SEVIS and the Culture of Pedagogy

THE FORUM TESOL Quarterly invites commentary on current trends or practices in the TESOL profession It also welcomes responses or rebuttals to any articles or remarks published here in the Forum or elsewhere in the Quarterly SEVIS and the Culture of Pedagogy ANN WENNERSTROM University of Washington Seattle, Washington, United States Ⅲ In the United States, past policies of international educational exchange have been relatively open Correspondingly, the field of TESOL has expanded in the United States over several decades as immigration laws liberally authorized student visas Such exchanges are seen by many as good foreign policy to strengthen international bonds and enhance global peace and security.1 Equally important is the cultural synergy created among participants, which instills an increased awareness of the roles and responsibilities we as members of the world community share In this article I argue, however, that the Student and Exchange Visitor System (SEVIS) represents a trend in a different direction Among its various effects, SEVIS and related laws put schools under increased scrutiny and force them to take gate-keeping roles.2 Expanded recordkeeping requirements impinge on student privacy in a system that is no longer very welcoming to international students Another less obvious consequence of SEVIS is its effect on English language pedagogy itself In this article, an analysis of administrative denials and withdrawals of SEVIS certification indicates that the laws may be inhibiting the creativity of TESOL educators to develop innovative programs Because it assumes a traditional teacher-fronted model of education, SEVIS has little flexibility to accommodate alternative educational formats Moreover, SEVIS laws envision education as a means to an end and may not be friendly It is no accident that funding for international exchanges in the United States comes from the nonmilitary part of the national security budget Of the 35 billion dollar nonmilitary national security budget request for 2007, 474 million was proposed for foreign educational exchange programs (Herrin, 2006) The term school will be used to refer to any educational institution, from a university or college to a small private language school TESOL QUARTERLY Vol 42, No 1, March 2008 99 toward learning for its own sake Because SEVIS is likely to be with us for the long term, TESOL professionals must keep immigration personnel informed about pedagogical practices in the field and pressure Congress to keep the laws as flexible as possible BACKGROUND SEVIS began as a government response to high-profile events linking terrorists with F-1 (student) visas.3 In the 1993 bombing of the World Trade Center and again in the September 11, 2001 attack (often referred to as 9/11), certain perpetrators were feared to have F-1 visas However, there is some disagreement as to how widespread these connections between F-1 visas and terrorism may have been Many among the 9/11 group are now known to have been citizens and lawful permanent residents of the United States (Eldridge, Ginsburg, Hempel, Kephart, & Moore, 2004) According to Burgess (2004, p 1), two of the 9/11 terrorists who died in airplanes had actually entered the United States on visitor visas and later changed their status to F-1 after arrival In fact, only about 3%–4% of all the temporary nonimmigrants entering the United States currently come on student visas (U.S Department of Homeland Security, 2007).4 Nevertheless, SEVIS was developed to respond to the perceived problem that terrorists were using the student visa system to enter the United States Its aim was to centralize all information about foreign students in an electronic government database A number of laws that surround SEVIS developed through a series of congressional acts and agency regulations In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA, 1996), the U.S Congress included a mandate for the attorney general to keep electronic records on foreign students (Program to Collect Information Relating to Nonimmigrant Foreign Students, U.S.C § 1372(a)(1) and (c)(3)(2002)) After a rather sluggish and unpopular pilot program, called the Coordinated Interagency Partnership Regulating International Students, the events of 9/11 revived the fervor to monitor international students (Jackson, 2004, pp 378–379) In the USA PATRIOT Act of 2001 and the Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSVRA), the official rules for the collection and input of student data were finalized These laws added a new requirement for students to provide biometric data—fingerprints and photographs—at SEVIS governs F-1 (student), J-1 (visiting scholar), and M-1 (vocational) visas as well as associated family visas However, this article focuses on the F-1 category unless other categories are