This resource shows how DHS regulations at 8 CFR 214.1 would change if the proposed rule rule to eliminate duration of status published at 85 FR 60526 (September 25, 2020) were finalized as proposed. See NAFSA's page for additional information on the proposed rule.
Key:
- Text unchanged
Text deleted- Text added
Section 214.1 would be amended by:
a. Adding paragraph (a)(4);
b. Revising paragraphs (b) introductory text, (b)(1) introductory text, (b)(2) introductory text, and (b)(3) introductory text;
c. Removing paragraph (b)(4);
d. Revising paragraphs (c)(2), (c)(3)(v), and (c)(5); and
e. Adding paragraphs (c)(6) [travel outside the U.S. with pending extension of stay and employment authorization applications] and (m) [duration of status transition rules].
8 CFR 214.1
Requirements for admission, extension, and maintenance of status.
§ 214.1 Requirements for admission, extension, and maintenance of status.
(a) General --
(1) Nonimmigrant classes. For the purpose of administering the nonimmigrant provisions of the Act, the following administrative subclassifications of nonimmigrant classifications as defined in section 101(a)(15) of the Act are established:
(i) Section 101(a)(15)(B) is divided into (B)(i) for visitors for business and (B)(ii) for visitors for pleasure;
(ii) Section 101(a)(15)(C) is divided into (C)(i) for aliens who are not diplomats and are in transit through the United States; (C)(ii) for aliens in transit to and from the United Nations Headquarters District; and (C)(iii) for alien diplomats in transit through the United States;
(iii) Section 101(a)(15)(H) is divided to create an (H)(iv) subclassification for the spouse and children of a nonimmigrant classified under section 101(a)(15) (H) (i), (ii), or (iii);
(iv) Section 101(a)(15)(J) is divided into (J)(i) for principal aliens and (J)(ii) for such alien's spouse and children;
(v) Section 101(a)(15)(K) is divided into (K)(i) for the fianceé(e), (K)(ii) for the spouse, and (K)(iii) for the children of either;
(vi) Section 101(a)(15)(L) is divided into (L)(i) for principal aliens and (L)(ii) for such alien's spouse and children;
(vii) Section 101(a)(15)(Q)(ii) is divided to create a (Q)(iii) for subclassification for the spouse and children of a nonimmigrant classified under section 101(a)(15)(Q)(ii) of the Act;
(viii) Section 101(a)(15)(T)(ii) is divided into (T)(ii), (T)(iii) and (T)(iv) for the spouse, child, and parent, respectively, of a nonimmigrant classified under section 101(a)(15)(T)(i); and
(2) Classification designations. For the purpose of this chapter the following nonimmigrant designations are established. The designation in the second column may be used to refer to the appropriate nonimmigrant classification.
| Section | Designation |
|---|---|
| 101(a)(15)(A)(i) | A–1. |
| 101(a)(15)(A)(ii) | A–2. |
| 101(a)(15)(A)(iii) | A–3. |
| 101(a)(15)(B)(i) | B–1. |
| 101(a)(15)(B)(ii) | B–2. |
| 101(a)(15)(C)(i) | C–1. |
| 101(a)(15)(C)(ii) | C–2. |
| 101(a)(15)(C)(iii) | C–3. |
| 101(a)(15)(D)(i) | D–1. |
| 101(a)(15)(D)(ii) | D–2. |
| 101(a)(15)(E)(i) | E–1. |
| 101(a)(15)(E)(ii) | E–2. |
| 101(a)(15)(F)(i) | F–1. |
| 101(a)(15)(F)(ii) | F–2. |
| 101(a)(15)(G)(i) | G–1. |
| 101(a)(15)(G)(ii) | G–2. |
| 101(a)(15)(G)(iii) | G–3. |
| 101(a)(15)(G)(iv) | G–4. |
| 101(a)(15)(g)(v) | G–5. |
| 101(a)(15)(H)(i)(B) | H–1B. |
| 101(a)(15)(H)(i)(C) | H–1C. |
| 101(a)(15)(H)(ii)(A) | H–2A. |
| 101(a)(15)(H)(ii)(B) | H–2B. |
| 101(a)(15)(H)(iii) | H–3. |
| 101(a)(15)(H)(iv) | H–4. |
| 101(a)(15)(I) | I. |
| 101(a)(15)(J)(i) | J–1. |
| 101(a)(15)(J)(ii) | J–2. |
| 101(a)(15)(K)(i) | K–1. |
| 101(a)(15)(K)(ii) | K–3. |
| 101(a)(15)(K)(iii) | K–2; K–4. |
| 101(a)(15)(L)(i) | L–1. |
| 101(a)(15)(L)(ii) | L–2. |
| 101(a)(15)(M)(i) | M–1. |
| 101(a)(15)(M)(ii) | M–2. |
| 101(a)(15)(N)(i) | N–8. |
| 101(a)(15)(N)(ii) | N–9. |
| 101(a)(15)(O)(i) | O–1. |
| 101(a)(15)(O)(ii) | O–2. |
| 101(a)(15)(O)(iii) | O–3. |
| 101(a)(15)(P)(i) | P–1. |
| 101(a)(15)(P)(ii) | P–2. |
| 101(a)(15)(P)(iii) | P–3. |
| 101(a)(15)(P)(iv) | P–4. |
