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EIG Summary | DHS Proposes Changes to F, J, and I Nonimmigrant Status

September 28, 2020

The Department of Homeland Security through a Notice of Proposed Rulemaking (NPRM), is proposing to change the admission period of F, J, and I nonimmigrants from duration of status to an admission for a fixed time period.

Previously: Nonimmigrants in the category of F, J, and I were admitted for “duration of status” – with the notation D/S. The term D/S meant that upon entry into the U.S., an F, J, and I nonimmigrant’s period of stay was governed by that individual complying with the terms and conditions of their nonimmigrant category, rather than an admission for a fixed time period.

Now: DHS proposes to amend its regulations by changing the admission period of F, J, and I individuals from “duration of status” to an admission for a fixed time period. Individuals in the F, J, and I categories would be required to apply for an extension of stay (EOS) directly with USCIS or to depart the country and apply for admission with CBP at a port of entry.

The proposed rule has given incentives for fraud and abuse and the need to maintain national security as the reasons for the proposed rule.

Some changes included in the proposed rule are:

  • Limiting the admission and extension periods for F and J nonimmigrants (with limited exceptions) to a 2- or 4-year period;
  • Providing limits on the number of times that F-1 nonimmigrants can change educational levels while in F-1 status;
  • Decreasing from 60 to 30 days the grace period for F aliens to prepare to depart from the United States;
  • Lengthening the automatic EOS for the H-1B cap gap;
  • Initiating a routine biometrics collection in conjunction with an EOS application for F, J, and I nonimmigrants;
  • Limiting extensions for F nonimmigrants caused due to reasons such as failing grades, academic probation or suspension;
  • Providing for a 180 days extension due to the expiry of I-94 for a timely filed EOS application by showing severe economic hardship, or Science Technology Engineering and Mathematics Optional Practical Training (STEM OPT) employment authorization, as well as evidence of employment authorization

Concerns:

  • A period of 2-4 years may not be enough for an F nonimmigrant to complete their studies (Ph.D. may take up to 6 years or more to complete) and could lead to irreversible consequences for students and their families if extensions are not granted. We don’t yet know what the “limited exceptions” to the limit of 2-4 years could be;
  • Limits on the number of times an F-1 nonimmigrant may change educational level may restrict their future employment including being able to apply for H-1B;
  • Decreasing the grace period from 60 to 30 days may lead to more F-1 students accruing unlawful presence, triggering the harsh 3 and 10-year bars. As per the USCIS Guidance issued in August 2018, unlawful presence will begin accruing the day after a student stops pursuing a course of study or otherwise violates his or her immigration status;
  • Current F and J visa holders would be transitioned from D/S to a fixed expiration date, which is likely to cause confusion and could lead to inadvertent overstays;
  • CPT work authorization could be impacted by slow EOS processing times, as this type of work authorization may not be extended beyond an expired I-94.

Next Steps:

The proposed rule was published in the Federal Register on 09/25/2020 with a 30 day public comment period. DHS must review all comments received before issuing a final rule. It is likely that a final rule could be subject to challenges in court as well. We will keep you updated as this develops.

Erickson Immigration Group will continue to send updates as more news is available. If you have questions about anything we’re reporting above or case-specific questions, please contact your employer or EIG attorney.