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Status of rule making: Withdrawn

This NAFSA page is maintained for archival and research purposes

On July 6, 2021, the Department of Homeland Security officially withdrew its proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. DHS received more than 32,000 comments during the proposal’s public comment period, including NAFSA's comment letter that urged DHS "to withdraw this poorly conceived rule from consideration."

Background

The proposal

On September 25, 2020, the Department of Homeland Security (DHS) published a proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. Under the proposal, instead of being admitted for "duration of status" (D/S) as they currently are (since 1991 for F students and 1993 for J exchange visitors), individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would have been admitted only until the program end date noted in their Form I-20 or DS-2019, not to exceed 4 years, unless they were subject to a more limited 2-year admission, plus a period of 30 days following their program end date. The proposed revisions to the J regulations at 8 CFR 214.2(j) closely aligned with the proposed changes for F nonimmigrants. Individuals who needed time beyond their period of admission would have had to timely file a complete extension of stay application with USCIS before their prior admission expired.

Comments and advocacy

DHS received more than 32,000 comments during the 30-day public comment period, including NAFSA's comment letter. Comments and advocacy against the proposal included:

  • NAFSA's comment letter to DHS (October 22, 2020). NAFSA urged DHS "to withdraw this poorly conceived rule from consideration."
  • Comment letter submitted by State Attorneys General coalition. "The District of Columbia and Massachusetts led the letter and are joined by state Attorneys General of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin."
  • NAFSA and other groups advocated for an extension of the comment period, but that extension was never granted. Read the letter requesting an extension of the comment period submitted by the American Council on Education (ACE) on behalf of NAFSA and other education organizations.
  • On October 23, 2020, 20 House Republicans, led by Representative Jaime Herrera Beutler (R-Wash.), sent a letter to DHS asking it to "preserve the duration of status policy” and develop “targeted approaches” to address concerns such as “visa overstays and fraud” instead of eliminating duration of status as DHS proposed in its September 25, 2020 proposed rule.
  • On October 6, 2020, 106 House Democrats, led by Representatives Debbie Dingell (D-Mich.) and Mark Pocan (D-Wisc.), wrote a letter to DHS urging that it withdraw the proposed duration of status rule and maintain the current policy.
  • October 26, 2020 - 28 U.S. Senators, led by Senators Patty Murray (D-Wash.), Christopher Murphy (D-Conn.) and Dianne Feinstein (D-Calif.), submitted a comment letter urging DHS to withdraw the duration of status proposed rule in its entirety and retain the current policy.
  • October 26, 2020 - 50 members of the U.S. House of Representatives, submitted a comment letter urging “DHS to abandon this rulemaking and maintain the duration of status model for F, J, and I nonimmigrant visas.” The letter includes signatures from Representatives Jerrold Nadler (D-N.Y.), chair of the House Judiciary Committee and Zoe Lofgren (D-Calif.), chair of the House Subcommittee on Immigration and Citizenship, along with the chairs of the House Education and Labor and Homeland Security Committees.

Virtual events about the proposal

  • NAFSA Town Hall: Responding to the DHS Proposal to Eliminate Duration of Status. On October 13, 2020, NAFSA presented a virtual Town Hall that reviewed key elements of the proposal and potential issues, described NAFSA’s response, heard about three schools’ response plans, and highlighted additional information and resources. You can watch the recording and download the presentation.
  • Presidents' Alliance and World Education Services Briefing. October 7, 2020. Visit the Presidents Alliance on Higher Education and Immigration website to view the recorded event and download materials. "This rapid response briefing addresses the proposed rule to end duration of status for F-1 international students and J exchange visitors and their families. The briefing addresses the impact of the proposed rule, why it matters, and what campus leaders can do now. If finalized without change, the proposed rule would constitute the largest changes to regulation of international students and scholars in 20 years, and result in further declines of international students to the U.S. The briefing features legal immigration experts, crucial campus voices, and policy experts. Guidance for submitting comments and other resources will be provided."

Administration review and withdrawal

When the Biden Administration issued its Regulatory Freeze memorandum on January 20, 2021, DHS had not yet sent a final duration of status rule to OMB for review or to the Office of the Federal Register for publication. Paragraph 1 of the Regulatory Freeze meant that no final rule could advance "until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule."

In the Spring 2021 regulatory agenda published on June 14, 2021, DHS announced that it intended to withdraw the proposed rule. The Spring 2021 abstract read: "DHS intends to withdraw this proposed rule. U.S. Immigration and Customs Enforcement (ICE) originally proposed modifying the period of authorized stay for certain categories of nonimmigrants traveling to the United States by eliminating the availability of "duration of status" and by providing a maximum period of authorized stay with options for extensions for each applicable visa category."

