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  • News: DHS Final Rule on Adjustments to Limitations on DSO Assignment and Study by F-2/M-2 Nonimmigrants

    Federal Register, Volume 80 Issue 82 (Wednesday, April 29, 2015)
    [Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
    [Rules and Regulations]
    [Pages 23680-23689]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2015-09959]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF HOMELAND SECURITY
    
    8 CFR Part 214
    
    [DHS Docket No. ICEB-2011-0005]
    RIN 1653-AA63
    
    
    Adjustments to Limitations on Designated School Official 
    Assignment and Study by F-2 and M-2 Nonimmigrants
    
    AGENCY: U.S. Immigration and Customs Enforcement, DHS.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: The Department of Homeland Security is amending its 
    regulations under the Student and Exchange Visitor Program (SEVP) to 
    improve management of international student programs and increase 
    opportunities for study by spouses and children of nonimmigrant 
    students. This rule grants school officials more flexibility in 
    determining the number of designated school officials to nominate for 
    the oversight of campuses. The rule also provides greater incentive for 
    international students to study in the United States by permitting 
    accompanying spouses and children of academic and vocational 
    nonimmigrant students with F-1 or M-1 nonimmigrant status to enroll in 
    study at an SEVP-certified school so long as any study remains less 
    than a full course of study. F-2 and M-2 spouses and children remain 
    prohibited, however, from engaging in a full course of study unless 
    they apply for, and DHS approves, a change of nonimmigrant status to a 
    nonimmigrant status authorizing such study.
    
    DATES: This rule is effective May 29, 2015.
    
    ADDRESSES: Comments and related materials received from the public, as 
    well as documents mentioned in this preamble as being available in the 
    docket, are part of docket ICEB-2011-0005 and are available online by 
    going to http://www.regulations.gov, inserting ICEB-2011-0005 in the 
    ``Search'' box, and then clicking ``Search.''
    
    FOR FURTHER INFORMATION CONTACT: If you have questions on this final 
    rule, call or email Katherine Westerlund, Policy Chief (Acting), 
    Student and Exchange Visitor Program, telephone 703-603-3400, email: 
    sevp@ice.dhs.gov.
    
    SUPPLEMENTARY INFORMATION: 
    
    I. Regulatory History and Information
    
        On November 21, 2013, the Department of Homeland Security (DHS) 
    published a notice of proposed rulemaking (NPRM) entitled Adjustments 
    to Limitations on Designated School Official Assignment and Study by F-
    2 and M-2 Nonimmigrants in the Federal Register (78 FR 69778). We 
    received 37 comments on the proposed rule. No public meeting was 
    requested, and none was held. DHS is adopting the rule as proposed, 
    with minor technical corrections.
    
    II. Abbreviations
    
    CFR Code of Federal Regulations
    DHS Department of Homeland Security
    DOS Department of State
    DSO Designated school official
    FR Federal Register
    HSPD-2 Homeland Security Presidential Directive No. 2
    ICE U.S. Immigration and Customs Enforcement
    INA Immigration and Nationality Act of 1952, as amended
    INS Legacy Immigration and Naturalization Service
    IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act 
    of 1996
    OMB Office of Management and Budget
    PDSO Principal designated school official
    SEVIS Student and Exchange Visitor Information System
    SEVP Student and Exchange Visitor Program
    Sec.  Section symbol
    U.S.C. United States Code
    USCIS U.S. Citizenship and Immigration Services
    USA PATRIOT Act Uniting and Strengthening America by Providing 
    Appropriate Tools Required to Intercept and Obstruct Terrorism Act 
    of 2001
    
    III. Basis and Purpose
    
    A. The Student and Exchange Visitor Program
    
        DHS's Student and Exchange Visitor Program (SEVP) manages and 
    oversees significant elements of the process by which educational 
    institutions interact with F, J and M nonimmigrants to provide 
    information about their immigration status to the U.S. Government. U.S. 
    Immigration and Customs Enforcement (ICE) uses the Student and Exchange 
    Visitor Information System (SEVIS) to track and monitor schools, 
    participants and sponsors in exchange visitor programs, and F, J and M 
    nonimmigrants, as well as their accompanying spouses and children, 
    while they are in the United States and participating in the 
    educational system.
        ICE derives its authority to manage these programs from several 
    sources, including:
         Section 101(a)(15)(F)(i), (M)(i) and (J) of the 
    Immigration and Nationality Act of 1952, as amended (INA), 8 U.S.C. 
    1101(a)(15)(F)(i), (M)(i), and (J), under which a foreign national may 
    be admitted to the United States in nonimmigrant status as a student to 
    attend an academic school or language training program (F 
    nonimmigrant), as a student to attend a vocational or other recognized 
    nonacademic institution (M nonimmigrant), or as an exchange visitor (J 
    nonimmigrant) in an exchange program designated by the Department of 
    State (DOS), respectively. An F or M student may enroll in a particular 
    school only if the Secretary of Homeland Security has certified the 
    school for the attendance of F and/or M students. See 8 U.S.C. 1372; 8 
    CFR 214.3.
         Section 641 of the Illegal Immigration Reform and 
    Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, Div. 
    C, 110 Stat. 3009-546 (codified at 8 U.S.C. 1372), which authorized the 
    creation of a program to collect current and ongoing information 
    provided by schools and exchange visitor programs regarding F, J or M 
    nonimmigrants during the course of their stays in the United States, 
    using electronic reporting technology where practicable, and which 
    further authorized the Secretary of Homeland Security to certify 
    schools to participate in F or M student enrollment.
         Section 416(c) of the Uniting and Strengthening America by 
    Providing Appropriate Tools Required to Intercept and Obstruct 
    Terrorism Act of 2001, Public Law 107-56, 115 Stat. 272 (USA PATRIOT 
    Act), as amended, which provides for the collection of alien date of 
    entry and port of entry information for aliens whose information is 
    collected under 8 U.S.C. 1372.
         Homeland Security Presidential Directive No. 2 (HSPD-2), 
    which, following the USA PATRIOT Act,
    
    [[Page 23681]]
    
    requires the Secretary of Homeland Security to conduct periodic, 
    ongoing reviews of schools certified to accept F, J and/or M 
    nonimmigrants to include checks for compliance with recordkeeping and 
    reporting requirements, and authorizing termination of institutions 
    that fail to comply. See 37 Weekly Comp. Pres. Docs. 1570, 1571-72 
    (Oct. 29, 2001); and
         Section 502 of the Enhanced Border Security and Visa Entry 
    Reform Act of 2002, Public Law 107-173, 116 Stat. 543 (codified at 8 
    U.S.C. 1762), which directed the Secretary to review the compliance 
    with recordkeeping and reporting requirements under 8 U.S.C. 1372 and 
    INA section 101(a)(15)(F), (J) and (M), 8 U.S.C. 1101(a)(15)(F), (J) 
    and (M), of all schools \1\ approved for attendance by F, J and/or M 
    students within two years of enactment, and every two years thereafter.
    ---------------------------------------------------------------------------
    
        \1\ DHS oversees compliance of schools approved for attendance 
    by J nonimmigrants; however, section 502(b) of this the Enhanced 
    Border Security and Visa Entry Reform Act of 2002 assigns oversight 
    of exchange visitor sponsors to the Secretary of State.
    ---------------------------------------------------------------------------
    
        Accordingly, and as directed by the Secretary, ICE carries out the 
    Department's ongoing obligation to collect data from, certify, review, 
    and recertify schools enrolling these students. The specific data 
    collection requirements associated with these obligations are specified 
    in part in legislation, see 8 U.S.C. 1372(c), and more comprehensively 
    in regulations governing SEVP found at 8 CFR 214.3.
    
    B. Student and Exchange Visitor Information System
    
        SEVP carries out its programmatic responsibilities through SEVIS, a 
    Web-based data entry, collection and reporting system. SEVIS provides 
    authorized users, such as DHS, DOS, other government agencies, SEVP-
    certified schools, and DOS-designated exchange visitor programs, access 
    to reliable information to monitor F, J and M nonimmigrants for the 
    duration of their authorized period of stay in the United States. As 
    discussed in the NPRM, schools must regularly update information on 
    their approved F, J and M nonimmigrants to enable government agencies 
    to fulfill their oversight and investigation responsibilities, such as 
    enabling accurate port of entry screening, assisting in the 
    adjudication of immigration benefit applications, ensuring and 
    verifying eligibility for the appropriate nonimmigrant status, 
    monitoring nonimmigrant status maintenance, and, as needed, 
    facilitating timely removal.
    
