Department of Homeland Security (DHS) proposes to eliminate “duration of status” D/S for F and J visa holders

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On September 25, 2020, the Department of Homeland Security (DHS) proposed a rule to eliminate duration of status (D/S) for F students and their dependents as well as for J exchange visitors and their dependents. Below is a listing of key proposed changes: 

  • Eliminating D/S. Instead of being admitted for "duration of status" (D/S) as they currently are, individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would be admitted for the length of time indicated by the program end date noted in their Form I-20 or DS-2019, not to exceed four years, unless they are subject to a more limited 2-year admission, plus a period of 30 days following their program end date. The proposed revisions to the J regulations closely align with the proposed changes for F nonimmigrants. 

  • 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." 

    • Notably, School or exchange program not participating in E-Verify. Only a two year admission period for students at schools and exchange visitor programs who do not fully participate in E-Verify. In the preamble, DHS rationalizes that schools and exchange visitor programs "that are willing to go above and beyond to ensure compliance with immigration law in one respect are more likely to comply with immigration law in other respects," and that it has "less confidence" in schools and exchange programs "that are unwilling to do all they can to ensure they have a legal workforce." The proposed regulatory wording then makes clear that a school or program that is only partially enrolled in E-Verify (e.g., a single hiring center or department) would not be sufficient to avoid the two year admission limit for its students or exchange visitors, by requiring the school or program to be "a participant in good standing in E-Verify as determined by USCIS," which is then defined as: "Enrolled in E-Verify with respect to all hiring sites in the United States" at the time of the individual's admission in F-1 or J-1 status or at the time the individual files an application for an extension of or change to F-1 or J-1 status with USCIS, and "are in compliance with all requirements of the E-Verify program, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continue to be participants in good standing in E-Verify at any time during which the alien is pursuing a full-course of study at the educational institution" or "the J-1 exchange visitor is participating in an exchange visitor program at the organization." 

  • Reducing the F-1 "grace period" from 60 days to 30 days. "DHS believes that the F category, albeit distinct from M or J, shares a core similarity in that many aliens in these categories are seeking admission to the United States to study at United States educational institutions. Thus, DHS thinks that these categories should have a standard period of time to prepare for departure, or take other actions to extend, change, or otherwise maintain lawful status." 

  • 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. 

  • Limit on pursuing new F-1 programs at the same educational level. "DHS thus proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor's or master's degree. Specifically, 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." 

  • 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." 

  • F-1 cap-gap would be retained, and October 1 end date would be extended to April 1. On a positive note, DHS says: "With the consistently high volume of H-1B petitions each year, however, USCIS has been unable to complete adjudication of H-1B cap- subject petitions by October 1, resulting in situations where some individuals must stop working on October 1... To account for this operational issue, DHS is proposing... to provide an automatic extension of F-1 status and post-completion OPT, as applicable, until April 1 of the fiscal year for which the H-1B petition is filed." 

  • I-539 as the extension of stay application form. "USCIS anticipates accepting the Form I-539, Application to Change/Extend Nonimmigrant Status, for this population but would like the flexibility to use a new form if more efficient or responsive to workload needs. Thus, DHS is proposing to use general language to account for a possible change in form in the future. If the form ever changes, USCIS would provide stakeholder’s advanced notice on its webpage and comply with Paperwork Reduction Act requirements." 

  • Standards for DHS to approve an F-1 extension of stay. "DHS is proposing to eliminate a reference to “normal progress” with respect to seeking a program extension, and incorporate a new standard that makes it clear that acceptable reasons for requesting an extension of a stay for additional time 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." 

  • Reinstatement. "[A] student’s failure 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 or successor form, would require the alien 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... A request for reinstatement must be filed in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. DHS is also requiring F-2 dependents seeking to accompany the F-1 principal student to file applications for an EOS or reinstatement, as applicable. These requirements are consistent with current provisions." 

  • 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, as applicable. 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... To qualify for an EOS, the F-2 or J-2 dependent would need to demonstrate the qualifying relationship with the principal F-1 or J-1 principal who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment. Extensions of stay for dependents would not be able to exceed the authorized admission period of the principal. 

 

Additional Resources from NAFSA (National Association of Foreign Service Advisors):