DHS Proposal on Length of Stay

UPDATE: The Biden Administration issued a Memorandum on January 20, 2021 to ‘freeze’ any proposed regulations that have not gone into affect yet. The proposed D/S rule (see below) falls into this category and may very well be dropped upon review. OIS will update this page when more information is available.

On September 25, 2020 the U.S. Department of Homeland Security (DHS) published a proposed rule to change the admission period of F and J nonimmigrants from the current “duration of status” (D/S) period (which is linked to the expiration date on your I-20 or DS-2019) to a date-certain I-94.  The proposed rule is highly technical and OIS is still evaluating the true impact, but following is a brief summary of this very substantial proposed change to how international students’ and scholars’ periods of admission are managed by DHS.

  • Limits period of status (or authorized stay) to 4 years.  Individuals seeking to enter in F-1, F-2, J-1 or J-2 visa status would be admitted for the length of time indicated on the I-20 or DS-2019, for a period not to exceed four years plus grace period. This proposed rule also changes the F-1/F-2 grace period from 60 days to 30 days.  J-1/J-2 will continue to have a 30 day grace period. 
  • Certain groups would be limited to 2-year periods of admission instead of 4-year periods of admission. Students limited to this initial 2-year period would have to apply for an extension to stay and complete programs. Those groups include:
    • Individuals from countries on the State Sponsor of Terrorism List (currently North Korea, Iran, Sudan, and Syria). 
    • Individuals from countries with greater than 10 percent overstay rate (see table C-4). This list is subject to change and can be updated separate from this rule.
    • Based on U.S. National Interest, for example “students who are enrolled in specific courses of study, such as nuclear science”.
    • Unaccredited schools (F-1 only): NC State and its Intensive English Program are accredited by the Southern Association of Colleges and Schools so this part of the rule will not impact NC State students.
    • Schools or exchange programs not participating in E-Verify: NC State is an E-Verify employer so this part of the rule will not impact NC State Students.
  • Limit on English as a Second Language study: F-1 students in language training would be restricted to lifetime aggregate of 24 months of language student including breaks and annual vacation. 
  • Limit on pursuing F-1 programs at same educational level: DHS proposes to limit the number of times someone can get a degree at the same educational level (i.e. multiple masters programs) to three for the lifetime of the student
  • Limits on ‘reverse matriculation” for F-1s: While there are still no limits to how many times a student can change level to a higher degree level (for example, language study > Associates > Bachelors > Masters > PhD) students can only go down a degree level (for example from a PhD to an MBA) once in F-1 status for the lifetime of the student.
  • Program extensions approved by USCIS instead of OIS: With a date-certain I-94 card, program extensions would no longer be approved by OIS, but instead would require an application (with fee) to USCIS after a “recommendation” by OIS.
    • Changes the standard of review for approval of extension.  Would eliminate references to “normal progress” as a grounds for seeking an extension and incorporates a new standard for acceptable reasons for requesting extensions  “1) compelling academic reasons; 2) a documented illness or medical condition; and 3) exceptional circumstances beyond the control of the alien.”  Again, granting extensions would be the sole authority of USCIS under this proposed rule.
    • Implements biometrics requirement for program extensions.
  • Creates a series of “auto extensions” to account for processing times.  Processing times for Extensions of Stay are historically very long.
    • On-campus employment: F-1 students able to continue to be authorized for on-campus employment while Extension of Stay (EOS) application is pending not to exceed 180 days.
    • Off-Campus Employment (such as Economic Hardship or Special Student Relief): automatic extension for up to 180 days.
    • No International Organization Internships, CPT or Pre-Completion OPT can be recommended or approved after the I-20 expiration date until the EOS has first been approved by USCIS
    • F-1 students applying for Post-Completion OPT must also submit an EOS request, and cannot begin OPT employment until both the OPT and EOS are approved. 
    • F-1 students applying for STEM OPT also require an EOS application, but they are able to continue employment for 180 days while both the STEM OPT and EOS are being adjudicated.
    • J-1s would be able to continue working incident to their status while the EOS is pending for up to 240 days.
  • Extensive set of transition procedures for those currently in the U.S.  Those procedures and the timelines associated with them are dependent on the effective date of the proposed rule.  We will have more information about the transition period at a later date.

Some positive developments: The proposed regulation does have a few positive developments or improvements.

  • I-765 for OPT and STEM OPT can be filed 120 days in advance of the I-20 program end date/expiration of OPT rather than the current 90 days (however note that the change in grace period from 60 to 30 days means that students requested OPT period must begin within 30 days of graduation). 
  • The proposed rule does away with the requirement to file the I-765 within 30 days of the OIS recommendation (NOTE: Again this is a proposed rule and has not taken effect! Current applicants must still file within 30 days of OIS recommendation!).
  • Extends “Cap-Gap” OPT extensions an additional six months to April 1 of the government fiscal year 

**The important thing to understand is that this is a proposed rule and does not have immediate effect.  This is a “notice and comment” rulemaking, and the government has given 30 days for the public to provide comment.   During this time individuals and entities may comment on the impact of the new rule.  One does not have to be a U.S. Citizen to submit a comment – international students and scholars are allowed to make their own comments as individuals.  Written comments must be submitted on or before October 26, 2020 through the Federal eRulemaking Portal.  Multiple organizations are already organizing to submit comments, and you can follow the efforts of NAFSA: Association of International Educators and its advocacy arm Connecting Our World for developments.  Furthermore, OIS is leading NC State University in drafting a comment to this proposed rule.

We know that the last few years have seen an unrelenting period of change in our country’s immigration system, and that this is an additional layer of anxiety at an already difficult period where the ongoing impacts of COVID-19 are being felt both here and at home, with its additional uncertainty in the global economy and job market.  As always, the staff at OIS and the University community stand in solidarity with our international students and scholars.  We will continue to provide updates throughout the comment period and will be closely monitoring the progress of the rule and will keep you informed with new developments.  

One Pack, One World.

The OIS Team