| 101(a)(15)(Q)(i) | Q–1. |
| 101(a)(15)(Q)(ii) | Q–2. |
| 101(a)(15)(Q)(iii) | Q–3. |
| 101(a)(15)(R)(i) | R–1. |
| 101(a)(15)(R)(ii) | R–2. |
| 101(a)(15)(S)(i) | S–5. |
| 101(a)(15)(S)(ii) | S–6. |
| 101(a)(15)(S) qualified family members | S–7. |
| 101(a)(15)(T)(i) | T–1 |
| 101(a)(15)(T)(ii) | T–2 |
| 101(a)(15)(T)(iii) | T–3 |
| 101(a)(15)(T)(iv) | T–4 |
| 101(a)(15)(V) | V–1, V–2, or V–3 |
| Cdn FTA, Professional | TC. |
| NAFTA, Principal | TN. |
| NAFTA, Dependent | TD. |
| Visa Waiver, Business | WB. |
| Visa Waiver, Tourist | WT. |
Note 1: The classification designation K-2 is for the child of a K-1. The classification designation K-4 is for the child of a K-3.
Note 2: The classification designation V-1 is for the spouse of a lawful permanent resident; the classification designation V-2 is for the principal beneficiary of an I-130 who is the child of an LPR; the classification V-3 is for the derivative child of a V-1 or V-2 alien.
(3) General requirements.
(i) Every nonimmigrant alien who applies for admission to, or an extension of stay in, the United States, must establish that he or she is admissible to the United States, or that any ground of inadmissibility has been waived under section 212(d)(3) of the Act. Upon application for admission, the alien must present a valid passport and valid visa unless either or both documents have been waived. A nonimmigrant alien's admission to the United States is conditioned on compliance with any inspection requirement in §235.1(d) or of this chapter. The passport of an alien applying for admission must be valid for a minimum of six months from the expiration date of the contemplated period of stay, unless otherwise provided in this chapter, and the alien must agree to abide by the terms and conditions of his or her admission. An alien applying for extension of stay must present a passport only if requested to do so by the Department of Homeland Security. The passport of an alien applying for extension of stay must be valid at the time of application for extension, unless otherwise provided in this chapter, and the alien must agree to maintain the validity of his or her passport and to abide by all the terms and conditions of his extension.
(ii) At the time of admission or extension of stay, every nonimmigrant alien must also agree to depart the United States at the expiration of his or her authorized period of admission or extension of stay, or upon abandonment of his or her authorized nonimmigrant status, and to comply with the departure procedures at section 215.8 of this chapter if such procedures apply to the particular alien. The nonimmigrant alien's failure to comply with those departure requirements, including any requirement that the alien provide biometric identifiers, may constitute a failure of the alien to maintain the terms of his or her nonimmigrant status.
8 CFR 214.1(a)(3)(iii)
(iii) At the time a nonimmigrant alien applies for admission or extension of stay, he or she must post a bond on Form I-352 in the sum of not less than $500, to ensure the maintenance of his or her nonimmigrant status and departure from the United States, if required to do so by the Commissioner of CBP, the Director of U.S. Citizenship and Immigration Services, an immigration judge, or the Board of Immigration Appeals.
(iv) Except where the nonimmigrant classification for which the alien seeks to extend is exempt from section 212(a)(4) of the Act or that section has been waived, as a condition for approval of extension of status, the alien must demonstrate that he or she has not received since obtaining the nonimmigrant status he or she seeks to extend one or more public benefits as defined in 8 CFR 212.21(b), for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months). For the purposes of this determination, DHS will only consider public benefits received on or after October 15, 2019 (NAFSA note: delayed by litigation, now set at February 24, 2020) for petitions or applications postmarked (or, if applicable, submitted electronically) on or after that date.
