the U.S. government or their home government financed in whole or in part—directly or indirectly—their participation in the program. The BECA designates their home country as clearly requiring the services or skills in the field they are pursuing. They are coming to the United States to receive graduate medical training.

There are very few exceptions to the foreign residency requirement for J visa holders who meet any of these criteria—even J visa holders who marry U.S. citizens are required to return home for two years. Although many aliens with J-1 visas are permitted to work in the programs in which they are participating, the work restrictions for foreign students with a J-1 visa are similar to those for the F visa.

M Visa

Foreign students who wish to pursue a non-academic (e.g., vocational) course of study apply for an M visa. This visa is the least used of the foreign student visas. Much as the F students, those seeking an M visa must show that they have been accepted by an approved school, have the financial means to pay for tuition and expenses and otherwise support themselves for one year, and have the scholastic preparation and language skills appropriate for the course of study. Their spouses and children may accompany them as M-2 nonimmigrants. As with all of the student visa categories, they must have a foreign residence they have no intention of abandoning. Those with M visas are also barred from working in the United States, including in on-campus employment.

Duration of Status Visa

Although most nonimmigrants are admitted with visas that have a precise expiration date, foreign postsecondary students are admitted for "duration of status," which lasts as long as they are full-time students or participating according to the terms of their exchange programs. It is difficult for DHS to know when foreign students have overstayed because the duration of status lacks a fixed termination date and schools, although required to report students who stop attending, have not been required until recently to systematically report data on the progress of the foreign student (see below).

For many years, a foreign student was admitted for only one year and had to renew his or her visa each subsequent year for as long as he or she was enrolled. The former-INS then issued regulations in 1978 and 1981 allowing for visa validity periods longer than one year. In regulations in 1983 and 1987 that were aimed at "eliminating burdensome paperwork," the same agency reduced the reporting requirements and established the "duration of status" policy that remains in practice currently.

Processing, Screening, and Reporting

Agency Involvement

Nonimmigrant foreign students are processed by four different federal agencies during their tenure as applicants to and foreign students at United States higher education institutions. The first U.S. institution involved is the Department of State (DOS), which conducts the applicant interviews and either grants or rejects the visa applications. Once a nonimmigrant arrives at a United States port of entry, the individual receives an inspection by the Customs and Border Protection (CBP). The student's arrival is reported to the Immigration and Custom Enforcement (ICE) for entry in to the Student and Exchange Visitor Information System (SEVIS). After entry, the alien's academic institution is responsible for reporting information to the SEVIS database. The SEVIS information is then shared with DOS, CBP, and the U.S. Citizenship and Immigration Services (USCIS). The latter agency is responsible for adjudicating any adjustments in visa status the foreign students wishes to make.

Screening Procedures

Potential foreign students, as well as all aliens, must satisfy DOS's consular officers abroad and DHS inspectors upon entry to the United States that they are not ineligible for visas under the so-called "grounds for inadmissibility" of the INA. These criteria include security and terrorist concerns as well as health-related grounds and criminal history. Some provisions may be waived/overcome in the cases of nonimmigrants, refugees, and certain other aliens. To become a nonimmigrant, aliens also must demonstrate that they are not "intending immigrants" (i.e., wanting to reside permanently in the United States).

In terms of criminal, security and terrorist concerns, the consular officers who process visa applicants are required to check the consolidated Terrorist Screening Database (TSDB) before issuing any visa; thus, the names of foreign students are run through various databases, as are those of all other nonimmigrants seeking a visa to enter the United States. In FY2006, DOS identified 15 potential nonimmigrants (i.e., foreign nationals coming temporarily) as inadmissible because of student visa abuse. Comparatively, DOS identified 4,924 potential nonimmigrants as inadmissible on criminal, security or terrorist concerns in FY2006. It is not known how many, if any, of these latter potential nonimmigrants were seeking to enter the United States on student visas.

The Immigration and Nationality Act of 1952 originally included a requirement that all visa applicants be fingerprinted, with waivers for A visa (diplomats) and G visa (representatives of international organizations) nonimmigrants. The statutory requirement for fingerprinting nonimmigrants was repealed in 1986, but the Attorney General still has the discretionary authority to require fingerprints of aliens applying for nonimmigrant visas "for the purposes of identification and investigation."

Security Concerns

In 1995, the former-INS began a review of the admission and monitoring of foreign students. Impetus for the review came in part from former Federal Bureau of Investigation Director Louis Freeh who expressed concern that possible terrorists could use foreign student status as a way of entering the United States. Those concerned with the security risks of the foreign student visa often pointed out that one of the men convicted in the 1993 World Trade Center terrorist bombing had entered the United States on a student visa, dropped out of school, and yet stayed in the country.

