Proposed Rule2025-16554
Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 28, 2025
Issuing agencies
Homeland Security Department
Abstract
Unlike most nonimmigrant classifications, which are admitted for a fixed time period, aliens in the F (academic student), J (exchange visitor), and most I (representatives of foreign information media) classifications, with limited exceptions, are currently admitted into the United States for the period of time that they are complying with the terms and conditions of their nonimmigrant classification ("duration of status"). The U.S. Department of Homeland Security (DHS) proposes to amend its regulations by changing the admission period in the F, J, and I classifications from duration of status to an admission for a fixed time period.
Full Text
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<title>Federal Register, Volume 90 Issue 165 (Thursday, August 28, 2025)</title>
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[Federal Register Volume 90, Number 165 (Thursday, August 28, 2025)]
[Proposed Rules]
[Pages 42070-42115]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-16554]
[[Page 42069]]
Vol. 90
Thursday,
No. 165
August 28, 2025
Part II
Department of Homeland Security
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8 CFR Parts 214, 248, and 274a
Establishing a Fixed Time Period of Admission and an Extension of Stay
Procedure for Nonimmigrant Academic Students, Exchange Visitors, and
Representatives of Foreign Information Media; Proposed Rule
Federal Register / Vol. 90, No. 165 / Thursday, August 28, 2025 /
Proposed Rules
[[Page 42070]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214, 248, and 274a
[DHS Docket No. ICEB-2025-0001]
RIN 1653-AA95
Establishing a Fixed Time Period of Admission and an Extension of
Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors,
and Representatives of Foreign Information Media
AGENCY: U.S. Immigration and Customs Enforcement (ICE), U.S. Department
of Homeland Security (DHS).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: Unlike most nonimmigrant classifications, which are admitted
for a fixed time period, aliens in the F (academic student), J
(exchange visitor), and most I (representatives of foreign information
media) classifications, with limited exceptions, are currently admitted
into the United States for the period of time that they are complying
with the terms and conditions of their nonimmigrant classification
(``duration of status''). The U.S. Department of Homeland Security
(DHS) proposes to amend its regulations by changing the admission
period in the F, J, and I classifications from duration of status to an
admission for a fixed time period.
DATES: Comments must be received on or before September 29, 2025.
Information collection comment period: Comments on the information
collection described in the Paperwork Reduction Act section below must
be received by October 27, 2025.
ADDRESSES: You may submit comments on the entirety of this rule, which
must be identified by Docket No. ICEB-2025-0001, through the following
method:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the website instructions to submit comments.
Comments on the information collection may be submitted to the same
docket as the NPRM or as described in the ``submitting comments''
section below. In addition, all comments on the information collection
must include the OMB Control Number in the body of the comments.
Comments submitted in a manner other than the Federal eRulemaking
Portal, including emails or letters sent to the Department of Homeland
Security (the Department or DHS), will not be considered comments, and
will not receive a response from DHS. Please note that DHS cannot
accept any hand delivered or couriered comments, nor any comments
contained on any form of digital media storage devices, such as CDs,
DVDs, and USB drives. If you cannot submit your material using <a href="https://www.regulations.gov">https://www.regulations.gov</a>, contact the person in the FOR FURTHER INFORMATION
CONTACT section of this document for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Office of Regulatory Affairs and
Policy, U.S. Immigration and Customs Enforcement, Department of
Homeland Security, 500 12th Street SW, Washington, DC 20536. Telephone
202-732-6960 (not a toll-free number) (for questions only--no comments
will be accepted at this phone number).
I. Public Participation
DHS encourages all interested parties to participate in this
rulemaking by submitting data, views, comments, and arguments on all
aspects of this notice of proposed rulemaking. Comments providing the
most assistance to DHS will reference a specific portion of this rule,
explain the reason for any recommended change and include the data,
information, or authority that supports the recommended change. See the
ADDRESSES section above for information on where to submit comments.
A. Submitting Comments
All comments must be submitted in English, or an English
translation must be provided. If you submit comments, you must include
the DHS docket number for this rulemaking (ICEB-2025-0001), indicate
the specific section of this document to which each comment applies,
and provide a reason for each suggestion or recommendation. Include
data, information, or the authority that supports the comment. Your
comments must be submitted online by 11:59 p.m. of the last day of the
comment period.
Instructions: To submit your comments online, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and insert ``ICEB-2025-0001'' in the ``Search''
box. Click on the rule that appears in the ``Search Results.'' Click on
the ``Comment'' box under the name of the rule and input your comments
in the text box provided. When you are satisfied with your comments,
follow the prompts, and then click ``Submit Comment.'' Collection of
information. You must submit comments on the collection of information
discussed in this notice of proposed rulemaking to either DHS's docket
or the Office of Management and Budget's (OMB) Office of Information
and Regulatory Affairs (OIRA). OIRA will have access to and view the
comments submitted in the docket. OIRA submissions can also be sent
using any of the following alternative methods:
<bullet> Email (alternative): <a href="/cdn-cgi/l/email-protection#27434f544342544c4841414e44425567484a450942485709404851"><span class="__cf_email__" data-cfemail="64000c170001170f0b02020d070116240b09064a010b144a030b12">[email protected]</span></a> (include
the docket number and ``Attention: Desk Officer for U.S. Immigration
and Customs Enforcement, DHS'' in the subject line of the email).
<bullet> Fax: 202-395-6566.
<bullet> Mail: Office of Information and Regulatory Affairs, Office
of Management and Budget, 725 17th Street NW, Washington, DC 20503;
Attention: Desk Officer, U.S. Immigration and Customs Enforcement, DHS.
DHS will post your comments to the federal e-Rulemaking Portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a> and will include any personal information
you provide. Therefore, submitting this information makes it public.
You may wish to consider limiting the amount of personal information
that you provide in any voluntary public comment submission. DHS may
withhold from public viewing information provided in comments that it
determines is offensive. For more information, please read the
``Privacy & Security Notice'' via the link in the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>. DHS will consider all comments and materials
received during the comment period and may change this rule based on
your comments.
B. Viewing Comments and Documents
To view comments, as well as documents referenced in this preamble
as being available in the docket, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> and
insert ``ICEB-2025-0001'' in the ``Search'' box. Next, click on the
name of the rule, and then click ``Browse Posted Comments.''
Individuals without internet access can request alternate arrangements
for viewing comments and documents related to this rulemaking (see the
FOR FURTHER INFORMATION CONTACT section of this document). You may also
sign up for email alerts on the online docket so that you will be
notified when comments are posted, or a final rule is published.
SUPPLEMENTARY INFORMATION:
II. Acronyms and Abbreviations
CBP U.S. Customs and Border Protection
CFR Code of Federal Regulations
DOJ U.S. Department of Justice
DHS U.S. Department of Homeland Security
D/S Duration of Status
DOS U.S. Department of State
DSO Designated School Official
EAD Employment Authorization Document
[[Page 42071]]
ED U.S. Department of Education
EOS Extension of Stay
GAO U.S. Government Accountability Office
ICE U.S. Immigration and Customs Enforcement
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
INA Immigration and Nationality Act
INS Immigration and Naturalization Service
NPRM Notice of Proposed Rulemaking
OPT Optional Practical Training
POE Port of Entry
PRC People's Republic of China
RFE Request for Evidence
RO Responsible Officer
SAR Special Administrative Region
SEVIS Student and Exchange Visitor Information System
SEVP Student and Exchange Visitor Program
SSR Special Student Relief
STEM Science Technology Engineering and Mathematics
U.S.C. United States Code
USCIS U.S. Citizenship and Immigration Services
III. Executive Summary
A. Purpose of the Proposed Regulatory Action
Studying and participating in exchange visitor and academic
programs in the United States offers aliens access to world-renowned,
individualized instructional and educational programs. Similarly, the
United States allows foreign news and media members access to the
United States as part of their foreign employment. Millions of aliens
have come to the United States on a temporary basis in the F (academic
student),\1\ J (exchange visitor),\2\ and I (representatives of foreign
information media) \3\ classifications.\4\ Unlike aliens in most
nonimmigrant classifications who are admitted until a specific
departure date, F, J, and I (except for some I aliens from the People's
Republic of China (PRC)) nonimmigrants are admitted into the United
States for an unspecified period of time to engage in activities
authorized under their respective nonimmigrant classifications. This
unspecified period of time is referred to as ``duration of status'' (D/
S). D/S for F academic students is generally the time during which a
student is pursuing a full course of study at an educational
institution approved by DHS, or engaging in authorized practical
training following completion of studies, plus authorized time to
depart the country.\5\ D/S for J exchange visitors is the time during
which an exchange visitor is participating in an authorized program,
plus authorized time to depart the country.\6\ D/S for I
representatives of foreign information media is the duration of his or
her foreign employment duties in the United States.\7\ For dependents
of principal F, J, or I nonimmigrants, D/S generally corresponds with
the principal's period of admission so long as the dependents are also
complying with the requirements for their particular
classifications.\8\ Since D/S was first introduced in 1978 for F
nonimmigrants and 1985 for J and I nonimmigrants,\9\ the number of F,
J, and I nonimmigrants admitted each year into the United States has
significantly increased.\10\ In 2023 alone, there were over 1.6 million
admissions in F status, a dramatic rise from when the legacy
Immigration and Naturalization Service (INS) first shifted to D/S
admission in 1979.\11\ For example, in the 1980-81 school year, there
were approximately 260,000 admissions in F status.\12\ Similar growth
in the J nonimmigrant population has also occurred over the past
decades. In 2023, there were over 500,000 admissions in J status, up
over 250 percent from the 141,213 J admissions into the United States
in 1985.\13\ Finally, there were 32,470 admissions for I nonimmigrant
foreign media representatives in the United States in 2023, nearly
double from the 16,753 admissions into the U.S. in 1985.\14\
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\1\ See Immigration and Nationality Act (INA) 101(a)(15)(F), 8
U.S.C. 1101(a)(15)(F).
\2\ See INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J).
\3\ See INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I).
\4\ See Office of Homeland Security Statistics, Yearbook of
Immigration Statistics-Yearbook 2023, Table 25, Nonimmigrant
Admissions by Class of Admission: Fiscal Years 2014 to 2023 at
<a href="https://ohss.dhs.gov/topics/immigration/yearbook-immigration-statistics/yearbook-2023">https://ohss.dhs.gov/topics/immigration/yearbook-immigration-statistics/yearbook-2023</a> (last visited Mar. 31, 2025).
\5\ Statutory and regulatory requirements restrict the duration
of study for an alien who is admitted in F-1 status to attend a
public high school to an aggregate of 12 months of study at any
public high school(s). See INA section 214(m), 8 U.S.C. 1184(m); see
also 8 CFR 214.2(f)(5)(i).
\6\ See 8 CFR 214.2(j)(1)(ii) (explaining the initial admission
period) and (j)(1)(iv) (explaining that extensions of stay can be
obtained with a new Form DS-2019); see also 22 CFR 62.43 (permitting
responsible officers to extend J nonimmigrant's program beyond the
original DS-2019 end date according to length permitted for the
specific program category).
\7\ See 8 CFR 214.2(i).
\8\ See 8 CFR 214.2(f)(3), (f)(5)(vi)(D) (discussing F-2 period
of authorized admission); 214.2(j)(1)(ii), (j)(1)(iv) (discussing J-
2 authorized period of admission); INA 101(a)(15)(I), 8 U.S.C.
1101(a)(15)(I); 22 CFR 41.52(c).
\9\ See 43 FR 54618 (Nov. 22, 1978) and 50 FR 42006 (Oct. 17,
1985).
\10\ In 1985, when D/S was introduced for I and J nonimmigrants,
there were 16,753 admissions in I status, 141,213 admissions in J
status, and 251,234 admissions in F-1 status. See U.S. Department of
Justice (DOJ), Immigration and Naturalization Service, 1997
Statistical Yearbook of the Immigration and Naturalization Service,
available at <a href="https://ohss.dhs.gov/sites/default/files/2023-12/Yearbook_Immigration_Statistics_1997.pdf">https://ohss.dhs.gov/sites/default/files/2023-12/Yearbook_Immigration_Statistics_1997.pdf</a> (last visited March 20,
2025).
\11\ In fiscal year (FY) 2023, there were 1,625,740 admissions
in F-1 status and 61,910 in F-2 status. See DHS Off. of Homeland
Sec. Stat., Legal Immig. and Adjustment of Status Report Fiscal Year
2023, Quarter 4, tbl.4B, available at <a href="https://ohss.dhs.gov/sites/default/files/2024-06/2024_0507_ohss_legal-immigration-adjustment-of-status-fy-2023q4.xlsx">https://ohss.dhs.gov/sites/default/files/2024-06/2024_0507_ohss_legal-immigration-adjustment-of-status-fy-2023q4.xlsx</a> (last visited Apr. 3, 2025).
\12\ In the 1980-81 school year, 312,000 nonimmigrant students
were admitted into the United States. Approximately 83 percent of
the nonimmigrant students admitted into the United States during the
1980-81 school year were in F status. Therefore, approximately
258,960 nonimmigrant students in F status were admitted into the
United States in the 1980-81 school year. See U.S. Gov't
Accountability Off., Controls Over Foreign Students in U.S.
Postsecondary Institutions Are Still Ineffective; Proposed
Legislation and Regulations May Correct Problems (Mar. 10, 1983),
available at <a href="https://www.gao.gov/assets/hrd-83-27.pdf">https://www.gao.gov/assets/hrd-83-27.pdf</a> (last visited
Mar. 20, 2024).
\13\ See DHS FY23, Quarter 4, tbl.4B, supra note 11, sum of J1
481,280 and J2 62,000.
\14\ Id.
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The significant increase in the volume of F academic students, J
exchange visitors, and I foreign information media representatives
poses a challenge to the Department's ability to monitor and oversee
these nonimmigrants while they are in the United States. During the
length of their stay for D/S, a period of admission without a specified
end date, these nonimmigrants are not required to have direct
interaction with DHS, except for a few limited instances, such as when
applying for employment authorization for optional practical training
(OPT) or for reinstatement if they have failed to maintain status.
Admission for D/S, in general, does not afford immigration officers
enough predetermined opportunities to directly verify that aliens
granted such nonimmigrant statuses are engaging only in those
activities their respective classifications authorize while they are in
the United States. In turn, 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.
For F and J visa holders, the Immigration and Nationality Act (INA)
specifically states that aliens must have a residence in a foreign
country which they have no intention of abandoning and seek to enter
the United States temporarily.\15\ Yet, DHS has many examples of
students and exchange visitors staying for decades in their student or
exchange visitor status.\16\
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\15\ See INA sec. 101(a)(15)(F) and (J); 8 U.S.C. 1101(a)(15)(F)
and (J).
\16\ DHS has identified over 2,100 aliens who first entered as
F-1 students between 2000 and 2010 and remain in active F-1 status
as of Apr. 6, 2025. See Student Exchange Visitor Program analysis of
data in the Student Exchange Visitor Information System and valid as
of Apr. 6, 2025.
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The events of 9/11 highlighted the potential for abuse of the
student visa.
[[Page 42072]]
In the wake of 9/11, a Homeland Security Presidential Directive titled,
Combating Terrorism Through Immigration Policies directed, among other
things, that a program be developed to track the status of foreign
students. It also mandated that the government develop guidelines that
may include control mechanisms such as limited duration of student
status.\17\ The 9/11 Commission reiterated the need to track foreign
students and place tighter controls on student visas.\18\ From these
mandates and the statutory authorities described below, the Student and
Exchange Visitor Program (SEVP) was created, and the electronic Student
and Exchange Visitor Information System (SEVIS) was implemented. SEVIS
is a DHS computer system that stores and processes information on
foreign students and exchange visitors in the U.S.
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\17\ See Homeland Sec. Presidential Directive 2, Combating
Terrorism Through Immig. Policies (Oct. 29, 2001) (HSPD-2), <a href="https://georgewbush-whitehouse.archives.gov/news/releases/2001/10/text/20011030-2.html">https://georgewbush-whitehouse.archives.gov/news/releases/2001/10/text/20011030-2.html</a> (last visited May 1, 2025).
\18\ Kean, T.H. & Hamilton, L.H., 2004. The 9/11 Commission
report: final report of the National Commission on Terrorist Attacks
upon the United States, New York: Norton, pgs. 81, 187.
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SEVIS ensures government agencies have essential data related to
nonimmigrant students and exchange visitors to preserve national
security. SEVIS also implements Section 641 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Public Law
104-208 (codified at 8 U.S.C. 1372), which requires DHS to collect
current information from nonimmigrant students and exchange visitors
continually during their stay in the United States. In addition,
section 416 of the Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (USA PATRIOT Act), Public Law 107-56 (amending IIRIRA sec. 641),
mandated full implementation and expansion of SEVIS.
Given these mandates and concerns, DHS believes that the admission
of F, J, and I nonimmigrants for D/S is not appropriate. With this
notice of proposed rulemaking (NPRM), DHS proposes to replace the D/S
framework for F, J, and I nonimmigrants with an admission period with a
specific date upon which an authorized stay ends. Nonimmigrants who
would like to stay in the United States beyond their fixed date of
admission would need to apply directly to DHS for an extension of stay
(EOS).\19\ DHS anticipates that many F, J, and I nonimmigrants would be
able to complete their activities within their period of admission.
However, those who could not, generally would be able to request an
extension to their period of admission from an immigration officer. DHS
believes that this process would help to mitigate risks posed by aliens
who seek to exploit these programs and live in the United States on a
non-temporary basis in contradiction with the underlying statutory
language that applies to their nonimmigrant status.
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\19\ See generally 8 CFR 214.1(c) (setting forth the general EOS
requirements applicable to most other nonimmigrants).
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Replacing admissions for D/S with admissions for a fixed time
period of authorized stay is consistent with most other nonimmigrant
classifications,\20\ would provide additional protections and oversight
of these nonimmigrant classifications and would allow DHS to better
evaluate whether these nonimmigrants are maintaining status while
temporarily in the United States. DHS does not believe such a
requirement would place an undue burden on F, J, and I nonimmigrants.