On July 6, 2021, DHS officially withdrew the proposed rule in a Federal Register notice. In the withdrawal notice, DHS noted:

  • "More than 99 percent of commenters opposed the proposed rule with many commenters specifically requesting that DHS withdraw the NPRM."
  • DHS also said, "Having reviewed the public comments received in response to the NPRM in light of Executive Order 14012 [NAFSA note: "Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans"], DHS believes some of the comments may be justified and is concerned that the changes proposed unnecessarily impede access to immigration benefits. DHS still supports the goals of the NPRM to protect the integrity of programs that admit nonimmigrants in the F, J, and I classifications but not in a way that conflicts with Executive Order 14012. Accordingly, we are withdrawing the NPRM and will analyze the entirety of the NPRM in the context of the directive in E.O. 14012 to determine what changes may be appropriate and consistent with DHS's needs, policies, and applicable law. As such, DHS may engage in a future rulemaking to protect the integrity of programs that admit nonimmigrants in the F, J, and I classifications in a manner consistent with Executive Order 14012."

NAFSA statement on withdrawal of proposed rule (July 6, 2021). Dr. Esther D. Brimmer, Executive Director and CEO of NAFSA: Association of International Educators, commented: “NAFSA is pleased that today, the Biden Administration officially withdrew the proposed rule to eliminate duration of status (D/S) for F students and J exchange visitors. We have been working toward this outcome since October 2018 when the proposal to eliminate D/S first appeared on the Regulatory Agenda. DHS received more than 32,000 comments during the proposal’s public comment period last fall, including thousands from NAFSA’s advocates, and NAFSA’s own comment letter that urged DHS ‘to withdraw this poorly conceived rule from consideration...We urge the administration to continue its efforts to make the United States a more welcoming place for international students and scholars..."

Summary of Key Proposals

This summary includes only proposed changes to duration of status for F and J nonimmigrants. DHS also proposes eliminating duration of status for I information media nonimmigrants. Since this rule has been withdrawn, this summary is being maintained for reference and research purposes.

(quotations are from DHS's preamble to the proposed rule, unless otherwise noted)

Date-Specific admission of F and J nonimmigrants

Eliminating D/S. Instead of being admitted for "duration of status" (D/S) as they currently are (since 1991 for F students and 1993 for J exchange visitors), individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would be admitted only until the program end date noted in their Form I-20 or DS-2019, not to exceed 4 years, unless they are subject to a more limited 2-year admission, plus a period of 30 days following their program end date. The proposed revisions to the J regulations at 8 CFR 214.2(j) closely align with the proposed changes for F nonimmigrants. Individuals who need time beyond their period of admission would have to timely file a complete extension of stay application with USCIS before their prior admission expires.

  • "The Department believes it is appropriate for the DSO to recommend an extension of an academic program and an RO to recommend an extension of an exchange visitor program; however, an EOS involves an adjudication of whether an alien is legally eligible to extend his or her stay in the United States in a given immigration status and has been complying with the terms and conditions of his or her admission. The Department believes that the determinations of program extension and extension of stay should be separated, with the DSO's and RO's recommendation being one factor an immigration officer reviews while adjudicating an application for EOS. Changing to a fixed period of admission would give immigration officers a mechanism to make this evaluation at reasonably frequent intervals."
  • F and J nonimmigrants seeking a program extension will continue to first request such an extension through the P/DSO or A/RO, as provided for under current regulations. If such a program extension is recommended by the P/DSO or A/RO, the F-1 or J-1 must timely apply for an extension of stay (EOS) on Form I-539 with USCIS to remain in the U.S. beyond the status expiration date on their I-94.
  • Note: The rule would not change the program period a school or program could put on I-20 or DS-2019… it would limit the period of admission that CBP or USCIS would give on the F or J’s Form I-194.

Groups subject to a limited 2-year admission instead of a 4-year admission. "DHS believes a shorter admission period, up to 2 years, would be appropriate for a subset of the F and J population due to heightened concerns related to fraud, abuse, and national security, as discussed below."