specifically mentioned In 2006, 3.5% of nonimmigrants were students, 73.9% were tourists, and 15% were business travelers (U.S Department of Homeland Security, 2007) 100 TESOL QUARTERLY the border (see Registration and Fingerprinting of Aliens in the United States, C.F.R § 264.1(f) (2007)) In addition, students must now provide names and addresses of family members and former employers as well as an additional contact in the home country to verify their identity (EBSVERA, § 501(b)(1), 2002) All information on students is kept on file electronically by the Department of Homeland Security (DHS) and shared among other government agencies, including the Departments of State and Justice The usual privacy protections guaranteed to American students in the Family Educational Rights and Privacy Act of 1974 does not apply to “aliens” (8 U.S.C § 1372(c)(2) (2002)) Schools that serve international students also feel the burden of SEVIS-related laws They are now required to record in the government database each student’s personal information, including date and port of entry, date of enrollment in school, program of study, any disciplinary action, and date of and reason for termination of enrollment (Nonimmigrant Classes, C.F.R 214.3(g) (2007)) Schools have 30 days to report students who fail to enroll at the beginning of a term (Program to Collect Information, U.S.C § 1372(a)(4) (2002)) Failure to supply the required information will result in loss of authorization to admit international students (8 U.S.C 1372(d) (2002)) Another difficulty for schools are the requirements for SEVIS certification, without which they cannot accept international students at all To establish eligibility for SEVIS certification, a school must compile what amounts to an astonishing sheaf of documentation on its size, qualifications of its teaching staff, salaries, attendance, and grading and curriculum policies, among other matters (Nonimmigrant Classes, C.F.R § 214.3(b) (2007)) A nondegree-granting language school must also demonstrate an academic objective by showing “that its courses of study are accepted as fulfilling the requirements for the attainment of an educational, professional, or vocational objective, and are not avocational or recreational in character” (8 C.F.R § 214.3(c) (2007); emphasis added) A site visit by a DHS officer is required to verify this information (Nonimmigrant Classes, C.F.R § 214.3(h)(2) (2007)) After certification, schools must notify DHS if the institution itself or its international students’ records change Failure to comply means a withdrawal of SEVIS certification, that is, a loss of authorization to admit international students (8 C.F.R § 214.4) The supervision of all SEVIS-related law is under the control of Immigration and Customs Enforcement (ICE), the enforcement arm of DHS, which is under the federal government’s executive branch To sum up, the new SEVIS laws achieved Congress’s goal of creating a centralized, electronic system for monitoring international students and the schools that admit them DHS is now highly involved in controlling international exchange programs The application process for stuTHE FORUM 101 dents has become much more rigorous and the record-keeping requirements more invasive of their privacy rights than in prior years Schools must also monitor their international students more closely and comply with SEVIS certification requirements if they wish to retain their authorization to admit international students GENERAL CONSEQUENCES OF SEVIS It must be acknowledged that many see positive results from SEVIS Those who fear terrorist attacks may not be surprised at government record-keeping on foreign visitors in a computerized database Some students, accustomed to government surveillance at home, may consider SEVIS business as usual (Ritter, 2001) Certain American administrators have even expressed relief in that SEVIS takes the responsibility off the school for record-keeping requirements and places it under government authority By shifting the policing role to the government, SEVIS has allowed them to maintain a supportive relationship with international students.5 Notwithstanding these opinions, any positive aspects of SEVIS not come without cost The early days of SEVIS, as other authors have documented, were fraught with errors, inconveniences, delays, and losses of data (Johnson, 2004; Romero, 2005) Premature implementation and lack of funding played a role, as did DHS’s unfamiliarity with the new laws and its inexperience with educational practices (Johnson, 2004 Romero, 2005) Usually, schools and individual students bore the brunt of SEVIS problems To their credit, immigration officials tried to respond to glitches and to learn about the needs of educational institutions, but they could seldom anticipate the next problem.6 Indeed, statistics show that international