NAFSA commented on SEVP's draft policy guidance on contractual relationships. In the table below, the left column contains the text of the draft SEVP policy guidance and the right column contains NAFSA's comments.

Draft Policy Guidance 1204-05 Contractual Relationships

NAFSA Comments

1. Purpose/Background.

School officials at multiple schools often contract between those schools to provide instruction for their students. This policy guidance addresses issues related to these contractual relationships and how those relationships may affect the Student and Exchange Visitor Program (SEVP)-certification of F and M schools.

 

2. Definitions.

 

2.1 Contract. A contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.

 

2.2 Governance. Governance is ownership (legal possession) and executive management (substantive operation) of an organization. In this context, the organization is a school.

 

2.3 Instructional Site. An instructional site is any physical location where school officials provide instruction or training. This includes any physical location that supports activities related to instruction or training (e.g., research or laboratory exercises) for F and/or M students. It also includes all terms that describe this type of entity (e.g., campus, satellite, auxiliary, coordinate, extension, off-campus, regional or other).

NAFSA seeks clarification as to whether SEVP intends to apply this definition of "instructional site" only in its review of contractual relationships or intends it to apply more broadly. Since this definition includes not only physical locations "in which a nonimmigrant can attend classes through the school," but also any physical location "that supports activities related to instruction or training," it appears to exceed the language of 8 CFR 214.3(a)(1), which requires a Form I-17 to "identify by name and address each location of the school that is included in the petition for certification or recertification, specifically including any physical location in which a nonimmigrant can attend classes through the school (i.e., campus, extension campuses, satellite campuses, etc.)." NAFSA continues to urge SEVP to develop a consistent definition of "instructional site" that is allowed by the regulations.

2.4 School. A school is an instructional site that meets these criteria:

  • An F or M student can complete a program of study
  • Has one or more teachers, administrators, buildings and/or enrolled students
  • Has a defined curriculum
  • Has clear processes for measuring educational progress in learning.
  • A school may be comprised of one or multiple instructional sites.

NAFSA seeks clarification as to whether SEVP intends this definition to apply to the term "school" throughout 8 CFR 214.3 and 213.4.

 

3. Policy. All schools enrolling F or M nonimmigrant students must have SEVP-certification. Schools that share governance are not required to have separate SEVP- certification. Schools in contractual relationships that do not share governance must each separately meet all SEVP requirements, including SEVP-certification and other applicable requirements (e.g., the accreditation of English language training programs (ESL) by a U.S. Department of Education recognized accreditation agency or Part 141 or Part 142 Federal Aviation Administration certification for flight schools).

NAFSA seeks clarification as to whether SEVP intends with the phrase "all schools enrolling F or M nonimmigrant students must have SEVP certification" to disallow a student who is otherwise maintaining F or M status from enrolling in an avocational capacity at a non-SEVP school in his or her spare time. We suggest revising to read "all schools who issue Certificates of Eligibility to enroll F or M nonimmigrant students must have SEVP certification."

4. Procedures/Requirements.

 

4.1 SEVP-certification. All schools enrolling F or M nonimmigrant students must be SEVP- certified. Schools that share governance may share SEVP-certification on one Form I-17 petition. Schools in contractual relationships that do not share governance may not share SEVP-certification. These schools must individually seek and receive SEVP-certification on different Form I-17 petitions, "Petition for Approval of School for Attendance by Nonimmigrant Students."

See comment above regarding language that "all schools enrolling F or M nonimmigrant students must have SEVP certification."

4.2 Reporting of Contractual Programs. Schools should identify contractual relationships and report them to SEVP with the initial request for certification or as an update. Schools that wish to enter into a contractual relationship with another school must submit evidence which shows the portion of the course of study that will be provided by the contracted school and explain the need to contract out the program. School officials should provide a course catalog or other appropriate documents from the contracted school showing that the contracted school has the resources available to provide the contracted course work.

This is a new obligation that would requires a regulatory change before implementation.

 

The requirement to "identify and report contractual relationships," applied to all schools, is overbroad and improperly extends into the minute details of school business operations.

 

Any reporting requirement should be limited to contracts that substantially impact the delivery of instruction to students. An example of a more reasonable reporting obligation can be found in typical "substantive change" policies of accrediting bodies recognized by the Department of Education.

 

For example, Middle States, applying DoEd regulations at 34 CFR 604.22(a)(2)(vii), treats as a substantive change, "The initiation of a contractual arrangement wherein 25% of one or more of the institution's educational programs is provided by an unaccredited institution, corporation or other entity, or an institution that is not accredited by an accreditor recognized by the U.S. Department of Education."

 

To be consistent with 8 CFR 214.3(b)(1)-(3), a school catalog or other documentation from the contracted school should not have to be submitted if the contracted school is a public educational institution or a school accredited by a nationally recognized accrediting body.

