Summary of the DHS Proposed Rule to Eliminate Duration of Status (D/S)

The U.S. Department of Homeland Security (DHS) published proposed regulations 85 FR 60526 on September 25, 2020 that seek to eliminate “Duration of Status” or D/S for F international students and J Exchange Visitors and their dependent family members to a maximum of 4 years or 2 years under certain circumstances. The proposed rule eliminates the flexibility that D/S allows by imposing a specific expiration date of their status. Students and their dependent family members would be required to submit an application form, fee and supporting documents to USCIS to apply for periodic extensions if they need additional time to complete an academic program, begin a new program of study (including at BU or other institutions in the US) and to apply for post-completion employment authorization like Optional Practical Training (OPT), STEM OPT or Academic Training. Scholars and their dependent family members would be required to submit an application form, fee and supporting documents to USCIS to apply for periodic extensions if they need additional time to complete post-doctoral research, instruction and training.

The rule seeks to apply the accrual of unlawful presence (which carries bans on returning to the US for 3, 10 or more years) if students, scholars or their dependent family members remain in the US for after their new period of authorized stay in the US expires. USCIS cited limited examples of fraudulent actions on the part of school officials and some students and stressed the need for more agency oversight. Public comments will be accepted for 30 days until October 26, 2020

The proposed regulations include the following:

  • Outlining the process for applications of extension of stay (EOS) applications to USCIS for F & J nonimmigrants
  • Specifying the effect of departing the US while an F or J nonimmigrant’s application for an EOS or employment authorization is pending
  • Providing procedures specific to how current students and scholars would transition from D/S to admission for a fixed time period of authorized stay
  • Setting the authorized admission and extension periods for F and J nonimmigrants up to the program length, not to exceed a 2- or 4-year period
  • Listing the circumstances, including factors that relate to national security and program integrity concerns, when the period of admission for F and J nonimmigrants may be limited to a maximum of 2 years
  • Providing limits on the number of times that F-1 nonimmigrants can change educational levels while in F-1 status
  • Decreasing predeparture grace period for F-1 students and F-2 dependents from 60 to 30 days after completion of a course of study or authorized period of post-completion practical training
  • Proposing to lengthen the automatic EOS for individuals covered by the authorized status and employment authorization provided by the H-1B cap gap provisions
  • Initiating routine biometrics collection in conjunction with an EOS application for F & J nonimmigrants
  • Limiting language training students to an aggregate 24-month period of stay, including breaks and an annual vacation
  • Providing that a delay in completing one’s program by the program end date on Form I-20, due to a pattern of behavior demonstrating a student is repeatedly unable or unwilling to complete his or her course of study, such as failing grades, in addition to academic probation or suspension, is an unacceptable reason for program extensions for F nonimmigrants
  • Providing a 180-day grace period for on-campus employment, STEM OPT employment authorization and off-campus employment authorization due to severe economic hardship for F nonimmigrants who have timely filed an EOS to USCIS (and timely filed employment authorization application if applicable)
  • Prohibiting a grace period for any Curricular Practical Training (CPT), Optional Practical Training (OPT) or authorized internships with an international organization for F nonimmigrants who have timely filed an EOS to USCIS
  • Clarifying that J-1 nonimmigrants who are employment authorized with a specific employer incident to status, continue to be authorized for such employment for up to 240 days under the existing regulatory provision if their status expires while their timely filed EOS application is pending, whereas J-2 spouses, who must apply for employment authorization as evidenced by an EAD, do not have the benefit of continued work authorization once the EAD expires.
  • Prohibits a process for an appeal when USCIS denies an EOS application and requires immediate departure from the US
  • Groups subject to a limited 2-year admission instead of a 4-year admission due to heightened concerns related to fraud, abuse, and national security are outlined below:
    • State Sponsors of Terrorism List: Individuals who were born in or are citizens of countries on the State Sponsor of Terrorism List. Currently: Democratic People’s Republic of Korea (North Korea), Iran, Sudan, and Syria.
    • Countries with greater than 10 percent overstay rate: Citizens of countries with a student and exchange visitor total overstay rate of greater than 10 percent according to the most recent DHS Entry/Exit Overstay See Table 4, Column 6.
    • U.S. national interest: The Secretary of Homeland Security could limit the length of admission of students who are enrolled in specific courses of study, such as nuclear science if the DHS Secretary determines that U.S. national interests warrant limiting admission to a 2-year maximum period in certain circumstances
    • Unaccredited schools: F-1 students who are not attending institutions accredited by an accrediting agency recognized by the Secretary of Education.
    • School or exchange programs not participating in the federal E-Verify program (it is unclear how this would apply to BU as we are only enrolled in a very limited component of E-Verify as an institution receiving federal contracts)