Monitoring Foreign Students in the United States: The Student and Exchange Visitor Information System (SEVIS)
Released: 2006-01-24T00:00:00

Background

Since the Immigration Act of 1924, the United States has expressly permitted foreignstudents to study in U.S. institutions. There are three main avenues for students from other countriesto temporarily come to the United States to study, and each involves admission as a nonimmigrant. The three visa categories used by foreign students are: F visas for academic study; M visas forvocational study; and J visas for cultural exchange. While most nonimmigrants are admitted withvisas that have a precise expiration date, foreign postsecondary students are admitted for "durationof status," which lasts as long as they are full-time students or participating according to the termsof their exchange programs. (1)

Legislative History of the Student Monitoring System

Illegal Immigration Reform and Immigrant Responsibility Act

When Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act(IIRIRA) of 1996, it added statutory language mandating that the Attorney General, in consultationwith the Secretaries of State and Education, develop by January 1, 1998, a program to collect thefollowing data on foreign students from at least five countries:

identity and address of the alien;

nonimmigrant classification of the alien (i.e., F, J, or M classification), dateof 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 resultof a crime committed by the alien.

The law mandated that the data collection be extended to include all countries by 2003. IIRIRArequired the former Immigration and Naturalization Service (INS) (2) to collect the informationelectronically "where practical." It also mandated that educational institutions report this informationto INS as a condition of continued approval to enroll foreign students. In addition, the law required,as of April 1, 1997, that the educational institutions collect a fee (not to exceed $100) from each ofthe foreign students to remit to the Attorney General to carry out the program. The 106th Congressamended this provision so that the INS rather then the institutions would collect the fee ( P.L.106-396 ). (3)

The USA Patriot Act

The USA Patriot Act ( P.L. 107-56 ) included provisions to expand the foreign studenttracking system and authorized $36.8 million in appropriations for the foreign student monitoringsystem. It also required that by January 1, 2003, the INS was to have the foreign student trackingsystem established by Â§641 of IIRIRA fully operational. The act required the Attorney General, inconsultation with the Secretary of State, to include information on the date of entry and port of entryon every foreign student. The act also expanded the foreign student tracking system to include "otherapproved educational institutions" such as air flight schools, language training schools, or vocationalschools approved by the Attorney General, in consultation with the Secretaries of State andEducation.

Enhanced Border Security and Visa Reform Act

The Enhanced Border Security and Visa Reform Act of 2002 ( P.L. 107-173 ) furtherstrengthened the foreign student tracking system by establishing electronic means to monitor andverify:

documentation of acceptance of student by approved school or designatedexchange program;

transmittal of documentation to the Department of State(DOS);

issuance of nonimmigrant visa to student or exchangevisitor;

admission of student or exchange visitor to the U.S.;

notice to school or exchange program that nonimmigrant has been admittedto the U.S.;

registration and enrollment of nonimmigrant in school or exchange program;and

any other relevant act by the nonimmigrant, including changing schools orprograms. (4)

Student and Exchange Visitor Information System (SEVIS)

The foreign student monitoring system created by the INS is referred to as the Student andExchange Visitor Information System (SEVIS). (5) SEVIS automated an existing manual data collection process. INSissued a final rule regarding the retention and reporting of information regarding foreign students onDecember 11, 2002. The December 11, 2002 regulation implemented SEVIS, establishing a processfor the electronic reporting of information on foreign students. SEVIS became operational for allincoming students on February 15, 2003, the deadline for all institutions which had previously beenapproved to admit foreign students to apply for SEVIS certification (6) and enter all new students intothe SEVIS system. (7) OnMay 23, 2003, DHS issued an interim regulation, effective on the same date, amending previousregulations dealing with foreign students and establishing the verification and reporting proceduresrequired for SEVIS. (8) Theeducational institutions were given until August 1, 2003, the same day in which all schools wererequired to have their SEVIS certification completed, to enter all continuing students into the system.