 

 

4.3 Governance and Contractual Relationships.

 

4.3.1 Governance. Governance is ownership and executive management of a school.

1) Ownership - Ownership is comprised of the person, persons, or group legally in possession - control, conveyance, benefit, responsibility, and liability - of the school.

2) Management - Management includes the people in a school given the responsibility for the operation of the school. Executive management involves the people with authority over the long-term planning and decision-making of the school. This contrasts with the Day-to-day management of an organization-the everyday leadership of and responsibility for the operation of the organization.

 

4.3.2 Shared Governance and Form I-17 Petitions. Officials at schools that share governance may list each school on the same Form I-17. Individual circumstances will dictate the best course of action. For example, officials at two large schools that both have full day- to-day staffs and are located in different places may decide it is administratively easier to have a separate Form I-17 petition for each school. Officials should, however, be aware of the increased costs of multiple separate Form I-17 petitions.

Officials at schools that do not share governance must list each school separately on different Form I-17 petitions.

 

4.3.3 Form I-20 Issuance. In cases where various relationships exist between schools, shared governance should be used to help guide which school should issue the Form I-20 for a student:

1) Shared Governance. A school that shares governance with another school should issue the student's Form I-20 based on where the student will complete the majority of his or her course of study and will issue the student's degree or certificate, or show completion of the student's educational objective.

2) No Shared Governance. When a school does not share governance with another school, each should have separate SEVP-certification. In a contractual relationship between the two, the school from which the student will complete the majority of his or her course of study and will issue the student's degree or certificate or show completion of the student's educational objective should issue the student's Form I-20.

 

4.4 ESL School Considerations. Students completing a contracted ESL program of study before attending an actual degree-seeking program should have their Form I-20 issued by the ESL training provider and for the ESL program of study. The ESL training provider will transfer the student's SEVIS record to the degree-seeking institution upon completion of a full course of study at the ESL training school.

 

Students studying at two schools that share governance-which include part-time ESL course work coupled with part-time course work in a degree-granting program of study (combined to equate a full course of study)-should have their Form I-20 issued for the degree-granting program of study. If at any time the ESL course of study becomes the majority of the course work taken by the student, the degree-granting school should transfer the student's SEVIS record to the ESL training school for that period.

The guidance should also address a student who studies concurrently at a degree-granting school and an ESL school that do not share governance.

5. Responsibilities.

None.

 

6. Authorities/References.

6.1 8 USC 1101(a)(15)(F) and (a)(15)(M).

6.2 8 CFR 214.2(f) and (m) and 214.3.

The citation to authorities should identify the specific regulatory provisions that authorize SEVP to establish this policy.

7. Attachments.

None.

 

8. No Private Right. Policy Guidance is not a substitute for applicable legal requirements, nor is it itself a rule or a final action by SEVP. It does not impose or intend to impose on any party any legally-binding requirements, rights or benefits, whether substantive or procedural, enforceable at law by any party in any administrative, civil or criminal matter. This guidance represents SEVP's current thinking on this topic and may assist schools, F and M students, the general public, and SEVP, as well as other federal and state regulators, in applying statutory and regulatory requirements. SEVP can use an alternative approach if the approach satisfies the requirements of the applicable statutes and regulations. This Policy Guidance is not intended to, does not and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by any party in any administrative, civil or criminal matter.

The disclaimer language in the draft guidance allows SEVP to use an alternative approach. It should be revised to conform to the general DHS significant guidance policy, (listed below, as do other SEVP and other DHS policy guidance documents), to allow the public to use an alternative approach:

 

"Guidance documents represent the department's current thinking on a topic. They do not create or confer any rights for or on any person and do not operate to bind the Department or the public. You can use an alternative approach (other than an approach provided in any guidance) if the alternative approach satisfies the requirements of all applicable statutes and regulations."

 

From the DHS memo:

 

A significant guidance document should aim to communicate effectively to the public about the legal effect of the guidance and the consequences for the public of adopting an alternative approach. For example, a significant guidance document could be captioned with the following disclaimer under appropriate circumstances:

"This [draft] guidance, [when finalized, will] represent[s] the [Agency's] current thinking on this topic. It does not create or confer any rights for or on any person or operate to bind the public. You can use an alternative approach if the approach satisfies the requirements of the applicable statutes and regulations. If you want to discuss an alternative approach (you are not required to do so), you may contact the [Agency] staff responsible for implementing this guidance. If you cannot identify the appropriate [Agency] staff, call the appropriate number listed on the title page of this guidance."

When an agency determines it would be appropriate, the agency should use this or a similar disclaimer. Agency staff should similarly describe the legal effect of significant guidance documents when speaking to the public about them.