(4) Requirements for admission of aliens under section 101(a)(15)(F) and (J). Aliens applying for admission as F or J nonimmigrants after [EFFECTIVE DATE OF FINAL RULE] will be inspected and may be admitted into the United States, if in possession of a valid Form I-20 or Form DS-2019, or successor form, and otherwise eligible, and subject to the following:
(i) Aliens applying for admission as F nonimmigrants.
(A) Aliens seeking admission to the United States, including those seeking admission with a properly filed, pending application for an extension of stay as an F nonimmigrant after a previously authorized period of admission as an F nonimmigrant expired, may be admitted for the period specified in 8 CFR 214.2(f)(5);
(B) Aliens seeking admission to the United States as an F nonimmigrant with a properly filed pending application for extension of stay as an F nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien's departure, plus an additional 30 days as provided in 8 CFR 214.2(f)(5)(iv), subject to the requirements in paragraph (c)(6) of this section, or if the alien seeks admission with a Form I-20 for a program end date beyond their previously authorized period of admission, the alien may be admitted for the period specified in 8 CFR 214.2(f)(5), subject to the requirements in paragraph (c)(6) of this section;
(C) Aliens seeking admission to the United States as an F nonimmigrant with an approved extension of stay for F nonimmigrant status may be admitted until the expiration of the approved extension of stay, plus an additional 30 days, as provided in 8 CFR 214.2(f)(5)(iv);
(D) Post-completion Optional Practical Training (OPT) and Science Technology Engineering and Mathematics OPT extension (STEM OPT extension). Aliens seeking admission to the United States as an F nonimmigrant to pursue post-completion OPT or a STEM OPT extension may be admitted until the end date of the approved employment authorization for post-completion OPT or STEM OPT, or if the Application for Employment Authorization, Form I-765 or successor form for post-completion or STEM OPT is still pending with USCIS, as evidenced by a notice issued by USCIS indicating receipt of such application, until the Designated School Official's recommended employment end date for post-completion or STEM OPT specified on the Form I-20, subject to the requirements in paragraphs (c)(6) of this section and 8 CFR 274a.12(b)(6)(iv), plus a 30-day period as provided in 8 CFR 214.2(f)(5)(iv).
(ii) Aliens applying for admission as J nonimmigrants.
(A) Aliens seeking admission to the United States, including those seeking admission with a properly filed, pending application for an extension of stay as a J nonimmigrant after a previously authorized period of admission as a J nonimmigrant expired, may be admitted for the period specified in 8 CFR 214.2(j)(1);
(B) Aliens seeking admission to the United States as a J nonimmigrant with a properly filed pending extension of stay as a J nonimmigrant may, if they have time remaining on the period of stay authorized prior to departure, be admitted for a period up to the unexpired period of stay authorized prior to the alien's departure, plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C), subject to the requirements in paragraph (c)(6) of this section, provided that if the alien seeks admission with a Form DS-2019 for a program end date beyond his or her previously authorized period of admission, the alien may be admitted for the period specified in 8 CFR 214.2(j)(1), subject to the requirements in paragraph (c)(6) of this section;
(C) Aliens seeking admission to the United States as a J nonimmigrant with an approved extension of stay in J nonimmigrant status may be admitted up to the expiration of the approved extension of stay, plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C).
(b) Readmission of nonimmigrants under section 101(a)(15) (F), (J), or (M), or (Q)(ii) whose visa validity is considered automatically extended to complete unexpired periods of previous admission or extension of stay --
(1) Section 101(a)(15)(F). The inspecting immigration officer shall may readmit for duration of status as defined in §214.2(f)(5)(iii) up to the unexpired period of stay authorized prior to the alien's departure, any nonimmigrant alien whose nonimmigrant visa is considered automatically revalidated pursuant to 22 CFR 41.125(f) 41.112(d) and who is applying for readmission under section 101(a)(15)(F) of the Act, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United States not exceeding thirty days solely in contiguous territory or adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien who presents, an Arrival-Departure Record, Form I-94, issued to the alien in connection with the previous admission or stay, the alien's Form I-20 ID copy, and either:
(A) A properly endorsed page 4 of Form I-20A-B if there has been no substantive change in the information on the student's most recent Form I-20A since the form was initially issued; or
(B) A new Form I-20A-B if there has been any substantive change in the information on the student's most recent Form I-20A since the form was initially issued.