Fee Collection

IIRIRA required, as of April 1, 1997, that the educational institutions collect a fee (not toexceed $100) from each foreign student to remit to the Attorney General to carry out the program. On December 21, 1999, INS published a proposed regulation regarding the collection of the fee byschools and remittance of the fees to the Attorney General. (9) INS received 4,617 comments on the regulation, the majority ofwhich responded that fee collection for a governmental agency was not an appropriate activity foracademic institutions. The 106th Congress amended the fee provision in IIRIRA so that INS ratherthan the institutions would collect the fee ( P.L. 106-396 ). Interim regulations on fee collection wereissued on October 27, 2003, (10) and the final regulation was issued on July 1, 2004. (11) The regulation specifiesthat the fee is to be $100, (12) and can be paid electronically with a credit card, or by mail witha check or money order drawn on a U.S. bank and payable in U.S. dollars. (13) Since September 1, 2004,fees for the SEVIS program have been collected from potential foreign students (i.e., those applyingfor student visas, or to change their nonimmigrant status to students). The fee is not being collectedfrom those who have already been issued a student visa. The operating budget for SEVIS comesfrom the fee collection. (14)

Admissions and Tracking Process

Foreign students who wish to study in the United States must first apply to a SEVIS certifiedschool. Once the student is admitted, the school enters the student's name and identifyinginformation into the SEVIS system. (15) The foreign student may then apply for a student visa with theUnited States Embassy or Consulate in their home country. (16) The consular officer thenenters the visa information into SEVIS, confirming that the student is in the SEVIS database. Theconsular officer also checks the prospective student against other databases to ascertain whether thestudent is eligible for a visa (i.e., the prospective student is not a security risk, does not have criminalrecord, or any other issue which would render the prospective student inadmissible to the UnitedStates under the Immigration and Nationality Act). (17)

When the student arrives at a port of entry in the United States, an immigration inspectorconfirms that the student has a record in the SEVIS database, and enters the student's arrival into theSEVIS database. The schools are then responsible, 30 days after the start of the academic term, tonote in the SEVIS system if the student has shown up for class, and the course of study beingpursued. The school has an ongoing responsibility to report any change in the student's status (i.e.,expulsion, suspension, change in major, graduation) in SEVIS. Schools are also required to provideinformation on people who have derivative status (such as a student's spouse or child) on a student'svisa.

Issues

Management of SEVIS. Congress has heldseveral hearings on SEVIS. (18) Although no hearings have been held after the fullimplementation of SEVIS, many of the issues raised during the hearings seem to remain. There arereportedly issues with SEVIS that stem from the abolition of INS and the division of many of itsfunctions into three components in DHS -- the Bureau of Citizenship and Immigration Services(USCIS), the Bureau of Immigration and Customs Enforcement (ICE), and the Bureau of Customsand Border Protection (CBP). SEVIS was developed by the INS' Immigration Services Divisionwhich is now part of USCIS, but responsibility for SEVIS was placed in ICE. Reportedly, as ofNovember 1, 2003, all SEVIS responsibilities have been transferred to ICE. Specifically, ICE isresponsible for maintaining the SEVIS database, SEVIS policy, and certifying schools. Nonetheless,schools have reported discrepancies between information received from USCIS and ICE regardingSEVIS operations and requirements. The lack of consistent information and guidance has reportedlyled to some frustration, but the consistency of information may improve now that all SEVISfunctions are concentrated in one bureau. Others have noted problems with inexperienced staff inthe new DHS, and the difficulty of people at the district levels (who are under USCIS and withwhom the schools have the most contact) in getting information from ICE. (19)

Nonetheless, there have been few stories in the press of foreign students having problemsentering the United States as a result of the implementation of SEVIS. (20) Possibly one reason is that,to aid in the transition to SEVIS, DHS established a SEVIS Response Team to work with inspectors,schools and students to resolve issues and problems related to student admissions to the UnitedStates. (21) In fact, somehave praised DHS' responsiveness to issues raised by the schools. (22)

Technical Support. In addition, Johnny N.Williams, Interim Director, Immigration Interior Enforcement at ICE, testified that since SEVIS isa new system that was developed and deployed under an aggressive schedule, that he could notguarantee that there would not be technical problems with the system, but that the department wouldwork quickly to address the problems. (23) Indeed, as predicted, schools have reported technical difficultiesoperating SEVIS, and noted that to circumvent some of the technical problems, they need to createincorrect records. (24) Other concerns have been expressed about the fact that SEVIS system information is kept by recordnumber and not names. Some students have more than one record and this can make it difficult toupdate the database, and possibly cause issues when and if SEVIS becomes part of U.S. VISIT, DHS'automated entry/exit system.

Reporting Burdens. Additionally, some contendthat SEVIS has placed an added burden on schools, as they are now responsible for noting in theSEVIS system changes of those accompanying the students such as spouses and children. They arerequired to report on people who are not enrolled in their institutions.