Rather, providing F, J, and I nonimmigrants a fixed time period of
authorized stay that would require them to apply to extend their stay,
change their nonimmigrant status, or otherwise obtain authorization to
remain in the United States (e.g., a grant of asylum or adjustment of
status) by the end of this specific admission period is consistent with
requirements applicable to most other nonimmigrant classifications and
consistent with the practices for F-1 students prior to 1979.\21\
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\20\ For example, see 8 CFR 214.2(a)(1) (setting forth a period
of admission for the A-3 nonimmigrant classification); (b)(1)
(period of admission for aliens admitted under the B nonimmigrant
classification); (c)(3) (period of admission for aliens in transit
through the United States); (e)(19) (periods of admission for most E
nonimmigrants); (g)(1) (period of admission for the G-5 nonimmigrant
classification); (h)(5)(viii) (9)(iii) and (13) (various periods of
admission and maximum periods of stay for the H-1B, H-2A, H-2B, and
H-3 nonimmigrant classification); (k)(8) (period of admission for
the K-3 and K-4 nonimmigrant classification); (l)(11)-(12) (periods
of admission and maximum periods of stay for the L nonimmigrant
classification); (m)(5), (10) (period of stay for the M nonimmigrant
classification); (n)(3) (period of admission for certain parents and
children eligible for admission as special immigrants under section
101(a)(27)(I)); (o)(6)(iii) and (10) (period of admission for the O
nonimmigrant classification); (p)(8)(iii) and (12) (period of
admission for the P nonimmigrant classification); (q)(2) (period of
admission for the Q nonimmigrant classification); (r)(6) (period of
admission for the R nonimmigrant classification); (s)(1)(ii) (period
of admission for the NATO-7 nonimmigrant classification); (t)(5)(ii)
(period of admission for the S nonimmigrant classification); and
(w)(13) and (16) (period of admission for the CW-1 nonimmigrant
classification).
\21\ See 38 FR 35425 (Dec. 28, 1973).
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These changes would ensure that DHS has an effective mechanism to
periodically and directly assess whether these nonimmigrants are
complying with the conditions of their classifications and U.S.
immigration laws, and to obtain timely and accurate information about
the activities these aliens have engaged in and plan to engage in
during their temporary stay in the United States. If immigration
officers discover a nonimmigrant in one of these classifications has
overstayed or otherwise violated his or her status, the proposed
changes may result in the alien beginning to accrue unlawful presence
for purposes of unlawful presence-related statutory grounds of
inadmissibility under section 212(a)(9)(B)(i) and (C)(i) of the INA.
DHS believes this greater oversight would deter F, J, or I
nonimmigrants from engaging in fraud and abuse and strengthen the
integrity of these nonimmigrant classifications.
DHS believes that the provisions of each new regulatory amendment
function independently of other provisions. However, to protect DHS's
goals for proposing this rule, DHS proposes to add regulatory text
stating that the provisions be severable so that, if necessary, the
regulations may continue to function even if a particular provision is
rendered inoperable.
B. Summary of the Proposed Regulatory Provisions
DHS proposes the following substantive changes:
<bullet> Amend 8 CFR 214.1, Requirements for admission, extension,
and maintenance of status, by:
[cir] Striking all references to D/S for F, J, and I nonimmigrants;
[cir] Describing requirements for F and J nonimmigrants seeking
admission, including after travel abroad and those approved for OPT and
academic training;
[cir] Updating the cross reference and clarifying the standards for
admission in the automatic extension visa validity provisions that
cover F and J nonimmigrants applying at a port of entry (POE) after an
absence not exceeding 30 days solely in a contiguous territory or
adjacent islands;
[cir] Outlining the process for EOS applications for F, J, and I
nonimmigrants;
[cir] Specifying the effect of departure while an F or J
nonimmigrant's application for an EOS in F or J nonimmigrant status
and/or employment authorization (and an associated employment
authorization document (EAD)) is pending;
[cir] Providing procedures specific to the transition from D/S to
admission for
[[Page 42073]]
a fixed time period of authorized stay for F, J, and I nonimmigrants;
and
[cir] Replacing references to specific form names and numbers with
general language, to account for future changes to form names and
numbers.
<bullet> Amend 8 CFR 214.2, Special requirements for admission,
extension, and maintenance of status, by:
[cir] Setting the authorized admission and extension periods for F
and J nonimmigrants up to the program length, not to exceed a 4-year
period;
[cir] For F-1 students changing educational objectives or
transferring to an SEVP-certified school, requiring that the student
complete his or her first academic year of a program of study at the
school that initially issued his or her Form I-20 or successor form,
unless an exception is authorized by SEVP;
[cir] Prohibiting F-1 students at the graduate education level from
changing programs at any point during a program of study.
[cir] Outlining procedures and requirements for F-1 nonimmigrants
who change educational objectives while in F-1 status;
[cir] Requiring any nonimmigrant who has completed a program at one
educational level to only be allowed to begin another program at a
higher educational level while in F-1 status and prohibiting a change
to the same or a lower educational level while in F-1 status;
[cir] Decreasing from 60 to 30 days the allowed period for F-1
nonimmigrants to prepare to depart from the United States after
completion of a course of study or authorized period of post-completion
practical training;
[cir] Providing for collection of biometric information in
conjunction with an EOS application for F, J, and I nonimmigrants as
may be required by 8 CFR 103.16;
[cir] Limiting language training students to an aggregate 24-month
period of stay, including breaks and an annual vacation;
[cir] Providing that a delay in completing one's program by the
program end date specified on the Form I-20, which includes but is not
limited to delays caused by academic probation or suspension or a
student's repeated inability or unwillingness to complete his or her
course of study, generally is an unacceptable reason for program
extensions for F nonimmigrants;
[cir] Allowing F nonimmigrants whose timely filed EOS applications
remain pending after their admission period has expired to receive an
auto-extension of their current authorization for on-campus and off-
campus employment based on severe economic hardship resulting from
emergent circumstances under existing 8 CFR 214.2(f)(5)(v). The length
of the auto-extension of employment authorization would be up to 240
days or the end date of the Federal Register notice announcing the
suspension of certain regulatory requirements, whichever is earlier;
[cir] Replacing D/S for I nonimmigrants with admission for a fixed
time period until they complete the activities or assignments
consistent with the I classification, not to exceed 240 days (with the
exception of some I aliens from the People's Republic of China), with
an EOS available for I nonimmigrants who can meet specified EOS
requirements;
[cir] Codifying the definition of a foreign media organization for
I nonimmigrant status, consistent with long-standing U.S. Citizenship
and Immigration Services (USCIS) and U.S. Department of State (DOS)
practice;
[cir] Updating the evidence an alien must submit to demonstrate
eligibility for the I nonimmigrant classification;
[cir] 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 at 8 CFR 274a.12(b)(20), if their status expires
while their timely filed EOS application is pending, whereas J-2
dependents, who must apply for employment authorization as evidenced by
an EAD, do not have the benefit of continued work authorization once
the EAD expires;
[cir] Clarifying that I nonimmigrants are authorized to continue
working in the United States for their foreign employer, under 8 CFR
274a.12(b)(20), while their timely filed EOS application is pending for
up to 240 days; \22\
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\22\ This time period is limited to up to 90 days for I
nonimmigrants with a passport from the People's Republic of China
but does not include those with a Hong Kong Special Administrative
Region passport or a Macau Special Administrative Region passport.
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[cir] Striking all references to ``duration of status'' and/or
``duration of employment'' for the F, J, and I nonimmigrant
classifications; and
[cir] Including a severability clause. In the event that any
provision of this rule is not implemented for whatever reason, DHS
proposes that the remaining provisions be implemented in accordance
with the stated purposes of this rule.
<bullet> Amend 8 CFR 248.1, Eligibility, by:
[cir] Establishing requirements to determine the period of stay for
F or J nonimmigrants whose change of status application was approved
before the Final Rule's effective date and who depart the United
States, then seek admission after the Final Rule's effective date; and
[cir] Codifying the long-standing policy under which DHS deems
abandoned an application to change to another nonimmigrant status,
including F or J status, if the alien who timely filed the application
departs the United States while the application is pending.
<bullet> Amend 8 CFR 274a.12, Classes of aliens authorized to
accept employment, by updating the employment authorization provisions
to incorporate the revisions in 8 CFR 214.2.
C. Summary of the Costs and Benefits
Currently, aliens in the F (academic student), J (exchange
visitor), and most I (representatives of foreign information media)
nonimmigrant classifications are admitted to the United States under
the D/S framework. However, this framework poses a challenge to DHS'
ability to efficiently monitor and oversee these nonimmigrants to
assess whether these nonimmigrants are complying with the terms and
conditions of their status and whether they present national security
concerns. To address these vulnerabilities, DHS proposes to replace D/S
with an admission for a fixed time period for F, J, and I
nonimmigrants. Admitting aliens in the F, J, and I classifications for
a fixed period of time would require all F, J, and I nonimmigrants who
wish to remain in the United States beyond their specific authorized
admission period to apply for authorization to extend their stay with
USCIS if in the United States, thus requiring periodic assessments by
DHS in order for the alien to remain in the United States for a longer
period. This change would impose incremental costs on F, J, and I
nonimmigrants as well as schools and exchange visitor program sponsors,
but would in turn protect the integrity of the F, J, and I programs by
having immigration officers evaluate and assess the appropriate length
of stay for these nonimmigrants.
Over a 10-year period of analysis, DHS estimates the proposed rule
would have annualized costs ranging from $390.3 million to $392.4
million (using 3 and 7 percent discount rates, respectively) when
considering both U.S. and non-U.S. parties. When considering U.S.
parties only, annualized costs range from $86.3 million to $88.1
million (using 3 and 7 percent discount rates, respectively).
[[Page 42074]]
IV. Background and Purpose
A. Legal Authority
The authority of the Secretary of Homeland Security (the Secretary)
to implement the regulatory amendments in this rule can be found in
various provisions of the immigration laws. Section 102 of the Homeland
Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112,
and section 103(a)(1) and (3) of the INA, 8 U.S.C. 1103(a)(1), (3),
charge the Secretary with the administration and enforcement of the
immigration and naturalization laws of the United States. Section
214(a) of the INA, 8 U.S.C. 1184(a), gives the Secretary the authority
to prescribe, by regulation, the time and conditions of admission of
any alien as a nonimmigrant, including F, J, and I nonimmigrant aliens.
See also 6 U.S.C. 271(a)(3), (b) (describing certain USCIS functions
and authorities, including USCIS' authority to establish national
immigration services policies and priorities and adjudicate benefits
applications) and 6 U.S.C. 252(a)(4) (describing the authority of DHS's
U.S. Immigration and Customs Enforcement (ICE) to collect information
relating to foreign students and exchange program participants and to
use such information to carry out its enforcement functions).
Section 248 of the INA, 8 U.S.C. 1258, permits DHS to allow certain
nonimmigrants to change their status from one nonimmigrant status to
another nonimmigrant status, with certain exceptions, as long as they
continue to maintain their current nonimmigrant status and are not
inadmissible under section 212(a)(9)(B)(i) of the INA, 8 U.S.C.
1182(a)(9)(B)(i), relating to unlawful presence. Similar to extensions
of stay, change of status adjudications are discretionary
determinations.\23\ Also, section 274A of the INA, 8 U.S.C. 1324a,
governs the employment of aliens who are authorized to be employed in
the United States by statute or in the discretion of the Secretary.
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\23\ See INA 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a).
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Finally, the INA establishes who may be admitted as F, J, or I
nonimmigrants. Specifically, section 101(a)(15)(F)(i) of the INA, 8
U.S.C. 1101(a)(15)(F)(i), established the F nonimmigrant classification
for, among others, bona fide students qualified to pursue a full course
of study who wish to enter the United States temporarily, who have no
intention of abandoning their residence in a foreign country, and
solely for the purpose of pursuing a full course of study at an
academic or language training school certified by SEVP, as well as for
the spouse and unmarried children under the age of 21of such
aliens.\24\ See also INA 214(m), 8 U.S.C. 1184(m) (limiting the
admission of nonimmigrants for certain aliens who intend to study at
public elementary and secondary schools).
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\24\ See INA 101(a)(15)(F), 8 U.S.C. 1101(a)(15)(F).
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Section 101(a)(15)(J) of the INA, 8 U.S.C. 1101(a)(15)(J),
established the J nonimmigrant classification for aliens who wish to
come to the United States temporarily and have no intention of
abandoning their residence in a foreign country, to participate in
exchange visitor programs designated by the DOS, as well as for the
spouses and unmarried children under the age of 21of such aliens in
certain J-1 categories.
Section 101(a)(15)(I) of the INA, 8 U.S.C. 1101(a)(15)(I),
established, upon a basis of reciprocity, the I nonimmigrant
classification for bona fide representatives of foreign information
media (such as press, radio, film, print) seeking to enter the United
States to engage in such vocation, as well as for the spouses and
children of such aliens.
Within DHS, SEVP is administered by ICE. SEVP is authorized to
administer the program to collect information related to nonimmigrant
students and exchange visitors under various statutory authorities.
Section 641 of IIRIRA authorizes the creation of a program to collect
current and ongoing information provided by schools and exchange
visitor programs regarding F and J nonimmigrants during the course of
their stays in the United States, using electronic reporting technology
where practicable. Consistent with this statutory authority, DHS
manages these programs pursuant to Homeland Security Presidential
Directive-2 (HSPD-2), Combating Terrorism Through Immigration Policies
(Oct. 29, 2001), as amended, (<a href="https://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf">https://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf</a>), and section 502 of the
Enhanced Border Security and Visa Entry Reform Act of 2002, Public Law
107-173, 116 Stat. 543, 563 (May 14, 2002) (EBSVERA) (codified at 8
U.S.C. 1762). HSPD-2 requires the Secretary of Homeland Security to
conduct periodic, ongoing reviews of institutions certified to accept F
nonimmigrants, and to include checks for compliance with recordkeeping
and reporting requirements. Section 502 of EBSVERA directs the
Secretary to review the compliance with recordkeeping and reporting
requirements under 8 U.S.C. 1101(a)(15)(F) and 1372 of all schools
approved for attendance by F students within 2 years of enactment, and
every 2 years thereafter.
B. Background
i. F Classification
Section 101(a)(15)(F)(i) of the INA, 8 U.S.C. 1101(a)(15)(F)(i),
permits aliens who are bona fide students to temporarily be admitted to
the United States solely for the purpose for pursuing a full course of
study at an established college, university, seminary, conservatory,
academic high school, elementary school, or other academic language
training program. Principal applicants are categorized as F-1
nonimmigrant aliens and their spouses and children who may accompany or
follow to join as F-2 dependents.\25\
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\25\ See INA 101(a)(15)(F)(i)-(ii), 8 U.S.C. 1101(a)(15)(F)(i)-
(ii); 8 CFR 214.2(f)(3).
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From 1973 to 1979, F students were admitted for one year and could
be granted an EOS in increments of up to 12 months if they established
that they were maintaining status.\26\ However, on July 26, 1978, given
the large number of nonimmigrant students in the United States at the
time and the need to continually process their EOS applications, legacy
INS proposed amending the regulations to permit F-1 aliens to be
admitted for the duration of their status as students.\27\ Legacy INS
explained the changes would facilitate the admission of nonimmigrant
students, provide dollar and manpower savings to the Government, and
permit more efficient use of resources.\28\ On November 22, 1978, a
final rule was published to amend the regulations at 8 CFR 214 to allow
INS to admit F-1 students for a D/S period as students.\29\ That rule
became effective on January 1, 1979.
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\26\ See 38 FR 35425, 35426 (Dec. 28, 1973) (``The period of
admission of a non-immigrant student shall not exceed one-year.'').
\27\ See 43 FR 32306 (July 26, 1978).
\28\ See 43 FR 32306, 32306-07 (July 26, 1978).
\29\ See 43 FR 54618, 54620 (Nov. 22, 1978) (``The period of
admission of a nonimmigrant student shall be for the duration of
Status in the United States as a student if the information on his/
her form I-20 indicates that he/she will remain in the United States
as a student for more than 1 year . . . If the information on form
I-20 indicates the student will remain in the United States for 1
year or less, he/she shall be admitted for the time necessary to
complete his/her period of study.'').
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Subsequently, between January 23, 1981, and October 29, 1991, the
INS amended the regulations addressing admission periods for F-1
students four more times.\30\ On January 23, 1981, a
[[Page 42075]]
rule changed admission for F-1 nonimmigrants to a fixed period of
admission, i.e., the time necessary to complete the course of study,
with the opportunity for an EOS on a case-by-case basis.\31\ Legacy INS
explained this was necessary because admitting nonimmigrants students
for D/S resulted in questionable control over foreign students and
contributed to problems in record keeping.\32\
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\30\ See 46 FR 7267 (Jan. 23, 1981), 48 FR 14575 (Apr. 5, 1983);
52 FR 13223 (Apr. 22, 1987); 56 FR 55608 (Oct. 29, 1991).
\31\ See 46 FR 7267 (Jan. 23, 1981).
\32\ Id.
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On April 5, 1983, D/S was reinstituted with, among other changes,
the implementation of new notification procedures for transfers between
schools, improved reporting requirements for Designated School
Officials (DSOs),\33\ a limit for enrollment in one educational level,
and a requirement for F-1 students to apply for an EOS and, if
applicable, a school transfer to pursue another educational program at
the same level of educational attainment.\34\
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\33\ A Designated School Official (DSO) means a regularly
employed member of the school administration whose office is located
at the school and whose compensation does not come from commissions
for recruitment of foreign students See 8 CFR 214.3(l).
\34\ See 48 FR 14575 (Apr. 5, 1983).
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On April 22, 1987, a final rule outlined medical and academic
reasons that would allow F-1 students to drop below a full-time course
of study while remaining in D/S status, and clarified when an EOS or
reinstatement must be requested.\35\
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\35\ See 52 FR 13223 (Apr. 22, 1987).
