United States: DHS Submits F/J/I Duration of Status Termination Rule for Federal Review

If the regulation is finalized as proposed, F, J, and I nonimmigrants would be admitted to the United States for a specific period of stay, and like other nonimmigrants, they would be required to apply for an extension of stay if they need more time to complete their program, employment, or assignment.

The final rule is also expected to change the policy on how and when F, J, and I nonimmigrants begin accruing unlawful presence, for purposes of the three- and ten-year bars applicable to foreign nationals who have been unlawfully present in the United States for over 180 days or over one year. Currently, F, J, and I nonimmigrants only begin to accrue unlawful presence if USCIS or an immigration judge formally finds that the individual has violated their nonimmigrant status. If the rule is finalized as proposed, F, J, and I nonimmigrants would generally begin accruing unlawful presence as soon as their specified admission period expires, as is currently the case for other nonimmigrant categories.

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

• Shorter grace periods for F-1s: The rule is expected to 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: If finalized as proposed, the rule would prohibit F-1 undergraduates 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.
• 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 rule is expected to 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 rule is expected to 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. Commentary to the proposed version of the rule noted that activities pursued for entertainment purposes, such as performing or appearing on reality television programs, generally would not qualify for I classification.

When the regulation was proposed, it sought to eliminate DHS’s current regulation directing USCIS officers to give deference to previous Form I-129 temporary worker petition approvals involving the same parties and same underlying facts when adjudicating extensions of stay and other types of I-129 filings. It is not yet clear whether the final version of the regulation will contain this provision; there have been indications that DHS may pursue this change in a separate rulemaking.

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.

After OMB clearance of the final rule, it will be published in the Federal Register with an implementation timeframe of 30 to 60 days.