Former INS Commissioner Doris Meisner emphasized plans to automate a foreign student reporting and monitoring system when she testified before the Senate Committee on the Judiciary's Subcommittee on Immigration in 1995. The former-INS had not been maintaining the addresses of foreign students, and reviews of the reporting system questioned the accuracy of the data. The National Commission on Terrorism, a bi-partisan commission established by Congress, cited the vulnerability of the foreign student visa in its June 2000 report, which recommended, among other things, that the former-INS automated system to monitor foreign students be enhanced and expanded. Reports that several of the terrorists involved in the September 11 attacks entered the United States on foreign student visas led many others to echo earlier calls for a better monitoring system.

Student and Exchange Visitor Information System (SEVIS)

When Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, it added statutory language mandating that the Attorney General (now Secretary of Homeland Security), in consultation with the Secretaries of State and Education, develop by January 1, 1998, a program to collect data on F, J, and M nonimmigrants from at least five countries. By 2003, the data collection requirement included all countries. This provision, §641 of IIRIRA, requires that DHS collect the following data elements:

identity and address of the alien; nonimmigrant classification of the alien, date of visa issuance, and any change or extension; academic status of the alien (e.g., full-time enrollment); and any disciplinary action taken by the school, college, or university as a result of a crime committed by the alien.

DHS is to collect the information electronically "where practical." According to §641 of IIRIRA, educational institutions are required to report this information to DHS as a condition of continued approval to enroll foreign students.

From June 1997 to October 1999, the former-INS conducted the first pilot program known as the Coordinated Interagency Partnership Regulating International Students (CIPRIS) at 21 educational institutions in Georgia, Alabama, North Carolina, and South Carolina, at Atlanta's Hartsfield Airport, and at the former-INS Texas Service Center. In July 2001, the former-INS announced that the second phase of its foreign student monitoring system, referred to as the Student and Exchange Visitor Information System (SEVIS), would begin at 12 Boston area institutions. According to published statistics, there are currently 9,012 SEVIS-approved schools and 996,263 current active international non-immigrant students, exchange visitors, and their dependants in SEVIS.

Prior to September 11, 2001, some university officials argued they would be turned into an enforcement agent of the former-INS and expressed concern that the confidentiality of their student records would be compromised. Although educational institutions stopped their calls to repeal §641 of IIRIRA after the terrorist attacks and now support a tracking system, many educational institutions across the country expressed frustration about these new reporting requirements. They argued that the SEVIS is burdensome and that DHS is not providing training to staff who must use SEVIS. All continuing foreign students were required to be entered into SEVIS as of August 2003.

Following the full implementation of SEVIS in 2003, when its administration was taken over by the Student and Exchange Visitor Program (SEVP) at ICE, there has not been much legislative activity on foreign student monitoring. Some believe that SEVIS has been left relatively unaltered during this time because of high-profile incidents that have positively contributed to the SEVIS image with the general public. Notably, the data from SEVIS resulted in the detection of several instances of unaccounted alien students, including some as recent as the summer of 2006. In this high profile incident, 11 Egyptian student visa holders were admitted at U.S. ports of entry, but never reported to classes or to the appropriate SEVIS officials at Montana State University. University officials reported the absence to DHS, which was able to locate and apprehend all of the 11 students. Incidents such as this one are generally accepted as indicators that SEVIS is working as intended.

Although SEVIS has been one of the less criticized DHS monitoring systems in recent years, ICE believes it is inadequate in its current form for security purposes. Thus, the agency has proposed raising its fees to fund a second-generation system known as SEVIS II to address security vulnerabilities (discussed in the "Current Issues" section). Yet, concerns continue with respect to whether increased security is detracting from the United States' ability to attract the number and quality of foreign students that higher education proponents advocate. The fields of science, technology, engineering and mathematics (STEM) have become particularly dependent upon foreign students, and these fields hold a top priority with most research institutions. Furthermore, the U.S. economy has a high demand for the skill-sets produced in these fields of study, and the STEM students can provide a major link between the academic community and the labor market. Consequently, with security measures now implemented, many groups in higher education and the private sector are seeking to develop pathways to immigration for foreign students. The Bush Administration has responded to these concerns with recent regulatory changes aimed at facilitating such pathways (also discussed in the "Current Issues" section).