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Finally, in 1991, the regulations were revised to implement Section
221(a) of the Immigration Act of 1990 (IMMACT 90), Public Law 101-649,
104 Stat. 4978, which established a three-year off-campus program for
F-1 students,\36\ and clarified the procedures for F-1 students seeking
EOS and employment authorization utilizing the Form I-20.\37\ The rule
also gave DSOs the authority to grant program extensions (essentially
an EOS) for F-1 students with a compelling academic or medical reason
that prevented them from completing their educational program by a
program end date and then to notify INS of the extension.\38\ Since
then, and pursuant to the 1991 final rule, DHS has relied on DSOs to
report on student status, issue program extensions, and transfer
students between programs and schools. Information from these
nonimmigrant students is now tracked in SEVIS, to ensure government
agencies have essential data related to nonimmigrant students to
preserve national security. This is consistent with the requirements in
IIRIRA, the USA PATRIOT Act, Public Law 107-56, and the recommendations
of the 9/11 Commission Report. Changes to D/S were proposed for F
students in 2020, but the proposal was withdrawn in 2021.\39\
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\36\ See 56 FR 55608 (Oct. 29, 1991).
\37\ Form I-20, Certificate of Eligibility for Nonimmigrant
Student Status, is the document used by DHS that provides supporting
information for the issuance of a student visa. Applicants
(including dependents) must have a Form I-20 to apply for a student
visa, to enter the United States, and to apply for an employment
authorization document to engage in optional practical training. See
SEVP's web page, Form I-20, ``Certificate of Eligibility for
Nonimmigrant Student Status'' at <a href="https://studyinthestates.dhs.gov/sites/default/files/I-20_Intial.pdf">https://studyinthestates.dhs.gov/sites/default/files/I-20_Intial.pdf</a> (last visited Mar. 17, 2025).
\38\ See 56 FR 55608 (Oct. 29, 1991).
\39\ See 85 FR 60526 (Sept. 25, 2020) and 86 FR 35410 (July 6,
2021).
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ii. J Classification
The J nonimmigrant classification was created in 1961 by the Mutual
Educational and Cultural Exchange Act of 1961, also known as the
Fulbright-Hays Act of 1961, Public Law 87-256, 75 Stat. 527 (22 U.S.C.
2451, et seq.), to increase mutual understanding between the people of
the United States and the people of other countries by means of
educational and cultural exchanges. It authorizes aliens to participate
in a variety of exchange visitor programs in the United States. The
Exchange Visitor Program regulations cover the following program
categories: professors and research scholars, short-term scholars,
trainees and interns, college and university students, teachers,
secondary school students, specialists, alien physicians, international
visitors, government visitors, camp counselors, au pairs, and summer
work travel.\40\
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\40\ See INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J); 22 CFR
62.20-62.32.
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Prior to 1985, J exchange visitors were granted an initial
admission for the period of their program up to one year.\41\ In 1985,
the regulations were amended to allow J exchange visitors to be
admitted for the duration of their program plus 30 days.\42\ This
change from being admitted for a fixed period to D/S was implemented as
part of a continuing effort to reduce reporting requirements for the
public as well as the paperwork burden associated with processing
extension requests on the agency.\43\ Changes to D/S were proposed for
J exchange visitors in 2020, but the proposal was withdrawn in
2021.\44\
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\41\ See 8 CFR 214.2(j)(1)(ii) (1985).
\42\ See 50 FR 42006 (Oct. 17, 1985).
\43\ Id.
\44\ See 85 FR 60526 (Sept. 25, 2020) and 86 FR 35410 (July 6,
2021).
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A prospective exchange visitor must be sponsored by a DOS-
designated program sponsor to be admitted to the United States in the J
nonimmigrant classification and participate in an exchange visitor
program. The DOS designated sponsor will issue a prospective J exchange
visitor a Form DS-2019, Certificate of Eligibility for Exchange Visitor
(J-1) Status. The DS-2019 permits a prospective exchange visitor to
apply for a J-1 nonimmigrant visa at a U.S. embassy or consulate abroad
or seek admission as a J-1 nonimmigrant at a port of entry. A J-1
exchange visitor is admitted into the United States for D/S, which is
the length of his or her exchange visitor program.\45\
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\45\ Form DS-2019, Certificate of Eligibility for Exchange
Visitor (J-1) Status, is the document required to support an
application for an exchange visitor visa (J-1). It is a 2-page
document that can only be produced through the Student and Exchange
Visitor Information System (SEVIS). SEVIS is the DHS database
developed to collect information on F, M, and J nonimmigrants (see 8
U.S.C. 1372 and 6 U.S.C. 252(a)(4)). The potential exchange
visitor's signature on page one of the form is required. Page 2 of
the current Form DS-2019 consists of instructions and certification
language relating to participation. No blank Forms DS-2019 exist.
Each Form DS-2019 is printed with a unique identifier known as a
``SEVIS ID number'' in the top right-hand corner, which consists of
an ``alpha'' character (N) and 10 numerical characters (e.g.,
N0002123457). The Department of State's Office of Private Sector
Exchange Designation in the Bureau of Educational and Cultural
Affairs (ECA/EC/D) designates U.S. organizations to conduct exchange
visitor programs. These organizations are known as program sponsors.
When designated, the organization is authorized access to SEVIS and
is then able to produce Form DS-2019 from SEVIS. The program sponsor
signs the completed Forms DS-2019 in blue ink and transmits them to
the potential exchange visitor and his or her spouse and unmarried
children under the age of 21. J visa applicants must present a
signed Form DS-2019 at the time of their visa interview. Once the
visa is issued, however, the biographic information on the SEVIS
record cannot be updated until the participant's program is
validated (``Active'' in SEVIS). The sponsor is required to update
the SEVIS record upon the exchange visitor's entry and no
corrections to the record can be made until that time. In addition,
in the event a visa is needed, sponsors may issue a Form DS-2019 for
a dependent spouse or child, the system will not permit a new Form
DS-2019 to be created as long as the primary's SEVIS record is
validated in initial or active status. See 9 FAM 402.5-6(D)(1) (U),
The Basic Form, available at <a href="https://fam.state.gov/FAM/09FAM/09FAM040205.html">https://fam.state.gov/FAM/09FAM/09FAM040205.html</a> (last visited Mar. 20, 2025). While applicants must
still present a paper Form DS-2019 to DOS in order to qualify for a
visa, the SEVIS record is the definitive record of student or
exchange visitor status and visa eligibility. See 9 FAM 402.5-4(B)
(U), Student and Exchange Visitor Information System (SEVIS) Record
is Definitive Record, available at <a href="https://fam.state.gov/FAM/09FAM/09FAM040205.html">https://fam.state.gov/FAM/09FAM/09FAM040205.html</a> (last visited Mar. 20, 2025).
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Extensions of J exchange visitor programs are governed by DOS
regulations.\46\ If there is authority to
[[Page 42076]]
extend a program, the exchange visitor program sponsor's Responsible
Officer (RO),\47\ similar to the DSO in the F-1 student context, is
authorized to extend a J exchange visitor's program by issuing a duly
executed Form DS-2019.\48\ Requests for extensions beyond the maximum
program duration provided in the regulations must be approved by DOS,
which adjudicates these extensions. USCIS does not adjudicate these
program extensions; however, USCIS does adjudicate applications to
extend a J nonimmigrant's stay based on an authorized program
extension. As outlined above, consistent with the requirements in
IIRIRA and the USA PATRIOT Act, Public Law 107-56, J exchange visitor
programs are also monitored using SEVIS.
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\46\ See 22 CFR part 62. These programs vary in length. For
example, professors and research scholars are generally authorized
to participate in the Exchange Visitor Program for the length of
time necessary to complete the program, provided such time does not
exceed 5 five years. See 22 CFR 62.20(i)(1). And, alien physicians,
are generally limited to 7 years. See 22 CFR 62.27(e)(2).
\47\ A Responsible Officer (RO) is an employee or officer of a
sponsor who has been nominated by the sponsor, and approved by the
U.S. Department of State, to carry out the duties outlined in 22 CFR
62.11.
\48\ See 22 CFR 62.43. A RO must be a citizen of the United
States or a lawful permanent resident of the United States. See 22
CFR 62.2.
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iii. I Classification
Section 101(a)(15)(I) of the INA defines the I classification as,
upon a basis of reciprocity, an alien who is a bona fide representative
of foreign press, radio, film, or other foreign information media who
seeks to enter the United States solely to engage in such vocation, and
the spouse and children of such a representative, if accompanying or
following to join him or her. Most nonimmigrant foreign information
media representatives (with the exception of those presenting a
passport issued by the People's Republic of China) are currently
admitted for the duration of their employment. They are not permitted
to change their information medium or employer until they obtain
permission from USCIS.\49\
---------------------------------------------------------------------------
\49\ See 8 CFR 214.2(i).
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From 1973 to 1985, aliens admitted to the United States in I
nonimmigrant status were admitted for a period of 1 year with the
possibility of extensions.\50\ In 1985, legacy INS amended the
regulations to allow nonimmigrant foreign information media
representatives to be admitted for the duration of their
employment.\51\ This change from a set time period of admission to
admission for duration of employment for I nonimmigrants was
implemented as part of a continuing effort to reduce reporting
requirements for the public, as well as the paperwork burden associated
with processing extension requests on the agency.\52\ Through its
administration of the regulations authorizing I nonimmigrants admission
for duration of employment, DHS currently admits all I nonimmigrants
for D/S with the exception of those presenting a passport issued by the
People's Republic of China (other than a Hong Kong Special
Administrative Region (SAR) passport or a Macau SAR passport).\53\
Changes to D/S were proposed for I foreign media representatives in
2020, but the proposal was withdrawn in 2021.\54\
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\50\ See 38 FR 35425 (Dec. 28, 1973). See also 50 FR 42006 (Oct.
17, 1985) (indicating that, prior to the publication of this rule, I
nonimmigrants were admitted for one year).
\51\ See 8 CFR 214.2(i); 50 FR 42006 (Oct. 17, 1985).
\52\ Id.
\53\ See 87 FR 61959 (Oct. 13, 2022) and 85 FR 27645 (May 11,
2020).
\54\ See 85 FR 60526 (Sept. 25, 2020) and 86 FR 35410 (July 6,
2021).
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C. Need for Rulemaking
i. Risks to the Integrity of the F, J, and I Nonimmigrant
Classifications
DHS welcomes F academic students, J exchange visitors, and I
representatives of foreign information media, but it also acknowledges
that the sheer size of the population complicates oversight and vetting
functions. Since 1980, the number of F nonimmigrant students admitted
into the United States has more than sextupled.\55\ Similarly, since D/
S was introduced for J and I nonimmigrants in 1985, the number of
exchange visitors admitted into the United States has more than
quadrupled while the number of representatives of foreign information
media has nearly doubled.\56\
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\55\ For example, approximately 260,000 F-1 nonimmigrant
students were admitted into the United States during the 1980-81
school year. See U.S. Gov't Accountability Off., Controls Over
Foreign Students in U.S. Postsecondary Institutions Are Still
Ineffective, supra note 12, pg. ii. In fiscal year (FY) 2023,
1,625,740 F-1 nonimmigrant students were admitted into the United
States. See DHS FY23, Quarter 4, tbl.4B, supra note 11.
\56\ In 1985, 110,942 exchange visitors and 16,753
representatives of the foreign information media were admitted into
the United States. See U.S. Dept. of Justice, Immigration and
Naturalization Service, 1997 U.S. Statistical Yearbook of the
Immigration and Naturalization Service, pg. 118, available at
<a href="https://archive.org/details/statisticalyearb1997bunit/page/n3/mode/2up">https://archive.org/details/statisticalyearb1997bunit/page/n3/mode/2up</a> (last visited Mar. 19, 2025). In FY 2023, 481,280 exchange
visitors and 32,470 representatives of the foreign information media
were admitted into the United States. See DHS FY23, Quarter 4,
tbl.4B, supra note 11.
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The Department uses SEVIS, a web-based system, to maintain
information regarding: SEVP-certified schools; F-1 students studying in
the United States (and their F-2 dependents); M-1 students enrolled in
vocational programs in the United States (and their M-2 dependents);
DOS-designated Exchange Visitor Program sponsors; and J-1 Exchange
Visitor Program participants (and their J-2 dependents). SEVIS is
necessary for national security and is consistent with the requirements
in IIRIRA, the USA PATRIOT Act, and the 9/11 Commission Report.
Employees of educational institutions and program sponsors,
specifically DSOs and ROs, play a large role in SEVIS. They are
responsible for monitoring students and exchange visitors, accurately
entering information about the students' and exchange visitors'
activities into SEVIS, and properly determining whether the student or
exchange visitor's SEVIS record should remain in active status or
change to reflect a change in circumstances.\57\ Under this framework,
an academic student or exchange visitor generally maintains lawful
status by complying with the conditions of the program, as certified by
the DSO or RO. However, a program extension and an extension of an
alien's nonimmigrant stay are different. DHS believes it is appropriate
for the DSO to recommend an extension of an academic program and an RO
to recommend an extension of an exchange visitor program; however, an
EOS involves an adjudication of whether an alien is legally eligible to
extend his or her stay in the United States in a given immigration
status and has been complying with the terms and conditions of his or
her admission.\58\ DHS believes that the determinations of program
extension and EOS should be separated, with the DSO's and RO's
recommendation being one factor an immigration officer reviews while
adjudicating an application for EOS. Changing to a fixed period of
admission would give immigration officers a mechanism to make this
evaluation at reasonably frequent intervals.
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\57\ See 8 CFR 214.3(g)(1), (g)(2) (detailing a DSO's reporting
requirements); 214.4(a)(2) (stating that failure to comply with
reporting requirements may result in loss of SEVP certification).
\58\ See 8 CFR 214.1(a)(3).
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Additionally, DHS expects this change would deter and prevent
fraud, as a requirement to check-in directly with an immigration
officer is inherently likely to deter exploitation of perceived
vulnerabilities in the F and J nonimmigrant classifications. The same
benefits of direct evaluation, better recordkeeping, and fraud
prevention also would apply to the I population.
[[Page 42077]]
ii. Risks Within the F Classification
While the F program can provide significant benefits to academic
institutions and local communities, the Department is aware that the F-
1 program is subject to fraud, exploitation, and abuse. Since 2008,
multiple school owners and others have been criminally prosecuted for
``pay-to-stay'' fraud, in which school officials, in return for cash
payments, falsely report that F-1 students who do not attend school are
maintaining their student status.\59\ In some cases, convicted school
owners operated multiple schools and transferred students among them to
conceal the fraud.\60\ DHS is also concerned that DSOs at these schools
were complicit in these abuses; some DSOs intentionally recorded a
student's status inaccurately,\61\ some issued program extensions to
students who did not have compelling medical or academic reasons for
failing to complete their program by its end date,\62\ and some DSOs
permitted students who failed to maintain status to transfer to another
school rather than apply for reinstatement.\63\ Beyond cases publicly
identified by DHS and the U.S. Department of Justice (DOJ), DHS is
concerned about cases where DSOs were not aware of status violations by
students.
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\59\ Press Release, U.S. Dep't of Justice, Operator of English
language schools charged in massive student visa fraud scheme (Apr.
9, 2008), available at <a href="https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html">https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html</a> (last visited Mar. 20, 2025); Press
Release, U.S. Dep't of Justice, Owner/Operator and employee of
Miami-based school sentenced for immigration-related fraud (Aug. 30,
2010), available at <a href="https://www.justice.gov/archive/usao/fls/PressReleases/2010/100830-02.html">https://www.justice.gov/archive/usao/fls/PressReleases/2010/100830-02.html</a> (last visited Apr. 8, 2025); Press
Release, Immig. and Customs Enf't, Pastor sentenced to 1 year for
visa fraud, ordered to forfeit building housing former religious
school (June 13, 2011), available at <a href="https://www.ice.gov/news/releases/pastor-sentenced-1-year-visa-fraud-ordered-forfeit-building-housing-former-religious">https://www.ice.gov/news/releases/pastor-sentenced-1-year-visa-fraud-ordered-forfeit-building-housing-former-religious</a> (last visited Mar. 20, 2025);
Press Release, U.S. Dep't of Justice, School Official Admits Visa
Fraud (Mar. 12, 2012), available at <a href="https://www.justice.gov/archive/usao/pae/News/2012/Mar/tkhir_release.htm">https://www.justice.gov/archive/usao/pae/News/2012/Mar/tkhir_release.htm</a> (last visited Apr. 8,
2025); Press Release, Immig. And Customs Enf't, Owner of Georgia
English language school sentenced for immigration fraud (May 7,
2014), available at <a href="https://www.ice.gov/news/releases/owner-georgia-english-language-school-sentenced-immigration-fraud">https://www.ice.gov/news/releases/owner-georgia-english-language-school-sentenced-immigration-fraud</a> (last visited
Mar. 20, 2025); Press Release, Immig. and Customs Enf't, 3 senior
executives of for-profit schools plead guilty to student visa,
financial aid fraud (Apr. 30, 2015), available at <a href="https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud">https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud</a> (last visited Mar. 20,
2025); Press Release, Immig. and Customs Enf't, Owner of schools
that illegally allowed foreign nationals to remain in US as
``students'' sentenced to 15 months in federal prison (Apr. 19,
2018), available at <a href="https://www.ice.gov/news/releases/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15">https://www.ice.gov/news/releases/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15</a>
(last visited Mar. 20, 2025).
\60\ Press Release, Immig. and Customs Enf't, 3 senior
executives of for-profit schools plead guilty to student visa,
financial aid fraud, supra note 59.