student enrollments went down in the United States after SEVIS: In the 2003–2004 academic year, enrollment decreased overall by 2.4%, in 2004–2005 by 1.3%, and in 2005–2006 by 0.05% (Institute of International Education Network, 2006) Although these numbers are not huge, when considered in the context of the steady increase in enrollments of more than 6% per year in the years prior to 2001, these drops represent a complete reversal of a 50-year trend of steady growth In fact, enrollment dropped for the first time after 2002, the first drop since the statistics of international exchanges were first recorded in 1954 (Institute of International Education Network, 2006) After the initial decline, enrollments of international students in En5 102 This information comes from interviews with several student advisors Everyone I interviewed mentioned that immigration representatives were genuinely trying to troubleshoot TESOL QUARTERLY glish language programs appeared to stabilize However, a survey conducted by the Institute of International Education Network (2005) shows that enrollment varied significantly by country after 9/11.7 Enrollments from certain countries increased, but those from Indonesia, Pakistan, Malaysia, Egypt, the United Arab Emirates, and Turkey, all predominantly Muslim countries, showed a decrease In 34.5% of the institutions surveyed, the main reason cited for the decline was the visa application process (Institute of International Education Network, 2005) Thus, far from encouraging cultural understanding, SEVIS policies have added to the chill in relations between the United States and Muslim countries This is not mere speculation: Saudi Arabia has already instituted a retaliatory fingerprinting policy for Americans who enter the country (Jackson, 2004, p 390) As Johnson (2004) sums it up, purely in terms of U.S interests, such policies may have done “lasting damage to [U.S.] investment in foreign policy” (p 25) More broadly, these policies signify that the United States is retreating from global participation CONSEQUENCES FOR THE CULTURE OF PEDAGOGY In addition to the overt political consequences of SEVIS law, another less visible effect is on how American schools and their personnel can function SEVIS regulations are based on a model of education that leaves little room for innovative curriculum Moreover, the regulations depend for their interpretation mainly on immigration officers with no educational expertise The official responsible for monitoring schools’ SEVIS compliance is the regional district director (DD) The DD is not an educational specialist but an immigration officer.8 The DD is authorized to on-site inspections of schools and can initiate a withdrawal of a school’s SEVIS approval whenever he simply “believes” that the school is out of compliance with SEVIS (Nonimmigrant Classes, C.F.R § 214.3(b) (2007)) Although it is possible to appeal a withdrawal of certification to the Office of Administrative Appeals, it is burdensome and expensive to so.9 In 43 years, from 1958 and 2001, a total of eight cases in which a DD The survey was conducted between October and October 21, 2005 The organizations surveyed included the American Association of Community Colleges, American Council on Education, Association of American Universities, Council of Graduate Schools, Institute of International Education, NAFSA, Association of International Educators, and National Association of State Universities and Land-Grant Colleges Immigration regulations (Powers and Duties; Availability of Records, C.F.R § 103.1(b) (2004)) define Immigration Officer to include a long list of functionaries, from “special agent” to “helicopter pilot as designated by the Secretary of Homeland Security.” Appeals may be made within 30 days under C.F.R § 214.4(b) These are not federal court hearings but administrative reviews under the U.S Department of Justice, a part of the executive branch of government THE FORUM 103 denied or withdrew certification to a school reached the administrative appeals stage However, the situation changed after SEVIS was implemented In 2004–2005 alone, there were 18 cases appealing a DD’s decision to deny or withdraw SEVIS certification Of those, 13 were dismissed or denied on appeal–that is, the school lost its certification These numbers exclude schools that simply gave up and did not appeal after a DD denied or withdrew their approval Also excluded are schools that cut back on innovative practices in anticipation of a possible denial The following analysis of certain cases where schools’ certification was challenged illuminates the way in which SEVIS law can defeat a small school and curtail innovative programs Even cases that won on appeal reveal that the DD has arbitrary power to disrupt a program’s ability to serve international students It bears emphasizing that no