sent to SEVP on April 18, 2012
NAFSA urges the Student and Exchange Visitor Program (SEVP) to re-assess its approach to applying Public Law 111-306, and communicate its policies regarding the applicability of the IEP accreditation law to the public, either through the regulatory process or through formal written policy guidance with an opportunity for public input.
INA 101(a)(15) establishes that all aliens are presumed to be immigrants, unless they are "within one of the following classes of nonimmigrant aliens…" Paragraph (F) establishes the F student category for:
(F) (i) an alien having a residence in a foreign country which he has no intention of abandoning, who is a bona fide student qualified to pursue a full course of study and who seeks to enter the United States temporarily and solely for the purpose of pursuing such a course of study consistent with section 214(l) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States, particularly designated by him and approved by the Attorney General after consultation with the Secretary of Education, which institution or place of study shall have agreed to report to the Attorney General the termination of attendance of each nonimmigrant student, and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn,
In 2010, Public Law 111-306 added the word "accredited" to modify the term "language training program." This paragraph should be read to mean that an alien may be classified as F-1 under any of the study relationships with an institution listed in the statute, regardless of the nature of the student's course of study. The grammar of the statute reveals three groupings:
- A student pursuing a full course of study "at an established college, university, seminary, conservatory, academic high school, elementary school;"
- A student pursuing a full course of study at an "other academic institution;" and
- A student pursuing a full course of study "in an accredited language training program."
That is to say, a student pursuing a full course of study in English language "at" an academic institution (i.e., an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution) should be seen as qualifying for F-1 classification by virtue of studying "at" such an institution. [This is also consistent with other DHS interpretations of the word "at." See, for example, USCIS's interpretation of the word "at" in the context of qualifying for exemption from the H-1B cap count under INA § 214(g)(5)(A)-(B), by virtue of being employed "at" a qualifying institution. Adjudicator's Field Manual (AFM) 31.3(g)(13).]
Although the statute uses the word "program" when referring to a "language training program," the word program should be read to be interchangeable with the word "school" or "institution." This is so not only because the preceding terms all refer to institutional types, but because that is how the word "program" is used in the legislative history of the Act that originally added that term to the INA in 1981.
Prior to 1982, all students, academic as well as vocational, were grouped together in INA 101(a)(15)(F). In the Immigration and Nationality Act Amendments of 1981 [Public Law 97-116, 95 Stat. 1611 (December 29, 1981)], Congress separated study at academic and language institutions from study at vocational and nonacademic institutions, by creating a new paragraph at INA 101(a)(15)(M), for students who would pursue a full course of study at "an established vocational or other recognized nonacademic institution (other than in a language training program)."
It is clear from the legislative history of those amendments that Congress' principal goal was to separate academic and vocational study so that vocational study could be better monitored. As a side matter in the dialogue leading up to the amendments, the question arose of whether language study was "academic" or "nonacademic." Congress decided to retain "language programs in the current "F" category "on advice from INS that such schools comply with INS regulations and reporting requirements and that those programs serve a need for meeting the prerequisites for entry into some of the higher institutions of learning." [House report No. 97-264 (Comm. on the Judiciary) page 18-19]
Given Congress' interchangeable usage of the term "programs" and "schools," the accreditation requirement should be seen to apply only to language training programs that are not under the same governance and control of "an established college, university, seminary, conservatory, academic high school, elementary school."
That is to say, the nature of the institution should be taken into consideration when applying this law. DHS regulations already interpret the statute in such a way, focusing on school type when determining eligibility for approval under INA 101(a)(15)(F). 8 CFR 214.3(a)(2)(i) states,
(i) F-1 classification. The following schools may be approved for attendance by nonimmigrant students under section 101(a)(15)(F)(i) of the Act:
(A) A college or university, i.e., an institution of higher learning which awards recognized bachelor's, master's doctor's or professional degrees.
(B) A community college or junior college which provides instruction in the liberal arts or in the professions and which awards recognized associate degrees.
(C) A seminary.
(D) A conservatory.
(E) An academic high school.
(F) A private elementary school.
(G) An institution which provides language training, instruction in the liberal arts or fine arts, instruction in the professions, or instruction or training in more than one of these disciplines.
The "temporary exception" clause at Public Law 111–306 Section 1(b)(2) should not be read to apply to INA 101(a)(15)(F) beyond its purpose as a specific exception for schools that need such an exception.
[That clause reads:
(2) TEMPORARY EXCEPTION.-
(A) IN GENERAL.- Notwithstanding section 101(a)(15)(F)(i) of the Immigration and Nationality Act, as amended by subsection (a), during the 3-year period beginning on the date of the enactment of this Act, an alien seeking to enter the United States to pursue a course of study at a language training program that has been certified by the Secretary of Homeland Security and has not been accredited or denied accreditation by an entity described in section 101(a)(52) of such Act may be granted a nonimmigrant visa under such section 101(a)(15)(F)(i).
(B) ADDITIONAL REQUIREMENT.- An alien may not be granted a nonimmigrant visa under subparagraph (A) if the sponsoring institution of the language training program to which the alien seeks to enroll does not--
(i) submit an application for the accreditation of such program to a regional or national accrediting agency recognized by the Secretary of Education within 1 year after the date of the enactment of this Act; and
(ii) comply with the applicable accrediting requirements of such agency.]