\61\ Former DSO Official Found Guilty of Visa Fraud, (May 20,
2019), available at <a href="https://www.goffwilson.com/Blawg-entries/2019/former-DSO-Official-Guilty-of-Visa-Fraud.aspx">https://www.goffwilson.com/Blawg-entries/2019/former-DSO-Official-Guilty-of-Visa-Fraud.aspx</a> (last visited Mar. 20,
2025); <a href="http://ImmigrationReform.com">ImmigrationReform.com</a>, U.S. Removes 4,600 Fraudulent OPT
Participants from the Program, (July 14, 2020), available at <a href="https://www.immigrationreform.com/2020/7/2014/OPT-fraud-dhs-crackdown-immigrationreform-com">https://www.immigrationreform.com/2020/7/2014/OPT-fraud-dhs-crackdown-immigrationreform-com</a> (last visited Mar. 25, 2025); Press Release,
U.S. Dep't of Justice, Operator of English language schools charged
in massive student visa fraud scheme, supra note 59; Press Release,
U.S. Dep't of Justice, Owner/Operator and employee of Miami-based
school sentenced for immigration-related fraud, supra note 59; Press
Release, Immig. and Customs Enf't, Pastor sentenced to 1 year for
visa fraud, ordered to forfeit building housing former religious
school, supra note 59; Press Release, U.S. Dep't of Justice, School
Official Admits Visa Fraud, supra note 59; Press Release, Immig. and
Customs Enf't, Owner of Georgia English language school sentenced
for immigration fraud, supra note 59; Press Release, Immig. and
Customs Enf't, 3 senior executives of for-profit schools plead
guilty to student visa, financial aid fraud, supra note 59; Press
Release, Immig. and Customs Enf't, Owner of schools that illegally
allowed foreign nationals to remain in U.S. as ``students''
sentenced to 15 months in federal prison, supra note 59.
\62\ For example, DHS identified a nonimmigrant who was an F-1
student at a dance school from 1991-2021. Although the reported
normal length of the dance program is 5 years, the school issued 17
program extensions between 2003 (when the use of SEVIS was mandated)
and 2020, claiming that the student needed more time despite nearly
30 years of enrollment. The student subsequently transferred to an
English language training program at another school with a program
start date in November 2022, despite more than 30 years in the
United States as an F-1 student. The student remains in active F-1
status reportedly studying English as of May 7, 2025. Another
student who was enrolled at the same school from 2009 to 2020 and
had been an F-1 student since 2005, was granted 14 program
extensions. DHS also identified three F-1 students in doctoral
programs that have taken over 20 years to complete their programs,
and five F-1 students at community colleges have been enrolled in
associate degree programs for periods in excess of 5 years--some for
as long as a decade. Student Exchange Visitor Program analysis of
data in the Student Exchange Visitor Information System and valid as
of May 7, 2025.
\63\ Press Release, Immig. and Customs Enf't, 3 senior
executives of for-profit schools plead guilty to student visa,
financial aid fraud, supra note 59.
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Apart from concerns about DSOs and school owners involved in
fraudulent schemes, DHS also has concerns about the actions of the
aliens themselves. Some aliens have used the F classification to reside
in the United States for decades by continuously enrolling in or
transferring between schools, a practice facilitated by the D/S
framework.\64\ DHS has identified over 2,100 aliens who first entered
as F-1 students between 2000 and 2010 and remain in active F-1 status
as of April 6, 2025.\65\ To extend their stay, these aliens enrolled in
consecutive educational programs, they transferred to new schools, or
DSOs repeatedly extended their program end dates. This practice is not
limited to any one particular type of school; students at community or
junior colleges, universities, and language training schools have
maintained F-1 status for lengthy periods. While these instances of
extended stay may not always result in technical violations of the law,
DHS is concerned that such stays violate the spirit of the law, given
that student status is meant to be temporary, with the alien having no
intention of abandoning their residence in a foreign country, and for
the primary purpose of studying, not as a way to remain in the United
States indefinitely.\66\
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\64\ Monitoring F-1 students on post-completion OPT can be even
more complicated because the students are no longer attending
classes. See U.S. Gov't Accountability Off., GAO-14-356, Student and
Exchange Visitor Program, DHS Needs to Assess Risks and Strengthen
Oversight of Foreign Students with Employment Authorization, (Feb.
27, 2014), available at <a href="https://www.gao.gov/assets/gao-14-356.pdf">https://www.gao.gov/assets/gao-14-356.pdf</a>
(last visited Apr. 4, 2025).
\65\ Student Exchange Visitor Program analysis of data in the
Student Exchange Visitor Information System identifying the number
of F-1 active students who began studying between 2000 and 2010,
valid as of Apr. 6, 2025.
\66\ See INA section 101(a)(15)(F)(i), 8 U.S.C.
1101(a)(15)(F)(i).
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The use of the F classification to remain in the United States for
decades raises doubts that the alien's intention was to stay in the
United States temporarily, as required by the INA.\67\ It also raises
concerns as to whether those aliens are bona fide nonimmigrant students
who are maintaining valid lawful status by complying with the terms of
their admission, which include solely pursuing a full course of study
and progressing to completing a course of study. Likewise, it raises
concerns as to whether these aliens truly have the financial resources
to cover tuition and living expenses without engaging in unauthorized
employment.
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\67\ See INA section 101(a)(15)(F)(i), 8 U.S.C.
1101(a)(15)(F)(i).
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Further, while some school owners and school executives have faced
legal consequences for their violation of the law, nonimmigrants
admitted for D/S generally do not accrue unlawful presence for purposes
of the 3- and 10-year bars described in INA 212(a)(9)(B) and (C), 8
U.S.C. 1182(a)(9)(B) and (C), unless an immigration officer finds they
have violated their status in the context of adjudicating an
immigration benefit request, or an immigration judge orders them
excluded, deported, or removed.\68\ Because F-1 nonimmigrant students
are admitted for D/S, they generally do not file applications or
petitions, such as EOS applications, with USCIS, and
[[Page 42078]]
therefore, immigration officers do not generally have an opportunity to
determine whether they are engaging in F-1 nonimmigrant activities in
the United States and maintaining their F-1 nonimmigrant status.
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\68\ See USCIS Interoffice Memorandum, ``Consolidation of
Guidance Concerning Unlawful Presence for Purposes of Sections
212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act'' (May 6, 2009).
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The U.S. Government Accountability Office (GAO) has reported on
DHS's concerns about DSOs and nonimmigrant students. In 2019, GAO and
ICE published a report identifying fraud risks to SEVP related to
managing school recertification and program training. The report
included vulnerabilities associated with involving school owners and
DSOs in overseeing the maintenance of status of F-1 students.\69\ In
the report, GAO identified fraud vulnerabilities on the part of both
students and schools. Examples include students claiming to maintain
status when they are not, such as failing to attend class or working
without appropriate authorization, or school owners not requiring
enrolled students to attend classes or creating fraudulent
documentation for students who are ineligible for the academic program.
GAO recommended that ICE develop a fraud risk profile and use data
analytics to identify potential fraud indicators in schools petitioning
for certification, develop and implement fraud training for DSOs, and
strengthen background checks for DSOs.\70\
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\69\ In a 2019 report, GAO was asked to review potential
vulnerabilities to fraud in the Student and Exchange Visitor
Program. GAO examined, among other things, the extent to which ICE
(1) implemented controls to address fraud risks in the school
certification and recertification processes and (2) implemented
fraud risk controls related to DSO training. See U.S. Gov't
Accountability Off., GAO-19-297, DHS Can Take Additional Steps to
Manage Fraud Risks Related to School Recertification and Program
Oversight (Mar 18, 2019), available at <a href="https://www.gao.gov/assets/700/697630.pdf">https://www.gao.gov/assets/700/697630.pdf</a> (last visited Apr. 3, 2025); U.S. Gov't
Accountability Off., GAO-11-411, Overstay Enforcement: Additional
Mechanisms for Collecting, Assessing, and Sharing Data Could
Strengthen DHS's Efforts but Would Have Costs (Apr. 15, 2011),
available at <a href="https://www.gao.gov/assets/320/317762.pdf">https://www.gao.gov/assets/320/317762.pdf</a> (last visited
Apr. 4, 2025); and U.S. Gov't Accountability Off., GAO-12-572,
Student and Exchange Visitor Program: DHS Needs to Assess Risks and
Strengthen Oversight Functions (June 18, 2012), available at <a href="https://www.gao.gov/assets/600/591668.pdf">https://www.gao.gov/assets/600/591668.pdf</a> (last visited Apr. 4, 2025).
\70\ Since publishing its 2019 report, GAO has updated its
website to include comments to the Recommendations for Executive
Action included therein. ICE has taken steps to implement the
report's recommendations, including making a public announcement
regarding changing the timeline for the recertification notification
process for schools. See U.S. Gov't Accountability Off., Student and
Exchange Visitor Program: DHS Can Take Additional Steps to Manage
Fraud Risks Related to School Recertification and Program Oversight,
RECOMMENDATIONS, (Mar. 18, 2019), available at <a href="https://www.gao.gov/products/GAO-19-297?mobile_opt_out=1#summary_recommend">https://www.gao.gov/products/GAO-19-297?mobile_opt_out=1#summary_recommend</a> (last visited
Mar. 11, 2025).
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DHS believes it can mitigate fraud risks in part through, as this
rule proposes, setting the authorized admission and extension periods
for F nonimmigrants as the length of the F nonimmigrant's specific
program, not to exceed a 4-year period. It would establish a mechanism
for immigration officers to assess these nonimmigrants at defined
periods (such as when applying for an EOS in the United States beyond a
4-year admission period) and determine whether they are complying with
the conditions of their classification. Immigration officers receive
background checks, clearances, and training before DHS authorizes them
to implement the nation's immigration laws, which includes as part of
adjudicating the application, whether nonimmigrants meet the
requirements to extend their stay, whether a student has violated his
or her nonimmigrant status without the DSO's awareness or whether DSOs
are engaging in fraud by not requiring students to attend classes or by
falsifying documents. Immigration officers are further trained to
assess applications for fraud indicators and conduct reviews and
vetting that may assist in the detection of fraud or abuse. This would
allow further opportunity for DHS to identify and hold accountable
aliens who violate their F-1 status, as well as their educational
institutions. DHS currently employs out-of-cycle reviews and
recertification of SEVP-certified schools outlined in 8 CFR 214.3(h) to
ensure the school's compliance with regulatory recordkeeping and
reporting requirements. DHS may also conduct on-site reviews of schools
at any time, which may lead to withdrawal of SEVP certification upon
findings of noncompliance or regulatory violations. Under the current
D/S framework, DHS might not detect an individual F-1 status violation
for an extended period if the student stays enrolled in a school, does
not seek readmission to the United States, and does not apply for
additional immigration benefits. If DHS makes periodic assessments to
verify that F-1 students are maintaining their student status, DHS
could better detect and mitigate against these violations as well as
violations by their school.\71\ The proposed rule creates opportunities
for this scrutiny if these nonimmigrants wish to remain beyond their
fixed period of admission. This may also have the effect of deterring
individuals who would otherwise seek to come to the United States and
engage in some of the behaviors discussed above, believing they would
be able to do so undetected for long periods of time. DHS believes this
is a more appropriate way to maintain the integrity of the U.S.
immigration system. Additionally, the Department believes the proposed
changes would allow immigration officers to directly verify, among
other things, that students applying for an EOS: have the funds needed
to live and study in the United States without engaging in unauthorized
work; are maintaining a residence abroad to which they intend to
return; have pursued and are pursuing a full course of study; and are
completing their studies within the 4 year generally applicable
timeframe relating to their post-secondary education programs in the
United States or are able to provide a permissible explanation for
taking a longer period of time to complete the program.
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\71\ For example, SEVP may withdraw a school's certification or
deny a school's recertification if a DSO willfully issues a false
statement, including wrongful certification of a statement by
signature, in connection with a student's school transfer or
application for employment or practical training. See 8 CFR
214.4(a)(2)(v).
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Finally, the D/S framework, because it reduces opportunities for
direct vetting of foreign academic students by immigration officers,
creates opportunities for foreign adversaries to exploit the F-1
program and undermine U.S. national security. An open education
environment in the United States offers enormous benefits, but it also
places research universities and the nation at risk for economic,
academic, or military espionage by foreign students. Foreign
adversaries are using progressively sophisticated and resourceful
methods to exploit the U.S. educational environment, including well-
documented cases of espionage through the student program.\72\
[[Page 42079]]
Detecting and deterring emerging threats to U.S. national security
posed by adversaries exploiting the F-1 program requires additional
oversight. In 2022, in response to a Congressional inquiry, GAO
investigated and made recommendations that ICE modify the SEVIS system
to include factors that potentially indicate which foreign students or
scholars may pose more risk of transferring technology at U.S.
universities.\73\
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\72\ In January of 2023, Ji Chaoqun, a Chinese national who came
to the United States to study electrical engineering at the Illinois
Institute of Technology in 2013, was sentenced to 8 years for spying
for the Chinese government. See CNN Politics, Chinese engineer
sentenced to 8 years in U.S. prison for spying (Jan. 25, 2023),
available at <a href="https://www.cnn.com/2023/01/25/politics/chinese-engineer-sentence-spying-intl-hnk/index.html">https://www.cnn.com/2023/01/25/politics/chinese-engineer-sentence-spying-intl-hnk/index.html</a> (last visited Apr. 9,
2025). In Dec. 2019, Weiyun (Kelly) Huang, the owner of Findream and
Sinocontech, pleaded guilty to conspiracy to commit visa fraud in
the U.S. District Court for the Northern District of Illinois in
Chicago. In return for payments, Findream listed aliens as OPT
workers, providing them with what appeared to be legal status. The
FBI charged one of those aliens with spying. See Kelly Huang
Criminal Compliant (Mar. 28, 2019), available at <a href="https://media.nbcbayarea.com/2019/09/KellyHuangCriminalComplaint.pdf">https://media.nbcbayarea.com/2019/09/KellyHuangCriminalComplaint.pdf</a> (last
visited Apr. 2, 2025). Huang was sentenced to 37 months in federal
prison for conspiracy to commit visa fraud. Press Release, U.S.
Dep't of Justice, Chinese Business Woman Sentenced to 37 Months in
Federal Prison for Conspiracy to Commit Visa Fraud (June 26, 2020),
available at <a href="https://www.justice.gov/usao-ndil/pr/chinese-businesswoman-sentenced-37-months-federal-prison-conspiracy-commit-visa-fraud">https://www.justice.gov/usao-ndil/pr/chinese-businesswoman-sentenced-37-months-federal-prison-conspiracy-commit-visa-fraud</a> (last visited Apr. 2, 2025). This vulnerability presented
in the nonimmigrant student classification has been highlighted by
the FBI. In a 2018 hearing before the Senate Intelligence Committee,
the FBI Director testified about the threat from China, noting
``that the use of nontraditional collectors, especially in the
academic setting, whether it's professors, scientists, students, we
see in almost every field office that the FBI has around the
country. It's not just in major cities. It's in small ones as well.
It's across basically every discipline. I think the level of
naivet[eacute] on the part of the academic sector about this creates
its own issues. They're exploiting the very open research and
development environment that we have, which we all revere, but
they're taking advantage of it. So, one of the things we're trying
to do is view the China threat as not just a whole of government
threat, but a whole of society threat on their end. I think it's
going to take a whole of society response by us. So, it's not just
the intelligence community, but it's raising awareness within our
academic sector, within our private sector, as part of the
defense.'' See Senate Select Committee on Intelligence Hearing (Feb.
13, 2018), transcript available at <a href="https://www.intelligence.senate.gov/hearings/open-hearing-worldwide-threats">https://www.intelligence.senate.gov/hearings/open-hearing-worldwide-threats</a>
(last visited Apr. 1, 2025); see also Foreign Threats to Taxpayer--
Funded Research: Oversight Opportunities and Policy Solutions:
Hearing before the Senate Finance Committee (June 5, 2019)
(Statement of Louis A. Rodi III), available at <a href="https://www.finance.senate.gov/imo/media/doc/05JUN2019RodiSMNT.pdf">https://www.finance.senate.gov/imo/media/doc/05JUN2019RodiSMNT.pdf</a> (last
visited Apr. 2, 2025). DSOs are not trained immigration officers nor
are they in a position to make such determinations.
\73\ See U.S. Gov't Accountability Off., GAO 23-106114, China,
Efforts Underway to Address Technology Transfer Risk at U.S.
Universities, but ICE Could Improve Related Data (Nov. 2022),
available at <a href="https://www.gao.gov/assets/gao-23-106114.pdf">https://www.gao.gov/assets/gao-23-106114.pdf</a> (last
visited Apr. 3, 2025).
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DHS believes that replacing admissions for D/S for F-1 students
with admission for a fixed time period would help mitigate these
national security risks by ensuring an immigration official directly
and periodically vets applicants for extensions of stay and, in so
doing, confirms they are engaged only in activities consistent with
their student status. F-1 nonimmigrants applying for EOS will also be
required to establish they are admissible, and failure to do so will
result in denial of the EOS. Admissibility grounds are complex and are
properly assessed by a trained DHS officer. Such an assessment is not
currently made when F-1 nonimmigrants apply for an extension of their
program with their institution.\74\ Significantly, under the proposed
changes to the period of admission of F nonimmigrants and the
applicable EOS process, DHS would collect biometrics and other
information (such as evidence of financial resources to cover expenses
and evidence of any criminal activity) from F nonimmigrant students
more frequently, thereby enhancing the Government's oversight and
monitoring of these aliens.
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\74\ In addition, DSOs may be unaware of a student's failure to
maintain status, including by engaging in criminal activity, nor do
they have the authority or ability to acquire such information.
Admitting F-1 nonimmigrants for a fixed period of admission would
provide trained immigration officers with the opportunity to vet
these individuals.
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iii. Risks Within the J Classification
DHS believes that the national security risks posed by D/S
admissions for individuals admitted under the J classification are
similar to those posed by the F classification.\75\ According to a
December 2018 report by a panel of experts commissioned by the National
Institutes of Health (NIH) to study foreign influence on federally-
funded scientific research, ``Small numbers of scientists have
committed serious violations of NIH policies and systems by not
disclosing foreign support (i.e., grants), laboratories, or funded
faculty positions in other countries.'' \76\ As with F nonimmigrants,
setting the length of the J nonimmigrant's specific program to not
exceed a 4-year period would establish a mechanism for immigration
officers to assess these nonimmigrants at defined periods (such as when
applying for an EOS in the United States beyond a 4-year admission
period) and determine whether they are complying with the conditions of
their classification. This will increase vetting of the J nonimmigrant
population, which can help to prevent and deter nefarious actors.
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\75\ In its 2019 Report to Congress, the U.S.-China Economic and
Security Review Commission, the Commission described the U.S.