Office of Administrative Appeals case cited a terrorism-related problem as a reason for lack of compliance Some denials and withdrawals of SEVIS certification show that the DD did not understand common practices in educational programs For example, a private university in California that had been functioning for more than 10 years had its petition for SEVIS certification denied for engaging in standard practices (Judgment of February 15, 2005, SFR 214F 01666).10 One “violation” stemmed from the fact that the school did not offer all of its approved courses every term Although colleges and universities routinely list courses that are offered intermittently, the DD concluded that the school did not provide “instruction in all the courses of study for which [it was] approved,” as required for SEVIS certification The DD also claimed that the school’s tuition records did not establish sufficient revenue to cover financial needs However, the DD had ignored grants, donations, and other sources of revenue Although the decision to decertify was ultimately reversed on appeal, the school was forced to mount a legal defense for what were clearly standard practices Other denials are based on technical errors In the San Francisco district, for example, an English language school was issued a withdrawal of SEVIS certification for alleged failure to file a change of address despite having telephoned the district office to inform them of the change (Judgment of January 22, 2004, SFR 214F 1005) Other issues that led to withdrawal included missed deadlines (Judgment of May 5, 2004, SND 214F 0381), too few days of instruction offered per year (Judgment of March 29, 2004, DEN 214F 007 16000), and a delayed fire-code clearance (Judgment of February 12, 2004, LOS 214F 2005) 10 104 The Office of Administrative Appeals’ decisions are published with the names of the schools redacted They are cited with their code number, and referenced in this article under “Judgment of [date].” TESOL QUARTERLY Even more troublesome were cases where withdrawals are based on educational curriculum choices The SEVIS requirement for strict monitoring of attendance favors a traditional teacher-fronted model of education Alternative educational approaches, such as courses with off-site distance learning components, experiential learning programs (Legutke & Thomas, 1991), and other creative approaches may be prohibited under SEVIS restrictions For example, courses with online components have been found to be out of compliance with SEVIS if teachers cannot take daily attendance In another San Francisco case, a school had on its books a course that required residential days in combination with an online component (Judgment of May 5, 2004, SFR 214F 1141) The local DD maintained that residential days did not substitute for full class attendance Thus the school lost its certification for being out of compliance with the attendance reporting requirement This unfortunate result would tend to quell experimentation in language education using online options Another problematic area involves English for specific purposes (ESP) programs that combine language study (which requires an F-1 student visa) with vocational training (which requires an M-1 vocational visa) SEVIS assumes a product model of education in which schooling leads toward further education or employment It does not accommodate learning for learning’s sake An interesting case from a Hawaiian school for English language and tourism illustrates possible problems (Judgment of May 3, 2004, HHW 214F 0151) The school was challenged under SEVIS for being “avocational” and asked to prove that graduates of the school had gained the expertise to obtain jobs in the tourism industry Despite five letters from employers who had hired their former students, the school lost on appeal: It had failed to provide attendance records showing that the same students whose employers wrote the letters had actually attended the school Presumably, other cutting-edge programs that allow international students to learn English by using it in the context of their academic or vocational fields could be questioned under SEVIS attendance requirements One can imagine, for example, biology or forestry students studying English while researching at a coastal marine laboratory or forest site If the language program issuing the visa is not in the off-site location to monitor attendance, such programs would be considered out of compliance with SEVIS Unless a creative program follows a traditional classroom model of education, SEVIS laws have little flexibility to accommodate it Teaching methods that encourage learning for learning’s sake may not meet SEVIS’s requirement that certified schools be academic or vocational rather than “recreational” (Nonimmigrant Classes, C.F.R § 214.3(c) (2007)) The point is not that all innovative