  • State Sponsor of Terrorism List. Individuals who were born in or are citizens of countries on the State Sponsor of Terrorism List. Currently: North Korea, Iran, Sudan, and Syria.
  • Countries with greater than 10 percent overstay rate. Citizens of countries with a student and exchange visitor total overstay rate of greater than 10 percent according to the most recent DHS Entry/Exit Overstay report (See Table 4, Column 6). For now, this appear to be:  Afghanistan, Benin, Bhutan, Burkina Faso, Burma, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Congo-Brazzaville, Congo-Kinshasa, Côte d'Ivoire, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, the Gambia, Ghana, Guinea, Guinea-Bissau, Guyana, Haiti, Iraq, Kenya, Kosovo, Kyrgyzstan, Liberia, Libya, Malawi, Mali, Mauritania, Moldova, Mongolia, Nepal, Niger, Nigeria, Papua New Guinea, the Philippines, Rwanda, Samoa, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tajikistan, Tanzania, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan, Vietnam, Yemen and Zambia. DHS proposes to issue Federal Register Notices (FRNs) listing countries with overstay rates triggering the 2-year admission period. The first such FRN would also list countries that have been designated as State Sponsors of Terrorism.
  • U.S. national interest. "For example, the Secretary of Homeland Security could determine that it is appropriate to limit the length of admission of students who are enrolled in specific courses of study, such as nuclear science... If the DHS Secretary determines that U.S. national interests warrant limiting admission to a 2-year maximum period in certain circumstances, then it would publish an FRN to give the public advance notice of such circumstance."
  • Unaccredited schools (F-1 only). "Aliens who are not attending institutions accredited by an accrediting agency recognized by the Secretary of Education. Because ED only has the authority to recognize post-secondary accreditors, aliens attending elementary, middle or high school would not be subject to this limitation and may be eligible for the maximum 4-year period of admission. A link to information about ED-accredited agencies would be included in a FRN that would be published concurrently with the final rule and updated as needed."
  • School or exchange program not participating in E-Verify. Only 2-year admission for students at schools and exchange visitor programs who do not fully participate in E-Verify. In the preamble, DHS rationalizes that schools and exchange visitor programs "that are willing to go above and beyond to ensure compliance with immigration law in one respect (verifying identity and employment eligibility as required under section 274A of the INA and taking the additional step to confirm Form I-9 information using E-Verify) are more likely to comply with immigration law in other respects," and that it has "less confidence" in schools and exchange programs "that are unwilling to do all they can to ensure they have a legal workforce." The proposed regulatory wording then makes clear that a school or program that is only partially enrolled in E-Verify (e.g., a single hiring center or department) would not be sufficient to avoid the 2-year admission limit for its students or exchange visitors, by requiring the school or program to be "a participant in good standing in E-Verify as determined by USCIS," which is then defined as: "Enrolled in E-Verify with respect to all hiring sites in the United States" at the time of the individual's admission in F-1 or J-1 status or at the time the individual files an application for an extension of or change to F-1 or J-1 status with USCIS, and "are in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continue to be participants in good standing in E-Verify at any time during which the alien is pursuing a full-course of study at the educational institution" or "the J-1 exchange visitor is participating in an exchange visitor program at the organization."

Reducing the F-1 "grace period" from 60 days to 30 days. "DHS believes that the F category, albeit distinct from M or J, shares a core similarity in that many aliens in these categories are seeking admission to the United States to study at United States educational institutions. Thus, DHS thinks that these categories should have a standard period of time to prepare for departure, or take other actions to extend, change, or otherwise maintain lawful status."

F-1 cap-gap would be retained, and October 1 end date would be extended to April 1. On a positive note, DHS says: "With the consistently high volume of H-1B petitions each year, however, USCIS has been unable to complete adjudication of H-1B cap- subject petitions by October 1, resulting in situations where some individuals must stop working on October 1... To account for this operational issue, DHS is proposing... to provide an automatic extension of F-1 status and post-completion OPT, as applicable, until April 1 of the fiscal year for which the H-1B petition is filed."

Transition provision. The status of F and J nonimmigrants who are in the United States for "duration of status" on the future effective date of a final rule would expire on the program end date on the alien's Form I-20 or DS-2019 that is valid on the final rule's effective date, not to exceed a period of 4 years from the final rule's effective date, plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. The proposed regulatory wording would be added by a new paragraph at 8 CFR 214.1(m):

(m) Transition period from duration of status to a fixed admission date—

(1) Transition from D/S admission to a fixed admission period for aliens properly maintaining F and J status on [EFFECTIVE DATE OF FINAL RULE]. Aliens with F or J status who are properly maintaining their status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of status are authorized to remain in the United States in F or J nonimmigrant status until the later date of either the expiration date on an Employment Authorization Document (Form I-766, or successor form), or the program end date noted on their Form I-20 or Form DS-2019, as applicable, not to exceed a period of 4 years from [EFFECTIVE DATE OF FINAL RULE], plus the departure period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. Any authorized employment or training continues until the program end date on such F or J nonimmigrant's Form I-20 or DS-2019, as applicable and as endorsed by the DSO or RO for employment or training, or expiration date on Employment Authorization Document (Form I-766, or successor form). Aliens who need additional time to complete their current course of study, including requests for post-completion OPT or STEM OPT, or exchange visitor program, or would like to start a new course of study or exchange visitor program must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section for an admission period to a fixed date.