Government's efforts to curb China's extensive influence and
espionage activities in academic and commercial settings. The
Commission noted that these efforts took the form of visa
restrictions for Chinese nationals, greater scrutiny of federal
funding awarded to universities, legal action against those
suspected of theft or espionage, and new legislation. See U.S.-China
Economic and Security Review Commission, 2019 Annual Report to
Congress (Nov. 2019), available at <a href="https://www.uscc.gov/annual-report/2019-annual-report">https://www.uscc.gov/annual-report/2019-annual-report</a> (last visited Mar. 20, 2025).
\76\ See U.S. National Institutes of Health Advisory Committee
to the Director (ACD), ACD Working Group for Foreign Influences on
Research Integrity (Dec. 2018) (discussing measures to address
concerns about foreign influences related to graduate students and
post-doctoral fellows, as well as foreign employees).
---------------------------------------------------------------------------
There are multiple examples of ongoing national security threats
posed by J nonimmigrants. For example, in September 2019, a stark
illustration of state-sponsored efforts to illegally obtain U.S.
technology emerged when the FBI charged Chinese government official
Zhongsan Liu with conspiracy to fraudulently procure U.S. research
scholar visas for Chinese officials whose actual purpose was to recruit
U.S. scientists for high technology development programs within
China.\77\ Liu was convicted of participating in conspiracy to defraud
the United States and fraudulently obtain U.S. visas.\78\
---------------------------------------------------------------------------
\77\ Press Release, U.S. Dep't of Justice, Chinese Government
Employee Charged in Manhattan Federal Court with Participating in
Conspiracy to Fraudulently Obtain U.S. Visas (Sept. 16, 2019),
available at <a href="https://www.justice.gov/archives/opa/pr/chinese-government-employee-charged-manhattan-federal-court-participating-conspiracy">https://www.justice.gov/archives/opa/pr/chinese-government-employee-charged-manhattan-federal-court-participating-conspiracy</a> (last visited Apr. 2, 2025).
\78\ See Press Release, U.S. Dep't of Justice, Chinese
Government Employee Convicted of Participating in Conspiracy to
Defraud the United States and Fraudulently Obtain U.S. Visas (Mar.
23, 2022), available at <a href="https://www.justice.gov/usao-sdny/pr/chinese-government-employee-convicted-participating-conspiracy-defraud-united-states">https://www.justice.gov/usao-sdny/pr/chinese-government-employee-convicted-participating-conspiracy-defraud-united-states</a> (last visited Apr. 1, 2025).
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Additionally, in December 2019, Zaosong Zheng, a 29-year-old
graduate student in J-1 status participating in an exchange visitor
program at Harvard University, was stopped at Boston Logan
International Airport. Federal agents determined he was a ``high risk
for possibly exporting undeclared biological material'' after finding
21 vials of brown liquid wrapped in a plastic bag inside a sock in his
checked luggage; typed and handwritten notes indicated ``that [the
exchange visitor] . . . was knowingly gathering and collecting
intellectual property . . . possibly on behalf of the Chinese
government.'' \79\ Zheng was indicted on one count of smuggling goods
from the United States and one count of making false, fictitious or
fraudulent statements.
---------------------------------------------------------------------------
\79\ See Boston Herald, China may be behind theft of bio samples
by Harvard-sponsored Chinese student, fed says (Dec. 30, 2019),
available at <a href="https://www.bostonherald.com/2019/12/30/peoples-republic-of-china-may-be-behind-theft-of-bio-samples-by-harvard-sponsored-chinese-student-feds-say/">https://www.bostonherald.com/2019/12/30/peoples-republic-of-china-may-be-behind-theft-of-bio-samples-by-harvard-sponsored-chinese-student-feds-say/</a> (last visited Mar. 20, 2025);
see also The Daily Beast, China Might Be Behind Harvard Student's
Theft of Cancer Research, Feds Claim (Dec. 31, 2019), available at
<a href="https://www.thedailybeast.com/china-might-be-behind-harvard-student-zaosong-zhengs-theft-of-cancer-research-feds-claim">https://www.thedailybeast.com/china-might-be-behind-harvard-student-zaosong-zhengs-theft-of-cancer-research-feds-claim</a> (last visited
Mar. 20, 2025); Press Release, U.S. Dep't of Justice, Harvard
University Professor and Two Chinese Nationals Charged in Three
Separate China Related Cases (Jan. 28, 2020), available at <a href="https://www.justice.gov/archives/opa/pr/harvard-university-professor-and-two-chinese-nationals-charged-three-separate-china-related">https://www.justice.gov/archives/opa/pr/harvard-university-professor-and-two-chinese-nationals-charged-three-separate-china-related</a> (last
visited Mar. 28, 2025).
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In January 2020, Yanqing Ye, was charged with one count each of
visa fraud, making false statements, acting as an agent of a foreign
government and conspiracy after Ye falsely identified herself on her J-
1 visa application as a
[[Page 42080]]
``student'' and lied about her ongoing military service at a top
military academy directed by the Chinese Communist Party. It was
further alleged that while studying at Boston University's Department
of Physics, Chemistry, and Biomedical Engineering, Ye continued to work
as a People's Liberation Army (PLA) Lieutenant completing numerous
assignments from PLA officers such as conducting research, assessing
U.S. military websites and sending U.S. documents and information to
China.\80\
---------------------------------------------------------------------------
\80\ Press Release, U.S. Dep't of Justice, Harvard University
Professor and Two Chinese Nationals Charged in Three Separate China
Related Cases, supra note 79.
---------------------------------------------------------------------------
In June 2020, a Chinese national who entered the United States on a
J-1 visa to conduct research at the University of California, San
Francisco (UCSF) was arrested at Los Angeles International Airport
while attempting to return to China and charged with visa fraud.
According to court documents, he allegedly is an officer with the PRC
PLA and provided fraudulent information about his military service in
his visa application. He allegedly was instructed by his military lab
supervisor to bring back to China information about the lab at
UCSF.\81\
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\81\ See Press Release, U.S. Dep't of Justice, Officer of
China's People's Liberation Army Arrested At Los Angeles
International Airport (June 11, 2020), available at <a href="https://www.justice.gov/usao-ndca/pr/officer-china-s-people-s-liberation-army-arrested-los-angeles-international-airport">https://www.justice.gov/usao-ndca/pr/officer-china-s-people-s-liberation-army-arrested-los-angeles-international-airport</a> (last visited Mar.
20, 2025).
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In 2025, J-1 Chinese Research Scholar at the University of Michigan
was charged in a criminal complaint for conspiracy, smuggling goods
into the United States, false statements, and visa fraud. The FBI
arrested the exchange visitor for allegedly smuggling a noxious fungus
which is responsible for billions of dollars in economic losses
worldwide each year and causes health problems for both humans and
livestock. The J-1 allegedly received Chinese government funding for
her work on this pathogen and is a loyal member of the Chinese
Communist Party.\82\
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\82\ See Press Release, U.S. Dep't of Justice, Chinese Nationals
Charged with Conspiracy and Smuggling a Dangerous Biological
Pathogen into the U.S. for their Work at a University of Michigan
Laboratory (June 3, 2025), available at <a href="https://www.justice.gov/usao-edmi/pr/chinese-nationals-charged-conspiracy-and-smuggling-dangerous-biological-pathogen-us">https://www.justice.gov/usao-edmi/pr/chinese-nationals-charged-conspiracy-and-smuggling-dangerous-biological-pathogen-us</a>.
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Exchange visitor program categories include college and university
students, which share similarities with the F-1 nonimmigrant
classification. Students enrolled in such programs are pursuing post-
secondary studies alongside F-1 nonimmigrants. J-1 college and
university students in a degree program may be authorized to
participate in the exchange visitor program so long as they meet the
requirements for duration of participation, including pursuing a full
course of study, echoing the full course of study requirements for F-1
nonimmigrants. Their programs may also be extended by the ROs, subject
to regulation and/or approval by DOS, without an application to DHS.
These similarities give rise to the same concerns related to F-1s about
national security, as described above, and about fraud and abuse by J-
1s and their ROs. By requiring the same fixed period of admission for
F-1s and J-1s, J-1 college and university students in exchange visitor
programs would be unable to circumvent the intent of this proposed
rule, \83\ which is to protect the integrity of these programs and
provide additional protections and mechanisms for oversight. Because J
exchange visitors are also tracked in SEVIS, DHS believes it would be
more effective for an immigration officer to periodically confirm that
an alien has properly maintained status, rather than relying on the
checks of an RO that the J-1 is pursuing the activities permitted by
the exchange visitor program. As noted above, DHS believes it is more
appropriate for immigration officers, with their background checks,
clearances, and training from the U.S. government, to adjudicate
maintenance of nonimmigrant status and whether an alien is eligible for
an additional admission period. Switching from D/S to a fixed period of
admission would permit immigration officers the opportunity to
determine whether an alien is eligible for an additional period of
time. If an officer finds a violation of status while adjudicating the
alien's request, the consequences could be immediate. Applicants for
EOS must also establish that they are admissible, and failure to do so
will result in denial of the EOS.\84\ Admissibility grounds are complex
and are properly assessed by a trained DHS officer. Such an assessment
is not currently made when J exchange visitors apply for an extension
of their program with their RO.\85\ Thus, admitting J exchange visitors
for a fixed period, instead of for D/S, would give DHS more frequent
opportunities to directly vet these foreign visitors and ensure they
are bona fide exchange visitors and it would prevent and deter
nefarious actors within the J exchange visitor population. Under the
proposed changes to the period of admission of J exchange visitors and
the applicable EOS process, DHS would more frequently collect
biometrics and other information from J exchange visitors, enhancing
the Government's oversight and monitoring of these aliens.
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\83\ References to ``this proposed rule'' and ``this proposed
rulemaking'' throughout this document refer to the rulemaking being
proposed within this NPRM.
\84\ See 8 CFR 214.1(a)(3).
\85\ ROs may be unaware of a student's failure to maintain
status, including by engaging in criminal activity. Admitting J-1s
for a fixed period of admission would provide trained DHS officers
with the opportunity to vet these individuals.
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iv. Risks Within the I Classification
Admitting most I nonimmigrants for D/S affords them different
treatment from most other nonimmigrants, who are admitted for a
specified period of time. The Department believes admitting aliens
temporarily in the United States for a fixed period would strengthen
vetting and information collection and help immigration officers ensure
that the I nonimmigrants are, and will be, engaged in activities that
are permissible under INA 101(a)(15)(I). In addition, this rulemaking
proposes to require individuals who wish to remain in I nonimmigrant
status beyond the end date for their authorized stay to apply for an
EOS with USCIS, at which point immigration officers can review their
activities in the United States. It also clarifies what DHS would
require these individuals to present as evidence supporting their EOS
request.\86\
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\86\ These proposed changes, including additional evidence
relating to foreign media organizations and activities the alien
intends to engage in while in I status, would also apply to a
nonimmigrant in the United States who requests to change his/her
nonimmigrant status to that of an I nonimmigrant.
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V. Discussion of the Proposed Rule
All persons arriving at a POE to the United States must be
inspected by a U.S. Customs and Border Protection (CBP) officer and
must apply for admission into the United States with CBP.\87\ In the
case of an alien, a CBP officer determines whether an alien is eligible
for admission and, if they are, issues the I-94, Arrival/Departure
Record with the nonimmigrant classification and period of
admission.\88\ For the vast majority of aliens, their I-94 includes a
specific date through which their status is valid; they must depart the
United States on or before
[[Page 42081]]
that date. An alien who wishes to lawfully remain in the United States
in the same status past that date generally must apply for an EOS with
USCIS.
---------------------------------------------------------------------------
\87\ See INA sec. 235, 8 U.S.C. 1225; see also, 8 CFR pt. 235.
\88\ The I-94 is used by the U.S. Government to track arrivals
and departures of nonimmigrants. Originally the form was designed in
two parts--one for the Government and one for the nonimmigrant. The
second part would be stapled into the nonimmigrant's passport and
then removed upon departure. The form is now maintained
electronically and can be accessed by nonimmigrants by downloading
it from the CBP website. See <a href="https://i94.cbp.dhs.gov/">https://i94.cbp.dhs.gov/</a> (last visited
Apr. 10, 2025).
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However, certain nonimmigrant classifications, including F academic
students, J exchange visitors, and I representatives of foreign
information media, and their dependents, may be admitted into the
United States for D/S instead of a period of time with a specific
departure date. DHS is proposing changes to the admission provisions
for these particular nonimmigrant classifications, including replacing
admissions for ``duration of status'' with a fixed admission period.
This would enable immigration officers to independently and directly
verify the continued eligibility of foreign visitors in F, J, or I
nonimmigrant status. It would also require aliens who fall under
certain criteria to apply more frequently for additional admission
periods.
A goal of this proposed rule is to institute policies that would
encourage aliens to maintain lawful status and reduce instances in
which F, J, and I nonimmigrants unlawfully remain in the United States
after their program, practical training, or activities or assignments
consistent with the I classification ends. Aliens who remain in the
United States beyond a fixed time period generally would begin accruing
unlawful presence. Unlawful presence in the United States may result in
an alien becoming inadmissible upon departing the United States. See
INA 212(a); 8 U.S.C. 1182(a). As a result of this inadmissibility, the
alien may become ineligible for a nonimmigrant or immigrant visa,
admission to the United States, or benefits for which admissibility is
required, such as adjustment of status to that of a lawful permanent
resident. See INA 212(a), 8 U.S.C. 1182(a); INA 245(a), 8 U.S.C.
1255(a).
A. General Period of Admission for F and J Nonimmigrants
Under this proposal, aliens applying for admission in either F or J
status who, under this proposal, would be eligible to be admitted for a
maximum period of 4 years or the length of program as specified on Form
I-20 or DS-2019, whichever is shorter, or the end date of the approved
employment authorization for post-completion OPT and Science Technology
Engineering and Mathematics (STEM) OPT, as applicable, plus additional
30 day periods for arrival and a 30-day period to prepare for departure
or to otherwise seek to obtain lawful authorization to remain in the
United States. See proposed 8 CFR 214.1(a)(4)(i) through (iii); and 8
CFR 214.2(f)(5) and (j)(1)(ii).
In this proposal, DHS addresses the following circumstances that
might apply when F and J nonimmigrants apply for admission at a POE:
<bullet> Aliens who departed the United States, including those
seeking admission before their timely filed EOS application has been
adjudicated, but after their previously authorized period of stay has
expired, could be eligible to be admitted for the length of time
required to reach the program end date noted in their most recent Form
I-20 or DS-2019, not to exceed 4 years, plus a period of 30 days to
prepare for departure or to otherwise seek to obtain lawful
authorization to remain in the United States, similar to an initial
period of admission. See proposed 8 CFR 214.1(a)(4)(i)(A) and (ii)(A).
USCIS would consider the alien's EOS application abandoned because the
alien's new fixed date of admission based on the most recent I-20 or
DS-2019 had already been determined by CBP upon the most recent
admission to the United States, and thus the pending EOS application is
extraneous. See proposed 8 CFR 214.1(c)(8).
<bullet> Aliens who departed the United States and are applying for
admission before their timely filed EOS application has been
adjudicated, but before their previously authorized period of stay has
expired, could be eligible to be admitted either for:
[cir] The length of time as indicated by the program end date noted
in their most recent Form I-20 or DS-2019, not to exceed 4 years, plus
a period of 30 days to prepare for departure or to otherwise seek to
obtain lawful authorization to remain in the United States, similar to
an initial period of admission. If the alien is admitted for the
program length (not to exceed 4 years, as applicable), USCIS would
consider the alien's EOS application abandoned because the alien's new
fixed date of admission based on the most recent I-20 or DS-2019 had
already been determined by CBP upon the most recent admission to the
United States, and thus the pending EOS application is extraneous; or
[cir] The period of time remaining on their previously authorized
period of admission. CBP could admit the alien for a period of time not
to exceed the unexpired period of stay that was authorized before the
alien's departure, plus a period of 30 days to prepare for departure or
to otherwise seek to obtain lawful authorization to remain in the
United States. In this scenario, in accordance with proposed 8 CFR
214.1(c)(8), an alien's EOS application would not be considered
abandoned and USCIS could grant a new period of stay upon subsequent
adjudication of the EOS application. See proposed 8 CFR 214.1(a)(4)(i)
and (a)(4)(ii).
DHS is providing additional clarification here in this preamble
that in order to facilitate admission in this scenario, aliens should
be prepared to provide evidence of a timely filed extension in the form
of a receipt notice issued by DHS for either instance detailed above.
<bullet> Aliens who departed the United States after timely filing
an EOS application and are reapplying for admission after their EOS
application is granted. In such cases, CBP could admit them for a
period of time not to exceed the time authorized by their approved EOS,
plus a period of 30 days to prepare for departure or to otherwise seek
to obtain lawful authorization to remain in the United States. See
proposed 8 CFR 214.1(a)(4)(i)(C) and (a)(4)(ii)(C). When applying for
admission at a POE while their application for employment authorization
is pending, they should have a notice (currently Form I-797) issued by
USCIS indicating receipt of the application for employment
authorization (currently Form I-765) necessary for post-completion OPT
or STEM OPT. See proposed 8 CFR 214.1(a)(4)(iii).
<bullet> Aliens who departed the United States without an approved
EOS application and are applying for admission with a valid Form I-20
or Form DS-2019, or successor form, may be admitted for the length of
time as indicated by the program end date noted in their Form I-20 or
DS-2019, not to exceed 4 years, plus a period of 30 days to prepare for
departure or to otherwise seek to obtain lawful authorization to remain
in the United States. See proposed 8 CFR 214.1(a)(4)(i)(A) and (ii)(A);
8 CFR 214.2(f)(5) and (j)(1)(ii)(A).
<bullet> F nonimmigrants applying for admission to engage in post-
completion OPT or STEM OPT may, generally, be admitted either up to the
expiration date noted on their EAD or up to the DSO's recommended
employment end date for post completion or STEM OPT specified on their
Form I-20, whichever is later, plus a 30-day period to prepare for
departure or to otherwise seek to obtain lawful authorization to remain
in the United States. See proposed 8 CFR 214.1(a)(4)(iii); and 8 CFR
214.2(f)(5). When applying for admission at a POE while their
application for employment authorization is pending, they should have a
notice issued by USCIS indicating receipt of the employment
authorization application necessary for
[[Page 42082]]
post-completion OPT or STEM OPT (currently Form I-797).