    C. Importance of International Students to the United States
    
        On September 16, 2011, DHS announced a ``Study in the States'' 
    initiative to encourage the best and the brightest international 
    students to study in the United States. As described in the NPRM, the 
    initiative took various steps to enhance and improve the Nation's 
    nonimmigrant student programs.\2\ This rulemaking was initiated in 
    support of the ``Study in the States'' initiative and to reflect DHS's 
    commitment to those goals. The rule improves the capability of schools 
    enrolling F and M students to assist their students in maintaining 
    nonimmigrant status and to provide necessary oversight on behalf of the 
    U.S. Government. The rule also increases the attractiveness of studying 
    in the United States for foreign students by broadening study 
    opportunities for their spouses and improving quality of life for 
    visiting families.
    ---------------------------------------------------------------------------
    
        \2\ See 78 FR 69780; see also ``Study in the States,'' U.S. 
    Department of Homeland Security, http://studyinthestates.dhs.gov 
    (last visited April 28, 2014).
    ---------------------------------------------------------------------------
    
    D. Removing the Limit on DSO Nominations
    
        Designated school officials (DSOs) are essential to making 
    nonimmigrant study in the United States attractive to international 
    students and a successful experience overall. DHS charges DSOs with the 
    responsibility of acting as liaisons between nonimmigrant students, the 
    schools that employ the DSOs and the U.S. Government. Significantly, 
    DSOs are responsible for making information and documents, including 
    academic transcripts, relating to F-1 and M-1 nonimmigrant students, 
    available to DHS for the Department to fulfill its statutory 
    responsibilities. 8 CFR 214.3(g).
        When the Immigration and Naturalization Service (INS) in 2002 
    established a limit of ten DSOs in order to control access to SEVIS, 
    the INS noted that once SEVIS was fully operational, it might 
    reconsider the numerical limits on the number of DSOs. See 67 FR 76256, 
    76260. Since SEVIS is now fully operational and appropriate access 
    controls are in place, DHS has reconsidered the DSO limitation, and, 
    with this rule, eliminates the maximum limit of DSOs in favor of a more 
    flexible approach. The rule sets no maximum limit on the number of DSOs 
    per campus, and instead allows school officials to nominate an 
    appropriate number of DSOs for SEVP approval based upon the specific 
    needs of the school.
        DHS believes that concerns raised within the U.S. educational 
    community that the current DSO limit of ten per campus is too 
    constraining are of strong merit. While the average SEVP-certified 
    school has fewer than three DSOs, SEVP recognizes that F and M students 
    often cluster at schools within States that attract a large percentage 
    of nonimmigrant student attendance. As such, schools in the three 
    States with the greatest F and M student enrollment represent 35 
    percent of the overall F and M nonimmigrant enrollment in the United 
    States.\3\ In schools where F and M students are heavily concentrated 
    or where campuses are in dispersed geographic locations, the limit of 
    ten DSOs has been problematic. The Homeland Security Academic Advisory 
    Council (HSAAC)--an advisory committee composed of prominent university 
    and academic association presidents, which advises the Secretary and 
    senior DHS leadership on academic and international student issues--
    included in its September 20, 2012 recommendations to DHS a 
    recommendation to increase the number of DSOs allowed per school or 
    eliminate the current limit of ten DSOs per school. Upon review, DHS 
    concluded that, in many circumstances, the elimination of a DSO limit 
    may improve the capability of DSOs to meet their liaison, reporting and 
    oversight responsibilities, as required by 8 CFR 214.3(g). Therefore, 
    removing the limit on the number of DSOs that a school official is able 
    to nominate for SEVP approval provides the appropriate flexibility to 
    enhance the attractiveness of nonimmigrant study in the United States 
    for international students and increase the program's success.
    ---------------------------------------------------------------------------
    
        \3\ See Student and Exchange Visitor Program, SEVIS by the 
    Numbers (July 2014), page 15, available at https://www.ice.gov/doclib/sevis/pdf/by-the-numbers1.pdf.
    ---------------------------------------------------------------------------
    
        This rule does not alter SEVP's authority to approve or reject a 
    DSO or principal designated school official (PDSO) nomination. See 8 
    CFR 214.3(l)(2). SEVP reviews each DSO nomination as part of the school 
    certification process, and requires proof of the nominee's U.S. 
    citizenship or lawful permanent resident status. SEVP further considers 
    whether the nominee has served previously as a DSO at another SEVP-
    approved school and whether the individual nominee should be referred 
    to other ICE programs for further investigation. Until the school and 
    the nominee have been approved by SEVP, access to SEVIS is limited 
    solely to the school official submitting the certification petition, 
    and is restricted to
    
    [[Page 23682]]
    
    entry of information about the school and the DSO nominees necessary to 
    permit the school to initiate the Form I-17 petition process for 
    approval. The nominee, if he or she is not the submitting school 
    official, has no access to SEVIS while the application is pending. Any 
    greater access to SEVIS, prior to approval, would undermine the 
    nomination process and open the SEVIS program to possible misuse. The 
    rule codifies this limitation. See new 8 CFR 214.3(l)(1)(iii). The rule 
    also maintains SEVP's authority to withdraw a previous DSO or PDSO 
    designation by a school of an individual. See 8 CFR 214.3(l)(2). 
    Reasons for withdrawal include change in or loss of employment, as well 
    as noncompliance with SEVP regulations. In order to withdraw for 
    noncompliance, SEVP would make a determination of noncompliance 
    following suspension of a DSO's SEVIS access, individually or 
    institutionally. DHS is of the opinion that the increased flexibility 
    afforded by this rulemaking to nominate more than ten DSOs will permit 
    schools to better meet students' needs as well as the Department's 
    reporting and other school certification requirements.
    
    E. Study by F-2 and M-2 Spouses and Children
    
        This rulemaking also amends the benefits allowable for the 
    accompanying spouse and children (hereafter referred to as F-2 or M-2 
    nonimmigrants) of an F-1 or M-1 student. On May 16, 2002, the former 
    INS proposed to prohibit full-time study by F-2 and M-2 spouses and to 
    restrict such study by F-2 and M-2 children to prevent an alien who 
    should be properly classified as an F-1 or M-1 nonimmigrant from coming 
    to the United States as an F-2 or M-2 nonimmigrant and, without 
    adhering to other legal requirements, attending school full-time. 67 FR 
    34862, 34871. The INS proposed to permit avocational and recreational 
    study for F-2 and M-2 spouses and children and, recognizing that 
    education is one of the chief tasks of childhood, to permit F-2 and M-2 
    children to be enrolled full-time in elementary through secondary 
    school (kindergarten through twelfth grade). Id. The INS believed it 
    unreasonable to assume that Congress would intend that a bona fide 
    nonimmigrant student could bring his or her children to the United 
    States but not be able to provide for their primary and secondary 
    education. Id.; see also 67 FR 76256, 76266. The INS further proposed 
    that if an F-2 or M-2 spouse wanted to enroll full-time in a full 
    course of study, the F-2 or M-2 spouse should apply for and obtain a 
    change of his or her nonimmigrant classification to that of an F-1, J-
    1, or M-1 nonimmigrant. 67 FR 34862, 34871.
        The INS finalized these rules on December 11, 2002. 67 FR 76256 
    (codified at 8 CFR 214.2(f)(15)(ii) and 8 CFR 214.2(m)(17)(ii)). In the 
    final rule, the INS noted that commenters suggested the INS remove the 
    language ``avocational or recreational'' from the types of study that 
    may be permitted by F-2 and M-2 dependents, as DSOs may have difficulty 
    determining what study is avocational or recreational and what is not. 
    In response to the comments, the INS clarified that if a student 
    engages in study to pursue a hobby or if the study is that of an 
    occasional, casual, or recreational nature, such study may be 
    considered as avocational or recreational. 67 FR 76266.
        DHS maintains the long-standing view that an F-2 or M-2 
    nonimmigrant who wishes to engage in a full course of study in the 
    United States, other than elementary or secondary school study 
    (kindergarten through twelfth grade), should apply for and obtain 
    approval to change his or her nonimmigrant classification to F-1, J-1, 
    or M-1. See 8 CFR 214.2(f)(15)(ii) and 8 CFR 214.2(m)(17)(ii). However, 
    as described in the NPRM, because DHS recognizes that the United States 
    is engaged in a global competition to attract the best and brightest 
    international students to study in our schools, permitting access of F-
    2 or M-2 nonimmigrants to education while in the United States would 
    help enhance the quality of life for many of these visiting families. 
    The existing limitations on study to F-2 or M-2 nonimmigrant education 
    potentially deter high quality F-1 and M-1 students from studying in 
    the United States.\4\
    ---------------------------------------------------------------------------
    