(2) Section 101(a)(15)(J). The inspecting immigration officer shall may readmit for up to the unexpired period of stay authorized prior to the alien's departure, any nonimmigrant alien whose nonimmigrant visa is considered automatically revalidated pursuant to 22 CFR 41.125(f) and who is applying for readmission under section 101(a)(15)(J) of the Act, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United States not exceeding thirty days solely in contiguous territory or adjacent islands;
(iii) Is in possession of a valid passport unless exempt from the requirement for the presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien who presents, Form I-94 issued to the alien in connection with the previous admission or stay or copy three of the last Form IAP-66 issued to the alien. Form I-94 or Form IAP-66 must show the unexpired period of the alien's stay endorsed by the Service.
(3) Section 101(a)(15)(M). The inspecting immigration officer shall may readmit for up to the unexpired period of stay authorized prior to the alien's departure, any nonimmigrant alien whose nonimmigrant visa is considered automatically revalidated pursuant to 22 CFR 41.125(f) 41.112(d) and who is applying for readmission under section 101(a)(15)(M) of the Act, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence not exceeding thirty days solely in contiguous territory;
(iii) Is in possession of a valid passport unless exempt from the requirement for presentation of a passport; and
(iv) Presents, or is the accompanying spouse or child of an alien who presents, Form I-94 issued to the alien in connection with the previous admission or stay, the alien's Form I-20 ID copy, and a properly endorsed page 4 of Form I-20M-N.
(4) Section 101(a)(15)(Q)(ii). The inspecting immigration officer shall readmit for the unexpired period of stay authorized prior to the alien's departure, if the alien:
(i) Is admissible;
(ii) Is applying for readmission after an absence from the United States not exceeding 30 days solely in contiguous territory or adjacent islands;
(iii) Is in possession of a valid passport;
(iv) Presents, or is the accompanying spouse or child of an alien who presents, an Arrival-Departure Record, Form I-94, issued to the alien in connection with the previous admission or stay. The principal alien must also present a Certification Letter issued by the Department of State's Program Administrator.
(c) Extensions of stay --
(1) Extension of stay for certain employment-based nonimmigrant workers. A petitioner seeking the services of an E-1, E-2, E-3, H-1B, H-1B1, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1, or TN nonimmigrant beyond the period previously granted, must apply for an extension of stay on the form designated by USCIS, with the fee prescribed in 8 CFR 103.7(b)(1), with the initial evidence specified in § 214.2, and in accordance with the form instructions. Dependents holding derivative status may be included in the petition if it is for only one worker and the form version specifically provides for their inclusion. In all other cases dependents of the worker should file on Form I-539.
(2) Filing on Form I-539 for an extension of stay. Any other nonimmigrant alien, except an alien in F or J status who has been granted duration of status, who seeks to extend his or her stay beyond the currently authorized period of admission, must apply for an extension of stay on Form I-539 with the fee required in §103.7 of this chapter together with any by filing an extension request in the manner and on the form prescribed by USCIS, together with the required fees and all initial evidence specified in the applicable provisions of § 8 CFR 214.2, and on the application form in the form instructions, including the submission of any biometrics required by 8 CFR 103.16. More than one person may be included in an application where the co-applicants are all members of a single family group and either all hold the same nonimmigrant status or one holds a nonimmigrant status and the other co-applicants are his or her spouse and/or children who hold derivative nonimmigrant status based on his or her status. Extensions granted to members of a family group must be for the same period of time. The shortest period granted to any member of the family shall be granted to all members of the family. In order to be eligible for an extension of stay, nonimmigrant aliens nonimmigrants in K-3/K-4 status must do so in accordance with § 8 CFR 214.2(k)(10).
(3) Ineligible for extension of stay. A nonimmigrant in any of the following classes is ineligible for an extension of stay:
(i) B-1 or B-2 where admission was pursuant to the Visa Waiver Pilot Program;
(ii) C-1, C-2, C-3;
(iii) D-1, D-2;
(iv) K-1, K-2;
(v) Any nonimmigrant admitted for duration of status, other than as provided in §214.2(f)(7);
(vi) Any nonimmigrant who is classified pursuant to section 101(a)(15)(S) of the Act beyond a total of 3 years; or
(vii) Any nonimmigrant who is classified according to section 101(a)(15)(Q)(ii) of the Act beyond a total of 3 years.
(4) Timely filing and maintenance of status. An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed, except that failure to file before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that:
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status;
(iii) The alien remains a bona fide nonimmigrant;
(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.