This proposed rule would clarify how the periods of admission will
be calculated for F-1 and J-1 nonimmigrants. Specifically, DHS proposes
adding wording to 8 CFR 214.2(f)(5)(i), (f)(7)(vi) and (j)(1)(iv)(C)
clarifying that the 30-day period before the indicated report date or
program start date and 30 additional days following the program end
date or 4-year maximum period of admission do not count towards the
maximum F-1 and J-1 nonimmigrants are permitted.\89\ The calculation of
the 4-year maximum periods of admission would not begin from the date
of admission during that 30-day window, but from the program start
date. Similarly, the 30-day departure periods for F-1 and J-1
nonimmigrants would not count towards the 4-year maximum period of
admission. DHS proposes this to avoid a scenario where an F-1 or J-1
seeks admission 30 days prior to the program start date, is admitted
for a maximum 4-year period of admission to complete a 4-year program,
but receives a period of admission calculated from the date of entry,
meaning that the end of their period of admission would end 30 days
prior to their 4-year program end date, thereby requiring the F-1 or J-
1 to apply for an EOS or depart and re-enter the United States.
---------------------------------------------------------------------------
\89\ See 8 CFR 214.2(f)(5), (j)(1)(ii).
---------------------------------------------------------------------------
Under this proposed rule, certain aliens applying for admission
pursuant to the provisions relating to automatic extension of visa
validity in the case of an absence not exceeding 30 days solely in
contiguous territory or adjacent islands could be admitted up to the
unexpired period of stay authorized prior to their departure and the
visa is considered automatically extended to the date of application
for readmission only. See proposed 8 CFR 214.1(b)(1); and 22 CFR
41.112(d).
All of these cases assume, consistent with this proposed rule, that
the admission period of any F or J nonimmigrant previously admitted for
D/S would be transitioned to a fixed date of admission. To provide
adequate notice to aliens previously admitted for D/S regarding the
date when their admission period ends pursuant to the proposed
transition, DHS proposes that an alien's period of admission would
expire on the program end date on the alien's Form I-20 or DS-2019 that
is valid on the final rule's effective date, not to exceed a period of
4 years from the final rule's effective date, plus the currently
permitted additional period of 60 days for F nonimmigrants and 30 days
for J nonimmigrants to depart. See proposed 8 CFR 214.1(m)(1). DHS
believes that this proposal would provide adequate notice because all
students and exchange visitors in F or J nonimmigrant status who wish
to extend their program currently need to apply for permission with
their DSO or RO. At that time, the DSO or RO could explain that they
are recommending a program extension, but the F or J nonimmigrant must
apply for an EOS directly with DHS or depart the United States and seek
readmission, and such EOS or readmission must be granted to remain
lawfully in or to re-enter the United States, respectively. Under
current policy, F and J nonimmigrants admitted for D/S do not accrue
unlawful presence until the day after USCIS formally finds a
nonimmigrant status violation while adjudicating a request for another
immigration benefit or on the day after an immigration judge orders the
alien excluded, deported, or removed (whether or not the decision is
appealed), whichever comes first.\90\ In reliance on this policy, some
F and J nonimmigrants admitted for D/S may not have taken the
appropriate steps to maintain status, otherwise change status, or
depart the United States. This proposed rule is concerned with
providing adequate notice to allow F and J nonimmigrants who are
maintaining status to transition to a new date-certain admission.
---------------------------------------------------------------------------
\90\ See USCIS Interoffice Memorandum, Consolidation of Guidance
Concerning Unlawful Presence for Purposes of Sections
212(a)(9)(B)(i) and 212(a)(9)(C)(i)(I) of the Act (May 6, 2009)
(which currently applies unlawful presence to F, J, and I
nonimmigrants in relation to duration of status but which would
change accordingly if, upon finalization of this proposed rule,
duration of status no longer applies to them).
---------------------------------------------------------------------------
Although some F and J nonimmigrants may have program end dates
longer than 4 years, DHS believes that using the program end date on
the Form I-20 or DS-2019, up to a maximum 4-year period of admission,
as the fixed date of admission is the best option because it aligns
with the general structure of post-secondary education while still
allowing for the government to have increased oversight of this
population through the requirement that those nonimmigrants who wish to
remain beyond their authorized period of admission either apply to
extend their stay or depart the United States and seek readmission.
According to the U.S. Department of Education (ED), students can
normally earn a bachelor's degree in 4 years \91\ and non-resident
students normally earn their bachelor's degrees within 4 years of
entry.\92\ The total number of F-1 students pursuing a bachelor's
degree in 2023 was 457,906, constituting almost 34 percent of the 2023
nonimmigrant student population. The total number of F-1 students
pursuing a master's degree, generally 2-year programs, in 2023 was
608,857, representing almost 45 percent of the nonimmigrant student
population. Taken together this population represents almost 79 percent
of the nonimmigrant students in the United States.\93\ Therefore, DHS
believes that a 4-year period of admission would not pose an undue
burden to most nonimmigrant students, because many F and J
nonimmigrants would complete their studies within a 4-year period and
not have to request additional time from DHS. The smaller proportion of
students not pursuing a bachelor's or master's degree are enrolled in
different programs, which may last more or less than 4 years.\94\ While
DHS acknowledges the additional burden that this rule would impose on
students engaged in programs lasting longer than 4 years, DHS believes
that the benefit to program integrity of this rule would outweigh the
burden to this population.
---------------------------------------------------------------------------
\91\ See The Mobile Digest of Education Statistics, 2017, The
Structure of American Education, available at <a href="https://nces.ed.gov/programs/digest/mobile/The_Structure_of_American_Education.aspx">https://nces.ed.gov/programs/digest/mobile/The_Structure_of_American_Education.aspx</a>
(last visited Mar. 24, 2025).
\92\ See The Digest of Education Statistics, 2023, Table 326.10:
Graduation rate from first institution attended for first-time,
full-time bachelor's degree-seeking students at 4-year postsecondary
institutions, by race/ethnicity, time to completion, sex, control of
institution, and percentage of applications accepted: Selected
cohort entry years, 1996 through 2016, available at <a href="https://nces.ed.gov/programs/digest/d23/tables/dt23_326.10.asp">https://nces.ed.gov/programs/digest/d23/tables/dt23_326.10.asp</a> (last visited
Apr. 25, 2025).
\93\ See The Student and Exchange Visitor Program (SEVP), 2023
SEVIS by the Numbers Report, available at <a href="https://www.ice.gov/doclib/sevis/btn/24_0510_hsi_sevp-cy23-sevis-btn.pdf">https://www.ice.gov/doclib/sevis/btn/24_0510_hsi_sevp-cy23-sevis-btn.pdf</a> (last visited
Apr. 1, 2025).
\94\ Other programs include associate degrees, language training
programs, and Ph.D. programs, among others.
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Before arriving at the 4-year admission periods, DHS considered
various options. DHS considered a standard 2-year admission for all F
and J nonimmigrants. This option would give the Department more
frequent direct check-in points with nonimmigrants than a 4-year
maximum period of admission would. However, DHS was concerned it would
unduly burden many F and J nonimmigrants. As discussed above, 4 years
best accounts for the normal progress for most programs. With a 2-year
admission period, students and exchange visitors participating in
programs of greater duration would need to apply for additional time.
Even considering those F or J nonimmigrants who are admitted
[[Page 42083]]
into the U.S. after having already completed a portion of their program
outside of the U.S., instituting a 2-year maximum period of stay would
have required each nonimmigrant pursuing a 4-year program to extend,
while 4 years allows additional time to complete a 4-year degree. This
alternative also would place greater administrative burdens on USCIS
and CBP compared to the proposed 4-year maximum period of admission.
USCIS would have to adjudicate EOS applications more frequently, and
CBP's workload would increase as individuals would travel to request
admission at the POE, with a 2-year maximum period of stay rather than
a 4-year one. Therefore, DHS believes an admission for the program end
date, not to exceed 4 years, is the best option.
B. Automatic Extension of Visa Validity at POE for Contiguous Travel
DHS proposes to change the admission language in the provision
relating to extension of visa validity in limited situations from
``shall'' to ``may'' to clarify that CBP always maintains the
discretion to determine whether an alien is admissible and the
appropriate period of admission. This change removes any ambiguity
about whether CBP has an absolute duty to admit an alien to clarify
that CBP has the discretion to admit an alien for a certain period of
time, consistent with statutory and regulatory authorities. See
proposed 8 CFR 214.1(b)(1).
DHS proposes technical revisions to the visa revalidation
provisions that allow certain F, J, and M nonimmigrants to apply for
admission if eligible for admission as an F, J, or M nonimmigrant if
they are applying for admission after an absence from the United States
not exceeding 30 days spent solely in contiguous territory or adjacent
islands. See proposed 8 CFR 214.1(b). Such technical revisions include
updating language to clarify that ``visa revalidation'' refers to
automatic extension of visa validity at the POE to the date of
application for readmission only. These provisions apply when, for
example, a nonimmigrant finds himself or herself applying for re-entry
after going to Mexico on spring break without realizing that his or her
visa had expired. Instead of having to get a new visa, CBP may admit
the nonimmigrant, whose visa validity is automatically extended by
operation of DOS regulations. See 22 CFR 41.112(d). DHS does not
believe it is necessary to require a nonimmigrant to obtain a new visa
under these circumstances.
DHS proposes minor technical updates to account for inaccurate or
no longer applicable terms and cites: First, DHS proposes to strike the
reference to INA 101(a)(15)(Q)(ii) and reserve it, as that program no
longer exists and is no longer in the INA.\95\ See proposed 8 CFR
214.1(b)(1)-(3). Second, DHS proposes to strike the reference to
``duration of status'' in 8 CFR 214.1(b)(1), 214.2(f)(5)(vii),
214.2(f)(18)(iii), and 274a.12(b)(6)(v).
---------------------------------------------------------------------------
\95\ See Irish Peace Process Cultural and Training Program Act
of 1998, Public Law 105-319, 112 Stat. 3013 (Oct. 30, 1998), as
amended by Public Law 108-449, 114 Stat. 1526 (Dec. 10, 2004).
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C. Extension of Stay (EOS)
This proposed rule would not create a new form for an EOS
application. However, in the future, some form names and numbers may
change. While DHS plans to update existing forms allowing F, J, and I
nonimmigrants to apply for an EOS with USCIS, DHS believes it would be
more efficient to replace references to specific form names and numbers
throughout the current proposed regulations with generally applicable
language. Using general language in the regulatory text instead of
referring to specific form names and numbers helps both the Department
and stakeholders. It allows for technical changes without requiring an
entirely new rulemaking to update form names. Stakeholders would
receive notice and specific guidance on USCIS' website and in the
appropriate form instructions, as they already do for various other
benefits. Therefore, DHS proposes to use this language in 8 CFR
214.1(c)(2) and to strike the current phrase exempting F and J
nonimmigrants from the requirement to file an EOS, as they would be
required to file an EOS if they wish to remain in the United States
beyond their specified date of admission. See proposed 8 CFR
214.1(c)(2).
Like the technical updates to strike the specific form name from 8
CFR 214.1(c)(2), DHS is proposing to strike the references to Forms
``I-129'' and ``I-539'' in 8 CFR 214.1(c)(5), replacing those specific
form numbers with the aforementioned general language. See proposed 8
CFR 214.1(c)(5). The substance of that provision, including the
language that does not allow an alien to appeal an EOS denial would
remain the same.
DHS proposes striking ``other than as provided in 214.2(f)(7)''
from 8 CFR 214.1(c)(3)(v) to make it clear that students must apply for
an EOS. This requirement would not apply to other nonimmigrants
admitted for D/S, such as A-1 or A-2 representatives of foreign
governments and their immediate family members; they would remain
ineligible to file an EOS.
As part of the EOS application, USCIS requires biometric collection
and will require such collection from F, J, and I nonimmigrants under
the proposed rule. USCIS has the general authority to require and
collect biometrics from applicants, petitioners, sponsors,
beneficiaries, or other individuals residing in the United States for
any immigration and naturalization benefit. See 8 CFR 103.16. Biometric
collection helps USCIS confirm an individual's identity and conduct
background and security checks. Further, USCIS may also require any
applicant, petitioner, sponsor, beneficiary or individual filing a
benefit request, or any group or class of such persons submitting
requests to appear for an interview. See 8 CFR 103.2(b)(9). USCIS may
require such an interview as part of the screening and adjudication
process that helps confirm an individual's identity, elicit information
to assess the eligibility for an immigration benefit, and screen for
any national security or fraud concerns.
Finally, DHS considered how to address the admission of F, J, and I
nonimmigrants who timely filed an EOS and/or an application for
employment authorization but left the United States before receiving a
decision from USCIS. DHS anticipates this scenario would apply mostly
to F-1 students applying for post-completion OPT and STEM OPT
extensions.
While USCIS generally does not consider an application for EOS
abandoned when the nonimmigrant leaves the United States,\96\ DHS
recognizes the potential for conflict if a nonimmigrant receives
authorization from both CBP and USCIS for what amounts to the same
request (a specific period of time to pursue authorized activities).
Where an alien in F, J, or I status timely files an application for
EOS, leaves the United States before USCIS approves that EOS
application, and applies for admission to continue his or her
activities for the balance of the previously authorized admission
period, USCIS would generally not consider the EOS application
abandoned. See proposed 8 CFR 214.1(c)(8)(i).
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\96\ See U.S. Dept. of Justice Memo, Cook, Acting Asst. Comm.
Programs, HQ 70/6.2.9 (June 18, 2001), available at <a href="https://www.uscis.gov/sites/default/files/document/memos/Travpub.pdf">https://www.uscis.gov/sites/default/files/document/memos/Travpub.pdf</a> (last
visited Apr. 11, 2025).
---------------------------------------------------------------------------
Consistent with the general provision on admission in proposed 8
CFR 214.1(a)(4), where the alien leaves the United States and applies
for admission while his or her EOS application is pending and is
admitted based on a new
[[Page 42084]]
Form I-20 or DS-2019 after his or her previously authorized admission
has expired, the pending EOS is deemed abandoned. In this case, the
admit until date provided by CBP on the alien's I-94 would govern. See
proposed 8 CFR 214.1(c)(8)(ii). This is because, in these cases, CBP's
grant of a new period of authorized stay would supersede the pending
EOS application seeking a period of authorized stay, rendering it
superfluous.
The Department considered a policy whereby an F, J, or I
nonimmigrant would automatically abandon an EOS application upon
departing the United States. However, the Department believes such a
strict requirement would not be practical, because people cannot always
predict when they will have to travel.
Regarding applications for employment authorization for F-1 and J-2
nonimmigrants, DHS notes that CBP does not adjudicate applications for
employment authorization. Should an EOS application be deemed
abandoned, USCIS would continue processing any applications for
employment authorization, notwithstanding a departure, and, if the
application is approved, USCIS would not issue an EAD with a validity
date that exceeds the fixed date of admission provided to the alien at
the POE. For example, an F-1 student wishing to engage in post-
completion OPT or a STEM OPT extension would need to file both an EOS
application and an application for employment authorization. Where the
alien had departed the United States before his or her applications are
adjudicated, USCIS would not consider the employment authorization
application abandoned. See proposed 8 CFR 214.1(c)(8)(ii).
In all events, when an F-1 or a J-2 nonimmigrant travels while the
employment authorization or EOS application is pending, he or she is
still expected to respond to any Request for Evidence (RFE) and to
timely submit the requested documents. Because an RFE may arrive after
an alien departs, either electronically or at a U.S. address, aliens
traveling outside the United States while applications are pending are
advised to make necessary arrangements to determine whether they have
received an RFE relating to their application and to timely respond to
any RFE.\97\ Failure to do so could result in USCIS denying an
employment authorization or EOS application for abandonment.
---------------------------------------------------------------------------
\97\ See SEVP's Study in the States web page, ``Traveling as an
International Student'' available at <a href="https://studyinthestates.dhs.gov/traveling-as-an-international-student">https://studyinthestates.dhs.gov/traveling-as-an-international-student</a> (last
visited Apr. 8, 2025). See also ICE's Re-entry for F-1 Non-
immigrants Travelling Outside the United States for Five Months or
Fewer web page, which notes, ``Can I reenter if my request for OPT
is pending? Yes, but traveling during this time should be undertaken
with caution. USCIS may send you [an RFE] while you are away,
however, so you will want to make sure you have provided a correct
U.S. address both to your DSO and on the application and would be
able to send in requested documents. Also, if USCIS approves your
OPT application, you will be expected to have your EAD in hand to
re-enter the United States. Like a request for further information,
USCIS can only send the EAD to your U.S. address,'' available at
<a href="https://www.ice.gov/sevis/travel">https://www.ice.gov/sevis/travel</a> (last visited Apr. 1, 2025).
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D. Transition Period
i. F and J Nonimmigrants
DHS proposes to generally allow all F and J nonimmigrants present
in the United States on the final rule's effective date who are validly
maintaining that status and who were admitted for D/S to remain in the
United States in F or J status, without filing an EOS request, up to
the program end date reflected on their Form I-20 or DS-2019 that is
valid on the Final Rule's effective date, for a period not to exceed 4
years from the effective date of the Final Rule, plus an additional 60
days for these F nonimmigrants and 30 days for J nonimmigrants to
depart the country. See proposed 8 CFR 214.1(m)(1).
F and J nonimmigrants who depart the United States after the rule's
effective date and before the end date reflected on their Form I-20 or
DS-2019 may be admitted with a new fixed admission period, like any
other newly admitted F or J nonimmigrant, as provided for in proposed 8
CFR 214.1(a)(4) based on the date on their Form I-20 or DS-2019 and 30
days for departure. See proposed 8 CFR 214.2(f)(5) or (j)(1)(ii).
Aliens who need additional time to complete their current course of
study, including requests for post-completion OPT, STEM OPT, or
academic training, or would like to start a new course of study or
exchange visitor program would need to file for an EOS with USCIS for
an admission period up to the new program end date, or OPT end date,
listed on the Form I-20 or DS-2019, or successor form, reflecting such
an extension, up to a maximum of 4-years. See proposed 8 CFR
214.1(m)(1).
