DHS Proposes Rule to Terminate Duration of Status and Establish a Definite Period of Admission for F, J, and I Nonimmigrants
On Sept. 24, 2020, the Department of Homeland Security announced a proposed rule that would change the admission period structure for F (international students), J (exchange visitors), and I (foreign information media representatives) nonimmigrants. Specifically, the proposed rule seeks to remove the current duration of status (D/S) framework that allows F, J, and I nonimmigrants to remain in the United States for as long as they maintain compliance with the terms and conditions of their nonimmigrant category, i.e., period required to complete their educational program, assignment, or employment. Instead, the proposed rule would subject the F, J, and I nonimmigrant to a fixed time period of admission and would require them to file an extension of stay or reapply for admission if the fixed period expires before the completion of their program, assignment, or employment.
Under the proposed rule, F or J nonimmigrants would be admitted into the U.S. for a period up to the end date of their program, with a maximum of four years, unless DHS determines for factors relating to national security and program integrity concerns, to limit the authorized period of stay to a maximum of two years. Foreign nationals from countries associated with high visa overstay rates (rates greater than 10% for student and exchange visitors) will be limited to up to a two-year fixed period of stay. Additional factors that DHS may consider in limiting the authorized stay to a maximum of two years for F or J nonimmigrants include an alien’s birth or citizenship from a country on the State Sponsors of Terrorism list; whether a school or program sponsor is an E-Verify participant in good standing; and, for F nonimmigrants, whether a school is accredited by an accrediting agency recognized by the Secretary of Education. For the present F or J nonimmigrants who were admitted for D/S, they will automatically have their stay extended up to the program end date, with a maximum of four years, once the final rule becomes effective.
Under the proposed rule, most I nonimmigrants would be admitted for a period of time necessary to complete the planned activities or assignments consistent with the I category, for a maximum of 240 days. These I nonimmigrants may have an opportunity to extend their stay for maximum of 240 days based on the length of their relevant activities. An exception is made for I nonimmigrants holding a mainland China or Hong Kong SAR passport, who would be admitted an initial period not exceeding 90 days, and may only extend their stay for a maximum of 90 days.
The proposed rule also seeks to make the following additional changes, other than terminate the D/S and institute fixed admission period for F, J, and I nonimmigrants.
F nonimmigrants who have timely filed an extension of stay (EOS) application and whose EOS remains pending after their I-94 expiration date will receive automatic extension of their F nonimmigrant status, and as applicable, their on-campus employment authorization, off-campus employment authorization due to severe economic hardship, or STEM OPT, as well as evidence of employment authorization for up to 180 days or until the application is adjudicated, whichever is earlier.
F nonimmigrants who have timely filed EOS applications and applications for employment authorization, but their I-94 admission period has expired, cannot engage in CPT, Pre-completion OPT, or post-completion OPT, until the applications are approved.
F nonimmigrant grace period would be changed from the current 60 days, to 30 days.
F nonimmigrant automatic cap-gap extension is extended from Oct. 1 to April 1 of the fiscal year for which the H-1B petition is filed; this allows for less interruption of the employment of F-1 nonimmigrants who have timely filed H-1B petition.
I and J-1 nonimmigrants who are employment authorized with a specific employer incident to status, other than those holding mainland China or Hong Kong SAR passports, would receive automatic employment authorization up to 240 days, if they have timely filed EOS applications, and the applications remain pending after their period of admission.
The proposed rule, Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media, was published in the Federal Register on Sept. 25, and the public will have 30 days to comment on the rule. Comments may be submitted on the proposed rule identified by DHS Docket No. ICEB-2019-0006 through the following method: Federal eRulemaking Portal (preferred). Currently there is no set timeline on when the final rule will be published.