On Friday, September 25, U.S. Immigration and Customs Enforcement (ICE) published in the Federal Register a proposed rule that would impose specific status expiration dates for Students (F), Exchange Visitors (J) and members of the foreign media (I).  These classifications are currently admitted for “duration of status (D/S),” which generally means indefinitely so long as they lawfully maintain their nonimmigrant status by fulfilling the purpose of their temporary stay in the United States and do not work without authorization or otherwise violate their status. Comments to the proposed rule are due October 26, 2020.

Government Rationale for Rule

Citing significant increases in the student, exchange visitor and foreign media admissions over the past several decades, ICE has stated the proposed rule is necessary because those admitted for “duration of status” have few points in time where they must interact directly with U.S. Citizenship & Immigration Services (CIS), U.S. Customs & Border Protection (CBP) or ICE. According to ICE, “this has undermined DHS’s ability to effectively enforce compliance with the statutory inadmissibility grounds related to unlawful presence and has created incentives for fraud and abuse.”

Admission for Specific Period

Under the proposed rule, F-1 students and J-1 exchange visitors would be admitted for a period no longer than the duration of their program, not to exceed four years, or two years if determined a security risk.  Foreign news media would be admitted for up to 240 days. Dependent family members would be admitted for the same duration as the principal.  In order to remain in the United States beyond the period of authorized admission, applicants may seek an extension or change of their nonimmigrant status.

The proposed rule indicates the U.S. Department of Homeland Security (DHS) will use the applicant’s request for an extension or change of status to directly assess whether the applicants have complied with the terms and conditions of their admission.

Unlawful Presence 

Applicants who remain in the United States beyond the expiration of their status without timely seeking an extension or change of status will begin to accrue “unlawful presence,” which is presence in the U.S. without having been admitted or paroled or presence beyond the expiration date of admission.  Individuals who accrue more than 180 days of unlawful presence and depart the United States are subject to a three-year bar to readmission to the United States.  Applicants who accrue one year or more of unlawful presence and depart are subject to a ten-year bar to readmission to the United States. Waivers are limited, meaning the impact of unlawful presence can be both severe and long lasting.

Currently students and exchange visitors do not accrue “unlawful presence” because they are not admitted for a specific period and thus cannot “overstay” their admission period.  Although DHS previously issued policy guidance indicating students and exchange visitors would be considered to accrue unlawful presence from the date they initially violate the terms and conditions of their status, that policy guidance was subject to litigation that resulted in an injunction against the government due to the lack of proper rulemaking required to implement the guidance. The injunction meant the government could not enforce the new policy. Shortly after the injunction, ICE published this proposed rule in the Federal Register in order to go through the rulemaking process.

Other Provisions of Proposed Rule

In addition to providing for date-limited admission periods, the proposed rule would make other changes impacting students and exchange visitors. Such changes would include:

• Reducing the “grace period” following program completion from 60 to 30 days in which individuals must either depart the United States or file an application seeking an extension or change of their nonimmigrant status.
• Converting the “D/S” admission of students already in the United States to a period not to exceed the earlier of the program end date listed on the Form I-20 or four years from the effective date of the new rule, plus 60 days.
• Converting the “D/S” admission of exchange visitors in the United States to a period not to exceed the earlier of the program end date listed on the Form DS-2019 or four years from the effective date of the new rule, plus 30 days.
• Introducing a new, 24-month aggregate limit on admission of F-1 students participating in language training programs.
• Limiting admission to two years for students and exchange visitors born in or citizens of countries on the State Sponsors of Terrorism List.  The current list includes North Korea, Iran, Sudan, and Syria.
• Limiting admission to two years for students and exchange visitors who are citizens of countries with high rates of overstay.
• Establishing a default two-year admission for students attending unaccredited schools.
• Establishing a default four-year admission for students attending schools that participate in E-Verify, and a two-year admission for students attending schools that do not participate in E-Verify.
• Limiting to two the number of times a student can change to a new degree program at the same educational level.
• Limiting students to only one change to a lower educational level.
• Imposing biometrics requirements in connection with an application to extend nonimmigrant status.
• Extending “cap gap” coverage through April 1^st of the following year for F-1 students whose F-1 optional practical training work authorization expires while their timely-filed fiscal year, cap-subject H-1B change of status petition remains pending.

The rule is currently only a proposed rule. The comment period is open for 30 days, after which time the government will review the comments and forward the rule to the Office of Management and Budget for review before issuance as a final rule.

Foster will continue to monitor federal rulemaking impacting on nonimmigrant visa programs and benefits and will make future updates available via future Immigration Update bulletins and on our website at www.fosterglobal.com.