For those aliens in F-1 status, admitted for D/S, present in the
United States 60 days after the final rule publication who have timely
filed on or before 6 months after the effective date of the final rule
for an application for post-completion OPT or a STEM OPT extension,
there would not be a requirement to file an EOS application, and,
instead, they would be required to file the application for employment
authorization for post-completion OPT or a STEM OPT extension. See
proposed 8 CFR 214.1(m)(1)(i). An F-1 nonimmigrant who departs the
United States before filing the application for post-completion OPT or
STEM OPT, and is subsequently admitted to the United States with a
fixed period of admission would be required to file both an application
for employment authorization, (Form I-765 or successor form) and an EOS
(Form I-539, or successor form), pursuant to 8 CFR
214.2(f)(11)(i)(B)(2) or (C). As discussed above concerning the general
period of admissibility, an F-1 nonimmigrant who departs the United
States while the application for employment authorization for post-
completion OPT or STEM OPT is pending or once approved would be
admitted for a fixed admission period pursuant to 8 CFR
214.1(a)(4)(iii). F-1 nonimmigrants who file for employment
authorization for STEM OPT would remain eligible for the 180-day
extension of their post-completion OPT EAD while their application for
STEM OPT is pending pursuant to 8 CFR 274a.12(b)(6)(iv).
Regarding pending applications for employment authorization during
the transition period, aliens in F status who are subject to the
transition and who are seeking post-completion OPT and STEM-OPT
employment authorization would be authorized to lawfully remain in the
United States while the application is pending with USCIS if: (1) they
are in the United States on the effective date of the final rule with
admission for D/S; (2) they properly filed an application for
employment authorization; (3) their application is pending on the final
rule's effective date; and (4) they are not otherwise removable under
the INA. Unless otherwise advised by USCIS, they would not have to file
for an EOS or re-file an application for employment authorization. See
proposed 8 CFR 214.1(m)(2). If the application for employment
authorization is approved, the F-1 student would be authorized to
remain in the United States in F-1 status until the expiration date of
the EAD, plus 60 days as provided in their previous admission. If the
employment application is denied, the F-1 student would continue to be
authorized to remain in the United States until the program end date
listed on their Form I-20, plus 60 days as provided in their previous
admission, as long as he or she continues to pursue a full course of
study and otherwise meets the requirements for F-1 status.
[[Page 42085]]
Aliens in F-1 status with pending employment authorization
applications, other than post-completion OPT and STEM OPT, also would
not need to file for an extension or refile an employment authorization
application. As long as these F-1 nonimmigrants continue to pursue a
full course of study and otherwise meet the requirements for F-1
status, they continue to be authorized to remain in the United States
until the program end date listed on the Form I-20, plus 60 days,
regardless of whether the employment authorization is approved or
denied.
DHS believes that this transition proposal would not be
unreasonably burdensome on F and J nonimmigrants, and it would enable
DHS to transition F and J nonimmigrants without unduly burdening
nonimmigrants, USCIS, or CBP. Many would be able to complete their
programs per the terms of their initial admission (D/S) using the
original program end date as an expiration of their authorized period
of stay. DHS would grant such periods, which include an additional 60
days for F nonimmigrants and 30 days for J nonimmigrants as provided in
their previous admission, automatically without an application or fee.
With this option, DHS believes that the majority of F and J
nonimmigrants will be shifted to a fixed period of admission of 4 years
or less, except for some F-1 students and J-1 exchange visitors. For
example, J-1 research scholars and alien physicians who have program
end dates for up to 5 or 7 years respectively, would need to apply for
an EOS before the 4-year maximum period of stay expires, i.e., the date
that falls 4 years after the rule becomes effective.
Another benefit of this option is that it would enable DHS to
transition F and J nonimmigrants to an admission for a fixed time
period without unduly burdening them, USCIS, or CBP. This option would
ensure that no F and J nonimmigrants remain in the United States
indefinitely by requiring all F and J nonimmigrants admitted for D/S
who wish to extend their stay beyond their program end date or the 4-
year maximum, whichever is applicable, to either file an EOS request or
depart the United States and apply for admission at a POE by their
program end date or the 4-year maximum period of stay from the final
rule's effective date, plus an additional 60 days for F nonimmigrants,
and 30 days for J nonimmigrants.
In proposing these transition procedures, DHS took into
consideration the effect of transitioning to a fixed period of
admission will have on F and J nonimmigrants originally admitted for D/
S who chose to temporarily come to the United States to pursue a
program of study or an exchange visitor program. DHS believes the
proposed changes would not significantly affect the interests of these
nonimmigrants admitted in D/S. DHS is not proposing to change the
fundamental requirements to qualify for these nonimmigrant statuses,
rather it is only proposing to change the length of time that an
individual may lawfully remain in the United States in F or J status
without filing an EOS application. Admitting these classifications of
nonimmigrants for a fixed period of admission simply confirms that the
admission is temporary and clearly communicates when that temporary
admission period ends. Further, as is the case for the fixed period of
admission policy more generally, a fixed date of admission simply
places these nonimmigrants in the same position as most other
nonimmigrants who are temporarily in the United States. They would
still be able to continue to pursue their full course of study or
exchange visitor program; however, if they need additional time in F or
J status, the burden would now be upon them to request authorization
directly from DHS and establish eligibility to extend their period of
stay in such status, whereas previously they obtained an extension of
lawful status in conjunction with a program extension through a DSO or
RO.
At the same time, this proposed process would provide immigration
officials an opportunity to directly review and determine whether F and
J nonimmigrants who wish to remain in the United States beyond their
fixed period of admission are complying with U.S. immigration law and
are indeed eligible to retain their nonimmigrant status. If there are F
or J nonimmigrants relying on a D/S admission in an attempt to
permanently remain in the United States, or otherwise circumvent their
authorized status, this proposed process would allow DHS to detect and
deny an EOS request or entry under a new period of admission.
DHS considered several alternatives before determining the above
proposal was the best option. First, DHS considered whether to impose a
consistent length for the fixed admission for all F and J nonimmigrants
transitioning from a D/S admission, such as 1 or 3 years from the final
rule's effective date. While this proposal would provide a standard end
date, DHS was concerned about the expense and workload implications of
this option on all stakeholders and DHS. As noted, DHS expects most F
and J nonimmigrants to complete their program of study or exchange
visitor program within a 4-year period. A date that does not align with
this expectation could place an unnecessary burden on the affected F
and J nonimmigrants and on their academic institutions or exchange
visitor programs' sponsors and employers, as applicable. USCIS would be
especially affected if a significant percentage of these nonimmigrants
chose to remain in the United States and file for an EOS in order to
complete the balance of their program, study, or work activity. While
USCIS could try to anticipate the volume, the sheer number of
simultaneous nonimmigrants filing for EOS could significantly lengthen
processing times. Because the proposed option is less burdensome on F
and J nonimmigrants and on DHS, DHS does not believe that ending D/S
for all F and J nonimmigrants at timeframes that do not align with the
expected length of stay presents the best way to transition from D/S to
admission for a fixed time period. The proposed transition period is
consistent with the generally applicable policy and allows for the
normal progress for most programs that nonimmigrants should be making.
Further, it ensures that these nonimmigrants are complying with the
terms and conditions of their status by requiring them to apply to
extend their status by the end date on the I-20 or DS-2019, not to
exceed 4 years.
A second option that DHS considered was to allow F and J
nonimmigrants to keep their D/S period of admission until they depart
the United States. The Department rejected this alternative, however,
because one of the main reasons for proposing this rule is to address
current abuse tied to the D/S period of authorized admission. Adopting
this alternative would allow aliens currently violating their
nonimmigrant status to largely avoid the consequences of non-compliance
with U.S. immigration laws by simply remaining in the United States, as
otherwise described in this rule.
Third, DHS evaluated an option to allow F and J nonimmigrants to
retain their D/S admission up to their program end date, with the
transfer to a fixed admission date implemented through any of the
following actions of the nonimmigrant: (i) departure from the United
States; (ii) transfer to a different institution or sponsor; (iii)
failure to maintain a full course of study; (iv) approval for
reinstatement; \98\ (v) having
[[Page 42086]]
a DSO or RO extend the program end date; (vi) approval for a post-
completion OPT or a STEM OPT extension; or (viii) engaging in any
action that requires the issuance of a new Form I-20 or DS-2019.
However, DHS felt that this alternative may fail to provide adequate
notice to all affected nonimmigrants given the several scenarios under
which the transfer to a fixed period of admission could occur and could
lead to some fraud by DSOs intentionally providing an unnecessarily
long program end date on the Form I-20 prior to the final rule's
effective date. Although this option is relatively similar to the
proposed transition process, to make the transition easier for F
nonimmigrants, J nonimmigrants, ROs, and DSOs, triggering events were
limited to those that result in a change to the program end date, as
well as re-entry to the United States. In addition, while this option
would allow DHS to effectuate the transition of the F and J population
without requiring the expense and workload associated with large
numbers of simultaneous filings, it would not capture those who have
program end dates beyond 4 years from the effective date of the
proposed rule.
---------------------------------------------------------------------------
\98\ See 8 CFR 214.2(f)(16), allowing an F-1 student, under
certain circumstances, to apply for reinstatement with USCIS after
receiving recommendation from the DSO, following a failure to
maintain status.
---------------------------------------------------------------------------
In sum, DHS's proposal is to transition all F and J nonimmigrants
to a fixed admission date by using the program end date noted on their
Form I-20 or DS-2019 (with the exception of F students engaging in
post-completion or a STEM OPT extension who would use their EAD's
expiration date), not to exceed 4 years, plus an additional 60 days for
F nonimmigrants and 30 days for J nonimmigrants as provided in their
previous admission. DHS believes this is a natural way to transition
the majority of these nonimmigrants to a fixed admission date without
creating any loopholes, such as those that could be created by allowing
F and J nonimmigrants to retain their duration of status, potentially
permitting those who are abusing their status to continue to do so
without the oversight and vetting conducted through EOS. It would also
provide all affected nonimmigrants with adequate notice of the events
that would trigger the transition to a fixed admission date and their
responsibilities resulting from such change.
ii. I Nonimmigrants
Turning to I nonimmigrants who are in the United States on the
effective date of the final rule from their existing D/S admission to a
fixed date of admission, DHS proposes an automatic extension of the
length of time it takes the alien to complete his or her activity, for
a period of up to 240 days. See proposed 8 CFR 214.1(m)(3). DHS based
this proposed timeframe on the period of stay authorized in 8 CFR
274a.12(b)(20), which generally provides an automatic extension of
employment authorization of 240 days to aliens, including I
nonimmigrants, whose status has expired but on whose behalf an
application for an extension of stay was timely filed through a Form I-
539, Application to Extend/Change Nonimmigrant Status, see 8 CFR
214.2(i), which currently is also required when an I nonimmigrant
changes employers or information mediums.\99\ DHS believes that
adopting an already established timeframe, to which I nonimmigrants are
already accustomed, is reasonable. Consistent with the current process,
an I nonimmigrant who departs the United States after the final rule's
effective date and would like to return to the United States in that
same status would need to reapply for admission as an I nonimmigrant at
a POE.
---------------------------------------------------------------------------
\99\ See Instructions for Application to Extend/Change
Nonimmigrant Status, available at <a href="https://www.uscis.gov/i-539">https://www.uscis.gov/i-539</a> (last
visited Apr. 1, 2025).
---------------------------------------------------------------------------
I nonimmigrants who seek to remain in the United States longer than
the automatic extension period provided would be required to file an
extension of stay request with USCIS.\100\ In addition to I
nonimmigrants being familiar with the timeframe under 8 CFR
274a.12(b)(20), DHS anticipates that this provision would reduce any
gaps in employment due to USCIS' processing timeframes between the I
nonimmigrant's application for extension and USCIS approval of the
application. It would also facilitate an I nonimmigrant's ability to
complete his or her assignment while temporarily in the United States
on behalf of a foreign media organization, in that it would give ample
time to any I nonimmigrant to either complete that assignment or ask
for an extension, as needed.
---------------------------------------------------------------------------
\100\ In FY 2023, fewer than 33,000 aliens entered the U.S. in I
classification. See DHS FY23, Quarter 4, tbl.4B, supra note 11.
---------------------------------------------------------------------------
Under this proposal, if the EOS request is denied, the alien must
cease working and depart the United States immediately. As with most
other nonimmigrant classifications, they would not be given any period
of time to prepare for departure from the United States after the
denial, and there may be significant immigration consequences for
failing to depart the country immediately. For example, such aliens
generally would begin to accrue unlawful presence the day after the
issuance of the denial. DHS believes this proposed standard provides
parity across nonimmigrant classifications.
Finally, DHS proposes the transition procedures would not apply to
F, J, or I aliens who are outside the United States when the final rule
takes effect, or to any aliens present in the United States in
violation of their status. See proposed 8 CFR 214.1(m).
E. Requirements for Admission, Extension, and Maintenance of Status of
F Nonimmigrants
DHS is proposing various changes under the regulations that provide
the framework for admission, extension, and maintenance of status for F
nonimmigrants. These changes would eliminate D/S, require students to
file an EOS if requesting to remain in the United States beyond the
period of their admission, and clarify terms to ensure that the
activities an F nonimmigrant has engaged in are consistent with those
of a bona fide student.
i. Admission for a Fixed Time Period
As a preliminary matter, DHS is proposing to strike the existing
regulation that allows F nonimmigrants to be admitted for D/S. DHS
would replace it with a provision allowing F nonimmigrants to be
granted status for the length of their program, not to exceed 4 years.
See proposed 8 CFR 214.2(f)(5)(i) and (f)(7)(vi).
Second, DHS proposes to retain in the regulations the statutory
limitation that restricts public high school students to an aggregate
of 12 months of study at any public high school(s). See 8 CFR
214.2(f)(5)(i). However, this proposed rule moves this provision to a
new section and further clarifies that the 12-month aggregate period
includes any school breaks and annual vacations. See proposed 8 CFR
214.2(f)(5)(i)(C). Current requirements, including paying the full cost
of education, would also remain in place.
Third, F-1 students who are applying to attend an approved private
elementary or middle school or private academic high school would
continue to be covered by the provisions of 8 CFR 214.2(f)(6)(i)(E).
These provisions require the DSO to certify a minimum number of class
hours per week prescribed by the school for normal progress toward
graduation. See 8 CFR 214.2(f)(6)(i)(E). However, like all other F-1
students, they would be subject to the 4-year maximum period of
admission, and they would need to apply for an EOS with DHS if staying
beyond this period. See proposed 8 CFR 214.2(f)(7)(vi).
[[Page 42087]]
Fourth, DHS is proposing to exempt part-time border commuter
students from the general length of admission provisions. See proposed
8 CFR 214.2(f)(5)(i)(B). The regulations at 8 CFR 214.2(f)(18) would
continue to govern these border commuter students, including that DHS
continue to admit them for a fixed time period. This proposed rule will
apply to border commuter students attending school in the United States
on a full-time basis.
Fifth, F-1 students in a language training program would be
restricted to an aggregate of 24 months of language study, which would
include breaks and an annual vacation. See proposed 8 CFR
214.2(f)(5)(i)(A). DHS is proposing this limitation as a way to prevent
abuse of the F-1 program. Public Law 111-306, enacted on December 14,
2010, and effective since 2011, requires language training schools
enrolling F-1 students to be accredited by an accrediting agency
recognized by ED. DHS has found students enrolling in lengthy periods
of language training, in some cases for more than two decades.\101\ DHS
has also identified students who enrolled in language training programs
despite previously being enrolled in or completing undergraduate and
graduate programs requiring English language proficiency.\102\ Unlike
degree programs that typically have prescribed course completion
requirements, there are no nationally-recognized, standard completion
requirements for language training programs and students are able to
enroll in language training programs for lengthy periods of time. The
lengthy enrollment in a language program, including enrollment in
language courses for long periods subsequent to completion of a program
of study that requires proficiency in English, raises concerns about
whether the F-1 nonimmigrants meet the statutory definition of a bona
fide student with the intent of entering the United States for
temporary study.\103\ Therefore, DHS proposes a 24-month aggregate
limit for F-1 students to participate in a language training program,
as it would provide a reasonable period of time for students to attain
proficiency while mitigating the Department's concerns about the
integrity of the program. This timeframe generally comports with the
amount of time needed to gain the highest level of English proficiency
under the Cambridge English Exam.\104\
---------------------------------------------------------------------------
\101\ For example, one student has been enrolled in English
language training programs at nine different schools since January
3, 2003. This student is active in SEVIS, reportedly studying
English full time as of May 7, 2025--accounting for more than 22
years of language training. The student's most recent school issued
a program extension changing the student's program end date from
January 2, 2025, to January 2, 2026. The school input the following
reason for the extension: ``Student pursuing advanced level
linguistic studies.'' The school's 2025 catalog contains no
references to linguistic studies--advanced or otherwise--and
indicates the school offers general English academic preparation,
TOEFL preparation, and business English courses. Student Exchange
Visitor Program analysis of data in the Student Exchange Visitor
Information System and valid as of May 7, 2025.
\102\ SEVIS Records show that for example a student who entered
the country in 2005 studied English and then between January 2011
and December 2024, he enrolled in a bachelor's program in Biology/
Biological Sciences, a master's program in Biotechnology, and a
second master's program in Bioinformatics. He also engaged in post-
completion OPT and two periods of STEM OPT. Each of his Forms I-20
indicated the academic programs required English proficiency, and
the student had English proficiency. However, in January 2025, the
student transferred to a language training school and remains active
in SEVIS reportedly engaged in English language training as of May
7, 2025. DHS found at least 20 similar examples. Student Exchange
Visitor Program analysis of data in the Student Exchange Visitor
Information System and valid as of May 7, 2025.
\103\ See INA 101(a)(15)(F).
