The U.S. Department of Homeland Security, in coordination with U.S. Immigration and Customs Enforcement, has published a proposed rule that would fundamentally change the way foreign nationals are admitted to the United States in the F-1 student, J-1 exchange visitor, and I foreign media representative nonimmigrant visa categories.
Unlike most other nonimmigrant visa categories, individuals in F, J, and I visa status are currently not admitted for a fixed period of time. Instead, these individuals are admitted for an indefinite period known as “duration of status.” This longstanding policy, first introduced for F-1 students in 1978 and later extended to J-1 exchange visitors and I foreign media representatives in 1985, allows the individuals to remain in the United States for as long as they are engaged in their authorized academic, professional, or exchange activities, plus a grace period to allow for departure from the United States.
Specifically, the “duration of status” for each category of visa is currently as follows:
- For F-1 students, the time necessary to complete a full course of study, participate in authorized practical training (OPT and/or STEM OPT), plus the authorized time to leave the United States.
- For J-1 exchange visitors, the authorized program period, plus the time to leave the United States.
- For I visa holders, the length of their employment duties as representatives of foreign media.
Under the proposed rule, admission for F, J, and I nonimmigrants would change from “duration of status” to a fixed admission period with a specified end date. Once the fixed period expired, individuals who wished to remain in the United States would be required to file an Extension of Stay application with U.S. Citizenship and Immigration Services.
The DHS contends that the significant increase in F, J and I nonimmigrant visa holders over the last several decades has complicated oversight and vetting functions. The agency says that fixed admission dates will help curb fraud and abuse by enabling closer monitoring of F, J, and I nonimmigrant visa holders to ensure their continued compliance, and to enforce more effectively statutory bars related to unlawful presence. And because almost all other nonimmigrant visa classifications have fixed admissions periods, the DHS says that the proposed changes to the F, J, and I visa admissions will provide consistency.
F, J Visas
Here are the highlights of the proposed rule as it would apply to holders of F and J visas:
- Imposes a fixed admission period by authorizing admission and extensions of stay for F and J nonimmigrants for the length of their program, but not to exceed four years.
- Restricts F-1 student transfers. The proposed rule would require international students in F-1 visa status to complete their first academic year at the school that issued their initial Form I-20 or successor form before they can transfer to a different school that is certified by the Student or Exchange Visitor Program. F-1 students would also be restricted from changing educational objectives within their first year, unless an exception is authorized by SEVP.
- Prohibits an F-1 graduate student from changing to a different program at any point during the program of study.
- F-1 students who have completed one educational program can generally begin a higher-level program but not a program at the same or lower educational level.
- Shortens the departure grace period for F-1 students from 60 days to 30 days after completing a course of study or authorized post-completion practical training.
- Requires biometric information in conjunction with any Extension of Stay application (this also applies to I visa holders).
- Limits enrollment in language training programs to an aggregate of 24 months, including breaks and annual vacations.
- Clarifies that delays in program completion – such as those caused by academic probation, suspension, or an F-1 student’s repeated failure to make progress to complete the course of study – are generally unacceptable reasons for an extension of stay.
- Allows F-1 students an automatic extension of employment authorization for on-campus and certain off-campus work based on severe economic hardship, if the student has timely filed an Extension of Stay application. This automatic extension would apply until the earlier of 240 days.
- Confirms that J-1 nonimmigrants who are authorized to work for a specific employer based on their status may continue their employment for up to 240 days if their status expires while a timely filed Extension of Stay application is pending. However, J-2 dependents, who require an Employment Authorization Document to work, would not be eligible for continued work authorization once the EAD expires.
The proposed rule provides a transition period for F and J nonimmigrants who have been admitted for “duration of status” under the current standard. These admissions would expire on earlier of (1) the program end date listed on a valid Form I-20 or DS-2019, or (2) four years after the proposed rule takes effect. In addition, there would be a 60-day grace period for F-1 students, and a 30-day grace period for J-1 exchange visitors, to leave the United States. To extend their stays, both F and J nonimmigrants would need to apply for an Extension of Stay directly with the USCIS, or leave the United States and seek readmission.
I Visas
Here are the highlights of the proposed rule as it would apply to holders of I visas:
- Imposes a fixed admission period, limited to the completion of activities or assignments consistent with I visa status, but not to exceed 240 days (with certain exceptions for I visa holders from China). An Extension of Stay may be available if eligibility requirements are met.
- Defines a “foreign media organization” for I visa purposes, consistent with longstanding USCIS and U.S. Department of State practices.
- Updates the documentation that foreign nationals must submit to establish eligibility for I visa classification.
- Clarifies that I nonimmigrants may continue to work for their foreign employers in the United States for up to 240 days while a timely filed Extension of Stay application remains pending.
F, J, I Visas: International Travel While Eos Is Pending
If an F, J, or I nonimmigrant leaves the United States while an Extension of Stay application is pending, the USCIS will not treat the EOS as having been “abandoned.” These individuals may still be readmitted into the United States until the program end date shown on their most recent Form I-20 or DS-2019, but not to exceed four years, plus the applicable 30-day grace period; or they may be admitted for the period requested in the pending EOS application, plus the 30-day grace period. In the latter case, the pending EOS application would be deemed “abandoned” because the extension would have already been granted at the time of re-entry into the United States.
To be eligible for readmission, the nonimmigrant must present the following proof:
- The pending EOS application (either the Form 797C, Notice of Action, confirming receipt of Form I-539, Application to Extend/Change Nonimmigrant Status; or Form I-765, Application for Employment Authorization).
- The supporting Form I-20 or DS-2019 showing the program end date.
- In the case of I visa holders, a letter of employment.
Conclusion
If the proposed rule becomes final, it would affect the planning of academic and professional activities for millions of international students, scholars, exchange visitors, and foreign media representatives. International students and scholars may face increased pressure to complete programs within fixed admission periods. Employers who hire students or exchange visitors should also be mindful of the stricter timelines.