programs will be terminated under THE FORUM 105 SEVIS; it is rather that the impetus to create and experiment with new approaches may be diminished Administrators of innovative programs know that they can be denied SEVIS certification by a DD who has little familiarity with educational matters Even those who appeal and win suffer financial burdens defending against a SEVIS challenge Resulting delays in authorization as legal struggles drag on can cause students to fall out of status or to lose learning opportunities SOLUTIONS? It is clear to this author that the negative consequences of SEVIS are unlikely to be resolved in American courts, given their current composition Concerning students’ privacy rights, lawsuits brought by noncitizens over U.S immigration laws have not historically been very successful because Congress has plenary power when it comes to immigration.11 The courts defer to congressional statutes as long as the statutes have a rational basis, and they would likely consider SEVIS a rational response to a terrorist attack Likewise, certain precedents in the Supreme Court would seem to preclude academic freedom arguments brought by schools on grounds that their right to develop innovative curricula was being stifled In a recent academic freedom case, Rumsfeld v Forum for Academic and Institutional Rights (FAIR) (2006), a group of law schools argued that the Solomon Amendment (10 U.S.C § 983 (1994)), withholding federal funding from law schools that refused to allow military recruiters to attend their job fairs, was a violation of their First Amendment rights to oppose the military’s antigay policy The Supreme Court ruled against the schools, stating that funding is a benefit rather than a right, and that the schools were not forced to accept the military recruiters They could have simply refused the money Nor were the schools forced to endorse the military’s antigay message as their own Analogously, SEVIS certification is considered a federal benefit that schools are not forced to accept Schools’ freedom to develop innovative curricula is not directly curtailed because they may offer programs for immigrant students who already live in the United States Nor are schools forced to adopt government views on immigration law A further similarity between the FAIR case and the present question is that both SEVIS and the Solomon Amendment have to with national security, regarding which the courts generally uphold congressional approaches to problem solving The Solomon Amendment in the FAIR case involved military recruit11 106 For early history, see Eiku v United States (1892); Fong Yue Ting v United States (1893) TESOL QUARTERLY ment Likewise, SEVIS, ostensibly a national security measure to combat terrorism, is likely to be upheld against academic freedom challenges Instead, the route forward must be through Congress, which creates the immigration laws, and DHS, which writes and enforces the detailed regulations Minor changes of current laws or the prevention of even stricter policies are probably the best that can be expected Language education organizations such as TESOL, NAFSA, and AAIEP must continue to monitor congressional legislation and DHS agency actions related to SEVIS.12 In Congress, TESOL professionals must impress on their legislators the value of an open culture of education and urge them to liberalize the laws It is also important to continue to educate DHS officers about the culture of our field Recently, conferences such as TESOL and NAFSA have included DHS officers in fruitful exchanges of information that have become a standard feature These are promising steps To summarize, immigration policies underlie the culture and character of language education in both subtle and not-so-subtle ways TESOL professionals in the United States rely on a continued ability to admit international students and to maintain a nurturing and nonthreatening learning environment for them Is it less obvious that creativity and innovation in language education are also bounded by law On balance, the questionable “security” afforded the United States by SEVIS may be outweighed by a long-term decline in flexibility and quality of language pedagogy International exchanges enhance the cultural, educational, economic, and political climate of all of the participant countries The field of TESOL should be at the forefront as a voice for an open culture of educational exchange worldwide, and the United States should be a responsible participant in this pursuit ACKNOWLEDGMENTS Many thanks to Kristen Stilt for her support on this project I also thank Sherry Schneider, Barbara Hansen, George Moore, David Fenner, and Peter Voeller for their helpful insights THE AUTHOR Ann Wennerstrom teaches TESOL and applied linguistics in the Department of English at the University of Washington, Seattle, Washington, United