The Scope of Institutional Accreditation
The accreditation law should be applied only to language training schools that are not under the governance of an institution listed at 8 CFR 214.3(a)(2)(i)(A)-(F). Language training offered as a full course of study directly by the institutions listed at 8 CFR 214.3(a)(2)(i)(A)-(F) should continue to be acceptable without separate accreditation, particularly if the institution is accredited.
Since the intent of the legislation was to hold accountable unaccredited stand-alone IEPs, the legislation should be applied accordingly.
Accreditation of an institution of higher education by a regional accrediting agency is done on an institutional basis. For example, the Middle States Commission on Higher Education states that, "A principle of institutional accreditation is that everything done in the name of the institution is covered by its accreditation," unless there has been a substantive change that would affect a prior determination of accreditation.
Department of Education regulations at 34 CFR Part 602 set standards for accrediting bodies. 34 CFR 602.22 requires accrediting bodies to establish "substantive change" policies, to "ensure that any substantive change to the educational mission, program, or programs of an institution after the agency has accredited or preaccredited the institution does not adversely affect the capacity of the institution to continue to meet the agency's standards." That regulation also defines the kinds of changes that should be considered substantive, and thus require the accrediting body's approval of the substantive change before the change is included in the scope of accreditation or preaccreditation it previously granted to an institution. Changes that are not considered substantive under the regulation and the accrediting body's specific substantive change policy, do not need the approval of the accrediting body before being implemented by the school, and would fall under the scope of the school's current accreditation.
And so, if a college or university is institutionally accredited, intensive English language instruction should be considered covered by its accreditation, unless that kind of instruction was added after the school's most recent accreditation review.
The legislative history of Public Law 111-306 supports such an interpretation and application of the institutional nature of accreditation. For example, Lamar Smith, a cosponsor of the legislation, stated, "Under this bill, IEPs can meet the accreditation requirement in one of two ways. First, they can be under the governance of a university or college that has been accredited by a regional accrediting agency recognized by the U.S. Department of Education. Or, second, they can be individually accredited by the Accrediting Council for Continuing Education and Training (ACCET) or the Commission on English Language Program Accreditation (CEA)." [Congressional Record - (Extensions of Remarks - May 12, 2009)]
Also see the remarks of Representative Conyers, who stated that the legislation "requires that visas for foreign students seeking to attend English schools in the United States only be granted when the student attends a school accredited by an agency recognized by the Secretary of Education." [Congressional Record - (House of Representatives - December 01, 2010)]
Note here once again that what is important is that the institution be accredited, not that the language instruction be specifically accredited as a subject matter. NAFSA has received numerous reports from accredited colleges and universities, however, that SEVP has required them to provide subject-matter-specific confirmation from their accrediting body, as well as extremely detailed programmatic information regarding the school's intensive English language offerings.
Here is a recent example, in the form of an RFE sent in the context of a school recertification:
[Here NAFSA provided SEVP with an example of an RFE that asked for documentation showing that the school's regional accrediting body had specifically recognized the school's ESL offerings, and also requested very detailed program information about the school's ESL offerings.]
We believe that such requests are problematic, and only serve to stymie the relationship between SEVP and institutions of higher education.
First, such requests reflect a troublesome trend of SEVP making policy through adjudication, rather than through regulatory or agency policy guidance routes.
When the IEP accreditation law was first passed, the community inquired as to when to expect regulations to address the kinds of questions we are raising above. SEVP's response was simply that it considered the statute to be "self-executing," and that no regulations were planned. Likewise, schools have received no written policy guidance to address legitimate questions like the applicability of the law to English language training offered directly by accredited institutions of higher education.
This lack of public guidance, either in the form of regulations or written policy statements, leaves the public unaware of what its obligations are. The above RFE seems to indicate that SEVP has thought about things in great detail. However, such detailed ruminations have not been shared with the public.
NAFSA has already separately raised with SEVP the inherent problems of policy-making through adjudication in the context of adding instructional sites and questions about school operating authority. This practice forces the public to piece together what SEVP's policy might be, from snippets of regulatory citations and information requests, and has unnecessarily worn down schools, your partners in compliance.
Second, such requests are excessive and unnecessarily burdensome. They delve into details of an established, accredited school's academic offerings to an extent that exceeds the scope of what even an accrediting body might request, and are certainly not necessary to adequately protect homeland security or even the immigration system.
Third, the request involves the creation of documentation by a third party, the accrediting agency, without adequately preparing those agencies for receiving documentation requests from schools. In the case highlighted above, the school received an RFE during the recertification process, and was given a scant 15 days to deduce SEVP's policy from the detail-laden request, explain this deduced policy to its accrediting body, and then secure documentation from the accreditor, worded just so.
NAFSA asks SEVP to do the following:
- Communicate its policies regarding the applicability of the IEP accreditation law to the public, either through the regulatory process or through formal written policy guidance with an opportunity for public input.
- Properly take into account the two ways a language program can comply with the law: "First, they can be under the governance of a university or college that has been accredited by a regional accrediting agency recognized by the U.S. Department of Education. Or, second, they can be individually accredited by the Accrediting Council for Continuing Education and Training (ACCET) or the Commission on English Language Program Accreditation (CEA)."
- In developing its policies in this regard, incorporate basic principles of institutional accreditation, such as the non-discipline-specific nature of accreditation and the purpose of Department of Education substantive change rules for accrediting bodies.
- Work with accrediting agencies to develop protocols and set expectations so that SEVP's needs can be met without needlessly disrupting the work of schools or the accrediting bodies.