Proposal to End Duration of Status for Students/Scholars with F or J Visas

On Friday, September 25, 2020, the Department of Homeland Security proposed a rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives.  Below is a summary of the possible impacts if the rule is implemented. 

Summary of Proposed Rule for F and J Visa Holders

  1. The rule eliminates D/S (Duration of Status). Instead of being admitted for "duration of status" (D/S) which allows individuals to remain in the U.S. as long as they have a valid I-20 or DS-2019, individuals applying for admission to enter the U.S. in with F or J visas (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 grace period of 30 days (previously 60 days) following their program end date. Individuals who need time beyond their period of admission that will be listed on the I-94 would have to file a Form I-539 for an extension of stay with USCIS before their current admission expires.  Your I-20 may have a program end date longer than 4 years; however, the rule would limit the period of admission that Customs & Border Patrol (CBP) or USCIS would give on the F or J’s Form I-194 to four years, and in some cases two years.  
    • *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. Individuals who were born in or are citizens of country with greater than 10 percent visa overstay rate.  For now, this includes:  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. 
      • U.S. national interest. 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. 
  2. The rule reduces the F-1 "grace period" from 60 days to 30 days.
  3. The rule retains the F-1 cap-gap, and October 1 end date would be extended to April 1.
  4. Current F-1 and J-1 visa holders would transition to a new end date. F or J nonimmigrants previously admitted for D/S (Duration of Status) would be transitioned to a new fixed date of admission, which would:
    • not be more than a period of 4 years from the final rule's effective date (even if in a “2-year” category)
    • plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants, but
    • 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,
  5. Travel and reentry after the final rule effective date may change the end date on the I-94.
    • 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”)
  6. OPT and STEM OPT applications would impact the end date on the I-94
    • 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.

 

 

Extension of Stay Eligibility and Procedures

  1. I-539 Extension of Stay (EOS) application form. Individuals must submit Form I-539, Application to Change/Extend Nonimmigrant Status, to file an extension of stay beyond the I-94 End Date.
  2. Period of extension. USCIS must receive an application for extension of stay before the expiration of the period of admission recorded on Form I-94. Extensions of stay may 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.
  3. Biometrics.  As part of the EOS application, USCIS requires biometric collection (fingerprints) from F and J nonimmigrants under the proposed rule.  There is a fee for biometric collection.
  4. Proof of sufficient funding for F-1 students extending their stay. Applicants would be required to submit evidence of sufficient funds to cover expenses for the period of the extension.
  5. Possibility of an interview. USCIS can also require any individual filing an extension request to appear for an interview.
  6. 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. 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.  All applicants will have to pay the biometric fee.
  7. Standards for DHS to approve an F-1 extension of stay.  Acceptable reasons for requesting an extension of a stay 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."
    • 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."
    • Circumstances beyond the student's control, including a natural disaster, a national health crisis, or the closure of an institution may also qualify for extension of stay approval. 
  8. Status while the Extension of Stay (EOS) is pending.  A non-immigrant 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 different than F-1 or J-1 nonimmigrant status.  A period of authorized stay protects an applicant from being subject to the INA 222(g) overstay penalty and from accruing unlawful presence under INA 212(a)(9)(B). 
  9. F-1 and F-2 reinstatement.  If an F-1 visa holder fails 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, the individual would be required 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.  

 

Employment Issues

  1. Employment filing dates
    • Post-Completion OPT filing window will 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. Once they get their DSO's recommendation, they would then be eligible to file their Form I-765.  The I-765 can be filed with USCIS up to 120 days before the program end date or the expiration of their current EAD, or within 30 days after their program end date.
  2. Employment and the Extension of Stay Process
    • On-campus employment and economic hardship can continue while extension is pending but only for 180 days.
    • No continuation of CPT and other types of employment is allowed while extension is pending.
    • Students applying for F-1 Post Completion OPT and STEM OPT would also have to file an application to extend their stay.
      • 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.
      • 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."
    • 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.

Academic-related Restrictions

  1. 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.
  2. Limit on pursuing new F-1 programs at the same educational level.  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."
  3. Limit on "reverse matriculation" by F-1 students.  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."

Center for Global Engagement

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