Schools are required to note in SEVIS when a student has entered the country, but has notshown up for classes. Thus, schools are supposed to be notified when a student enters at a port ofentry (POE), but, reportedly, this does not always happen. As a result, schools are worried aboutsanctions that may be applied if they do not report a student who failed to attend classes, and whothe school was unaware had entered the country. (25)

Followup on Overstays. Furthermore, prior tothe implementation of SEVIS it was difficult to know when foreign students overstayed their visas,because the visas lack a fixed termination date and schools, although required to report students whostopped attending, were not required to systematically report data on the progress of each foreignstudent. Through SEVIS, DHS should be able to identify students who have violated the terms oftheir visas; (26) however,some have questioned whether DHS has the staff to locate all student visa violators, and whether itis a beneficial use of DHS resources to do so. There are also concerns that SEVIS errors will leadto unwarranted enforcement action taken against innocent students.

Fee Collection. Concerns have been raised aboutthe methods available for students to pay the SEVIS fee, specifically that it may be difficult for someforeign students to pay the fee in either of the prescribed manners: electronically with a credit card,or by mail with a check or money order drawn on a U.S. bank and payable in U.S. dollars. DHSaddressed this issue in the regulation contending that the fee payment rules will not be much of aburden on students as most have already made similar types of payments to apply to schools, and totake standardized tests that are sometimes required for admission. DHS also noted that many foreignbanks are able to issue checks or money orders drawn on U.S. banks. In addition, DHS said that itwill accept payment from a third party and will explore other payment possibilities in the futureincluding conducting a pilot program with DOS to collect the fee at consular offices. (27) Furthermore, some areconcerned that the fee is excessive and will discourage students from studying in the United States. Others note that immigration services are supported by fees, not by appropriations, and that theforeign students, not the taxpayers, should be responsible for funding SEVIS. DHS contends thatit studied the fee issue, and will reexamine the fee every two years to determine if the fee amountis appropriate. (28)

Delays in Visa Issuances. Lastly, one issuetangentially related to SEVIS, which has been receiving interest, is reports of delays in issuingstudent visas. (29) Nonetheless, the delays appear to be the result of increased screening by DOS consular officers andnot the implementation of SEVIS. In May 2003, DOS released a notice on the current visaprocessing situation which stated:

Responding to the attacks of September 11,2001,...[v]isa applications are now subject to a greater degree of scrutiny than in the past. For manyapplicants, a personal appearance interview is required as a standard part of visa processing.Additionally, applicants affected by these procedures are informed of the need for additionalscreening at the time they submit their applications and are being advised to expect delays. The timeneeded for adjudication of individual cases will continue to be difficult to predict. (30)

For example, the Government Accountability Office (GAO) released a study examining thelength of time for a science student or scholar from a foreign country to get a visa. (31) GAO found that DOS isunable to easily identify the amount of time that it takes to process visas for science students orscholars, and that the time it takes to adjudicate a visa depends largely on whether the applicant hasto undergo a Visa Mantis check. Visa Mantis is a type of specialized clearance procedure, knownas the security advisory opinion (SAO) used to screen visa applicants for employment or study thatwould give the foreign national access to controlled technologies, e.g., those that could be used toupgrade military capabilities. (32) GAO examined a random sample of Visa Mantis cases forscience students or scholars sent from U.S. consular posts between April and June 2003, and foundit took an average of 67 days for the security check to be processed. In September 2003, GAOvisited posts in China, India, and Russia and found many Visas Mantis cases that had been pending60 days or more.

DOS responded to the GAO study and noted that a backlog did occur in the summer of 2002when DOS mandated a response (33) to all SAO requests, including Visa Mantis checks. Thatrequirement, combined with the sudden increase in requests for SAO's following the attacks ofSeptember 11, 2001, overburdened the system. DOS contends new processes have solved many ofthe problems encountered during the start-up period. (34)

In addition, new regulations, implemented on July 7, 2003, which limited the ability ofconsular officers to waive the personal appearance for nonimmigrant visa applicants, (35) have increased the waittime for an interview and may extend the visa processing time of students seeking to come to theUnited States. Other factors including the biometric visa program and staffing levels have also beencited as affecting visa processing times. (36) Nonetheless, DOS has instructed all visa-adjudicating posts tomake special arrangements to facilitate visa interviews for students and researchers, and some postsreserve appointment slots for students, or assign specific days to student processing. (37)