        \4\ See Letter of April 13, 2011 from NAFSA: Association of 
    International Educators to DHS General Counsel Ivan Fong, available 
    in the federal rulemaking docket for this rulemaking at 
    www.regulations.gov, requesting that DHS eliminate the limitation on 
    study by F-2 spouses to only ``avocational or recreational'' study 
    because the limitation ``severely restricts the opportunities for F-
    2 dependents, such as spouses of F-1 students, to make productive 
    use of their time in the United States.''
    ---------------------------------------------------------------------------
    
        Accordingly, DHS is relaxing its prohibition on F-2 and M-2 
    nonimmigrant study by permitting F-2 and M-2 nonimmigrant spouses and 
    children to engage in study in the United States at SEVP-certified 
    schools that does not amount to a full course of study. Under this 
    rule, F-2 and M-2 nonimmigrants are permitted to enroll in less than a 
    ``full course of study,'' as defined at 8 CFR 214.2(f)(6)(i)(A) through 
    (D) and 8 CFR 214.2(m)(9)(i)-(iv), at an SEVP-certified school and in 
    study described in 8 CFR 214.2(f)(6)(i)(A) through (D) and 8 CFR 
    214.2(m)(9)(i)-(iv).\5\ Regulations at 8 CFR 214.2(f)(6)(i)(B) and 8 
    CFR 214.2(m)(9)(i) currently define full course of study at an 
    undergraduate college or university (F nonimmigrants) or at a community 
    college or junior college (M nonimmigrants) to include lesser course 
    loads if the student needs fewer than 12 hours to complete a degree or 
    specific educational objective. This limited exception, which defines a 
    course load of less than 12 hours as a full course of study, only 
    applies to F-1 and M-1 nonimmigrants and will not apply to F-2 or M-2 
    dependents. Accordingly, an F-2 or M-2 dependent taking less than 12 
    hours cannot be deemed to be engaging in a full course of study. As 
    stated in the NPRM, over time such enrollment in less than a full 
    course of study could lead to attainment of a degree, certificate or 
    other credential. To maintain valid F-2 or M-2 status, however, the F-2 
    or M-2 nonimmigrant would not be permitted at any time to enroll in a 
    total number of credit hours that would amount to a ``full course of 
    study,'' as defined by regulation.
    ---------------------------------------------------------------------------
    
        \5\ As a general matter, a full course of study for an F-1 
    academic student in an undergraduate program is 12 credit hours per 
    academic term. Similarly, a full course of study for an M-1 
    vocational student consists of 12 credit hours per academic term at 
    a community college or junior college. For other types of academic 
    or vocational study, the term ``full course of study'' is defined in 
    terms of ``clock hours'' per week depending on the specific program. 
    See 8 CFR 214.2(f)(6)(i)(A)-(D) and 8 CFR 214.2(m)(9)(i)-(iv).
    ---------------------------------------------------------------------------
    
        In addition, the change limits F-2 and M-2 study, other than 
    avocational or recreational study, to SEVP-certified schools, in order 
    to make it more likely that the educational program pursued by the F-2 
    or M-2 nonimmigrant is a bona fide program and that studies at the 
    school are unlikely to raise national security concerns. The F-2 or M-2 
    nonimmigrants can still participate full-time in avocational or 
    recreational study (i.e., hobbies and recreational studies). If an F-2 
    or M-2 nonimmigrant wants to enroll in a full course of academic study, 
    however, he or she needs to apply for and obtain approval to change his 
    or her nonimmigrant classification to F-1, J-1 or M-1. Similarly, as 
    noted, the rule does not change existing regulations allowing full-time 
    study by children in elementary or secondary school (kindergarten 
    through twelfth grade).
        This rule does not change the recordkeeping and reporting 
    responsibilities of DSOs with regard to F-2 or M-2 nonimmigrants to 
    DHS. DSOs at the school the F-1 or M-1
    
    [[Page 23683]]
    
    student attends retain reporting responsibility for maintaining F-2 or 
    M-2 nonimmigrant personal information in SEVIS. See 8 CFR 214.3(g)(1). 
    In addition, to facilitate maintenance of F or M nonimmigrant status 
    and processing of future applications for U.S. immigration benefits, F 
    and M nonimmigrants are encouraged to retain personal copies of the 
    information supplied for admission, visas, passports, entry, and 
    benefit-related documents indefinitely.\6\ Similarly, under this rule, 
    DHS recommends, as it did in the NPRM, that an F-2 or M-2 nonimmigrant 
    should separately maintain (i.e., obtain and retain) his or her 
    academic records. As F and M nonimmigrants already are encouraged to 
    keep a number of immigration-related records, the suggested additional 
    maintenance of academic records in an already existing file of 
    immigration records will impose minimal marginal cost. This rule does 
    not extend F-2 or M-2 nonimmigrants' access to any other nonimmigrant 
    benefits beyond those specifically identified in regulations applicable 
    to F-2 or M-2 nonimmigrants. See 8 CFR 214.2(f)(15) and 8 CFR 
    214.2(m)(17).
    ---------------------------------------------------------------------------
    
        \6\ ICE encourages retention of these records in the Supporting 
    Statement for SEVIS, OMB No. 1653-0038, Question 7(d). Additionally, 
    recordkeeping by F and M nonimmigrants is encouraged in existing 
    regulation, in particular for the Form I-20, Certificate of 
    Eligibility for Nonimmigrant Student (F-1 or M-1) Status. See 8 CFR 
    214.2(f)(2) and 214.2(m)(2). Moreover, nonimmigrant students may 
    wish to retain a copy of the Form I-901, Fee Remittance for Certain 
    F, J, and M Nonimmigrants, as proof of payment. See generally 8 CFR 
    214.13(g)(3).
    ---------------------------------------------------------------------------
    
