November 26, 2024

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Competencies

On November 26, 2024, USCIS updated the USCIS Policy Manual section on F-1 Absences from the United States with a “technical correction” that removed a troublesome study abroad paragraph that appeared in the August 27, 2024 revision to the Policy Manual, replacing it with:

“For information about requirements for F-1 student participation in study abroad programs, see DHS’s Study in the States webpage.”

The Policy Manual also still contains the paragraph before it, which reads:

“If an F-1 student leaves the United States for more than 5 months and is not able to remain enrolled at the student’s ICE SEVP-certified school, the student will not be able to maintain student status.[4] To resume the program of study in the United States, the student will need to seek readmission in initial status, which includes obtaining a new Form I-20.[5]”

The link to Study in the States in the new study abroad paragraph in the Policy Manual takes you to the Study in the States homepage. Although there is no specific study abroad content on the Study in the States home page itself, NAFSA has gathered links to the key pages on that site that establish and support the long-standing understanding that a student who remains enrolled for a full course of study at their I-20 school during their study abroad program can remain in Active SEVIS status even if the program lasts more than five months:

Questions from DSOs: Do Students Returning from Temporary Absences Need New Visas? (January 26, 2017), stating: "if a student has been out of the United States for more than five consecutive months (and not on study abroad), they will need to obtain a new Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” and pay the I-901 SEVIS Fee again."
DSO Reporting Requirements for International Students Studying Abroad (June 29, 2015) stating: "If a student remains enrolled in a full course of study at your school during their study abroad program, then you may keep their status listed as Active in SEVIS. Remind your students that if they remain outside the United States for more than five months, then they should consult a U.S. embassy or consulate near them to determine if a new visa is needed for their return. Only if a student's current visa is no longer valid, does the student possibly need to apply for and receive a new one... While the student is technically still in Active status, SEVP cannot ensure that the student will not be questioned about their length of time away due to the five month rule. The student may be questioned about their length of time away at either the U.S. embassy or consulate, or at the U.S. port of entry... On the other hand, if your student takes a leave of absence from their U.S. studies and will not remain enrolled as an F-1 student, then their study abroad should be reported as a temporary absence in SEVIS. Upon their return to the United States, you will need to request to change their status back to Active in SEVIS."
Can International Students in the United States Study Abroad? (April 9, 2015) stating: "If you wish to study abroad, you have two options. The first is to enroll for and receive the necessary number of credits, while you study abroad, for a full course of study from the Student and Exchange Visitor Program (SEVP)-certified school that issued your Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.” Remember, your SEVP-certified school must accept the credits you receive from the study abroad program... An alternative, if you do not plan to enroll in a full course of study while you study abroad, is to complete the study abroad program during an annual vacation, such as during your school’s summer break or during an authorized leave of absence from school... If you leave the United States for more than five months and are not able to remain enrolled at your U.S., SEVP-certified school, you will not be able to maintain your student status. To resume your studies in the United States, you will need to seek readmission in initial status, which includes obtaining a new Form I-20 and paying the I-901 SEVIS fee again. To seek readmission, please speak with your designated school official."
What is the Five-Month Rule? (January 14, 2015), stating: that the "five-month rule" applies to "Students who have spent more than five months outside of the United States during an absence from school, excluding those participating in authorized study abroad programs."
May I participate in a study abroad program? (July 15, 2013) stating: "Study abroad is a great option to enhance your studies as an undergraduate or graduate student. You also may participate in a study abroad program or international research while you are completing your dissertation or thesis preparation. Talk to your designated school official (DSO) about class requirements for the time you would enroll in the study abroad program. You still must enroll for and receive the necessary number of credits for a full course of study at the school whose DSO issued your Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status" (i.e., your Student and Exchange Visitor Program (SEVP)-certified school must accept the credits you receive from the study abroad program). Remember, you always must maintain your status while taking leave from your studies... If you do not enroll in a full course of study at the school whose DSO issued your Form I-20 during the period of study abroad, you can complete the study abroad program while on an annual vacation term or authorized leave of absence. If you leave the United States for more than five months and are not able to remain enrolled at your school, you will not be able to maintain status. If you want to continue studying in the United States, you must apply for a new visa in your home country (if applicable) and a new Form I-20 from an Student and Exchange Visitor Program-certified school. Talk to your DSO if you have any questions."
What Should I Do If I Need to Leave the United States Due to a Personal Emergency? (March 14, 2013) stating: "The need for a new I-20 with a new SEVIS ID applies to the following students... Students who have spent more than five months outside the United States in an absence from school, while neither engaged in study abroad nor on a medical reduced course load."