(2) Pending employment authorization applications with USCIS on [EFFECTIVE DATE OF FINAL RULE] filed by aliens with F-1 status. F-1 aliens described in paragraph (m)(1) of this section who have timely and properly filed applications for employment authorization pending with USCIS on [EFFECTIVE DATE OF FINAL RULE] do not have to file for an extension or re-file such applications for employment authorization, unless otherwise requested by USCIS.

(i) If the F-1's application for post-completion OPT or STEM-OPT employment authorization is approved, the F-1 will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60-days. If the employment authorization application is denied, the F-1 would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status.

(ii) Aliens in F-1 status with pending employment authorization applications, other than post-completion OPT and STEM-OPT, who continue to pursue a full course of study and otherwise meet the requirements for F-1 status, continue to be authorized to remain in the United States until the program end date listed on the Form I-20, plus 60 days, regardless of whether the employment authorization application is approved or denied.

(3) Transition from D/S admission to a fixed admission period for aliens with I status present in the U.S. on [EFFECTIVE DATE OF FINAL RULE]. Except for those aliens described in 8 CFR 214.2(i)(3)(ii), aliens in I nonimmigrant status who are properly maintaining their status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of status are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DATE 240 DAYS AFTER EFFECTIVE DATE OF FINAL RULE] with the exception of aliens in I nonimmigrant status presenting passports issued by the Hong Kong Special Administrative Region, who are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DATE 90 DAYS AFTER EFFECTIVE DATE OF FINAL RULE]. Aliens who need additional time to complete their employment must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section for an admission period to a fixed date.

Summary of transition provisions:

  • In U.S. in D/S on final rule effective date. F or J nonimmigrants previously admitted for D/S would be transitioned to a fixed date of admission, which would be:
    • the program end date of the Form I-20 (or OPT EAD) or DS-2019 that is valid on the final rule's effective date,
    • plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants, but
    • not to exceed a period of 4 years from the final rule's effective date (even if in a “2-year” category)
  • Travel and reentry after the final rule effective date.
    • An F or J nonimmigrant who departs the United States and seeks admission after the final rule's effective date becomes subject to the fixed date framework that would be imposed by this rule (e.g., admission for 2 year maximum if in a “2-year category”)
  • OPT and STEM OPT.
    • F-1 applicants for OPT or STEM OPT whose I-765 is pending with USCIS on the final rule effective date could remain in the U.S. while the application is pending. They would not have to file an I-539 or re-file an I-765.
    • If USCIS approves the OPT, the F-1 could remain in F status until the expiration date of the OPT EAD, plus 60 days.
    • If USCIS denies the OPT: If the student’s program end date has not yet passed, could remain in the United States until the program end date listed on their Form I-20, plus 60 days. If the program end date and 60-day grace period has passed by the time USCIS denies the I-765, student must immediately depart the United States with no grace period.

Academic-related restrictions

The DHS proposal dipped into several areas that are traditionally within the purview of the academic institution.

Limit on aggregate ESL study. F-1 students in a language training program would be restricted to a lifetime aggregate of 24 months of language study, which would include breaks and an annual vacation.

Limit on pursuing new F-1 programs at the same educational level. The preamble states that: "DHS ... proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor's or master's degree. Specifically, any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times while in F-1 status, for a total of three programs for the lifetime of the student." The proposed regulatory wording at 8 CFR 214.2(f)(5)(ii)(B) makes clear that: "This two-time limit on beginning additional programs after completion of a program in the United States at the same educational level is a lifetime limit and does not reset with a new admission as an F-1."

Limit on "reverse matriculation" by F-1 students. The preamble states that: "An F-1 student who has completed a program at one educational level would be allowed to change to a lower educational level one time while in F-1 status." The proposed regulatory wording at 8 CFR 214.2(f)(5)(ii)(C) makes clear that: "The one-time limit on changing to a lower educational level following completion of a program at a higher level is a lifetime restriction and does not reset with a new admission as an F-1."