    IV. Discussion of Comments, Changes, and the Final Rule
    
        DHS received a total of 37 comments on the proposed rule. After 
    reviewing all the comments, DHS is adopting the rule as proposed, with 
    minor technical corrections. Of the 37 comments received, 27 commenters 
    supported the proposal to remove the limit on the number of DSO 
    nominations per campus. These commenters noted that removing this 
    limitation would permit schools to plan their staffing requirements 
    more efficiently across campuses. In addition, the commenters suggested 
    that permitting an increased number of DSOs would permit schools to 
    better serve their students and would enhance their ability to meet 
    SEVIS reporting and oversight requirements. Two commenters, however, 
    recommended against the proposed change because of national security 
    concerns. Because the commenters did not elaborate on the potential 
    concerns they believed might result, and DHS does not consider removing 
    the limitation on the number of DSOs per campus to negatively affect 
    national security, DHS is adopting this provision as proposed.
        The majority of comments DHS received in response to the proposed 
    rule supported the proposal to permit F-2 and M-2 nonimmigrants to 
    study at SEVP-approved schools on a less than full-time basis. Many of 
    these commenters argued that the change would enhance the quality of 
    life of F-2 and M-2 nonimmigrants and would assist the United States in 
    attracting the ``best and brightest'' students to U.S. institutions. Of 
    these commenters, four asserted that the rule change would have a 
    positive effect on the U.S. economy, particularly with more students 
    paying tuition and buying books and supplies. Two of the commenters 
    also noted that the proposed change would have the benefit of enabling 
    F-2 and M-2 nonimmigrants to learn English at SEVP-approved schools, 
    thereby facilitating their adjustment to life in the United States. One 
    commenter specifically noted appreciation that DHS clarified that an F-
    2 nonimmigrant could complete a degree, so long as all study at SEVP-
    approved schools was completed on a less than full-time basis. DHS 
    further notes that this same clarification also applies to an M-2 
    nonimmigrant, again, so long as all study at SEVP-approved schools 
    occurs on a less than full-time basis.
        Four commenters suggested that the regulation change would be 
    improved if it permitted F-2 and M-2 nonimmigrants to study full-time, 
    in addition to permitting them to engage in less than a full course of 
    study. The commenters noted that dependents of other nonimmigrant 
    categories are permitted to study full-time, for example, the J-2 
    spouses of J-1 exchange visitors. DHS appreciates these comments and 
    has considered them carefully. However, DHS is of the opinion that 
    permitting F-2 and M-2 nonimmigrants to engage in a full course of 
    study would blur fundamental distinctions between the F-1 and F-2, and 
    M-1 and M-2 classifications, respectively. Moreover, it would be 
    illogical to provide greater flexibility for study by F-2 or M-2 
    dependants than is afforded to F-1 or M-1 principals, respectively. The 
    INA requires F-1 and M-1 principals to pursue a full course of study. 
    INA sections 101(a)(15)(F)(i) and (M)(i); 8 U.S.C. 1101(a)(15)(F)(i) 
    and (M)(i). Congress intended F-1 and M-1 principals to have greater 
    educational opportunities, not fewer, than their F-2 and M-2 
    dependents. In establishing the F-1 and M-1 classifications for 
    principal nonimmigrant students separate from the F-2 and M-2 
    classifications for spouses and children, respectively, Congress 
    clearly did not intend the classifications to be synonymous. 
    Accordingly, it would not be appropriate to permit F-2 and M-2 
    dependents to engage in either full-time or less than full-time study, 
    at the discretion of the individual F-2 or M-2 dependent, when such 
    discretion is not afforded to the F-1 or M-1 principal. DHS thus has 
    maintained the prohibition on full-time study by F-2 and M-2 
    nonimmigrants.
        With respect to the commenters' observation about J-2 dependent 
    spouses, the purpose of the J nonimmigrant classification is 
    fundamentally different from that of the F and M classifications. 
    Admission in J nonimmigrant status permits engagement in multiple 
    activities other than full-time study (e.g., to serve as researchers or 
    professors, or performing other professional duties in the United 
    States). The purpose of the Exchange Visitor Program (J visa) ``is to 
    further the foreign policy interest of the United States by increasing 
    the mutual understanding between the people of the United States and 
    the people of other countries by means of mutual educational and 
    cultural exchanges.'' 9 Foreign Affairs Manual 41.62 N2. Specific 
    Exchange Visitor programs are designated by DOS, not by DHS, and their 
    parameters are set by DOS to advance U.S. foreign policy interests. The 
    same foreign policy interests that apply to J-1 nonimmigrants and their 
    dependents are not implicated in the F and M nonimmigrant context. The 
    primary purpose of the F-1 and M-1 nonimmigrant classifications, in 
    contrast with the J classification, is to permit foreign nationals to 
    enter the United States solely to engage in full-time study. DHS 
    believes that the best means to preserve the integrity of the F-1 and 
    M-1 classifications, and to ensure these classifications remain the 
    primary vehicles for full-time study, is to require a dependent in F or 
    M status who wishes to engage in a full course of study to make such 
    intent evident by applying for and receiving a change of status to F-1 
    or M-1.
        One commenter advocating for full-time F-2 and M-2 study stated 
    that the limit to less than full-time study is unnecessary, as 
    dependent students do not pose any additional security risk because 
    SEVIS tracks them. DHS disagrees with this commenter. The recordkeeping 
    requirements for F-1 and M-1 nonimmigrants in SEVIS are more 
    comprehensive than they are for F-2
    
    [[Page 23684]]
    
    and M-2 dependents, which is a derivative status. Recognizing this, any 
    full-time study in the F and M nonimmigrant classifications should 
    occur only after receiving F-1 or M-1 status through the already 
    existing and available process of changing status. Allowing F-2 and M-2 
    dependents to take a full course of study would permit their 
    participation in full-time study without the fuller vetting and 
    oversight required for F-1 and M-1 nonimmigrants in SEVIS. DHS 
    therefore disagrees with the commenter that dependents would pose no 
    additional security risk if permitted to take a full course of study In 
    addition, allowing F-2 and M-2 dependents to take a full course of 
    study could lead to manipulation of F-1 and M-1 visas by allowing one 
    family member who is accepted as an F-1 student to facilitate the full-
    time enrollment of all other dependents in their own courses of study.
        Three commenters suggested that F-2 and M-2 nonimmigrants be 
    permitted to commence their full-time study as soon as they apply for a 
    change of status to F-1 or M-1. One of these commenters also requested 
    that DHS revise the regulations governing change of status to specify 
    that a nonimmigrant who is granted a change of status to F-1 or M-1 
    must begin the full course of study no later than the next available 
    session or term after the change of status has been approved. The 
    commenter suggested that individuals granted a change of status to F-1 
    or M-1 often are concerned that they might lose their new status if 
    they do not enroll in classes immediately, but that this may be 
    impossible if the approval is received midway during the school term or 
    session.
        DHS continues to maintain that a foreign national who wishes to 
    engage in a full course of study must apply for and receive a change of 
    status to F-1 or M-1 prior to commencing a full course of study. See 8 
    CFR 214.2(f)(15)(ii)(B), 214.2(m)(17)(ii)(B) (2013); see also 8 CFR 
    214.2(f)(15)(ii)(A)(2), 214.2(m)(17)(ii)(A)(2), as finalized herein. 
    Approval of the change of status application before engaging in a full 
    course of study is necessary to maintain the integrity of data in 
    SEVIS, as well as to ensure that appropriate distinctions exist between 
    the F-1 and M-1 classifications and their dependent classifications. 
    DHS declines to elaborate in this rulemaking on the issue of when a 
    nonimmigrant granted a change of status to F-1 or M-1 must commence the 
    full course of study. That issue is beyond the scope of the proposed 
    rulemaking, which focused on permissible study by F-2 and M-2 
    nonimmigrants, rather than how F-1 and M-1 nonimmigrants should comply 
    with the terms and conditions of their status.
        In addition to the comments discussed above, DHS received a number 
    of individual comments on discrete issues. These include one comment 
    requesting that DHS consider extending the option to apply for 
    employment authorization for F-2 and M-2 nonimmigrants with U.S. 
    Citizenship and Immigration Services (USCIS). DHS appreciates the 
    commenter's interest but has determined not to extend employment 
    authorization to F-2 and M-2 nonimmigrants as part of this rulemaking. 
    The rule's changes to F-2 and M-2 opportunities are intended to 
    increase access of F-2 or M-2 nonimmigrants to education while in the 
    United States and not to increase employment opportunities.
        DHS received two comments about the number of training hours and 
    the wage rate for DSOs used in the economic analysis of the rulemaking. 
    The commenters asserted that the number of training hours required for 
    DSOs is closer to a minimum of 90 hours of training in the first year, 
    not seven hours as DHS estimated. The commenters further suggested that 
    DSOs be categorized as professional staff, not administrative, for the 
    purpose of calculating their wage rate.
        SEVP does not currently require any specific training for DSOs; 
    however, SEVP does require that DSOs sign a certification that they are 
    familiar with the appropriate regulations and intend to comply with 
    them. In addition, SEVP provides an Internet-based voluntary SEVIS 
    training, which DSOs are strongly encouraged to complete. SEVP 
    recognizes that many schools go above and beyond this, and commends 
    these schools. However, other DSOs will not complete any training. 
    Moreover, schools that increase the number of employed DSOs beyond ten 
    as a result of this rule likely already have large offices of 
    international student advisors that may require little to no additional 
    training to perform DSO duties. Because the duties and initial training 
    of DSOs varies widely among schools, with some being above the minimum 
    suggested training by SEVP and others below, DHS believes the seven-
    hour training estimate is appropriate for the flexibility this 
    rulemaking intends to provide schools.
        DHS agrees with the commenters that a different wage rate is 
    appropriate for DSOs and has amended the wage rate estimation in this 
    final rule. DHS is supportive of DSOs and the importance of their role 
    in serving as a link between nonimmigrant students, schools and SEVP. 
    DHS agrees that DSOs are professionals and perform important duties. 
    The occupation code chosen to estimate the DSO wage rate for the 
    analysis is not meant to undermine the importance of the role of the 
    DSO. Rather, it serves as a proxy for the basic job duties required by 
    SEVP of DSOs. DSOs provide advice to students regarding maintenance of 
    their nonimmigrant status and maintaining enrollment, provide 
    information on participation in programs of study in SEVIS, authorize 
    optional practical training, and report to SEVP if a student has 
    violated the conditions of his or her status. Individuals approved as 
    DSOs may also perform other job duties as an element of their 
    employment with schools, which are outside of those required by SEVP, 
    to enhance nonimmigrants' stays in the United States. As noted by one 
    commenter, these duties may include responsibilities ranging from 
    ``airport pick-ups, to facilitating intercultural communications 
    workshops.'' Because schools rely on DSOs to counsel nonimmigrant 
    students of their responsibilities and maintain their nonimmigrant 
    status, and DHS relies on DSOs to ensure the integrity of the program, 
    DHS has amended the category used to estimate the DSO wage rate. In 
    this final rule, DHS revises the wage rate from BLS category 43-9199 
    Office and Administrative Support Workers, All Other, to BLS category 
    21-1012 Educational, Guidance, School, and Vocational Counselors. See 
    the Executive Orders 12866 and 13563: Regulatory Planning and Review 
    section below for this revision.
        Another commenter addressed the procedures used by SEVP to 
    adjudicate changes to DSOs. The commenter expressed concern at the pace 
    of adjudicating requests to add or remove DSOs, and also requested that 
    SEVP publish the criteria it uses in adjudicating changes to DSOs, as 
    well as establish an appeals process for denials of such requests. DHS 
    appreciates these comments, but notes that they are outside the scope 
    of the proposed rulemaking, which focused on the more discrete issue of 
    the regulatory limitation on the number of DSOs permitted at each 
    campus. SEVP, however, is working to make its adjudications process 
    more efficient in the future.
        Several commenters identified areas where the rulemaking could 
    benefit from additional clarification or the correction of possible 
    errors. One
    
