Proposed DHS Rule Affecting F and J Students and Scholars
Monday, September, 28th, 2020 Immigration News and Updates
Dear Members of the Tufts International Community:
On September 25, 2020 the US Department of Homeland Security (DHS) published a proposed federal government rule that, if implemented, will introduce significant changes affecting F-1 students, J-1 exchange visitors, and their dependents. While the proposed rule contained a number of items, the most significant change concerns the initial length of authorized legal stay granted F and J students and scholars, and the manner in which their legal stay would be extended.
Before discussing this proposed rule further, it is important to keep in mind the following:
- The proposed rule is, at this time, just that - a proposed rule. When a proposed rule is issued, additional steps have to be completed before the proposal can become effective. Specifically, following its publication on September 25, there will be a 30-day period in which members of the public are allowed to offer comments on the rule. (Note: the International Center will be submitting a comment on the rule - see below.) The Department of Homeland Security is required to read and review all comments. Only after DHS has completed this review process can it issue a final rule, which also be reviewed before it can be published and implemented.
- Consequently, there are still opportunities to affect the timing, outcome, and content of the proposed rule. Because federal rule-making and rule-changing can be a lengthy and extended process, it is not at all clear when the final rule will be issued, if at all. It is also difficult, at this stage, to predict how closely the final rule will resemble the contents of the proposed rule.
- Students and scholars who are currently in F and J status should not view the proposed rule as having an immediate impact on their immigration status. The proposed rule will not be in effect until a final rule is published, and even then there is likely going to be an extended transition period for students and scholars already in the US.
What Does the Proposed Rule Say?
The proposed rule introduces a number of changes, but the primary change would be to the way in which F-1 and J-1 students (and their F-2 / J-2 dependents) are granted legal status in the US.
Under current regulations, when an F-1 or J-1 visa holder enters the US (or applies for a change of status to F/J status), they are granted permission to stay in the US for duration of status, or "D/S." (Students and scholars can check their I-94 records to confirm that they were admitted into the US under duration of status.) Duration of status is the period of time that a student or scholar is engaged in their program of study, teaching, and research, as reflected by the program dates indicated on their Form I-20 or Form DS-2019. Duration of status also includes any available grace periods following program completion, which are 60 days for F-1 students and 30 days for J-1 exchange visitors. If the student or scholar's stay in the US needs to be extended, the extension request must be submitted within certain deadlines, and then reviewed and approved directly by the school or program sponsor. Once the school or sponsor approves the extension, a new Form I-20 or DS-2019 is then issued to the student or scholar. Under this system, legal stay is not fixed according to certain time limits (with certain exceptions - see Note 1, below), but can be extended or shortened relative to a student's or scholar's academic program and requirements.
Under the proposed rule, duration of status would be eliminated. Instead, F-1 and J-1 visa holders would be admitted into the US for an initial fixed period of time - either 2 or 4 years, depending on country of nationality, program length, and other factors. Students who need more time beyond the 2 or 4 years would have to apply to the Department of Homeland Security for extensions, using the currently-existing I-539 extension process. (Note: students would still be allowed to pursue Optional Practical Training or Academic Training, but may also have to apply for extensions at the same time as applying for these benefits.) Schools and sponsors would recommend, but would no longer be able to directly approve, an extension to a student or scholar's legal status. Students and scholars would therefore be eligible to receive additional time to complete their programs, but those extensions would be subject to US Department of Homeland Security approval. Approval would be granted if there are compelling academic or medical reasons necessitating the additional time.
Other items in the proposed rule include a cap of 24 months on the amount of time a student may engage in English-language study, limiting the number of times a student may be extended to stay in the US to start new academic programs at the same degree level to two, and a limit on the number of times a student can engage in "reverse" matriculation (i.e., extending stay by enrolling in a lower degree level) to once. In addition, the "grace period" for F-1 students would be lowered from 60 days to the J-1 standard of 30 days. Finally, the proposed rule also suggests changing the OPT application timeline, allowing a student to apply for post-completion OPT up to 120 days before completion of status (from the current 90 days) but no more than 30 days after completion of status (from the current 60 days), and eliminating certain other OPT filing deadlines.
What is / will be the International Center's Response?
In the International Center's view, the primary proposal to replace duration of status with a "fixed" admission of status - which would require many students to seek extensions of stay through government application - is unnecessary, creating additional layers of delay, uncertainty and cost. Our F and J students and scholars are already strongly supported and heavily monitored in their compliance with immigration regulations, and we would urge regulations and procedures that are welcoming and productive rather than unwelcoming and restrictive.
- The International Center will submit a public comment advocating that the current duration of status framework be retained, rather than replaced by restrictive and burdensome policies and procedures.
- To this end, we are studying the proposed rule in detail and working with University leadership, our professional associations, and our colleagues and partners at other colleges and universities to develop our public comment and response to the proposed rule. Once this comment is finalized, we will make it available to you on this web page.
- As always, we will be working to support the interests of our students and scholars in making sure that they are supported in their educational, academic, and professional goals as valued members of our community.
If you have any questions or concerns about this development, please let me know directly by sending an email to Andrew.Shiotani@tufts.edu.
Sincerely,
Andrew K. Shiotani
Director, Tufts International Center
Notes:
(1) Under current J-1 visa regulations, certain J-1 visa holders - including J-1 short-term scholars, professors, research scholars, and specialists - are already limited to certain maximum periods (6 months for short-term scholars; 5 years for research scholars and professors; and 1 year for specialists). J-1 non-degree students are limited to a maximum of 24 months; however, J-1 degree students are permitted to remain for the duration of their programs.
Additional Links: