Proposed Rule on Duration of Status Summary

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.

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