    [[Page 23685]]
    
    commenter suggested that DHS clarify whether study of English as a 
    second language (ESL) or intensive English is considered a vocational/
    recreational or academic study. DHS declines to define whether ESL is 
    properly categorized as a vocational/recreational or academic study 
    because this is outside the scope of the proposed rulemaking. Another 
    commenter questioned whether F-2 and M-2 dependents would be permitted 
    to take only those courses listed as part of the school's academic/
    certificate programs on the school's Form I-17, or whether F-2 and M-2 
    dependents would be able to enroll in any program. The regulation 
    should not be interpreted to permit an F-2 or M-2 to enroll in courses 
    in any program offered at an SEVP-certified school, but only a course 
    of study that is SEVP-certified. The same commenter also inquired 
    whether the proposed rule intended to permit full-time ``recreational'' 
    study only at SEVP-certified schools and only in non-academic, non-
    accredited courses, or whether the rule would permit F-2 and M-2 
    dependents to enroll full-time at SEVP-certified schools in non-credit 
    courses. The regulation does not expand opportunity for full-time study 
    of any type for F-2 and M-2 dependents. The regulations continue to 
    provide that F-2 and M-2 dependents may engage in study that is 
    avocational or recreational in nature, up to and including on a full-
    time basis.
        Additionally, one commenter pointed out that the language in the 
    preamble of the proposed rulemaking at 78 FR 69781, explaining the 
    definition of full course of study, implied incorrectly that F 
    nonimmigrants only may enroll at colleges or universities, and not at 
    community colleges or junior colleges. DHS appreciates this comment and 
    agrees that a community college or junior college may appropriately 
    enroll an F nonimmigrant.
        Finally, DHS is making four technical corrections to the proposed 
    regulatory text. One commenter noted that the proposed regulatory text 
    at 8 CFR 214.2(f)(15)(ii)(C) referenced paragraph (f)(15)(ii)(A)(2), 
    whereas it should include both paragraphs (A)(1) and (A)(2). DHS agrees 
    with the commenter that this was an error and accordingly has revised 
    the final rule to refer to (f)(15)(ii)(A), so as to apply to both 
    paragraphs. In the course of preparing this final rule, DHS also 
    recognized additional areas of the proposed regulatory text where 
    further revision was necessary for purposes of accuracy and clarity. 
    The proposed text located at 8 CFR 214.2(m)(17)(ii)(A)(1) had omitted a 
    reference to the courses described in 8 CFR 214.2(f)(6)(i)(A)-(D) as a 
    type of course at an SEVP-certified school that an M-2 spouse or M-2 
    child may enroll in as less than a full course of study. With this 
    rule, courses of study approved under both F and M study are available 
    to both F-2 and M-2 nonimmigrants. Lastly, DHS added a reference to 8 
    CFR 214.2(m)(14) in the new provision authorizing limited F-2 study at 
    SEVP-certified schools to clarify that F-2 spouses and children are not 
    eligible to engage in any type of employment or practical training 
    during their studies; correspondingly, DHS added a reference to 8 CFR 
    214.2(f)(9)-(10) in the new provision authorizing limited M-2 study at 
    SEVP-certified schools for the same reason.
    
    V. Statutory and Regulatory Requirements
    
        DHS developed this rule after considering numerous statutes and 
    executive orders related to rulemaking. The below sections summarize 
    our analyses based on a number of these statutes or executive orders.
    
    A. Executive Orders 12866 and 13563: Regulatory Planning and Review
    
        Executive Orders 13563 and 12866 direct agencies to assess the 
    costs and benefits of available regulatory alternatives and, if 
    regulation is necessary, to select regulatory approaches that maximize 
    net benefits (including potential economic, environmental, public 
    health and safety effects, distributive impacts, and equity). Executive 
    Order 13563 emphasizes the importance of quantifying both costs and 
    benefits, of reducing costs, of harmonizing rules, and of promoting 
    flexibility. The Office of Management and Budget (OMB) has not 
    designated this final rule as a ``significant regulatory action'' under 
    section 3(f) of Executive Order 12866. Accordingly, OMB has not 
    reviewed this final rule.
    1. Summary
        The rule eliminates the limit on the number of DSOs a school may 
    have and establishes eligibility for F-2 and M-2 nonimmigrants to 
    engage in less than a full course of study at SEVP-certified schools. 
    If a particular school does not wish to add additional DSOs, this rule 
    imposes no additional costs on that school. Based on feedback from the 
    SEVP-certified schools, however, DHS believes up to 88 schools may 
    choose to take advantage of this flexibility and designate additional 
    DSOs. These SEVP-certified schools would incur costs related to current 
    DHS DSO documentation requirements and any training DSOs may undertake. 
    DHS estimates the total 10-year discounted cost of allowing additional 
    DSOs to be approximately $223,000 at a seven percent discount rate and 
    approximately $264,000 at a three percent discount rate. Regarding the 
    provision of the rule that establishes eligibility for less than a full 
    course of study by F-2 and M-2 nonimmigrants, DHS is once again 
    providing additional flexibilities. As this rule does not require the 
    F-2 or M-2 nonimmigrant to submit any new documentation or fees to 
    SEVIS or the SEVP-certified school to comply with any DHS requirements, 
    DHS does not believe there are any costs associated with establishing 
    eligibility for F-2 and M-2 nonimmigrants to engage in less than full 
    courses of study at SEVP-certified schools.
    2. Designated School Officials
        The only anticipated costs for SEVP-certified schools to increase 
    the number of DSOs above the current limit of ten per school or campus 
    derive from the existing requirement for reporting additional DSOs to 
    DHS, and any training that new DSOs would undertake. DHS anticipates 
    the number of schools that will avail themselves of this added 
    flexibility will be relatively small. As of April 2012, there are 9,888 
    SEVP-certified schools (18,733 campuses), with approximately 30,500 
    total DSOs, and an average of 3.08 DSOs per school. However, there are 
    only 88 SEVP-certified schools that currently employ the maximum number 
    of DSOs.
        DHS is unable to estimate with precision the number of additional 
    DSOs schools may choose to add. While some of the 88 SEVP-certified 
    schools that currently employ the maximum number of DSOs may not add 
    any additional DSOs, others may add several additional DSOs. DHS's best 
    estimate is that these 88 SEVP-certified schools will on average 
    designate three additional DSOs, for a total of 264 additional DSOs.
        DHS estimates that current documentation requirements, as well as 
    training a DSO might undertake to begin his or her position, equate to 
    approximately seven hours total in the first year. DHS does not track 
    wages paid to DSOs; however, in response to a comment received on the 
    NPRM, DHS is revising the wage rate used to estimate DSO wages. For 
    this final rule, we are using the U.S. Department of Labor, Bureau of 
    Labor Statistics occupation Educational, Guidance, School, and 
    Vocational Counselors
    