Unaccredited post-secondary schools. Students at unaccredited post-secondary schools would be admitted for shorter two-year periods of admission, requiring them to apply for extensions of stay to stay longer. Citing three limited examples, DHS says, "The history of problems encountered at unaccredited schools approved for the attendance of F-1 students demonstrates the value of promoting attendance at accredited schools."

Standards for DHS to approve an F-1 extension of stay. "DHS is proposing to eliminate a reference to "normal progress" with respect to seeking a program extension, and incorporate a new standard that makes it clear that acceptable reasons for requesting an extension of a stay for additional time to complete a program are: (1) compelling academic reasons; (2) a documented illness or medical condition; and (3) exceptional circumstances beyond the control of the alien."

  • "The student would be expected to provide evidence demonstrating the compelling academic reason in order for the DSO to recommend program extension and then the student may apply for extension of stay. While a letter from the student may be sufficient to meet his or her burden of proof, an immigration officer will evaluate the individual case and make the determination if additional evidence (such as a letter from a member of the school administration or faculty) is needed to adjudicate the case."
  • "DHS proposes to clarify that, in addition to academic probation and suspension, a pattern of behavior which demonstrates a student's repeated inability or unwillingness to complete his or her course of study, such as failing classes, is not an acceptable reason for an extension of stay for additional time to complete a program."
  • "Passing a class, or not, is something that is within the student's control. Therefore, a student who has a pattern of failing grades or has failed to carry a full course of study due to failing grades would not be qualified for an extension of stay."
  • "DHS is also proposing a new factor in the extension of stay provisions - circumstances beyond the student's control, including a natural disaster, a national health crisis, or the closure of an institution... Some of these examples are currently in the reinstatement provisions... and DHS believes that they merit favorable consideration in extension requests."

Extension of stay mechanics and standards of eligibility

I-539 as the extension of stay application form. "USCIS anticipates accepting the Form I-539, Application to Change/Extend Nonimmigrant Status, for this population but would like the flexibility to use a new form if more efficient or responsive to workload needs. Thus, DHS is proposing to use general language to account for a possible change in form in the future. If the form ever changes, USCIS would provide stakeholder's advanced notice on its webpage and comply with Paperwork Reduction Act requirements." ... applicants would need to demonstrate that they are eligible for the nonimmigrant classification sought."

Period of extension. USCIS would have to receive an application for extension of stay before the expiration of the period of admission recorded on Form I-94. Extensions of stay would be granted for the period of time needed to complete the program or requested practical training, not to exceed 4 years or the more limited periods of admission called for by other provisions.

Biometrics. "Like all other aliens who file a Form I-539, F-1 applicants would be required to submit biometrics... As part of the EOS application, USCIS requires biometric collection and will require such collection from F, J, and I nonimmigrants under the proposed rule."

Proof of sufficient funding for F-1 students extending their stay. "...[A]pplicants must submit evidence of sufficient funds to cover expenses. A failure to provide such evidence would render the applicant ineligible for the extension of stay. See proposed 8 CFR 214.2(f)(7)(iv)." DHS says: "DHS believes requiring evidence of financial resources to cover expenses for one year of study is reasonable given that F students are familiar with this requirement because this is the standard used by the Department of State. Such evidence for one year and subsequent years could include, but is not limited to: complete copies of detailed financial account statements for each account intended to be used to fund the student's education; other immediately available cash assets; receipts and/or a letter from the school accounts office indicating tuition payments already made and any outstanding account balance; affidavits of support from a sponsor; proof of authorized private student loans; and/or other financial documentation." This references DOS standards at 9 FAM 402.5-5(G)(1) that requires an F-1 student visa applicant to establish that he or she "has enough readily available funds to meet all expenses for the first year of study," and that, "barring unforeseen circumstances, adequate funds will be available for each subsequent year of study from the same source or from one or more other specifically identified and reliable financial sources."

Possibility of an interview. "Further, USCIS may also require any applicant, petitioner, sponsor, beneficiary or individual filing a benefit request, or any group or class of such persons submitting requests to appear for an interview. See 8 CFR 103.2(b)(9). USCIS may require such an interview as part of USCIS' screening and adjudication process that helps confirm an individual's identity, elicit information to assess the eligibility for an immigration benefit, and screen for any national security or fraud concerns."

Dependents. F-2 and J-2 dependents seeking to accompany the F-1 or J-1 principal would need to file applications for an EOS or reinstatement, as applicable. If the dependent files a separate Form I-539, he or she would need to pay a separate Form I-539 filing fee. However, if the dependent files a Form I-539A as part of the primary applicant's EOS request on a Form I-539, only one fee would be required... To qualify for an EOS, the F-2 or J-2 dependent would need to demonstrate the qualifying relationship with the principal F-1 or J-1 principal who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment. Extensions of stay for dependents would not be able to exceed the authorized admission period of the principal.