Trends and Characteristics

Foreign students have been coming to study in the United States for almost a century, and the numbers admitted have more than doubled over the past two decades. In FY1979, the total number of F and J visas issued by DOS consular officers was 224,030 and comprised 4% of all nonimmigrant visas issued. In FY1989, the number of F, M, and J visas had grown to 373,932, constituting 5% of all nonimmigrant visas DOS issued. By FY2008, DOS issued 767,266 visas to F, J, and M nonimmigrants, and these categories made up 11% of all nonimmigrant visas issued. As Figure 1 illustrates, J cultural exchange visitors lead all educational visa categories with 392,089 visas issued in FY2008. The F academic students category followed with 364,423, and the M students category trailed with 10,754 visas issued in FY2008.

The largest sending region of the world for F and M student visas is Asia, as Figure 2 depicts. DOS data show Asia having 244,737 visas issued to F and M nonimmigrants in FY2008, representing 65.2% of the 364,423 cumulative F and M visas issued. Europe had the second largest portion of visas issued with roughly 17.8%, or 66,965. North and South American countries had smaller portions, with 17,849 and 23,593, respectively, or approximately 4.8% and 6.3% of the total. Africa's share of F and M nonimmigrant visas issued was 19,486 or roughly 5.2% of the total, while Oceania's 2,465 visas issued constituted approximately 0.7% of the total for F and M visas.

According to International Educational Exchange's Open Doors survey of U.S. colleges and universities, the largest group (44.4%) of foreign students enrolled in 2007-2008 were in graduate degree programs. As Figure 3 presents, the second largest portion (28.5%) were enrolled in undergraduate degree programs. An additional 10.5% were enrolled in associate degree programs. Foreign students enrolled in other programs comprised 7.5% of the foreign student total. Participants in optional practical training programs constituted 9.1% of the international student total in the 2007-2008 academic year.

The fields of study undertaken by foreign students appear to be quite diverse, as Figure 4 shows. The largest category is business and management, which is the field of study for 17.8% of foreign students. Engineering along with physical and life sciences follow with 15.4% and 8.5%, respectively. Mathematics and computer sciences and social sciences accounted for 7.4% of the student population. The number of students participating in optional practical training has seen a marked increase in the last couple of years and currently accounts for 9% of foreign students' major study fields. The category of other fields of study accounted for 9.8% of the foreign student population.

Foreign Students on Non-Student Visas

Although the INA contains specific categories for intending students, almost all classes of nonimmigrant visitors are permitted to attend schools in the United States. Generally, the visa holders' course work must be incidental to their primary purpose for being in the United States. As shown in Table 1 below, the principal visa holder in all classes of nonimmigrants except "B" visitors, "C" aliens in transit, and "D" crewmen may attend school. Moreover, the majority of these categories also permit spouses and minor children to attend school. However, because school attendance is incidental to the visa's primary purpose, the visas may not be extended to complete a course of study. As such, all nonimmigrant categories except aliens in transit, crewmen, "K" fiancees and spouses of U.S. citizens, and "S" witnesses and informants are allowed to change status to the F, J, or M nonimmigrant categories.

Nonimmigrant students who are in the United States on other than F, J, or M visas may attend the school of their choice on either a part-time or full-time basis (with exceptions noted in Table 1 ), including schools that are not approved by the (SEVP). Provided that school enrollment and attendance does not supercede the nonimmigrant's primary intent under his or her existing visa category (or in no other way violates the terms of the visa), the nonimmigrant may continue to pursue course work. Investigation of student activities and the determination of visa violations are made by ICE agents. ICE generally encourages nonimmigrants who wish to pursue education in the United States to apply for change of status to an F, J, or M nonimmigrant visa. Moreover, if the nonimmigrant wishes to pursue employment resulting from educational attainment, he or she must apply for work authorization, as well as for change of status to a qualifying nonimmigrant visa.

The reporting requirements of SEVIS transfer to neither non-educational visa holders nor programs without enrolled F, J, or M visa holders. A foreign national enrolled on a non-educational visa is not required to submit documentation in the SEVIS system. Schools are required to report only on foreign students with F, J, or M visas, and if the school does not enroll those classes of nonimmigrants, it is not required to be SEVP approved for nonimmigrant visa holders to attend. The application and admissions process for both SEVP and non-SEVP-certified programs varies from school to school, but with the exception of the SEVIS document requirements, the required documentation standard is set by the school.

In the wake of the September 11 terrorist attacks, Congress chose to increase the monitoring of educational visas. However, it did not create restrictions on other nonimmigrant visas to prevent school attendance by nonimmigrants without one of the three educational visas. Therefore, SEVIS serves as a monitoring system for foreign nationals admitted on educational visas, but it does not monitor foreign students as a whole. As an example, a trucking school may not be SEVP-certified but may still enroll a nonimmigrant on an "E" treaty trader or investor visa. Although the school would still have other reporting requirements, they would not be immigration-related; rather, they would represent the aggregate data on legal operations, as well as the distribution of federal and state-provided student funding. If the students do not receive federal funds and none of the students are on F, J, or M visas, the trucking school has neither the incentive, nor an instrument, for reporting on its foreign student population to immigration authorities.

