On 11 July 2014, the Student and Exchange Visitor Program (SEVP), a division of the U.S. Immigration and Customs Enforcement office of the U.S. Department of Homeland Security, posted a second round of draft policy guidance on conditional admission. The draft policy guidance clarifies that schools may issue a Form I-20 “Certificate of Eligibility for Nonimmigrant Student Status” to a prospective F-1 or M-1 student only if the student’s qualifications meet all standards for admission, including English language proficiency requirements.

This guidance is important for colleges and universities that enroll international students, as noncompliance could lead to denial of certification or recertification to participate in SEVP. SEVP is accepting comments until 25 August 2014.

Background

Many SEVP-authorized schools offer “conditional admission” to international students who do not meet all of the requirements for admission to an academic degree program. These schools may admit an applicant on the condition that the student first complete intensive English language classes or participate in a “bridge program” whereby the student is required to take English language courses concurrently with the standard academic courses. In some instances, a designated school official (DSO) will issue the Form I-20 to a student for the degree program of study while the student seeks to meet the required prerequisites for entrance into the degree program. SEVP takes the position that such practice is contrary to 8 C.F.R. 214.3(k)(3), which requires students to meet all standards for admission.

In May 2013, SEVP published a first round of draft policy guidance addressing bridge programs and conditional admission. Given the complexity of the topic, SEVP decided to split the guidance into several parts and to post a series of second-round draft guidance documents. On 11 July 2014, SEVP released the first of the series of second-round draft guidance addressing the issue of conditional admission. SEVP will publish additional guidance on related topics, including English proficiency, Form I-20 issuance, and pathways and bridge programs.

Second-Round Guidance on Conditional Admission

SEVP’s second-round guidance on conditional admission explicitly states that the SEVP regulations prohibit Form I-20 issuance on the basis of conditional admission. The guidance clarifies that “a DSO may issue a Form I-20 only to a prospective F-1 or M-1 student who has met all standards for admission, including any English proficiency requirements, for the program of study for which the student has been admitted and been accepted for enrollment in a full course of study.” See 8 C.F.R. 214.3(k)(2)-(4). The guidance defines key terms such as “standards for admission,” “conditional admission,” and “policy” and clarifies that schools must reflect their current admission requirements in field 18 on the Form I-17, “Petition for Approval of School for Attendance by Nonimmigrant Student.” The draft guidance advises that the DSO must certify under penalty of perjury that the Form I-20 is true and correct. In addition, under the draft guidance an adjudicator could take adverse action against any schools that have issued Forms I-20 contrary to applicable statutes, regulations, policy guidance, or the school’s Form I-17 petition, up to and including withdrawal of SEVP certification or denial of recertification.  The guidance will remain in draft form until the SEVP publishes additional final guidance. The second-round guidance does not address the length of time that schools would have to adjust their I-20 issuance practices or update their Forms I-17 to conform to the final guidance. SEVP is expected to release additional detailed guidance related to the issuance of the Form I-20, including whether schools will be required to issue two successive I-20s to implement a conditional admission program. In the meantime, it would be timely for schools to begin assessing whether they are in compliance with 8 CFR 214.3(k)(3), whether they have issued conditional Forms I-20 in the past, and how the draft guidance could affect their current practices if finalized. Schools may also want to take the opportunity to review their overall practices with issuing Forms I-20 to foreign students to confirm that such practices are consistent with immigration regulations and official guidance.