United States: DHS Proposes to Replace Admission for Duration of Status with Fixed Periods of Stay for F, J, and I Nonimmigrants, Eliminate Deference to Prior Adjudications

While most nonimmigrants are admitted to the United States until a specific date, F, J, and I nonimmigrants have long been admitted for the duration of the individual’s status in that visa classification. Under current rules, a “duration of status” (D/S) admission for F-1s is the time it takes the individual to complete their academic program and any post-completion optional practical training (OPT), plus a 60-day grace period. For J-1s, “duration of status” is the time it takes the exchange visitor to complete their J-1 program, plus a 30-day grace period. And for I nonimmigrants, “duration of status” is generally the duration of the foreign media representative’s assignment/employment in the United States.

Nonimmigrants admitted for duration of status are not required to apply for an extension of stay with USCIS if their program or employment lasts longer than initially anticipated. For Fs and Js, the sponsoring educational institution or exchange program can extend the student’s or exchange visitor’s ability to remain in the United States simply by issuing a revised Form I-20 or DS-2019 with a later program completion date, and foreign media representatives in I status can remain in the United States as long as they remain employed in their qualifying employment.

The proposed rule would end this longstanding practice of admitting F, J, and I nonimmigrants for duration of status and would bring these classifications in line with other nonimmigrant categories, by subjecting them to defined periods of stay and requiring them to apply to USCIS for extensions of status if they wish to remain in the United States beyond that defined period.

The proposed new F, J, and I admission periods would be as follows:

• F-1s and their dependents: Most F-1 principals and their dependents would be admitted for up to the length of the principal’s program, including any periods of post-completion practical training, not to exceed four years, plus a 30-day grace period (reduced from the current 60-day grace period). The following foreign nationals, however, would be limited to shorter admission periods: 

• • Those enrolled in English language training programs would be limited to a maximum admission period of 24 months, plus a 30-day grace period. 
  • Foreign nationals attending public high school would be limited to a maximum aggregate admission period of no more than 12 months, including school breaks and annual vacations.
  • Border commuter students, who were already subject to fixed duration admissions, would continue to be subject to existing rules governing the length of their admission period.
• J-1s and their dependents: J-1 principals and their dependents would be admitted for up to the length of the principal’s program, not to exceed four years, plus a 30-day grace period.
• I nonimmigrants and their dependents: I nonimmigrants and their dependents would be admitted for a period of time necessary for the I principal to complete their assignment, not to exceed 240 days, unless they hold a passport issued by the People’s Republic of China (other than Hong Kong or Macau Special Administrative Region (SAR) passports), in which case their period of stay would not exceed 90 days.

F-1s and J-1s would continue to be eligible to be admitted into the United States up to 30 days before their program start date, and the 30-day grace period after program completion would be reflected on the foreign national’s I-94 admission document. Neither 30-day period would count against the four-year maximum admission period.

If F, J, or I nonimmigrants require additional time to complete their program, practical training, or employment, they would need to apply for an extension of stay with USCIS and complete biometrics screening. The rules governing the duration of approved extensions would mirror the rules above for the initial admission periods.

The proposed rule indicates that in order for an extension of F-1 status to be approved, the foreign national would need to present either a currently issued Form I-20 indicating that additional time is needed to complete their program or documentation demonstrating compelling academic reasons (e.g., change of major or research topic, unexpected research problems, etc.); illness; or other circumstances beyond the foreign national’s control (e.g., natural disaster, national health crisis, closure of institution).

If an F, J, or I nonimmigrant fails to depart or apply to change or extend their status before their status expires, they would begin to accrue unlawful presence upon expiration of their authorized admission period, in the same manner as other nonimmigrants.

The proposed rule contains complex transition provisions for the treatment of foreign nationals admitted for duration of status (D/S) prior to the effective date of the rule.

In addition to imposing finite admission periods for F, J, and I nonimmigrants, the proposal seeks to make the following additional changes to these programs:

• Shorter grace periods for F-1s: The proposed rule would replace the current 60-day grace period for F-1s with a 30-day grace period. The grace period is available so that students can prepare to depart the United States or apply for an extension or change of status, following the completion of their initial program or practical training.
• Restrictions on F-1s changing programs and majors: Under the proposed rule, F-1 undergraduates would be prohibited from changing programs, majors, or education levels within the first year of their program, unless ICE’s Student and Exchange Visitor Program (SEVP) allows an exception for extenuating circumstances (e.g., school closure, or a prolonged inability to hold classes due to a natural disaster). F-1 graduate students would be entirely precluded from changing programs, majors, or educational levels. In addition, if a foreign national completes a program at a particular level, they would not be eligible for F-1 status to undertake a program at the same level or a lower level. (The proposed rule notes that implementation of these restrictions would require changes to the SEVIS system, and if DHS determines that implementation of the restrictions when the rule takes effect is infeasible for technical or other reasons, the proposed rule would allow DHS to delay or suspend the restrictions through an announcement on the SEVP website.) 
• International travel while extension pending: Depending on the type of documentation presented at the port of entry, F, J, and I foreign nationals who travel while an extension is pending may either be readmitted for the balance left on their previous admission period, or for the extended period requested on the pending extension application. In the former scenario, the pending extension would not be considered abandoned due to travel, but in the latter scenario, the pending extension request would be deemed abandoned as no longer necessary.
• International travel while change of status pending: The proposed rule would codify DHS’s longstanding policy that a change of status application will be deemed abandoned if the foreign national travels outside the United States while the application is pending.
• Scope of I classification defined: For purposes of qualifying as a representative of foreign media, the proposed rule would clarify that a foreign media organization must have its home office in a foreign country and must be engaged in the regular gathering, production, or dissemination of journalistic information. The commentary to the proposed rule notes that activities pursued for entertainment purposes, such as performing or appearing on reality television programs, generally would not qualify for I classification.

With no explanation in its preamble, the proposed rule seeks to eliminate DHS’s current regulation directing USCIS officers to give deference to previous I-129 temporary worker petition approvals involving the same parties and the same underlying facts when adjudicating extensions of stay and other types of I-129 filings. The deference regulation was added as part of the H-1B modernization rule that took effect in January of this year, codifying a longstanding policy that had been suspended during the first Trump Administration.  

If finalized as proposed, the regulation would create significant new compliance and administrative responsibilities for affected foreign nationals and their schools, exchange program sponsors, and employers.

In addition, the regulation would result in a significant increase in the number of applications to extend nonimmigrant status filed with USCIS, exacerbating existing USCIS processing delays.

The proposed elimination of the current deference rule would increase uncertainty in adjudications and could result in a significant increase in the rates of requests for evidence and denials for extension applications, as occurred during the first Trump Administration.

After the rule is published in the Federal Register tomorrow, the public will have 30 days to comment. DHS will then review the feedback and prepare a final rule for issuance in the Federal Register. Some aspects of the proposed rule could be revised during the review and finalization process, based on public feedback. There is no set timeframe for publication of a final rule, though the process typically takes several months.

Comments from the academic and business communities will be important to make the agency aware of the impact of the rule on schools, businesses, and U.S. competitiveness in the market for global talent. If your organization wishes to comment on the proposed rule, please contact your designated Fragomen professional or the firm’s Government Strategies and Compliance Group.

Fragomen is closely following the progress of this proposal and will provide further updates as warranted.