Current Issues

After dedicating the years since the September 11 terrorist attacks to improving security and tracking measures for foreign students, universities in the past couple of years have geared their efforts toward attracting foreign students in high-demand fields of study. In particular, the STEM fields of study have received strong attention. With the economic downturn affecting the revenue streams of colleges and universities, this emphasis is likely to continue. The STEM fields generate strong revenues in the form of grants, and its graduates tend to receive higher salaries in the workforce—the latter tendency being attractive because it ultimately is correlated with stronger levels of alumni donations. The issue of funding, as well as several other current issues relating to foreign students, is discussed below.

Foreign Students and Funding

A newly emerging foreign student focus is the targeting of students intending to specialize in the areas of STEM. This focus is part of a broader movement within higher education that emphasizes STEM-related skill development. Foreign students in these fields of study represent a particularly attractive demographic for most universities since they provide skilled assistants and other forms of research labor during their time of study. Furthermore, undergraduate foreign students pay full tuition and are therefore an important source of revenues for many universities. This is highly relevant in discussions of STEM students, because foreign students constitute a significant portion of the overall STEM student population. For example, data from the National Science Foundation (NSF) show that in 2004, foreign students on nonimmigrant visas accounted for 28.4% of all the doctorates in the sciences and 57.2% of all the doctorates in engineering. Institute of International Education's (IIE) Open Doors data collection shows that STEM students accounted for 33.1% of foreign students in the 2005-2006 academic year.

An ongoing point of contention for both STEM and non-STEM alike has been the availability of fellowships and teaching assistantship funding for foreign graduate students. Although these foreign graduate students are ineligible for direct aid from the government, most receive work-supported aid from the universities, where the funds stem from federally funded research grants to the university. This arrangement has been an ongoing source of controversy. A 2004 study revealed that a greater percentage of financial support for doctoral students goes to non-U.S. citizens than to U.S. citizens. According to the survey, 85.5% of temporary visa doctoral recipients received some form of assistantship, traineeship, fellowship, or dissertation grant as their primary source of funding. By comparison, similar funding support was received by 75.9% of permanent visa holders, 61.6% of U.S. citizens, and 69% of all doctoral recipients. U.S. minority groups argue being particularly disadvantaged by the university support of foreign students because these foreign students may financial support allotted for minorities. Among ethnic groups, approximately 44.0% of African Americans and 48.3% of American Indians use their own resources to support their graduate studies, as compared with 32.8% of Caucasians, 32.7% of Hispanics, and 18.1% of Asian Americans.

Foreign Students and Language Competence

Complaints have been levied against the support of foreign graduate students due to the lack of English competence. Foreign students are required to take the Test of English as a Foreign Language (TOEFL) in order to demonstrate that they could effectively study and provide instruction in English. In Asian countries, such as China, cases of identity fraud have occurred at the test taking centers. Students with lower levels of English competence have reportedly paid others to conduct the test in their place while falsely presenting themselves as the student seeking admission to a U.S. institution. Universities have had difficulty determining whether TOEFL scores are fraudulent until the student actually arrives in the United States. At this time, written offers of support have already been extended to the student and accepted. Although English-language competency persists as a problem for many programs, some university programs have reacted by not admitting any graduate students from countries with a history of fraudulent TOEFL scores, or requiring additional in-person interviews and making admission conditional upon successfully completing such interviews.

New Pathways to Permanent Residence

Many employers in STEM-related fields find the hiring of U.S. trained alien graduates to be an enticing prospect because of the diminishing proportion of U.S. citizens to foreign nationals among STEM-trained graduates. For those students on F-category nonimmigrant visas, a relationship with an employer can be built through the use of the optional training period. For up to 12 months after graduation, an F-visa student can serve as an intern for a United States firm without having to adjust his or her visa. Some firms find this option appealing because it can help bring in needed skills without being restricted to numerical limits or the same strict criteria as the H-1B visa for nonimmigrant professional workers.

For those students who pursue optional practical training with a U.S. employer, the training period becomes a valuable opportunity to develop a relationship with an employer that could eventually result in an employment-based petition for permanent residence. Any individual wishing to come to the United States as an employment-based legal permanent resident (LPR) must have the employer submit a petition on his/her behalf. Because of the diminishing proportion of U.S. citizens to foreign nationals among STEM-trained graduates, some employers have pushed for the lengthening of the optional practical training period, as well as the creation of direct pathways to LPR status for foreign students in U.S. higher education institutions. Such proposals are reflected in some recent legislation.