    [[Page 23686]]
    
    occupational code as a proxy for DSOs.\7\ The average wage rate for 
    this occupation is estimated to be $27.00 per hour.\8\ When the costs 
    for employee benefits such as paid leave and health insurance are 
    included, the full cost to the employer for an hour of DSO time is 
    estimated at $37.80.\9\ Therefore, the estimated burden hour cost as a 
    result of designating 264 additional DSOs is estimated at $69,854 in 
    the first year (7 hours x 264 DSOs x $37.80). On a per-school basis, 
    DHS expects these SEVP-certified schools to incur an average of $794 
    dollars in costs in the initial year (7 hours x 3 new DSOs per school x 
    $37.80). DHS notes that there are no recurrent annual training 
    requirements mandated by DHS for DSOs once they have been approved as a 
    DSO.
    ---------------------------------------------------------------------------
    
        \7\ The existing Paperwork Reduction Act control number OMB No. 
    1653-0038 for SEVIS uses the occupation ``Office and Administrative 
    Support Workers, All Other'' as a proxy for DSO employment. However, 
    DHS received comment on the NPRM that this is not the best category 
    for the job duties or wages of a DSO, and suggesting that Counselor 
    is more appropriate. Therefore, for this Final Rule, DHS has revised 
    the BLS occupational code to Educational, Guidance, School, and 
    Vocational Counselors.
        \8\ May 2012 Occupational Employment and Wage Estimates, 
    National Cross-Industry Estimates, ``21-1012 Educational, Guidance, 
    School, and Vocational Counselors,'' Hourly Mean ``H-mean,'' http://www.bls.gov/oes/2012/may/oes211012.htm (last modified Mar. 29, 
    2013).
        \9\ Employer Costs for Employee Compensation, June 2012, http://www.bls.gov/news.release/archives/ecec_09112012.htm (last modified 
    Sept. 11, 2012). Calculated by dividing total private employer 
    compensation costs of $28.80 per hour by average private sector wage 
    and salary costs of $20.27 per hour (yields a benefits multiplier of 
    approximately 1.4 x wages).
    ---------------------------------------------------------------------------
    
        After the initial year, DHS expects the SEVP-certified schools that 
    designate additional DSOs to incur costs for replacements, as these 264 
    new DSOs experience normal turnover. Based on information from the 
    Bureau of Labor Statistics, we estimate an average annual turnover rate 
    of approximately 37 percent.\10\ Based on our estimate of 264 
    additional DSOs as a result of this rulemaking, we expect these schools 
    will designate 98 replacement DSOs annually (264 DSOs x 37 percent 
    annual turnover) in order to maintain these 264 additional DSOs. As 
    current training and documentation requirements are estimated at seven 
    hours per DSO, these SEVP-certified schools would incur total 
    additional costs of $25,931 annually (7 hours x 98 replacement DSOs x 
    $37.80) after the initial year. On a per school basis, DHS expects 
    these schools to incur an average of $294 dollars of recurring costs 
    related to turnover after the initial year (7 hours x 3 new DSOs per 
    school x 37 percent annual turnover x $37.80).
    ---------------------------------------------------------------------------
    
        \10\ Job Openings and Labor Turnover--Jan. 2013 (Mar. 12, 2013), 
    http://www.bls.gov/news.release/archives/jolts_03122013.pdf reported 
    that for 2012, annual total separations were 37.1 percent of 
    employment.
    ---------------------------------------------------------------------------
    
        This rule addresses concerns within the U.S. education community 
    that the current DSO limit of ten is too constraining. For example, 
    allowing schools to request additional staff able to handle DSO 
    responsibilities will increase flexibility in school offices and enable 
    them to better manage their programs. This flexibility is particularly 
    important in schools where F and M nonimmigrants are heavily 
    concentrated or where instructional sites are in dispersed geographic 
    locations. It will also assist schools in coping with seasonal surges 
    in data entry requirements (e.g., start of school year reporting).
    3. F-2 and M-2 Nonimmigrants
        As of June 2012, SEVIS records indicate that there are 83,354 F-2 
    nonimmigrants in the United States, consisting of approximately 54 
    percent spouses and 46 percent children. Though both spouses and 
    children may participate in study that is less than a full course of 
    study at SEVP-certified schools under this rule, DHS assumes that 
    spouses are more likely to avail themselves of this opportunity because 
    most children are likely to be enrolled full-time in elementary or 
    secondary education (kindergarten through twelfth grade). Though there 
    may be exceptions to this assumption, for example, a child in high 
    school taking a college course, the majority of F-2 nonimmigrants 
    benefitting from this provision are likely to be spouses. DHS only uses 
    this assumption to assist in estimating the number of F-2 nonimmigrants 
    likely to benefit from this rule, which could be as high as 45,011 
    (83,354 x 54 percent), if 100 percent of F-2 spouses participate, but 
    is likely to be lower as DHS does not expect that all F-2 spouses would 
    take advantage of the opportunity. DHS does not believe there are any 
    direct costs associated with establishing eligibility for F-2 
    nonimmigrants to engage in less than full courses of study at SEVP-
    certified schools. The rule would not require the F-2 nonimmigrant to 
    submit any new documentation or fees to SEVIS or the SEVP-certified 
    school to comply with any DHS requirements. In the NPRM, DHS requested 
    comment on these assumptions and estimates. No comments were received 
    in response to this request.
        As of June 2012, SEVIS records indicate that there are 578 M-2 
    nonimmigrants in the United States. Pursuant to this rulemaking, these 
    M-2 spouses and children will be eligible to take advantage of the 
    option to participate in study that is less than a full course of study 
    at SEVP-certified schools. Approximately 39 percent of M-2 
    nonimmigrants are spouses and 61 percent are children. Again, DHS 
    assumes that spouses would comprise the majority of M-2 nonimmigrants 
    to benefit from this provision. This number could be as high as 225 M-2 
    nonimmigrants (578 x 39 percent), but is likely to be lower as DHS does 
    not expect that all M-2 spouses would take advantage of the 
    opportunity. Under the same procedures governing F-2 nonimmigrants, the 
    M-2 nonimmigrants would not be required to submit any new documentation 
    or fees to SEVIS or the SEVP-certified school to comply with any DHS 
    requirements. In the NPRM, DHS requested comment on these assumptions 
    and estimates. No comments were received in response to this request.
        The rule provides greater incentive for international students to 
    study in the United States by permitting accompanying spouses and 
    children of academic and vocational nonimmigrant students in F-1 or M-1 
    status to enroll in study at a SEVP-certified school if not a full 
    course of study. DHS recognizes that the United States is engaged in a 
    global competition to attract the best and brightest international 
    students to study in our schools. The ability of F-2 or M-2 
    nonimmigrants to have access to education while in the United States is 
    in many instances central to maintaining a satisfactory quality of life 
    for these visiting families.
    4. Conclusion
        The rule eliminates the limit on the number of DSOs a school may 
    have and establishes eligibility for F-2 and M-2 nonimmigrants to 
    engage in less than a full course of study at SEVP-certified schools. 
    If a particular school does not wish to add additional DSOs, this rule 
    imposes no additional costs on that school. DHS believes up to 88 
    schools may choose to take advantage of this flexibility and designate 
    additional DSOs. These SEVP-certified schools would incur costs related 
    to current DHS DSO training and documentation requirements; DHS 
    estimates the total 10-year discounted cost to be approximately 
    $223,000 at a seven percent discount rate and approximately $264,000 at 
    a three percent discount rate. DHS does not believe there are any costs 
    associated with establishing eligibility for F-2 and M-2 nonimmigrants 
    to engage in less than full courses of study at SEVP-certified schools 
    as this rule does not require the
    