Recent Background

On August 27, 2024, USCIS added and revised the F and M student content in the USCIS Policy Manual. The guidance is effective on August 27, 2024, but USCIS accepted feedback on the guidance until September 27, 2024. NAFSA commented on September 13, 2024. See:

The USCIS Policy Alert (August 27, 20224)
The guidance in the USCIS Policy Manual Volume 2: Nonimmigrants, Part F, Students (F, M) [2 USCIS-PM F] (Chapters 1-9)
NAFSA's September 13, 2024 comments to USCIS on the August 27, 2024 policy revisions
NAFSA's October 16, 2024 follow-up letter to USCIS Director Ur Jaddou urging USCIS to "clarify that a student fully enrolled in an SEVP-certified school during a study abroad program may remain in Active SEVIS status and reenter the United States on that SEVIS record even if the study abroad program lasts more than 5 months."

Feedback to USCIS on the Revised Guidance

The USCIS Policy Alert stated: "To provide feedback on this update, email USCIS at [email protected]."

The feedback collection period ended September 27, 2024.

The USCIS Policy Manual Feedback page also explains:

"We will not respond to case-specific questions, offer legal advice, or provide general information. If you have case-specific questions, please refer to the Contact Us page or use our self-service tools.
How to Submit Feedback on the USCIS Policy Manual
Please email your feedback to [email protected]. Include the following:
In the subject line, include the sections(s) of the USCIS Policy Manual that your feedback relates to;
Explain the reason for any recommended change; and
Include data, information, or authority that supports the recommendation."

Some Key Aspects of the Revised Guidance

USCIS Policy Alert PA-2024-22, which announced the revisions, summarized the changes as follows:

"Clarifies that students may count one class or three credits (or the equivalent) during each term or semester toward a full course of study if the class is taken online or through distance learning not requiring physical attendance for any purpose integral to completion of the class."
"Explains that students may transfer between SEVP-certified schools at the same educational level or move between educational levels."
"Explains that, during the 60-day grace period following an authorized period of postcompletion of OPT, students may change their education level, transfer to another SEVP-certified school, or file an application or petition with USCIS to change to another nonimmigrant or immigrant status."
"Clarifies that students may be eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program.
"Corrects the time period during which students may apply for STEM OPT extensions and makes other technical corrections."
"Clarifies that a student enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS if the study abroad program lasts less than 5 months, but the student will need a new Form I-20 if the program lasts longer than 5 months." NAFSA note: The policy that this bullet point refers to was subsequently changed once again on November 26, 2024 to remove this "5 months" language and to refer to SEVP guidance instead, as described below.

Most of the revisions just restate common rules that are familiar to most advisers, but a few bear further mention, especially bullets 4 (relating to academic conditions for OPT eligibility) and 6 (relating to the 5-month rule in the context of study abroad).

Bullet point 4 - relating to academic conditions for OPT eligibility. The bullet states that the Policy Manual revisions "clarify" that "students may be eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program." Many have read this to exclude non-degree and certificate programs from the types of programs whose completion can serve as the basis for OPT. However, this must be read in the context of the language of the Policy Manual itself. Here's the newly revised text:

"Have completed a course of study or be in an associate’s, bachelor’s, master’s, or doctoral degree program and have completed all course requirements for the degree (excluding thesis or equivalent);"

You see that the actual Policy Manual states "have completed a course of study" or be in an associate's, bachelor's, etc. degree program..." The first part, "have completed a course of study," is sufficient to include completion of either degrees, non-degree programs, or certificate programs that the school has been approved for.

As background, the prior version of this section in the Policy Manual said the same thing, but had neglected to mention "associate's" degrees, saying:

"Have completed a course of study or be in a bachelor’s, master’s, or doctoral degree program and have completed all course requirements for the degree (excluding thesis or equivalent);"

So the purpose of the revision was simply to correct that prior omission by adding "associate's."