On April 8, 2008, USCIS published an interim final rule (with request for comments) on extending the optional practical training (OPT) period by 17 months for F-1 nonimmigrant students with STEM degrees. Only STEM students who accept employment with employers enrolled in E-Verify would be eligible for the 17-month OPT extension. The student must request a recommendation for an extension from his or her designated school official (DSO). If the DSO recommends the student, this recommendation would be entered by the DSO into SEVIS, at which time the student would submit Form I-765 and any appropriate fees to USCIS. The student would also be required to report to the DSO at his or her school certain employment-related information and verify this information every six months during the extension. If a student with an OPT extension leaves employment, the employer must report this information to the DSO within 48 hours.

As a complement to the new OPT extension, USCIS provided two technical changes to the post-completion OPT. The first change allows all F-1 students to apply for OPT during the 60-day departure preparation period following the completion of their course requirements. Previously, applications had to be submitted prior to completing required course work. The second technical change clarifies when a period of unemployment during authorized OPT violates the F-1 status requirements. The interim final rule specifies that for students on a 12-month OPT, the aggregate maximum allowed period of unemployment is 90 days. For students with a 17-month OPT extension, this maximum period is increased by 30 days (for a maximum aggregate of 120 days over the course of the entire 29-month OPT period). These unemployment periods are permitted with the intention of allowing for job searches and providing breaks when switching employers.

In addition to the OPT extension, the USCIS rule change also addresses the commonly referred to "cap-gap" for H-1B nonimmigrant employment authorization. The cap-gap occurs when the period of admission for an F-1 student with an approved H-1B petition expires before the start date of the H-1B employment, thus creating a gap between the end of the F-1 status and beginning of the H-1B status. Under previous regulations, USCIS could authorize extensions for students caught in a cap-gap, but only when the H-1B cap was likely to be reached by the end of the fiscal year. USCIS was also previously required to announce the extension of status in the Federal Register . The interim final rule of April 8, 2008, removes these limitations, thereby allowing automatic extensions of status and employment authorizations for F-1 students with pending H-1B petitions. The extension of status applies to all F-1 students with pending H-1B petitions during a fiscal year.

SEVIS Fee Increase

On September 26, 2008, ICE published a final rule in the Federal Register that raised program fees and established SEVIS recertification procedures for participating schools by the Student and Exchange Visitor Program (SEVP). Previous SEVIS fees were $100 for most applicants. The new rule raised fees for each F or M student to $200, while most J exchange visitors are now charged $180. Exchange visitors such as camp counselors, au pairs, and summer work/travel program participants now pay a fee of $35. Also, ICE raised the fee for submitting a school certification petition for a school seeking to admit F or M students. The new certification fee is set at $1,700. Moreover, each school campus is required to receive a mandatory site review with an accompanying fee of $655.

The published rationale for the fee increase is based largely upon financing increased enforcement activities and the development of SEVIS II. SEVIS II would be a person centric, automated system with an person-centric configuration that would incorporate electronic forms. The shift in SEVIS is necessary, ICE claims, because the current configuration is based on tracking documents (including distinct and unassociated documents for the same individual within the system), which leaves the system exposed to security threats. The FY2008 enacted budget for ICE included $56 million for the SEVP. The FY2009 presidential budget request included an SEVP request of $120 million, an increase of $64 million, or roughly 113%. Most of the funding increase would be directed toward equipment, services, and personnel related to the increased enforcement and SEVIS transformation.

J-1 Student Interns

On June 20, 2008, the Department of State published a final rule for the creation of a new subcategory under the College and University Student category for J visa exchange visitors. This category, known as "Student Interns," is open to foreign students enrolled and pursuing a degree at post-secondary academic institutions outside the United States. Private sector organizations can offer internships to individuals with less training and experience than had been required of ''trainee'' category participants. To be eligible as an intern in a private sector program, foreign nationals must be currently enrolled in and pursuing studies at an academic institution or a recent graduate (i.e., within 12 months) from such institution. As an intern, the intern program participant enters the United States to pursue a structured and guided work-based internship program in his or her specific academic field. Prior work experience is not an eligibility requirement for participation.

Legislation in the 111th Congress

As of the date of publication, no legislation on foreign students had been introduced in the 111 th Congress. Legislation introduced in previous Congresses has focused on attracting more students in science, technology, engineering, and mathematics. Thus, it is likely that similar legislation will be introduced in the 111 th Congress.