    [[Page 23687]]
    
    F-2 or M-2 nonimmigrant to submit any new documentation or fees to 
    SEVIS or the SEVP-certified school to comply with any DHS requirements.
        The table below summarizes the total costs and benefits of the rule 
    to allow additional DSOs at schools and permit accompanying spouses and 
    children of nonimmigrant students of F-1 or M-1 status to enroll in 
    study at a SEVP-certified school if not a full course of study. In the 
    NPRM, DHS welcomed public comments that specifically addressed the 
    nature and extent of any potential economic impacts of the proposed 
    amendments that we may not have identified. DHS specifically requested 
    comments in the NPRM on whether there were any additional burdens 
    imposed on F-2 and M-2 nonimmigrants related to additional record 
    storage costs. No comments were received in response to this request.
    
    ----------------------------------------------------------------------------------------------------------------
                                                                                                             Total
                                                      DSOs                  F-2 and M-2 nonimmigrants     rulemaking
    ----------------------------------------------------------------------------------------------------------------
    10-Year Cost, Discounted at 7         $223,000....................  $0..............................    $223,000
     Percent.
    Total Monetized Benefits............  N/A.........................  N/A.............................         N/A
    Non-monetized Benefits..............  Increased flexibility in      Greater incentive for
                                           school offices to enable      international students to study
                                           them to better manage their   in the U.S. by permitting
                                           programs.                     accompanying spouses and
                                                                         children of nonimmigrant
                                                                         students with F-1 or M-1 status
                                                                         to enroll in study at a SEVP-
                                                                         certified school if not a full
                                                                         course of study.
    Net Benefits........................  N/A.........................  N/A.............................         N/A
    ----------------------------------------------------------------------------------------------------------------
    
    B. Regulatory Flexibility Act
    
        Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
    considered whether this rule would have a significant economic impact 
    on a substantial number of small entities. The term ``small entities'' 
    comprises small businesses, not-for profit organizations that are 
    independently owned and operated and are not dominant in their fields, 
    and governmental jurisdictions with populations of less than 50,000. 
    This rule eliminates the limit on the number of DSOs a school may 
    nominate and permits F-2 and M-2 nonimmigrants to engage in less than a 
    full course of study at SEVP-certified schools. Although some of the 
    schools impacted by these changes may be considered as small entities 
    as that term is defined in 5 U.S.C. 601(6), the effect of this rule is 
    to benefit those schools by expanding their ability to nominate DSOs 
    and to enroll F-2 and M-2 nonimmigrants for less than a full course of 
    study.
        In the subsection above, DHS has discussed the costs and benefits 
    of this rule. The purpose of this rule is to provide additional 
    regulatory flexibilities, not impose costly mandates on small entities. 
    DHS again notes that the decision by schools to avail themselves of 
    additional DSOs or F-2 or M-2 nonimmigrants who wish to pursue less 
    than a full course of study is an entirely voluntary one and schools 
    will do so only if the benefits to them outweigh the potential costs. 
    In particular, removing the limit on the number of DSOs a school may 
    designate allows schools the flexibility to better cope with seasonal 
    surges in data entry requirements due to start of school year 
    reporting. Accordingly, DHS certifies this rule will not have a 
    significant economic impact on a substantial number of small entities. 
    DHS received no comments challenging this certification.
    
    C. Small Business Regulatory Enforcement Fairness Act of 1996
    
        Under section 213(a) of the Small Business Regulatory Enforcement 
    Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
    entities in understanding this rule. If the rule would affect your 
    small business, organization, or governmental jurisdiction and you have 
    questions concerning its provisions or options for compliance, please 
    contact the person listed in the FOR FURTHER INFORMATION CONTACT, 
    above.
        Small businesses may send comments on the actions of federal 
    employees who enforce, or otherwise determine compliance with, federal 
    regulations to the Small Business and Agriculture Regulatory 
    Enforcement Ombudsman and the Regional Small Business Regulatory 
    Fairness Boards. The Ombudsman evaluates these actions annually and 
    rates each agency's responsiveness to small business. If you wish to 
    comment on actions by employees of DHS, call 1-888-REG-FAIR (1-888-734-
    3247). DHS will not retaliate against small entities that question or 
    complain about this rule or any policy or action of DHS.
    
    D. Collection of Information
    
        All Departments are required to submit to OMB for review and 
    approval, any reporting or recordkeeping requirements inherent in a 
    rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 
    Stat. 163 (1995), 44 U.S.C. 3501-3520. This information collection is 
    covered under the existing Paperwork Reduction Act control number OMB 
    No. 1653-0038 for the Student and Exchange Visitor Information System 
    (SEVIS). This rule calls for no new collection of information under the 
    Paperwork Reduction Act.
    
    E. Federalism
    
        A rule has implications for federalism under Executive Order 13132, 
    Federalism, if it has a substantial direct effect 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. We have analyzed this rule under the Order and have 
    determined that it does not have implications for federalism.
    
    F. Unfunded Mandates Reform Act
    
        The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
    requires federal agencies to assess the effects of their discretionary 
    regulatory actions. In particular, the Unfunded Mandates Reform Act 
    addresses actions that may result in the expenditure by a State, local, 
    or tribal government, in the aggregate or by the private sector of 
    $100,000,000 (adjusted for inflation) or more in any one year. Though 
    this rule will not result in such an expenditure, we do discuss the 
    effects of this rule elsewhere in this preamble.
    
    G. Taking of Private Property
    
        This rule will not cause a taking of private property or otherwise 
    have takings implications under Executive Order 12630, Governmental 
    Actions and Interference with Constitutionally Protected Property 
    Rights.
    
    H. Civil Justice Reform
    
        This rule meets applicable standards in sections 3(a) and 3(b)(2) 
    of Executive
    
    [[Page 23688]]
    
    Order 12988, Civil Justice Reform, to minimize litigation, eliminate 
    ambiguity, and reduce burden.
    
    I. Protection of Children
    
        We have analyzed this rule under Executive Order 13045, Protection 
    of Children from Environmental Health Risks and Safety Risks. This rule 
    is not a significant rule and does not create an environmental risk to 
    health or risk to safety that might disproportionately affect children.
    
    J. Indian Tribal Governments
    
        This rule does not have tribal implications under Executive Order 
    13175, Consultation and Coordination with Indian Tribal Governments, 
    because it does not have a substantial direct effect on one or more 
    Indian tribes, on the relationship between the federal government and 
    Indian tribes or on the distribution of power and responsibilities 
    between the federal government and Indian tribes.
    
    K. Energy Effects
    
        We have analyzed this rule under Executive Order 13211, Actions 
    Concerning Regulations That Significantly Affect Energy Supply, 
    Distribution, or Use. This final rule is not a ``significant regulatory 
    action'' under Executive Order 12866 and is not likely to have a 
    significant adverse effect on the supply, distribution, or use of 
    energy. The Administrator of the Office of Information and Regulatory 
    Affairs has not designated it as a significant energy action. 
    Therefore, it does not require a Statement of Energy Effects under 
    Executive Order 13211.
    