Bullet Point 6 - The 5-month rule and study abroad.

Following the November 26, 2024 revision to the Policy Manual, the entry at 2 USCIS-PM F.7.A. now states:

“For information about requirements for F-1 student participation in study abroad programs, see DHS’s Study in the States webpage.”

The prior, August 27, 2024 revision had stated:

“A student enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS if the study abroad program lasts less than 5 months. If the program lasts longer than 5 months, then the student will need a new Form I-20 to be readmitted in student status."

That was changed from the December 20, 2023 version of this section which made no reference to a 5-month period:

“For an F-1 student who has been continuously enrolled in an ICE SEVP-certified school and who undertakes study in a program abroad, DHS considers the student to have taken a temporary absence and may be admitted into the United States with a current Form I-20.”

In NAFSA's comments to USCIS on the Policy Manual revisions, NAFSA told USCIS that it seems that USCIS may be "improperly applying the standard “5 -month” temporary absence rule of 8 CFR 214.2(f)(4) to study abroad participants," and that the language could be read to require DSOs to terminate the SEVIS status of F-1 participants in study abroad programs lasting more than five months, including year-long programs, for example, unless the student makes a trip back to the United States every five months to “preserve” the continuity of their F-1 status and Active SEVIS status.

NAFSA told USCIS that it should revert to its prior guidance, or to revise it again to read something like, "A student enrolled in an ICE SEVP-certified school during a study abroad program may remain in Active SEVIS status and reenter the United States on that SEVIS record even if the study abroad program lasts more than 5 months. To reenter the United States, the student must be in Active SEVIS status, have a valid F-1 visa (if required), and have a valid Form I-20 properly endorsed by the DSO.” NAFSA said that "reverting to the prior guidance allowing the student to be admitted without a new I-20 after a five month or longer study abroad program would provide coherence with current SEVP policy and align with longstanding practice."

On October 16, 2024, NAFSA then wrote a follow-up letter to USCIS Director Ur Jaddou urging USCIS to "clarify that a student fully enrolled in an SEVP-certified school during a study abroad program may remain in Active SEVIS status and reenter the United States on that SEVIS record even if the study abroad program lasts more than 5 months."

On November 26, 2024, USCIS updated the USCIS Policy Manual section on F-1 Absences from the United States with a “technical correction” that removed the troublesome study abroad paragraph that appeared in the August 27, 2024 revision to the Policy Manual, replacing it with:

“For information about requirements for F-1 student participation in study abroad programs, see DHS’s Study in the States webpage.”

The Policy Manual also still contains the paragraph before it, which reads:

“If an F-1 student leaves the United States for more than 5 months and is not able to remain enrolled at the student’s ICE SEVP-certified school, the student will not be able to maintain student status.[4] To resume the program of study in the United States, the student will need to seek readmission in initial status, which includes obtaining a new Form I-20.[5]”

