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Proposed Rule on Duration of Status

On September 25, 2020 the Department of Homeland Security (DHS) published a Proposed Regulation.  The public has 30 days to provide feedback and comments (until October 26, 2020). 

The proposal applies to F-1, J-1, F-2 and J-2s.  Below is a brief summary of the key elements as ISS understands the proposal. NAFSA: Association of International Educators has also outlined the Key Proposals.

Full Summary of proposed rule
  1. D/S (Duration of Status) on I-94s would be replaced with specific dates
    • I-94 is an electronic record of one’s arrival and expected departure from the U.S.
    • Duration of Status (D/S) would be eliminated
      • Currently Fs and Js can stay in the U.S. as long as they are maintaining status and pursuing their program objective
    • The new, date-specific I-94 would define one’s “authorized period of stay”
    • By the date on the I-94, one would have to
      • Depart the U.S. or
      • File an application for an “extension of stay” with the U.S. government
  2. The maximum period of authorized stay would be for 4 years at a time
    • Some categories would be limited to a maximum stay of 2 years at a time (but extendable.  See below):
      • Individuals from “sponsored states of terrorism” (Iran, Syria, Sudan, N Korea)
      • Individuals from a country DHS has determined having an overstay rate of more than 10% (currently 59 countries listed in our FAQ)
      • Individuals at an institution that does not fully use E-Verify (a government system to electronically verify employment eligibility of all employees)
      • Any field of study DHS determines to be in the national interest of the U.S.
    • Other factors triggering an I-94 date less than the maximum 2 or 4 years allowed:
      • One’s I-20 or DS-2019 program end date less than the max time allowed
      • One’s passport expiration date less than the max time allowed
      • A dependent turning 21
  3. Requirement to obtain an “Extension of Stay” through the U.S. government
    • If additional time is required to complete one’s program/degree past the date listed on one’s I-94, one would have to obtain a new I-94 (before the current I-94 expires) with an inspection by the U.S. government by either:
      • Submitting an application with fee to USCIS (U.S. Citizenship and Immigration Services) or
      • Travelling outside the U.S. and re-entering with an inspection by CBP (Customs and Border Patrol)
  4. Changes for Extension Request Process
    • Currently ISS processes I-20 and DS-2019 extension requests
    • Going forward, ISS would recommend an extension and the government would approve or deny the request
  5. Criteria for an F-1 extension of stay request filed within the U.S. through USCIS)
    • Continual maintenance of lawful status
    • Currently pursuing a full course of study and
    • Documentation establishing failure to finish by previous I-20 end date was caused by:
      • A compelling academic reason (for example a change of major or unexpected research problems).  Delay cannot be caused by probation or dismissal. Failing classes is not an acceptable reason for an extension.
      • A documented illness or medical condition (from a licensed medical doctor, doctor of osteopathy or licensed clinical psychologist)
      • Circumstances beyond the student’s control (for example a natural disaster)
    • Documented proof of finances
  6. Transition for Fs and Js currently in the U.S.
    • On the effective date of the regulation, Fs and Js can stay until their program end date (i.e. whichever is later of the I-20/DS-2019 expiration date or OPT EAD end date as long as it doesn’t exceed 4 years plus their current grace period (60 days for Fs and 30 days for Js)
  7. F-1 grace period would be reduced from 60 to 30 days
    • The grace period is the time after completion of a program/degree and any OPT during which one prepares to depart the U.S.
  8. F-1 students would have limits (3 times) per lifetime to pursue a degree at same level
  9. F-1 students would have limits (1 time) per lifetime to pursue a degree at a lower level
  10. F-1 students would be limited to 24 months of ESL training
  11. The Cap-Gap expiration date would be extended from September 30 to April 1 of the following year.
    • The government recognizes they don’t always have all H-1B applications adjudicated by October 1, so they extended the time F-1s under the cap gap provision can maintain status while they wait for H-1B adjudication and in most cases, keep working.
  12. F-1 OPT (Optional Practical Training) filing period would expand from 90 to 120 days prior to program end date.
  13. Some F-1 work authorizations could continue 180 days if extension timely filed:
    • On-campus employment
    • Off-campus employment due to Severe Economic Hardship
    • STEM OPT extension
  14. Some F-1 work authorizations would have to wait for the extension to be approved:
    • CPT (Curricular Practical Training)
    • OPT (Optional Practical Training), pre-completion and initial 12 months of post-completion
    • Employment with a designated International Organization
  15. J-1s could continue working up to 240 days while extension is pending as long as work is incidental to status

ISS Townhall on proposed regulation
October 2, 2020

U.S. Regulatory Process

What is a Proposed Rule?

It is a proposal by the government of a new regulation they would like to implement.  They publish it for public comment.  It is not in effect yet.  The public has a period of time to electronically submit comments.  In this case, the government is allowing 30 days for comment.  Public comments and/or a change in administration could impact the final rule.  Sometimes a proposal is withdrawn and never implemented.  Sometimes it is later published as a final rule with slight or significant changes.

When will this regulation go into effect?

Before the government can publish the rule as final it must review all comments submitted.  If the government decides to proceed with making the rule final, it will again publish the rule in the Federal Register.  The government usually provides at least 30 days public notice before the rule becomes effective.

Why did the government propose this rule?

In the summary, DHS mentions Fs and Js have been “able to avoid accrual of unlawful presence” and they are concerned for “increased risk to national security.”

Making Comments

Can I make comments?

Yes, anyone can make comments.  They are open to the public.

How do I make comments?

Go to the official Federal Register website on the proposed rule.  Click the green “SUBMIT A FORMAL COMMENT” button.  You can simply support or disagree with the rule; however, the more detailed your comments are on specific parts of the proposal, the more impactful they can be.