Immigration status

The nature of status while the EOS is pending. DHS stated in the preamble that "F nonimmigrants with a timely filed EOS application and whose EOS application is still pending after their admission period indicated on Form I-94 has expired would… Receive an automatic extension of their F nonimmigrant status..." However, proposed 8 CFR 214.2(f)(5)(vii) itself does not clearly extend F-1 status while the EOS application is pending. Rather it states that a student whose I-94 expires while the EOS is pending "will be considered to be in a period of authorized stay… until USCIS issues a decision on the extension of stay application." A "period of authorized stay" is very different than F-1 nonimmigrant status. While being considered in "a period of authorized stay" may protect an applicant from being subject to the INA 222(g) overstay penalty and from accruing unlawful presence under INA 212(a)(9)(B), DHS has long distinguished between valid nonimmigrant status and a "period of authorized stay."

F-1 and F-2 reinstatement. "[A] student's failure to timely request from the DSO a recommendation for extension of the program end date, which would result in the DSO recommending an extension of the program end date in SEVIS after the end date noted on the most recent Form I-20 or successor form, would require the alien to file for a reinstatement of F-1 status, because the alien would have failed to maintain status and would be ineligible for an EOS... A request for reinstatement must be filed in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. DHS is also requiring F-2 dependents seeking to accompany the F-1 principal student to file applications for an EOS or reinstatement, as applicable. These requirements are consistent with current provisions."

Employment-related issues

Employment filing dates

  • Post-Completion OPT filing window. "DHS proposes to increase the number of days applicants have to file prior to the program end date from 90 days to 120 days and shorten the number of days students have to file an application for post-completion OPT after the program end date from 60 days to 30 days."
  • End of 30-day after DSO recommendation requirement. "DHS proposes to strike the requirement in 8 CFR 214.2(f)(11)(i)(B)(2) and (C) which require students file their Form I-765 with USCIS within 30 days and 60 days, respectively, of the date that the DSO enters the recommendation into SEVIS. DHS believes that such a timeframe for obtaining the DSO recommendation seems unnecessary given that students would always be required to first get their DSO's recommendation before filing their Form I-765 requesting OPT employment authorization and a regulatory timeframe for submitting the I-765 is already in place. Once they get their DSO's recommendation, they would then be eligible to file their Form I-765 within 30 days after their program end date or up to 120 days before the expiration of their current EAD."

Employment and the extension of stay process

  • On-campus employment and economic hardship employment could continue while extension pending, but only for 180 days
    • "For on-campus employment where no EAD is needed, DHS proposes to allow aliens in F-1 status to continue to be authorized for on-campus employment while their EOS applications with USCIS are pending, not to exceed a period of 180 days." However, to benefit from this automatic extension, the student's I-539 must be received by USCIS before the program end date. If USCIS receives the I-539 during the student's 30-day grace period, even though the extension of status is approvable, on-campus employment cannot continue or commence while the I-539 is pending.
    • "DHS is proposing an automatic extension of off-campus employment authorization for up to 180-days during the pendency of the EOS application, for F-1 aliens who have demonstrated severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C)"
  • No continuation of CPT and other types of employment while extension is pending
    • "DHS believes that continued employment authorization for aliens wishing to work as an intern for an international organization, engage in CPT, or in pre-or post-completion OPT present materially different circumstances from those pertaining to aliens who are experiencing emergent circumstances, severe economic hardship, or engaging in on campus employment, and that the same automatic extension policies therefore should not apply to them."
    • DHS proposes that "curricular practical training may not be granted for a period exceeding the alien's fixed date of admission as noted on his or her Form I-94, and that such alien must not engage in curricular practical training until USCIS approves his or her timely-filed EOS request."
  • Students applying for F-1 post-completion OPT and STEM OPT would also have to file an application to extend their stay. As is the case currently for M-1 students, under the proposal an F-1 student whose I-94 will expire before the end date of the post-completion OPT he or she is requesting on Form I-765 must also file an I-539 EOS application to cover the period of requested post-completion OPT.
    • A student applying for standard post-completion OPT "may not continue or begin engaging in practical training ... until the extension request is approved and, as applicable, an employment authorization document is issued."
    • A student who has timely applied to USCIS for a STEM OPT extension, however, would still be able work for up to 180 days beyond the expiration date of the standard post-completion OPT while the STEM OPT I-765 and I-539 are pending.
  • J-1 exchange visitors can benefit from 240-day rule. "J-1 exchange visitors are authorized to engage in employment incident to status. This means that they are authorized to work per the terms of their program, and they do not have to apply to USCIS for authorization to engage in employment. Upon timely filing of an EOS application, DHS proposes to allow the alien to continue engaging in activities consistent with the terms and conditions of the alien's program, including any employment authorization, beginning on the day after the admission period expires, for up to 240 days. See 8 CFR 274a.12(b)(20). Such authorization would be subject to any conditions and limitations of  the initial authorization." This is not a rule change, since 8 CFR 274a.12(b)(20) already covers J-1 exchange visitors.

