UPDATE – Duration-of-Status Proposed Rule Withdrawn

• July 4th, 2021
• in Capstone International Services

UPDATE – JULY 6, 2021 – DHS WITHDRAWS PROPOSAL

On July 6, 2021, the U.S. Department of Homeland Security (DHS) published their official withdrawal of the proposed rule to change F and J duration of status periods.

Below is a history of the now withdrawn proposal, and for more detailed information and resources, please see the NAFSA Page on this topic.

HISTORY OF PROPOSAL
On September 25, 2020 the U.S. Department of Homeland Security (DHS) published a proposed rule to change the admission period of F and J nonimmigrants from the current “duration of status” (D/S) period (which is linked to the expiration date on your I-20 or DS-2019) to a date-certain I-94 Form (which provides an entry date and authorized period of stay).  The proposed rule was highly technical, and received a lot of feedback.  The following is a brief summary of how the withdrawn proposal would have impacted international students’ and scholars’ periods of admission.

• Would have limited period of status (or authorized stay) to 4 years.  Individuals seeking to enter in F-1, F-2, J-1 or J-2 visa status would be admitted into the United States for the length of time indicated on the I-20 or DS-2019, for a period not to exceed four years plus their grace period. This proposed rule also changes the F-1/F-2 grace period from 60 days to 30 days.  J-1/J-2 will continue to have a 30 day grace period. Extensions of stay may be applied for; see additional information below.
• Certain groups would be limited to 2-year periods of admission instead of 4-year periods of admission. Students limited to this initial 2-year period would have to apply for an extension to stay and complete programs. Those categories include:
  • Individuals from countries on the State Sponsor of Terrorism List (currently North Korea, Iran, Sudan, and Syria).
  • Individuals from countries with greater than 10 percent overstay rate (see table C-4). This list is subject to change and can be updated separately from this rule.
  • Based on U.S. National Interest, for example “students who are enrolled in specific courses of study, such as nuclear science”.
  • Unaccredited schools (F-1 only): The University of Alabama and its Intensive English Program are accredited by the Southern Association of Colleges and Schools so this part of the rule will not impact UA students.
  • Schools or exchange programs not participating in E-Verify: The University of Alabama is an E-Verify employer so this part of the rule will not impact UA Students.
• Would have limited English as a Second Language study: F-1 students in language training would be restricted to a lifetime total limit of 24 months of language study, including breaks and annual vacations.
• Would have limited pursuing F-1 programs at the same educational level: DHS proposes to limit the number of times someone can get a degree at the same educational level (i.e. multiple masters programs) to three for the lifetime of the student
• Would have limited ‘reverse matriculation” for F-1s: While there are still no limits to how many times a student can change level to a higher degree level (for example, language study > Associates > Bachelors > Masters > PhD) students can only go down a degree level (for example from a PhD to a Master’s) once in F-1 status for the lifetime of the student.
• Would have required program extensions approved by USCIS instead of ISSS: With a date-certain I-94 record, program extensions would no longer be approved by ISSS and processed with an update to your F-1 I-20 or J-1 DS-2019, but instead would require an application (with fee) to USCIS after a “recommendation” by ISSS.
  • Changes the standard of review for approval of extension:  The new rule would eliminate references to “normal progress” as a grounds for seeking an extension and incorporates a new standard for acceptable reasons for requesting extensions  “1) compelling academic reasons; 2) a documented illness or medical condition; and 3) exceptional circumstances beyond the control of the alien.”  Again, granting extensions would be the sole authority of USCIS under this proposed rule.
  • Implements biometrics requirement for program extensions, meaning that after an application for an extension, F-1 and J-1 students would have to visit a USCIS facility for fingerprints and photographs.
• Would have created a series of “auto extensions” to account for processing times.  Processing times for Extensions of Stay are historically very long, with current posted processing times of 5 – 7 months.  To, account for long processing times, the proposal has automatic extensions of some authorizations:
  • On-campus employment: F-1 students able to continue to be authorized for on-campus employment while Extension of Stay (EOS) application is pending not to exceed 180 days.
  • Off-Campus Employment (such as Economic Hardship or Special Student Relief): automatic extension for up to 180 days.
  • No International Organization Internships, CPT or Pre-Completion OPT can be recommended or approved after the I-20 expiration date until the EOS has first been approved by USCIS
  • F-1 students applying for Post-Completion OPT must also submit an EOS request, and cannot begin OPT employment until both the OPT and EOS are approved.
  • F-1 students applying for STEM OPT also require an EOS application, but they are able to continue employment for 180 days while both the STEM OPT and EOS are being adjudicated.
  • J-1s would be able to continue working incident to their status while the EOS is pending for up to 240 days.
• Would have impacted those currently in the U.S.  F and J nonimmigrants who are properly maintaining their status would be authorized to remain in the United States in F and J status until the end date on their Form I-20 or DS-2019, not to exceed a period of 4 years from the final rule’s effective date, plus a grace period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. If they need additional time to complete their current course of study or exchange visitor program, including requests for post completion optional practical training (OPT) or STEM OPT, or would like to start a new course of study, they would have to apply for an extension of stay.