Read the ISS summary at a minimum.  One well-supported comment is often more influential than a thousand form letters.  There is no length requirement. Base your comments on sound reasoning and how you will personally be impacted.  Do not submit anything on KU letterhead.  This is a personal comment.

What is the deadline for submitting comments?

The comment period closes on October 26, 2020 at 11:59 EASTERN time (which is 10:59pm in Kansas).

Proposal Specifics

My degree takes 5 years. How can I finish my degree if the maximum period of stay is 4 years?
The government is not putting a 2 or 4-year limit to complete your degree.  The government would consider the average time it takes someone to complete your degree. 
How hard will it be to get an extension through USCIS?

If a degree takes five years on average to complete and you are making normal progress, there should not be any problem in getting an extension of stay to complete your degree.  Other non-immigrant categories, such as H-1Bs (temporary workers in a specialty field) have date specific I-94s and routinely apply for extensions without incident.  If you are taking longer than average to complete your degree, you will need to provide a compelling academic or medical reason for an extension of stay.

How early will I have to apply for an extension?

The proposed regulation does not mention how early one can apply for an extension. 

How long will it take to process an extension?

The extension of stay would be requested on Form I-539.  It is difficult to project what processing times would be since this would increase the volume of this form.  Currently it is used for F-1 students at vocational school to request an extension of stay.  The USCIS website says they are taking 6 to 8 months in California and Texas, 4.5 to 6.5 months in Nebraska and 5.5 to 7.5 months in Vermont.  They regularly switch around where applications are processed making it harder to pinpoint an exact timeframe. There is also a new statute that does not yet have a regulation that would allow for premium processing.  For an additional fee, the government would promise adjudication within 30 days.

What is the cost to apply for an extension?

The form I-539 currently costs $370 plus an additional fee of $85 for biometrics (total $455).  There was a proposal to adjust fees starting October 2, but the changes were blocked by a court and are on hold.  The proposal was for the form to increase to $390 for online filings or $400 for paper applications  with biometrics dropping to $30 (for a new total of $420-$430).  There is also a new statute that does not yet have a regulation that would allow for premium processing.  The government could charge up to $1750 to guarantee processing within 30 days.

My visa has expired. Will I be able to extend my stay?

Yes, your visa does not have anything to do with how long you can stay in the U.S.  It is a sticker affixed in your passport and only has to be valid at the time of entry to the U.S.  It should not be confused with documents that do have an impact on length of stay such as I-94 and I-20 or DS-2019.

What is the difference between an I-94, I-20 or DS-2019 and visa?

An I-94 is a record of your arrival and indicates how long you are authorized to stay in the U.S.  It used to be a small white card received upon entry, but since 2013, the document has become electronic and is retrievable on the CBP website.  Currently, all Fs and Js receive D/S (Duration of Status) instead of a specific departure date which means as long as the individual is maintaining status, they are allowed to stay.

An I-20 and a DS-2019 are both called a Certificate of Eligibility.  An I-20 is issued for F-1 academic students and a DS-2019 exchange visitors.  The I-20/DS-2019 indicates acceptance to a specific program with a specific institution for a specific period of time.  The I-20/DS-2019 has both program start and end dates which also are a factor in determining how long someone in F or J status may stay in the U.S.

The visa is the stamp affixed inside your passport and issued by the U.S. Embassy or Consulate.  It only has to be valid at the time of entry to the U.S. and has nothing to do with how long you can stay in the U.S.

What are the 59 countries on DHS’ list implying an overstay rate of 10% or more?

Based on the FY 2019 DHS Overstay Report, citizens from the following 59 countries would be limited to a max stay of 2 years at a time.

Afghanistan, Benin, Bhutan, Burkina Faso, Burma, Burundi, Cabo Verde, Cameroon, Central African Republic, Chad, Congo (Brazzaville), Congo (Kinshasa), Côte d'Ivoire, Djibouti, Equatorial Guinea, Eritrea, Ethiopia, Gabon, Gambia, Ghana, Guinea, Guinea-Bissau, Guyana, Haiti, Iraq, Kenya, Kosovo, Kyrgyzstan, Liberia, Libya, Malawi, Mali, Mauritania, Moldova, Mongolia, Nepal, Niger, Nigeria, Papua New Guinea, Philippines, Rwanda, Samoa, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tajikistan, Tanzania, Togo, Tonga, Turkmenistan, Tuvalu, Uganda, Uzbekistan, Vietnam, Yemen, and Zambia.

I know I need more time to complete my degree/program. Should I request an I-20/DS-2019 from ISS now?

If you know now that you will need more time to complete your program and you meet the eligibility criteria, you are welcome to submit an extension request through iHawk.

Advocacy

How is KU supporting international students and scholars regarding this proposal?

ISS is familiarizing itself with details of the proposed rule.  We are consulting with colleagues across the country and corresponding with national, professional organizations.  This is on the radar of the university and we are committed to supporting our international community.  Staff within ISS are planning on submitting comments.

Financial

Will this rule impact the ISS fee?

The ISS fee will not be impacted by this ruling.

Will I get a tuition refund if the government denies my extension request?

ISS is expecting most extension of stay requests would be approved.  In the event the request is denied mid-semester, KU has a process to request a tuition refund.  Each case would have to be reviewed on an individual basis.  There could be other options available as well (such as completing the courses from abroad).  ISS would outline the options and help you navigate the various processes if the situation should occur.

Questions not answered?

Submit a question to ISS or Request a Virtual Drop-In to speak with an ISS advisor.


 
 

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