Institutional impacts

DSO and RO Rule Familiarization and Adaptation Costs

DHS said:

  • "The proposed rule would impact DSOs and ROs from SEVP-certified schools and exchange visitor programs that run a SEVP or DOS approved program by requiring time for rule familiarization training, modification of training materials, and institutional awareness and response (during the first year only)."
  • "Based on best professional judgment, SEVP estimates that DSOs and ROs would require 8 hours to complete rule familiarization training, 16 hours to create and modify training materials, and 16 hours to adapt to the proposed rule through system wide briefings and systemic changes. DHS welcomes public comments on these estimates. To estimate these costs, DHS multiplied the total time requirement (40 hours) by the loaded wage rate for DSOs and ROs ($28.93 wage rate * a 1.46 loaded wage rate factor168) and by the number of DSOs and ROs (55,207; 49,089 DSOs + 6,118 ROs169). DHS estimates that DSO and RO rule familiarization and adaptation would cost $93.3 million during the first year once the rule takes effect ($28.93 x 1.46 loaded wage rate factor x 40 hours x 55,207 DSOs and ROs)."

Potential Reduction in Enrollment

DHS said:

  • While the intent of the proposed rule is to enhance national security, the elimination of duration of status has the potential to reduce the nonimmigrant student enrollment and exchange visitor participation. This regulatory impact analysis considers these potential impacts for each category of nonimmigrant affected by the proposed rule. As a result, nonimmigrant students and exchange visitors may be incentivized to consider other English- speaking countries for their studies. DHS conducted a literature search to find research estimating impacts associated with actions like the proposed requirements and found related research like the Institute of International Education's Open Doors®, as cited above, and NAFSA's Economic Value Tool that provide annual estimates of the economic contribution of international students to the U.S. economy. While DHS acknowledges that the rule may decrease nonimmigrant student enrollments, there are many factors that make the United States attractive to nonimmigrant students and exchange visitors beyond the allowable admission period. For example, Daily, Farewell, and Guarav (2010) found that international students pursuing a business degree in the United States rate opportunities for post-graduation employment, availability of financial aid, and reputation of the school as the most important factors in selecting a university. These factors may outweigh the perceived impacts from the proposed admission for a fixed period."

Resources

NAFSA

DHS proposed amending five sections of Title 8 of the Code of Federal Regulations (8 CFR). The first part of the Federal Register notice (the preamble) discussed the proposed changes, and the second part of the notice contained the actual regulatory language changes being proposed. The following resources prepared by NAFSA show how the regulatory language would change if the proposed rule had been finalized as proposed:

Government

  • DHS Press Release, DHS Proposes to Change Admission Period Structure for F, J and I Nonimmigrants (September 24, 2020)

Reference documents for the current duration of status system for F and J nonimmigrants

Bulleted Summary from the Proposed Rule Preamble

DHS listed the following major changes in the preamble to the proposed rule:

Amend 8 CFR 214.1, Requirements for admission, extension, and maintenance of status, by:

