FERPA and the Immigration and Naturalization Service: A Guide for University Counsel on Federal Rules for Collecting, Maintaining and Releasing Information About Foreign Students

The devastating terrorist attacks against the United States on September 11, 2001, destroyed the World Trade Center in New York City, badly damaged the Pentagon, and took the lives of thousands of individuals. As more details became available about the terrorists who hijacked four U.S. planes to carry out these deadly attacks, universities around the U.S. struggled with the news that several of the hijackers had entered the U.S. on, or had later applied for, student visas. University officials began to grapple with new questions presented by these attacks: What responsibilities do the universities have to report foreign students who never enroll? Should universities be responsible for more stringent review of foreign applicants, and would such increased scrutiny of foreign students be lawful? Finally, as FBI officials appeared on university campuses nationwide to request information about the foreign students enrolled at these schools, university attorneys sought to definitively answer this question: What obligations does a university have to provide information about foreign students to the government? This article seeks to answer the latter question by examining the complex interaction of the Immigration and Naturalization Act (INA), the Immigration and Naturalization Service (INS) regulations and the Family Educational Rights and Privacy Act of 1974 (FERPA). These laws, particularly as amended in 2001 - 2002, combine to control whether and how universities must report information about foreign students to the INS or other government agencies and how universities should respond to requests for information about foreign students. First, this article will review some basic information about the three typical types of student visas. Next, it will examine federal laws and regulations requiring universities to maintain and report specific information about students holding such visa status. Finally, it will explore how FERPA impacts these reporting requirements and requests for information about foreign students. I