Good Cause Exception
The Service's implementation of this rule as an interim rule, with
provisions for post-promulgation public comments, is based on the
``good cause'' exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The
reason and necessity for the immediate promulgation of this rule are as
follows: The rule is necessary to ensure the national security of the
United States by eliminating the ability of a B nonimmigrant to enroll
in school until the Service has approved a change of nonimmigrant
status application filed by the prospective alien student. The previous
rule allowing such enrollment prior to adjudication of the application
was used by some of the September 11th terrorists to obtain flight
training in the United States. Closing this loophole is essential to
efforts to prevent this abuse from recurring.
There is also reasonable concern that publication of this
regulation as a proposed rule, one that would not take effect until
after a final rule was promulgated, could lead to the counterproductive
result of a surge of entries by individuals who have no intention of
going through the consular screening process overseas and who would
seek admission as a B nonimmigrant while having the intent of becoming
an F or M nonimmigrant student after admission to the United States.
However, this interim rule takes account of the interests of those
aliens currently admitted to the United States in B nonimmigrant
status. Such aliens will continue to be governed by the Service's prior
policy regarding change to F or M nonimmigrant status, for the
remainder of their currently-authorized B nonimmigrant admission.
Accordingly, the Service believes that advance public notice and
comment on this regulation would be impracticable and contrary to the
public interest. Therefore, there is good cause under 5 U.S.C. 553(b)
and (d) for dispensing with the requirements of prior notice and to
make this rule effective upon the date of publication in the Federal
Register.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that this rule
will not have a significant economic impact on a substantial number of
small entities. This rule applies only to B nonimmigrants applying to
change to either F or M nonimmigrant status. It does not affect small
entities as that term is defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review. Accordingly, this rule has been submitted to the Office of
Management and Budget for review.
Executive Order 13132
This rule will not have substantial direct effects 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. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Executive Order 12988, Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995, Public Law 104-13, all
Departments are required to submit to the Office of Management and
Budget (OMB), for review and approval, any reporting or recordkeeping
requirements inherent in a rule. This rule does not impose any new
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 248
Aliens, Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is amended as follows:
PART 214--NONIMMIGRANT CLASSES
1. The authority citation for part 214 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1101 note, 1103, 1182, 1184, 1186a,
1187, 1221, 1281, 1282; sec. 643, Pub. L. 104-208, 110 Stat. 3009-
708; 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; 8 CFR part 2.
2. Section 214.2 is amended by adding and reserving paragraph
(b)(6) and by adding new paragraph (b)(7) to read as follows:
Sec. 214.2 Special requirements for admission, extension and
maintenance of status.
* * * * *
(b) * * *
(6) [Reserved]
(7) Enrollment in a course of study prohibited. An alien who is
admitted as, or changes status to, a B-1 or B-2
[[Page 18064]]
nonimmigrant on or after April 12, 2002, or who files a request to
extend the period of authorized stay in B-1 or B-2 nonimmigrant status
on or after such date, violates the conditions of his or her B-1 or B-2
status if the alien enrolls in a course of study. Such an alien who
desires to enroll in a course of study must either obtain an F-1 or M-1
nonimmigrant visa from a consular officer abroad and seek readmission
to the United States, or apply for and obtain a change of status under
section 248 of the Act and 8 CFR part 248. The alien may not enroll in
the course of study until the Service has admitted the alien as an F-1
or M-1 nonimmigrant or has approved the alien's application under part
248 of this chapter and changed the alien's status to that of an F-1 or
M-1 nonimmigrant.
* * * * *
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
3. The authority citation for part 248 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103, 1184; 1258; 8 CFR part 2.
4. Section 248.1 is amended by revising paragraph (c) to read as
follows:
Sec. 248.1 Eligibility.
* * * * *
(c) Change of nonimmigrant classification to that of a nonimmigrant
student.
(1) Except as provided in paragraph (c)(3) of this section, a
nonimmigrant applying for a change of classification as an F-1 or M-1
student is not considered ineligible for such a change solely because
the applicant may have started attendance at school before the
application was submitted. The district director or service center
director shall deny an application for a change to classification as an
M-1 student if the applicant intends to pursue the course of study
solely in order to qualify for a subsequent change of nonimmigrant
classification to that of an alien temporary worker under section
101(a)(15)(H) of the Act. Furthermore, an alien may not change from
classification as an M-1 student to that of an F-1 student.
(2) [Reserved]
(3) A nonimmigrant who is admitted as, or changes status to, a B-1
or B-2 nonimmigrant on or after April 12, 2002, or who files a request
to extend the period of authorized stay as a B-1 or B-2 nonimmigrant on
or after such date, may not pursue a course of study at an approved
school unless the Service has approved his or her application for
change of status to a classification as an F-1 or M-1 student. The
district director or service center director will deny the change of
status if the B-1 or B-2 nonimmigrant enrolled in a course of study
before filing the application for change of status or while the
application is pending before the Service.
* * * * *
Dated: April 9, 2002.
James W. Ziglar,
Commissioner, Immigration and Naturalization Service.
[FR Doc. 02-8926 Filed 4-9-02; 1:54 pm]
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