(5) Decision in Form I-129 or I-539 extension proceedings Decisions for extension of stay applications. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at the USCIS's discretion of the Service. There is no appeal from the denial of an application for extension of stay filed on Form I-129 or I-539 The denial of an application for extension of stay may not be appealed.
(6) Abandonment of extension of stay and pending employment authorization applications for F, I, and J nonimmigrant aliens.
(i) If an alien in F, I, or J nonimmigrant status timely files an application for an extension of stay, USCIS will not consider the application abandoned if the alien departs the United States while the application is pending, provided that when the alien seeks admission, the previously authorized period of admission has not expired and the alien seeks admission for the balance of the previously authorized admission period.
(ii) An application for extension of stay in F, I, or J nonimmigrant status is abandoned if an alien departs the United States while the application is pending and seeks admission with a Form I-20 or DS-2019 for a program end date beyond their previously authorized period of admission. USCIS will not consider as abandoned any corresponding applications for employment authorization.
(d) Termination of status. Within the period of initial admission or extension of stay, the nonimmigrant status of an alien shall be terminated by the revocation of a waiver authorized on his or her behalf under section 212(d) (3) or (4) of the Act; by the introduction of a private bill to confer permanent resident status on such alien; or, pursuant to notification in the Federal Register,on the basis of national security, diplomatic, or public safety reasons.
(e) Employment. A nonimmigrant in the United States in a class defined in section 101(a)(15)(B) of the Act as a temporary visitor for pleasure, or section 101(a)(15)(C) of the Act as an alien in transit through this country, may not engage in any employment. Any other nonimmigrant in the United States may not engage in any employment unless he has been accorded a nonimmigrant classification which authorizes employment or he has been granted permission to engage in employment in accordance with the provisions of this chapter. A nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes a failure to maintain status within the meaning of section 241(a)(1)(C)(i) of the Act. [NAFSA note: The citation to section 241 refers to the "Nonimmigrant status violators" provision currently at INA 237(a)(1)(C)(i); Former section 241 of the INA was redesignated as section 237 by section 305(a)(2) of IIRIRA and moved accordingly, but neither legacy INS nor DHS have updated 8 CFR 214.1(e) to reflect that.]
(f) False information. A condition of a nonimmigrant's admission and continued stay in the United States is the full and truthful disclosure of all information requested by DHS. A nonimmigrant's willful failure to provide full and truthful information requested by DHS (regardless of whether or not the information requested was material) constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C)(i) of the Act.
(g) Criminal activity. A condition of a nonimmigrant's admission and continued stay in the United States is obedience to all laws of United States jurisdictions which prohibit the commission of crimes of violence and for which a sentence of more than one year imprisonment may be imposed. A nonimmigrant's conviction in a jurisdiction in the United States for a crime of violence for which a sentence of more than one year imprisonment may be imposed (regardless of whether such sentence is in fact imposed) constitutes a failure to maintain status under section 241(a)(1)(C)(i) of the Act. [NAFSA note: The citation to section 241 refers to the "Nonimmigrant status violators" provision currently at INA 237(a)(1)(C)(i); Former section 241 of the INA was redesignated as section 237 by section 305(a)(2) of IIRIRA and moved accordingly, but neither legacy INS nor DHS have updated 8 CFR 214.1(g) to reflect that.]
(h) Education privacy and F, J, and M nonimmigrants. As authorized by section 641(c)(2) of Division C of Pub. L. 104-208, 8 U.S.C. 1372, and §2.1(a) of this chapter, the Service has determined that, with respect to F and M nonimmigrant students and J nonimmigrant exchange visitors, waiving the provisions of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. 1232g, is necessary for the proper implementation of 8 U.S.C. 1372. An educational agency or institution may not refuse to report information concerning an F or M nonimmigrant student or a J nonimmigrant exchange visitor that the educational agency or institution is required to report under 8 U.S.C. 1372 and §214.3(g) (or any corresponding Department of State regulation concerning J nonimmigrants) on the basis of FERPA and any regulation implementing FERPA. The waiver of FERPA under this paragraph authorizes and requires an educational agency or institution to report information concerning an F, J or M nonimmigrant that would ordinarily be protected by FERPA, but only to the extent that 8 U.S.C. 1372 and §214.3(g) (or any corresponding Department of State regulation concerning J nonimmigrants) requires the educational agency or institution to report information.
(i) Employment in a health care occupation.