Questions from DSOs: Do Students Returning from Temporary Absences Need New Visas? (January 26, 2017), stating: "if a student has been out of the United States for more than five consecutive months (and not on study abroad), they will need to obtain a new Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status,” and pay the I-901 SEVIS Fee again."
DSO Reporting Requirements for International Students Studying Abroad (June 29, 2015) stating: "If a student remains enrolled in a full course of study at your school during their study abroad program, then you may keep their status listed as Active in SEVIS. Remind your students that if they remain outside the United States for more than five months, then they should consult a U.S. embassy or consulate near them to determine if a new visa is needed for their return. Only if a student's current visa is no longer valid, does the student possibly need to apply for and receive a new one... While the student is technically still in Active status, SEVP cannot ensure that the student will not be questioned about their length of time away due to the five month rule. The student may be questioned about their length of time away at either the U.S. embassy or consulate, or at the U.S. port of entry... On the other hand, if your student takes a leave of absence from their U.S. studies and will not remain enrolled as an F-1 student, then their study abroad should be reported as a temporary absence in SEVIS. Upon their return to the United States, you will need to request to change their status back to Active in SEVIS."
Can International Students in the United States Study Abroad? (April 9, 2015) stating: "If you wish to study abroad, you have two options. The first is to enroll for and receive the necessary number of credits, while you study abroad, for a full course of study from the Student and Exchange Visitor Program (SEVP)-certified school that issued your Form I-20, “Certificate of Eligibility for Nonimmigrant Student Status.” Remember, your SEVP-certified school must accept the credits you receive from the study abroad program... An alternative, if you do not plan to enroll in a full course of study while you study abroad, is to complete the study abroad program during an annual vacation, such as during your school’s summer break or during an authorized leave of absence from school... If you leave the United States for more than five months and are not able to remain enrolled at your U.S., SEVP-certified school, you will not be able to maintain your student status. To resume your studies in the United States, you will need to seek readmission in initial status, which includes obtaining a new Form I-20 and paying the I-901 SEVIS fee again. To seek readmission, please speak with your designated school official."
What is the Five-Month Rule? (January 14, 2015), stating: that the "five-month rule" applies to "Students who have spent more than five months outside of the United States during an absence from school, excluding those participating in authorized study abroad programs."
May I participate in a study abroad program? (July 15, 2013) stating: "Study abroad is a great option to enhance your studies as an undergraduate or graduate student. You also may participate in a study abroad program or international research while you are completing your dissertation or thesis preparation. Talk to your designated school official (DSO) about class requirements for the time you would enroll in the study abroad program. You still must enroll for and receive the necessary number of credits for a full course of study at the school whose DSO issued your Form I-20, "Certificate of Eligibility for Nonimmigrant Student Status" (i.e., your Student and Exchange Visitor Program (SEVP)-certified school must accept the credits you receive from the study abroad program). Remember, you always must maintain your status while taking leave from your studies... If you do not enroll in a full course of study at the school whose DSO issued your Form I-20 during the period of study abroad, you can complete the study abroad program while on an annual vacation term or authorized leave of absence. If you leave the United States for more than five months and are not able to remain enrolled at your school, you will not be able to maintain status. If you want to continue studying in the United States, you must apply for a new visa in your home country (if applicable) and a new Form I-20 from an Student and Exchange Visitor Program-certified school. Talk to your DSO if you have any questions."
What Should I Do If I Need to Leave the United States Due to a Personal Emergency? (March 14, 2013) stating: "The need for a new I-20 with a new SEVIS ID applies to the following students... Students who have spent more than five months outside the United States in an absence from school, while neither engaged in study abroad nor on a medical reduced course load."

Other Issues NAFSA Raised in its Comments to USCIS

NAFSA thanked USCIS for "removing the reference to MBA degrees in the section referencing previously obtained degrees. This improves the guidance in the current context because MBA degree seekers who have prior degrees in STEM fields are eligible for STEM OPT. Moving forward, this change will be beneficial as schools develop business curricula with degrees that focus on STEM fields." See 2 USCIS-PM F.5.C.3 – STEM OPT Extension: Previously Obtained STEM Degrees.

NAFSA asked USCIS to correct "the last clause of paragraph 3 at 2 USCIS-PM F.5.C.3 to read: '…no more than 60 days after their DSO enters the STEM OPT recommendation into SEVIS.' Paragraph 3 of this section currently states incorrectly that a student filing for STEM OPT must file the Form I-765 '…no more than 30 days after their DSO enters the STEM OPT recommendation into SEVIS.' However, regulations at 8 CFR 214.2(f)(11)(i)(C) provide that the student has 60 days from the date the DSO enters the STEM OPT recommendation into SEVIS." Update: In response to NAFSA's and other feedback, on September 25, 2024 USCIS made a "technical update" to the USCIS Policy Manual to correct this. USCIS has revised the third paragraph of 2 USCIS-PM F.5.C.3. to now correctly state that, "F-1 students may submit a properly filed Form I-765 up to 90 days before the expiration of the F-1 student’s current post-completion OPT EAD and no more than 60 days after their DSO enters the STEM OPT recommendation into SEVIS."

NAFSA asked USCIS to revise the "STEM OPT Extension: Validity Period" section at 2 USCIS-PM F.5.C.3 "in consultation with SEVP to ensure that SEVIS programming, USCIS policy, and SEVP policy are all in accord, in a way that maximally benefits the student" regarding the operation of the STEM OPT validity period, especially in the context of cap-gap benefits.