  • Striking all references to D/S for F, J, and I nonimmigrants;
  • Describing requirements for F and J nonimmigrants seeking admission;
  • Updating the cross reference and clarifying the standards for admission in the automatic extension visa validity provisions that cover F and J nonimmigrants applying at a port-of-entry after an absence not exceeding 30 days solely in a contiguous territory or adjacent islands;
  • Outlining the process for extension of stay (EOS) applications for F, J, and I nonimmigrants; Specifying the effect of departure while an F or J nonimmigrant's application for an EOS in F or J nonimmigrant status and/or employment authorization (and an associated employment authorization document (EAD)) is pending;
  • Providing procedures specific to the transition from D/S to admission for a fixed time period of authorized stay for F, J, and I nonimmigrants; and
  • Replacing references to specific form names and numbers with general language, to account for future changes to form names and numbers.
  • Amend 8 CFR 214.2, Special requirements for admission, extension, maintenance, and change of status, by:
  • Setting the authorized admission and extension periods for F and J nonimmigrants (with limited exceptions) up to the program length, not to exceed a 2- or 4-year period;
  • Listing the circumstances, including factors that relate to national security and program integrity concerns, when the period of admission for F and J nonimmigrants may be limited to a maximum of 2 years;
  • Outlining procedures and requirements for F-1 nonimmigrants who change educational levels while in F-1 status;
  • Providing limits on the number of times that F-1 nonimmigrants can change educational levels while in F-1 status;
  • Decreasing from 60 to 30 days the allowed period for F aliens to prepare to depart from the United States after completion of a course of study or authorized period of post-completion practical training;
  • Proposing to lengthen the automatic EOS for individuals covered by the authorized status and employment authorization provided by 8 CFR 214.2(f)(5)(vi) (the H-1B cap gap provisions);
  • Initiating a routine biometrics collection in conjunction with an EOS application for F, J, and I nonimmigrants;
  • Limiting language training students to an aggregate 24-month period of stay, including breaks and an annual vacation;
  • Providing that a delay in completing one's program by the program end date on Form I-20, due to a pattern of behavior demonstrating a student is repeatedly unable or unwilling to complete his or her course of study, such as failing grades, in addition to academic probation or suspension, is an unacceptable reason for program extensions for F nonimmigrants;
  • Providing that F nonimmigrants who have timely filed an EOS application and whose EOS application is still pending after their admission period indicated on Form I-94 has expired will receive an automatic extension of their F nonimmigrant status and, as applicable, of their on-campus employment authorization, off-campus employment authorization due to severe economic hardship, or Science Technology Engineering and Mathematics Optional Practical Training (STEM OPT) employment authorization, as well as evidence of employment authorization, for up to 180 days or until the relevant application is adjudicated, whichever is earlier;
  • Allowing F nonimmigrants whose timely filed EOS applications remain pending after their admission period has expired to receive an auto-extension of their current authorization for on-campus and off-campus employment based on severe economic hardship resulting from emergent circumstances under 8 CFR 214.2(f)(5)(v). The length of the auto-extension of employment authorization would be up to 180 days or the end date of the notice (FRN) announcing the suspension of certain regulatory requirements related to employment, whichever is earlier;
  • Prohibiting F nonimmigrants whose admission period, as indicated on their Form I-94, has expired while their timely filed EOS applications and applications for employment authorization based on either an internship with an international organization, curricular practical training (CPT), pre-completion Optional Practical Training (OPT), or post-completion OPT are pending to engage in such employment until their applications are approved;
  • Replacing D/S for I nonimmigrants with admission for a fixed time period until they complete the activities or assignments consistent with the I classification, not to exceed 240 days, with an EOS available for I nonimmigrants who can meet specified EOS requirements;
  • Codifying the definition of a foreign media organization for I nonimmigrant status, consistent with long-standing USCIS and Department of State (DOS) practice;
  • Updating the evidence an alien must submit to demonstrate eligibility for the I nonimmigrant category;
  • Clarifying that I and J-1 nonimmigrants, who are employment authorized with a specific employer incident to status, continue to be authorized for such employment for up to 240 days under the existing regulatory provision at 8 CFR 274a.12(b)(20), if their status expires while their timely filed EOS application is pending, whereas J-2 spouses, who must apply for employment authorization as evidenced by an EAD, do not have the benefit of continued work authorization once the EAD expires;
  • Striking all references to “duration of status” and/or “duration of employment” for the F, J, and I nonimmigrant categories; and
  • Including a severability clause. In the event that any provision is not implemented for whatever reason, DHS proposes that the remaining provisions be implemented in accordance with the stated purposes of this rule.

Amend 8 CFR 248.1, Eligibility, by:

  • Establishing requirements to determine the period of stay for F or J nonimmigrants whose change of status application was approved before the Final Rule's effective date and who depart the United States, then seek readmission after the Final Rule's effective date; and
  • Codifying the long-standing policy under which DHS deems abandoned an application to change to another nonimmigrant status, including F or J status, if the alien who timely filed the application departs the United States while the application is pending.

Amend 8 CFR 274a.12, Classes of aliens authorized to accept employment, by:

  • Striking references to “duration of status,” to Form I-539, Application to Extend/Change a Nonimmigrant Status, and to Form I-765, Application for Employment Authorization;
  • Updating the employment authorization provisions to incorporate the proposed revisions in 8 CFR 214.2.