(1) Except as provided in 8 CFR 212.15(n), any alien described in 8 CFR 212.15(a) who is coming to the United States to perform labor in a health care occupation described in 8 CFR 212.15(c) must obtain a certificate from a credentialing organization described in 8 CFR 212.15(e). The certificate or certified statement must be presented to the Department of Homeland Security in accordance with 8 CFR 212.15(d). In the alternative, an eligible alien seeking admission as a nurse may obtain a certified statement as provided in 8 CFR 212.15(h).
(2) A TN nonimmigrant may establish that he or she is eligible for a waiver described at 8 CFR 212.15(n) by providing evidence that his or her initial admission as a TN (or TC) nonimmigrant health care worker occurred before September 23, 2003, and he or she was licensed and employed in the United States as a health care worker before September 23, 2003. Evidence may include, but is not limited to, copies of TN or TC approval notices, copies of Form I-94 Arrival/Departure Records, employment verification letters and/or pay-stubs or other employment records, and state health care worker licenses.
(j) Extension of stay or change of status for health care worker. In the case of any alien admitted temporarily as a nonimmigrant under section 212(d)(3) of the Act and 8 CFR 212.15(n) for the primary purpose of the providing labor in a health care occupation described in 8 CFR 212.15(c), the petitioning employer may file a Form I-129 to extend the approval period for the alien's classification for the nonimmigrant status. If the alien is in the United States and is eligible for an extension of stay or change of status, the Form I-129 also serves as an application to extend the period of the alien's authorized stay or to change the alien's status. Although the Form I-129 petition may be approved, as it relates to the employer's request to classify the alien, the application for an extension of stay or change of status shall be denied if:
(1) The petitioner or applicant fails to submit the certification required by 8 CFR 212.15(a) with the petition or application to extend the alien's stay or change the alien's status; or
(2) The petition or application to extend the alien's stay or change the alien's status does include the certification required by 8 CFR 212.15(a), but the alien obtained the certification more than 1 year after the date of the alien's admission under section 212(d)(3) of the Act and 8 CFR 212.15(n). While DHS may admit, extend the period of authorized stay, or change the status of a nonimmigrant health care worker for a period of 1 year if the alien does not have certification on or before July 26, 2004 (or on or before July 26, 2005, in the case of a citizen of Canada or Mexico, who, before September 23, 2003, was employed as a TN or TC nonimmigrant health care worker and held a valid license from a U.S. jurisdiction), the alien will not be eligible for a subsequent admission, change of status, or extension of stay as a health care worker if the alien has not obtained the requisite certification 1 year after the initial date of admission, change of status, or extension of stay as a health care worker.
(k) Denial of petitions under section 214(c) of the Act based on a finding by the Department of Labor. Upon debarment by the Department of Labor pursuant to 20 CFR part 655, USCIS may deny any petition filed by that petitioner for nonimmigrant status under section 101(a)(15)(H) (except for status under sections 101(a)(15)(H)(i)(b1)), (L), (O), and (P)(i) of the Act) for a period of at least 1 year but not more than 5 years. The length of the period shall be based on the severity of the violation or violations. The decision to deny petitions, the time period for the bar to petitions, and the reasons for the time period will be explained in a written notice to the petitioner.
(l) Period of stay.
(1) An alien admissible in E-1, E-2, E-3, H-1B, L-1, or TN classification and his or her dependents may be admitted to the United States or otherwise provided such status for the validity period of the petition, or for a validity period otherwise authorized for the E-1, E-2, E-3, and TN classifications, plus an additional period of up to 10 days before the validity period begins and 10 days after the validity period ends. Unless authorized under 8 CFR 274a.12, the alien may not work except during the validity period.
(2) An alien admitted or otherwise provided status in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and his or her dependents shall not be considered to have failed to maintain nonimmigrant status solely on the basis of a cessation of the employment on which the alien's classification was based, for up to 60 consecutive days or until the end of the authorized validity period, whichever is shorter, once during each authorized validity period. DHS may eliminate or shorten this 60-day period as a matter of discretion. Unless otherwise authorized under 8 CFR 274a.12, the alien may not work during such a period.
(3) An alien in any authorized period described in paragraph (l) of this section may apply for and be granted an extension of stay under paragraph (c)(4) of this section or change of status under 8 CFR 248.1, if otherwise eligible.
(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.
(4) Severability. The provisions in 8 CFR 214.1(m) are intended to be independent severable parts. In the event that any provision in this paragraph is not implemented, DHS intends that the remaining provisions be implemented as an independent rule.