NAFSA thanked USCIS "for accepting NAFSA’s recommendation regarding the December 20, 2023, Policy Manual revisions to include specific reference to F-1 options during the 60-day grace period following optional practical training (OPT). The prior language stated that during the grace period “the F-1 may file to extend their student status or change to another nonimmigrant or immigrant status.” The updated language provides a clearer picture of the options available to F-1 students as it now reads, “the F-1 student may contact their DSO to change their education level, transfer to another SEVP-certified school, or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.”

Another Note

Remember that the information NAFSA provides is not legal advice, and is not intended to serve in place of legal advice. Also remember that NAFSA comment letters are advocacy pieces and should not be construed as practice advisories. You should consult with an attorney and your government representatives about your question or situation before taking specific actions.

Prior Revisions to the USCIS Policy Manual's F and M Student Content

USCIS's December 20, 2023 Policy Manual Revisions

USCIS's December 20, 2023 Revisions

On December 20, 2023 USCIS added F and M student content to the USCIS Policy Manual. A Public Engagement Division message states:

"This guidance consolidates existing policy. USCIS expects that this will provide welcome clarity to international students and U.S. educational institutions on a wealth of topics, including eligibility requirements, school transfers, practical training, and on- and off-campus employment."

The guidance is effective as of December 20, 2023, but USCIS will accept feedback on the guidance until January 22, 2024.

See:

The USCIS Policy Alert
The new guidance in the USCIS Policy Manual Volume 2: Nonimmigrants, Part F, Students (F, M) [2 USCIS-PM F] (Chapters 1-9)
NAFSA's PDF Compilation of USCIS Policy Manual Guidance on F and M Students - Compiles and bookmarks each chapter of the USCIS Policy Manual guidance, the USCIS Policy Alert, and the Public Engagement Division's email into a convenient single PDF document.

Some Key Aspects of the New Guidance

Intent to Depart and "Dual Intent"

The USCIS Policy Manual incorporates some of the "unabandoned residence abroad" concepts of the Department of State's Foreign Affairs Manual (e.g. 9 FAM 402.5-5(E)(1)). But USCIS also expands the logic of the FAM guidance, in what could be seen as support of a limited “dual intent” for students. Examine this paragraph:

“A student may be the beneficiary of an approved or pending permanent labor certification application or immigrant petition and still be able to demonstrate their intention to depart after a temporary period of stay.^[11] USCIS officers generally view the fact that a student is the beneficiary of an approved or pending permanent labor certification or an immigrant visa petition as not necessarily impacting their eligibility for the classification, so long as the student intends to depart at the end of their temporary period of stay. In all cases, the officer must consider all facts presented when determining whether a student is eligible for the F or M classification.”

Footnote 11 from this paragraph then cites two sources of persuasive authority:

A regulation that recognized continued validity of nonimmigrant status for H and L nonimmigrants who are applying for adjustment of status, published at 64 FR 29208 (June 1, 1999) (quoting the preamble on page 29209 that stated: “So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits, this, does not bar the alien's continued holding of a nonimmigrant status.”)
The 1975 Board of Immigration Appeals (BIA) decision Matter of Hosseinpour, 15 I&N Dec. 191 (BIA 1975) (quoting the decision, saying that “Filing for adjustment of status ‘…is not necessarily inconsistent with lawful nonimmigrant status.”’).

One Class - Three Credit Limit to Online and Distance Education

USCIS posits an interpretation of the ambiguously worded regulatory provision at 8 CFR 214.2(f)(6)(i)(G), which limits online or distance education to “no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter.” USCIS appears to interpret this with an exclusive focus on the number of credits, stating:

“The equivalent of one class means more than one class can be taken and more than three credits can be taken, but only three credits are applied towards the full course of study requirement.”

Under this interpretation, for example, a student who takes a single class of 4 credits could only count 3 of those credits towards the “full course of study” credit requirement, and so an undergraduate student registered for 3 courses of 4 credits each, one of which is an “online or distance education” class, would be 1 credit shy of the required 12 credits needed to meet the definition of full course of study. By the same token, it would seem that under this interpretation a student who took three one-credit classes online could use all three towards the full course of study requirement.

Recent Background

Feedback to USCIS on the Revised Guidance

Some Key Aspects of the Revised Guidance

Prior Revisions to the USCIS Policy Manual's F and M Student Content

Regulatory Resources