DHS-ICE and Foreign Student Flight Training

By DAVE HOOK.

When it comes to teaching students from other countries to fly, it’s no longer good enough to be a Part 61 flight school or an independent flight instructor. That’s according to the U.S. Department of Homeland Security’s Immigration and Customs Enforcement. If you’re just as shocked as I was to learn this, then read their policy guidance letter.

The letter states that foreign students on an F or M visa can receive flight training only from flight schools that are FAA certified under 14 CFR Part 141 or Part 142. ICE decided that independent flight instructors and Part 61 flight schools are not eligible to be certified under the Student Exchange Visitor Program (SEVP) and are, therefore, not eligible to provide flight instruction to F or M visa-holding foreign students. What caused this letter to be written in the first place?

In a Government Accountability Office (GAO) report concerning a recent investigation into ICE’s SEVP program, investigators found that “ICE officials do not consistently verify certain evidence initially submitted by schools in lieu of accreditation. In addition, ICE does not maintain records to document SEVP-certified schools’ ongoing compliance.” (GAO Report 12-572, What GAO Found) So how do non-Part 141/142 flight schools get involved in all this?

According to the GAO, “ICE certifies schools as authorized to accept foreign students in academic and vocational programs.“ (GAO Report 12-572, page 2) That’s where the F visas (academic programs) and M visas (vocational programs) come into this. The GAO investigators also noted, “ICE’s policies and procedures require flight schools to have FAA Part 141 or 142 certification to be eligible for SEVP certification; however, ICE has certified schools offering flight training without such FAA certifications.” (Page 29)

But ICE created its own exception to policy, not the flight schools. GAO noted that,“…a DHS flight training working group conducted a flight study that found that many FAA Part 61 schools were providing equal if not superior instruction than Part 141 schools. Based on that finding, the DHS flight training working group recommended that ICE re-examine the program’s requirement for Part 141 or 142 certification for flight schools to enroll foreign students. Based on the DHS group’s recommendation, ICE conducted a preliminary review and certified a limited number of non-Part 141 or 142 flight schools. Specifically, ICE certified one Part 61 provider following a site visit during which SEVP officials determined that the provider was equally qualified as a Part 141 or 142 flight school.” (Page 31) According to the ICE Policy Branch, “there is no difference in quality between Part 61 providers and Part 141 or 142 flight schools.” (Page 31)

I contacted some of the various aviation associations to see if ICE had conferred with them prior to releasing their policy guidance. Jason Blair, Executive Director of the National Association of Flight Instructors, responded to my inquiry and wrote that he had heard a little rumbling about the issue, but had not been contacted by ICE concerning the policy guidance. Inquiries to other organizations resulted in similar responses.

From where I sit, ICE didn’t do its job. The GAO investigators discovered inconsistencies with the SVEP program. It appears, after reading the GAO report, that ICE came up with a policy and didn’t consider the consequences, unintended or otherwise. Who suffers? The independent flight instructor and Part 61 flight schools take the hit.

Where is the coordination with the Department of Transportation and the FAA? Is an agency within the Department of Homeland Security reaching across the bureaucratic abyss into another department’s pockets and spending the manpower and resources of another agency?

Where is the coordination with the Small Business Administration? This policy essentially denies the opportunity for businesses to conduct business with certain clients — clients that were previously approved for some. Isn’t the very definition of a small business a one-person flight training school — the independent instructor? And I can’t think of a single Part 61 flight school that wouldn’t fit the industry’s definition of a small business.

Where is the coordination within the Department of Homeland Security? The Transportation Security Administration already requires flight schools — independent flight instructors are counted as a flight school in the eyes of the TSA — to comply with 49 CFR 1552. Subpart A deals with the requirements for flight training programs with foreign students; Subpart B deals with initial and annual security awareness training. Isn’t the SEVP certification for flight training just another layer of security bureaucracy on top of what is already demanded by TSA? We need more paperwork?

In short, there needs to be an economic impact analysis. There needs to be a Paperwork Reduction Act analysis. This policy needs to be brought out into the light of day and given the scrutiny afforded by the Administrative Procedures Act. This policy should be published in the U.S. Federal Register. The public — and especially those who would be impacted by such a policy — should be given the opportunity to consider and comment upon such a policy because, as I have tried to show, this policy raises more questions than it answers.

If you agree with me, please contact your national legislators. Tell them what you think of this policy guidance. Here are the links to help you find your member in the U.S. House of Representatives and your U.S. Senators.