    L. Technical Standards
    
        The National Technology Transfer and Advancement Act of 1995 (15 
    U.S.C. 272 note) directs agencies to use voluntary consensus standards 
    in their regulatory activities unless the agency provides Congress, 
    through the Office of Management and Budget, with an explanation of why 
    using these standards would be inconsistent with applicable law or 
    otherwise impracticable. Voluntary consensus standards are technical 
    standards (e.g., specifications of materials, performance, design, or 
    operation; test methods; sampling procedures; and related management 
    systems practices) that are developed or adopted by voluntary consensus 
    standards bodies. This rule does not use technical standards. 
    Therefore, we did not consider the use of voluntary consensus 
    standards.
    
    M. Environment
    
        The U.S. Department of Homeland Security Management Directive (MD) 
    023-01 establishes procedures that DHS and its Components use to comply 
    with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 
    4321-4375, and the Council on Environmental Quality (CEQ) regulations 
    for implementing NEPA, 40 CFR parts 1500-1508. CEQ regulations allow 
    federal agencies to establish categories of actions which do not 
    individually or cumulatively have a significant effect on the human 
    environment and, therefore, do not require an Environmental Assessment 
    or Environmental Impact Statement. 40 CFR 1508.4. The MD 023-01 lists 
    the Categorical Exclusions that DHS has found to have no such effect. 
    MD 023-01 app. A tbl.1.
        For an action to be categorically excluded, MD 023-01 requires the 
    action to satisfy each of the following three conditions:
        (1) The entire action clearly fits within one or more of the 
    Categorical Exclusions;
        (2) The action is not a piece of a larger action; and
        (3) No extraordinary circumstances exist that create the potential 
    for a significant environmental effect. MD 023-01 app. A Sec.  3.B(1)-
    (3).
        Where it may be unclear whether the action meets these conditions, 
    MD 023-01 requires the administrative record to reflect consideration 
    of these conditions. MD 023-01 app. A Sec.  3.B.
        Here, the rule amends 8 CFR 214.2 and 214.3 relating to the U.S. 
    Immigration and Customs Enforcement Student and Exchange Visitor 
    Program. This rule removes the regulatory cap of ten designated school 
    officials per campus participating in the SEVP and permits certain 
    dependents to enroll in less than a full course of study at SEVP-
    certified schools.
        ICE has analyzed this rule under MD 023-01. ICE has made a 
    preliminary determination that this action is one of a category of 
    actions which do not individually or cumulatively have a significant 
    effect on the human environment. This rule clearly fits within the 
    Categorical Exclusion found in MD 023-01, Appendix A, Table 1, number 
    A3(d): ``Promulgation of rules . . . that interpret or amend an 
    existing regulation without changing its environmental effect.'' This 
    rule is not part of a larger action. This rule presents no 
    extraordinary circumstances creating the potential for significant 
    environmental effects. Therefore, this rule is categorically excluded 
    from further NEPA review.
    
    List of Subjects in 8 CFR Part 214
    
        Administrative practice and procedure, Aliens, Cultural exchange 
    programs, Employment, Foreign officials, Health professions, Reporting 
    and recordkeeping requirements, Students.
    
    The Amendments
    
        For the reasons discussed in the preamble, DHS amends Chapter I of 
    Title 8 of the Code of Federal Regulations as follows:
    
    PART 214--NONIMMIGRANT CLASSES
    
    0
    1. The authority citation for part 214 continues to read as follows:
    
        Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
    1221, 1281, 1282, 1301-1305 and 1372; 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; 48 U.S.C. 1806; 8 CFR part 2.
    
    
    0
    2. In Sec.  214.2 revise paragraphs (f)(15)(ii) and (m)(17)(ii) to read 
    as follows:
    
    
    Sec.  214.2  Special requirements for admission, extension, and 
    maintenance of status.
    
    * * * * *
        (f) * * *
        (15) * * *
        (i) * * *
        (ii) Study--(A) F-2 post-secondary/vocational study--(1) Authorized 
    study at SEVP-certified schools. An F-2 spouse or F-2 child may enroll 
    in less than a full course of study, as defined in paragraphs 
    (f)(6)(i)(A) through (D) and (m)(9)(i) through (iv), in any course of 
    study described in paragraphs (f)(6)(i)(A) through (D) or (m)(9)(i) 
    through (iv) of this section at an SEVP-certified school. 
    Notwithstanding paragraphs (f)(6)(i)(B) and (m)(9)(i) of this section, 
    study at an undergraduate college or university or at a community 
    college or junior college is not a full course of study solely because 
    the F-2 nonimmigrant is engaging in a lesser course load to complete a 
    course of study during the current term. An F-2 spouse or F-2 child 
    enrolled in less than a full course of study is not eligible to engage 
    in employment pursuant to paragraphs (f)(9) and (10) of this section or 
    pursuant to paragraph (m)(14) of this section.
        (2) Full course of study. Subject to paragraphs (f)(15)(ii)(B) and 
    (f)(18) of this section, an F-2 spouse and child may engage in a full 
    course of study only by applying for and obtaining a
    
    [[Page 23689]]
    
    change of status to F-1, M-1 or J-1 nonimmigrant status, as 
    appropriate, before beginning a full course of study. An F-2 spouse and 
    child may engage in study that is avocational or recreational in 
    nature, up to and including on a full-time basis.
        (B) F-2 elementary or secondary study. An F-2 child may engage in 
    full-time study, including any full course of study, in any elementary 
    or secondary school (kindergarten through twelfth grade).
        (C) An F-2 spouse and child violates his or her nonimmigrant status 
    by enrolling in any study except as provided in paragraph 
    (f)(15)(ii)(A) or (B) of this section.
    * * * * *
        (m) * * *
        (17) * * *
        (i) * * *
        (ii) Study--(A) M-2 post-secondary/vocational study--(1) Authorized 
    study at SEVP-certified schools. An M-2 spouse or M-2 child may enroll 
    in less than a full course of study, as defined in paragraphs 
    (f)(6)(i)(A) through (D) or (m)(9)(i) through (v), in any course of 
    study described in paragraphs (f)(6)(i)(A) through (D) or (m)(9)(i) 
    through (v) of this section at an SEVP-certified school. 
    Notwithstanding paragraphs (f)(6)(i)(B) and (m)(9)(i) of this section, 
    study at an undergraduate college or university or at a community 
    college or junior college is not a full course of study solely because 
    the M-2 nonimmigrant is engaging in a lesser course load to complete a 
    course of study during the current term. An M-2 spouse or M-2 child 
    enrolled in less than a full course of study is not eligible to engage 
    in employment pursuant to paragraph (m)(14) of this section or pursuant 
    to paragraphs (f)(9) through (10) of this section.
        (2) Full course of study. Subject to paragraph (m)(17)(ii)(B) of 
    this section, an M-2 spouse and child may engage in a full course of 
    study only by applying for and obtaining a change of status to F-1, M-
    1, or J-1 status, as appropriate, before beginning a full course of 
    study. An M-2 spouse and M-2 child may engage in study that is 
    avocational or recreational in nature, up to and including on a full-
    time basis.
        (B) M-2 elementary or secondary study. An M-2 child may engage in 
    full-time study, including any full course of study, in any elementary 
    or secondary school (kindergarten through twelfth grade).
        (C) An M-2 spouse or child violates his or her nonimmigrant status 
    by enrolling in any study except as provided in paragraph 
    (m)(17)(ii)(A) or (B) of this section.
    * * * * *
    
    0
    3. Revise Sec.  214.3(l)(1)(iii) to read as follows:
    
    
    Sec.  214.3  Approval of schools for enrollment of F and M 
    nonimmigrants.
    
    * * * * *
        (l) * * *
        (1) * * *
        (iii) School officials may nominate as many DSOs in addition to 
    PDSOs as they determine necessary to adequately provide recommendations 
    to F and/or M students enrolled at the school regarding maintenance of 
    nonimmigrant status and to support timely and complete recordkeeping 
    and reporting to DHS, as required by this section. School officials 
    must not permit a DSO or PDSO nominee access to SEVIS until DHS 
    approves the nomination.
    * * * * *
    
    Jeh Charles Johnson,
    Secretary.
    [FR Doc. 2015-09959 Filed 4-28-15; 8:45 am]
     BILLING CODE 9111-28-P
    
    
    
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