States She is also pursuing a law degree at the same university, specializing in immigration law 12 This author does not endorse the position that the government should adopt certification by the Commission on English Language Program Accreditation as its standard for SEVIS certification because the high expense and strict standards would make it impossible for small and innovative programs to become certified THE FORUM 107 Her books include The Music of Everyday Speech and Discourse Analysis in the Language Classroom: Genres of Writing REFERENCES Burgess, S N (2004, February) SEVIS: Is it academic? Immigration Briefings, February 2004 Retrieved June 12, 2006, from http://web2.westlaw.com/find/default.wl? fn=_top&rs=WLW7.11&rp=%2ffind%2fdefault.wl&mt=Westlaw&vr=2.0&sv=Split& cite=04–02+immigr.+briefings+1 Eiku v United States, 142 US 651 (1892) Eldridge, T R., Ginsburg, S., Hempel, W T., Kephart, J L., & Moore, K (2004) 9/11 and terrorist travel National Commission on Terrorist Attacks Upon the United States Retrieved August 12, 2006, from http://www.9–11commission.gov/staff_ statements/911_TerrTrav_Monograph.pdf Enhanced Border Security and Visa Entry Reform Act of 2002 (EBSVERA), Pub L No 107–173, Title V § 501, 116 Stat 543 (2002) (codified in part in U.S.C § 1372 (2002)) Family Educational Rights and Privacy Act of 1974, 20 U.S.C § 1232g (2002) Fong Yue Ting v United States, 149 US 698 (1893) Herrin, C (2006, May) International Education Policymaking: What’s New in Washington Paper presented at the Annual Conference of the National Association of Foreign Student Advisors (NAFSA), Montreal, Canada Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub L No 104–208, 110 Stat, 762 (1996, codified in scattered sections of U.S.C.) Immigration Regulations: Powers and Duties; Availability of Records, C.F.R § 103 (2004) Institute of International Education Network (2005, November) Report on international educational exchange: Fall 2005 international student enrollment survey Retrieved June 12, 2006 from the Open Doors Online website: http://opendoors.iienetwork org/file_depot/0–10000000/0–10000/3390/folder/48524/Fall2005Survey doc Institute of International Education Network (2006) Report on international educational exchange: International student and total U.S enrollment 2006 Retrieved September 12, 2007 from the Open Doors Online website: http://opendoors iienetwork.org/?p=89192 Jackson, B (2004) Documentation of international students in the United States: Forging alliances or fostering alienation? Georgetown Immigration Law Journal, 18, 373–394 Johnson, V (2004) Immigration policy and international students: A threat to national security St John’s Journal of Legal Commentary, 19, 25–30 Judgment of January 22, 2004, AAU SFR 214F 1005, San Francisco U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals Judgment of February 12, 2004, AAU LOS 214F 2005, Los Angeles U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals Judgment of March 29, 2004, AAU DEN 214F 007 16000, Denver U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals Judgment of May 3, 2004, AAU HHW 214F 0151 (2004), Honolulu U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals 108 TESOL QUARTERLY Judgment of May 5, 2004, AAU SFR 214F 1141, San Francisco U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals Judgment of May 5, 2004, AAU SND 214F 0381, San Diego U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals Judgment of February 15, 2005, SFR 214F 01666, San Francisco U.S Department of Justice, Immigration and Naturalization Service, Office of Administrative Appeals Legutke, M., & Thomas, H (1991) Process and experience in the language classroom New York: Longman Nonimmigrant Classes, C.F.R § 214 (2007) Program to Collect Information Relating to Nonimmigrant Foreign Students and Other Exchange Program Participants, U.S.C § 1372 (2000) Registration and Fingerprinting of Aliens in the United States, C.F.R § 264 (2007) Ritter, J (2001, October 23) Crackdown on visas may have limited effect USA Today, p 10A Romero, V C (2005) Alienated: Immigrant rights, the constitution, and equality in America New York: New York University Press Rumsfeld v Forum for Academic and Institutional Rights, Inc [FAIR], 547 U.S 47 (2006) Solomon Amendment, 10 U.S.C § 983 (1994) [USA Patriot Act of 2001] Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub L No 107–156, Title IV § 416, 115 Stat 354 (2001) (codified in part in U.S.C § 1372(c)(1)(A-H) (2002)) U.S Department of Homeland Security (2007, July) Temporary Admission of Nonimmigrants to the United States Table 3: Nonimmigrant Admissions (I-94 Only) by Class of Admission: Fiscal Years 2004–2006 Yearbook on Immigration Statistics Retrieved November 23, 2007 from http://www.dhs.gov/xlibrary/assets/ statistics/publications/NI_FR_2006_508_final.pdf THE FORUM 109