Shipman & Goodwin LLP attorney Nina Pelc-Faszcza authored this week's tip.
Question
My school has international students here on F-1 visas. What do we need to know about compliance visits from the Student and Exchange Visitor Program (SEVP) and how does it differ from U.S. Immigration and Customs Enforcement (ICE) immigration enforcement actions?
Answer
SEVP is part of ICE and a component of the U.S. Department of Homeland Security (DHS). SEVP-certified educational institutions should be aware that SEVP may conduct a review at any time to assess ongoing compliance with SEVP program requirements, referred to as an “out-of-cycle review.” These reviews are separate from routine SEVP recertification checks, can be triggered by a broad range of risk indicators, and can occur without notice. Therefore, institutions should maintain readiness for a comprehensive inquiry that can include data verification, document requests, school visits, and stakeholder interviews (potentially including interactions with international students).
What Is an Out-of-Cycle Review?
An out-of-cycle review is an SEVP-initiated compliance review conducted outside the normal recertification cycle. SEVP uses these reviews to evaluate whether a school continues to meet regulatory standards for enrolling and monitoring F-1 and M-1 nonimmigrant students, maintaining accurate Student and Exchange Visitor Information System (SEVIS) records, and adhering to reporting, recordkeeping, and program integrity requirements. Out-of-cycle reviews can focus on discrete concerns or be wide-ranging, encompassing policies, procedures, and operational controls.
SEVP may initiate an out-of-cycle review based on indicators that a school’s compliance may be at risk and will generally provide the school with an out-of-cycle review letter. While SEVP does not publish an exhaustive list, common triggers include SEVIS data anomalies, certain program changes, patterns of late or inaccurate reporting, complaints/tips, and information referrals from other government agencies.
SEVP has the authority to conduct these reviews without any special notice, so these reviews can be announced or unannounced. By seeking and maintaining SEVP certification, schools agree to regulatory oversight that includes on-site reviews and access to required records. While SEVP typically contacts the principal designated school official (PDSO) at the school to schedule the visit ahead of time, there is no particular notice requirement and short‑notice visits can potentially occur, especially if SEVP is verifying a recent program change or some sort of important compliance issue.
Scope of an Out-of-Cycle Review
SEVP has broad discretion to define the scope of an out-of-cycle review, which often includes a combination of off-site analysis and on-site activity. SEVP typically focuses its review on school records and other documentation surrounding policies and procedures and interviews with school officials. SEVP may request student files, attendance and academic progress policies, proof of physical presence, designated school official (DSO) records, and internal policies for SEVIS reporting and record retention. SEVP may conduct interviews with PDSOs/DSOs, international student services, registrars, and other relevant stakeholders. In some cases, SEVP may also conduct interviews with students if necessary to carry out the audit, though this is typically not a primary task of the SEVP reviewer.
Rights to Control SEVP Access to School Facilities and Records
Many institutions often confuse a site visit from SEVP with a site visit from immigration authorities for enforcement purposes, which are subject to stricter legal parameters. With ICE enforcement activity, for example, a judicial warrant or subpoena may be required to access certain parts of a school campus or certain records without proper consent. In contrast, SEVP has the right to conduct its reviews on-site without a warrant as may be necessary to carry out its oversight duties relating to SEVP compliance.
That being said, schools do retain general rights to manage access and protect nonpublic areas and privileged materials. SEVP’s site/compliance visits are programmatic and do not involve warrants to access the school’s facilities, and therefore access should generally be limited to spaces and records needed to verify SEVP program compliance. Expect interest from SEVP in administrative offices (such as the international services offices and potentially admissions, registrar, etc.), classrooms and other spaces used for listed programs, and any instructional sites listed on the I‑17. But schools may challenge access to nonpublic areas of the school that do not seem appropriately tailored to the purpose of the visit/review.
However, schools should be aware that refusing reasonable access or inspection tied to SEVP compliance can have administrative consequences for the school, such as a withdrawal of certification or a denial of recertification. Certain administrative actions may come with notice and an opportunity to respond/appeal, but schools should be mindful to try and avoid such adverse consequences as they can be detrimental to the school and its students.
SEVP Access to Student Passports
Federal regulations expressly provide that out-of-cycle reviews can include a review of the requirement that each international student maintains a valid passport. Therefore, SEVP may ask to see student passport information during one of these reviews. Since SEVP reviews are institution-focused reviews and not individual enforcement actions, SEVP reviewers generally do not ask students to present their physical passports in person during an on-site visit and it is not required for SEVP compliance that students have their passports with them at all times. SEVP reviews (both routine and out-of-cycle) are typically conducted through the DSO and focus on reviewing the school’s records, so schools should be mindful of this requirement and keep adequate records accordingly to produce in the event of a request from SEVP.
Takeaways
SEVP’s ability to conduct out-of-cycle reviews underscores the need for continuous program compliance. Disciplined data governance and proactive remediation of issues will prepare schools for out-of-cycle reviews (even when unannounced) and will materially reduce the likelihood of adverse outcomes. Institutions should continually review their compliance posture, ensure documentation is audit-ready, and be prepared to respond quickly to any SEVP inquiries. Institutions should also be sure to consult their SEVP field representative for input and consult with outside counsel, as needed.
This article is for informational purposes only and does not constitute legal advice.
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