\104\ According to Cambridge English, it takes approximately
1,000 to 1,200 hours to achieve the highest level of English
proficiency from being a beginner of English. This is based on the
Common European Framework of Reference (CEFR), which is an
international standard for describing language ability. Given that
an academic year is 9 months, it would take the average F-1 student
less than 18 months (or less than 24 months to include summer breaks
and annual vacations) to achieve advanced English proficiency
through guided instruction. See Guided Learning Hours, Cambridge
English, 2025, available at <a href="https://support.cambridgeenglish.org/hc/en-gb/articles/202838506-Guided-learning-hours">https://support.cambridgeenglish.org/hc/en-gb/articles/202838506-Guided-learning-hours</a> (last visited Mar.
31, 2025).
---------------------------------------------------------------------------
Sixth, DHS proposes students with pending employment authorization
applications who are admitted based on the DSO's recommended employment
end date for post-completion OPT or STEM OPT specified on their Form I-
20, with a notice issued by USCIS indicating receipt of the Application
for Employment Authorization, Form I-765 or successor form for post-
completion OPT or STEM OPT, and who cease employment authorized
pursuant to a post-completion OPT- or STEM OPT-based EAD that expires
before the alien's fixed date of admission as noted on their Arrival-
Departure Record (Form I-94 or successor form), be considered to be in
the United States in a period of authorized stay from the date of the
expiration noted on their EAD until the fixed date of admission as
noted on their I-94 (unless the student violates the terms of the
authorized stay). See proposed 8 CFR 214.2(f)(5)(i)(D).
Seventh, the authorized period of stay for F-2 dependents will
continue to not be able to exceed the authorized period of stay of the
principal F-1 alien. DHS proposes adding this requirement to 8 CFR
214.2(f)(5)(i)(E).
ii. Changes in Educational Objectives
Under existing regulations, all F-1 students who change from one
educational level to another or pursue multiple degrees in the same
educational level are considered to be maintaining status. See 8 CFR
214.2(f)(5)(ii). DHS has observed that some students continuously
enroll in different programs at the same degree level, such as by
pursuing multiple associate, master's, undergraduate, bachelor's, or
certificate programs. Alternatively, some students change to a lower
educational level, such as completing a master's degree and then
changing to an associate's program or an English language training
program.\105\ This has enabled some aliens to remain in the United
States for lengthy periods of time in F-1 student status, raising
concerns about the temporary nature of their stay. In 2024, DHS
identified nearly 77,000 F-1 students who have spent more than 10 years
in student status since SEVIS was implemented in 2003.\106\ This
includes individuals who enrolled in programs at the same educational
level as many as 19 times, as well as students who completed graduate
programs and then enrolled in undergraduate programs, including
associate's degrees.
---------------------------------------------------------------------------
\105\ Ibid.
\106\ Student Exchange Visitor Program analysis of data in the
Student Exchange Visitor Information System and valid as of Mar. 17,
2025.
---------------------------------------------------------------------------
DHS has also observed a pattern of students immediately
transferring schools or changing educational levels or programs of
study upon their arrival in the United States. These students often use
an admission letter and Form I-20 from a well-known school to increase
their odds of obtaining a student visa and then immediately request a
transfer to their intended school or program of study once they have
gained admission to the United States. Some of the most egregious
examples are those who apply to a 4-year university, which requires
demonstration of sufficient English level skills for enrollment in
classes through the passage of the Test of English as a Foreign
Language test (commonly known as TOEFL), receive their visa based on
their declared intention of attending a 4-year university, and then
transfer to English language programs upon arrival. Other, more
dangerous examples, include those foreign students who receive a visa
based on their declared intention to study the humanities, but then
transfer into sensitive programs such as nuclear science. A handful of
those have been
[[Page 42088]]
arrested for spying for China.\107\ The existing regulations are
vulnerable to exploitation by aliens who threaten U.S. national
security. This proposed rule is designed to reduce this vulnerability.
Since 2020, there have been over 13,000 F-1 students who transferred
before the start of classes or within their first term, including over
4,400 students transferring from a higher education to English language
training program of study within their first term or session of a
program of study. The number of F-1 students who changed their
educational levels within the first 60 days of their program is close
to 8,400. While the number of students transferring or changing
educational levels represents a small percentage of the total F-1
student population, these transfers are often promoted by third-party
recruiters and other for-profit entities to allow aliens to use the
student visa process to mask their intent in the United States or
circumvent F-1 restrictions.\108\ In addition, school officials are
often burdened with the administrative costs of processing SEVIS
transfer requests from F-1 students who misrepresented their intentions
of studying at their institution.
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\107\ See CNN Politics, Chinese engineer sentenced to 8 years in
US prison for spying, supra note 72, and Select Committee on
Intelligence Hearing (Feb. 13, 2018), supra note 72.
\108\ On May 29, 2020, President Trump signed a Presidential
Proclamation to suspend the entry as nonimmigrants of certain
students and researchers from the People's Republic of China. See
Proc. No. 10043, 85 FR 34353 (May 29, 2020). Since this
proclamation, students often circumvent enforcement of this
proclamation by applying to a permissible program of study to obtain
a student visa and admission to the United States and then
transferring or changing their program of study to engage in
studies, research, and other activities that are prohibited. This is
also a tactic used by international and third-party recruiters. See
Inside Higher Ed., Gaming the Student Visa System (Jan. 12, 2024),
available at <a href="https://www.insidehighered.com/news/global/international-students-us/2024/01/12/international-admission-offices-plagued-fraud-and">https://www.insidehighered.com/news/global/international-students-us/2024/01/12/international-admission-offices-plagued-fraud-and</a> (last visited Mar. 31, 2025).
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While there may be legitimate cases of students who wish to change
their educational objective to gain knowledge at a lower or at the same
educational level, the traditional path of study typically progresses
from a lower educational program to a higher one. The existing
regulations present a model consistent with the majority of bona fide
students who follow this traditional trajectory. The term ``full course
of study'' as defined in the existing regulations requires that the
program ``lead to the attainment of a specific educational or
professional objective.'' \109\ Repeated changes to a program of study
either within the same educational level or to move to a lower level,
as well as immediate changes to a program of study upon initial entry
into the United States, are not consistent with attainment of such an
educational or professional objective. This understanding was reflected
in the preamble to a 1986 rulemaking proposing changes to the F
regulations, which stated: ``The proposed regulation . . . places
limitations on the length of time a student may remain in any one level
of study. Thus, the Service has eliminated applications for [EOS] for
students who are progressing from one educational level to another but
has placed a control over students who, for an inordinate length of
time, remain in one level of study.'' \110\ But, by 1991, INS
eliminated all EOS applications and began to rely on DSO's to make the
decision on whether educational progress was being made. In the decades
that have followed, it has become clear that this has enabled thousands
to stay here for decades by switching programs and not making any
upward progress.\111\
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\109\ See 8 CFR 214.2(f)(6)(i).
\110\ 51 FR 27867 (Aug. 4, 1986).
\111\ By reviewing SEVIS data as of Apr. 4, 2025, DHS has
identified 2,134 aliens who first entered as F-1 students between
2000 and 2010 and remain in active F-1 status today.
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DHS proposes to restrict school transfers and changes of
educational objectives within a student's first academic year of a
program of study, unless an exception is authorized by SEVP, and to
prohibit F-1 students in a graduate level program of study from
changing educational objectives or transferring from within the United
States. ``Educational objectives'' refers to an F-1 student's
educational level or major. See proposed 8 CFR 214.2(f)(5)(ii)(A) and 8
CFR 214.2(f)(8)(i)(b). DHS believes these proposed changes would
accommodate the legitimate academic activities of bona fide students,
such as a desire to pursue a different field of study or more
specialized studies in their current field. These proposed changes
would also provide SEVP with flexibility to grant exceptions for
extenuating circumstances. For example, an exception may be appropriate
when a school closes or when a school has a prolonged inability to hold
in-person classes due to a natural disaster or other causes.
In addition, an alien who has completed a program as an F-1
nonimmigrant at one educational level would be unable to maintain F-1
status, depart and be admitted in F-1 status, or otherwise obtain F-1
status (e.g., via a change of status) through a program at the same
educational level or a lower educational level. See proposed 8 CFR
214.2(f)(5)(ii)(C). However, an F-1 student who has completed a program
in the United States at one educational level and is beginning a new
program at a higher educational level would be considered to be
maintaining F-1 status if they otherwise comply with requirements under
8 CFR 214.2(f). See proposed 8 CFR 214.2 (f)(5)(ii)(B).
DHS believes that it is reasonable for a student to progress to a
higher educational level as that is the traditional trajectory in the
pursuit of higher education. Movement within the same level after
completion of a program or to a lower educational level raises concerns
regarding whether the F-1 alien is a bona fide student who intends to
temporarily and solely pursue a full course of study rather than
pursuing different degrees as a de facto way to prolong their stay in
the United States.
If an F-1 student who has completed their first academic year of a
program of study seeks to change educational objectives and this change
would require an EOS, the alien would then apply for EOS using the form
designated by USCIS, paying the required fee and following all form
instructions, including submitting any biometrics required by 8 CFR
103.16. See proposed 8 CFR 214.2(f)(5)(ii)(D).
DHS recognizes that this proposal may require updates to SEVIS and
other systems. Because the timeframe for those updates is not fixed and
there could be technical issues regarding implementation, DHS is
proposing to include a provision whereby the Department may delay or
suspend implementation, at its discretion, if it determines that the
change in educational level limitation is inoperable for any reason.
See proposed 8 CFR 214.2(f)(5)(ii)(E). If DHS delays or suspends the
provisions in this section governing the change in educational level,
DHS will make an announcement of the delay or suspension to the
academic community through SEVP's various communication channels,
including <a href="http://ICE.gov/sevis">ICE.gov/sevis</a>, Study in the States (<a href="https://studyinthestates.dhs.gov">https://studyinthestates.dhs.gov</a>), and SEVIS Broadcast Message. DHS would also
announce the implementation dates of the change in degree level
provision through SEVP's communication channels (<a href="http://ICE.gov/sevis">ICE.gov/sevis</a>, Study
in the States, and SEVIS Broadcast Message) at least 30 calendar days
in advance.
Additionally, DHS proposes to retain the term ``educational'' with
respect to a change in level as the Department
[[Page 42089]]
believes it accurately reflects current academic models.
Specifically, ``educational'' captures programs for non-degree
students, whereas using a term such as ``degree'' may not. For example,
an F-1 student currently would not qualify for additional post-
completion OPT if he or she changes to a non-degree certificate
program, given that the certificate program is not a ``higher
educational level.'' Similarly, certificate programs for professional
advancement are typically not considered to be a ``higher educational
level'' that would allow F-1 students to qualify for additional post-
completion OPT.
DHS believes these proposals would encourage F-1 students to
complete the programs of study for which they were admitted to the
United States and to only pursue additional programs of study that
demonstrate an upward progression in degree levels, which is expected
from a qualified bona fide student who is coming to the United States
temporarily and solely to pursue a course of study. The Department
believes that these new restrictions would not significantly impact the
choice of bona fide students who come to the United States temporarily
to complete a full course of study. The F-1 program, with its statutory
requirement that an alien be a bona fide student who seeks to enter the
United States temporarily and solely for the purpose of pursuing a full
course of study at the school listed on his or her Form I-20 or
successor form, should not be used by aliens wishing to remain in the
United States indefinitely. These proposals will better ensure that
this statutory intent is fulfilled without hindering the options
presented to bona fide students seeking study at higher educational
levels and thus would create a balanced solution to this issue.
iii. Preparation for Departure
DHS believes that the time allotted for F students to prepare for
departure should be revised from 60 to 30 days. See 8 CFR
214.2(f)(5)(iv) and proposed 8 CFR 214.2(f)(5)(v). Under existing
regulations, F-1 students are provided 60 days following the completion
of their studies and any practical training to prepare for departure
from the United States. See 8 CFR 214.2(f)(5)(iv). However, this is
twice as long as other student and exchange visitor programs (J and M
nonimmigrants). See 8 CFR 214.2(j)(1)(ii) and (m)(10)(i). In addition,
this 60-day period is also six times longer than certain nonimmigrants
who are authorized to remain in the United States for years but are
only provided with a 10-day period to depart the United States. For
example, DHS provides a 10-day period following the end of the alien's
admission period as stated on his or her I-94 for individuals in the E-
1, E-2, E-3, H-1B, L-1, and TN classifications in a 2016
rulemaking.\112\ In the rulemaking discussing this 10-day period for
departure, DHS noted that a grace period of up to 10 days after the end
of an authorized validity period provides a reasonable amount of time
for such nonimmigrants to depart the United States or take other
actions to extend, change, or otherwise maintain lawful status.\113\ It
is thus unclear to DHS why F students would need a significantly longer
period of time--60 days--to prepare for departure when other
nonimmigrants have less time to prepare for departure.\114\
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\112\ See 8 CFR 214.1(l)(1) (providing for 10-day grace periods
for certain nonimmigrants).
\113\ See 81 FR 82398, 82401 (Nov. 18, 2016).
\114\ Rulemakings in the mid-1980s mention this 60-day period
for departure but did not provide any explanation as to why this
period of time to depart was given to students. See e.g., 52 FR
13223 (Apr. 22, 1987) (referencing the proposed rule, and stating
that in the ``proposed regulations, duration of status was defined
to mean the period during which a student is pursuing a full course
of studies in any educational program, and any period or periods of
authorized practical training, plus sixty days,'' but not indicating
the reason for the 60-day period). 51 FR 27867 (Aug. 4, 1986)
(proposing that duration of status would consist of an additional
``sixty days within which to depart from the United States,'' but
silent on the reason for the 60-day period of departure).
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DHS believes that 30 days for the F nonimmigrant population is the
appropriate balance between a 60-day and a 10-day period of departure.
DHS believes that the F classification, albeit distinct from M or J,
shares a core similarity in that many aliens in these classifications
are seeking admission to the United States to study at United States
educational institutions. Thus, DHS thinks that these classifications
should have a standard period of time to prepare for departure, or take
other action to extend, change, or otherwise maintain lawful status.
DHS thinks that 30 days is an adequate period for F-1 students to
prepare for departure and is in line with similar classifications (the
M and J departure periods).
Additionally, in the 2016 rulemaking establishing a 10-day grace
period for certain nonimmigrant classifications, DHS chose to remove
the phrase ``to prepare for departure from the United States or to seek
an extension or change of status based on a subsequent offer of
employment'' from the proposed regulatory text relating to the purpose
of the grace period, with the justification that it was unnecessarily
limiting and did not fully comport with how the existing 10-day grace
period may be used by individuals in the H, O, and P nonimmigrant
[visa] classifications.\115\ DHS clarified that the 10-day grace period
may be granted to these nonimmigrants at time of admission or upon
approval of an EOS or change of status and may be used for other
permissible non-employment activities such as seeking to change one's
status to that of a dependent of another nonimmigrant or vacationing
prior to departure.\116\ DHS notes that seeking an EOS or change of
status is an allowable activity for F aliens during the 30-day
departure period following the completion of their program and believes
this same clarification should be incorporated into this proposed
rulemaking. See proposed 8 CFR 214.2(f)(5)(v).
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\115\ 81 FR 82398, 82402, 82437 (Nov. 18, 2016).
\116\ Id at 82437.
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DHS also proposes to clarify that the proposed period is 30 days
from the Form I-94 (or successor form) end date or the expiration date
noted on the EAD (Form I-766 or successor form), as applicable, to
prepare for departure from the United States, or to otherwise maintain
status, including timely filing an extension of stay application in
accordance with paragraph (f)(7) of this section and 8 CFR 214.1 or
timely filing a change of status application in accordance with 8 CFR
248.1(a). DHS proposes removing the reference to completing a course of
study or a program in order to provide consistency in the admission of
all F-1 and J-1 nonimmigrants and to allow the departure period to be
reflected on the I-94 at admission, so that the F-1 and J-1
nonimmigrants would have an unambiguous end date of their period of
authorized admission, easily referenced on the I-94. USCIS, when
adjudicating applications for a change of status to F-1 and J-1
nonimmigrant status and EOS applications of F-1 and J-1 status would
similarly provide I-797 approval notices reflecting the 30-day
departure period following the program end date or the 4-year maximum
period of admission, or period of OPT or STEM OPT, as applicable. DHS
proposes making corresponding changes in the regulatory text at 8 CFR
214.2(f)(5)(v) where the departure period and I-94 (or successor form)
are discussed.
Finally, DHS proposes to retain the current regulatory language
that allows a 15-day period for departure from the United States if an
alien is authorized by the DSO to withdraw from classes, but no
additional time for departure if the alien fails to maintain a full
course of study without the approval of the DSO or otherwise fails to
maintain
[[Page 42090]]
status. See 8 CFR 214.2(f)(5)(iv) and proposed 8 CFR 214.2(f)(5)(v).
Because DSOs generally authorize withdrawal based on compelling
academic or medical circumstances when a student proactively requests
permission, DHS believes retaining the 15-day period is appropriate.
However, aliens who fail to maintain their full course of study or
otherwise violate their status are required to immediately depart the
United States, as is consistent with other nonimmigrant
classifications. DHS considered allowing a short ``grace period'' for
departure after an EOS denial but does not see a compelling reason to
treat F nonimmigrants who have received a denial more favorably than
other nonimmigrant classifications. As in other nonimmigrant
classifications, failure to immediately depart under these
circumstances could result in accrual of unlawful presence and subject
an individual to removal.
iv. Automatic Extension of Authorized Employment
1. Authorized Status and Employment Authorization Under Proposed 8 CFR
214.2(f)(5)(viii)
Each year, a number of U.S. employers seek to employ F-1 students
and file a Form I-129, Petition for a Nonimmigrant Worker, with USCIS,
along with a change of status request, to obtain classification of the
F-1 student as an H-1B nonimmigrant worker. The H-1B nonimmigrant visa
program allows U.S. employers to temporarily employ foreign workers in
specialty occupations, defined by statute as occupations that require
the theoretical and practical application of a body of highly
specialized knowledge and a bachelor's or higher degree in the specific
specialty, or its equivalent. See INA sections 101(a)(15)(H)(i)(b) and
214(i); 8 U.S.C. 1101(a)(15)(H)(i)(b) and 1184(i). The H-1B
classification, however, is subject to annual numerical allocations,
commonly referred to as a ``cap.'' See INA sections 214(g)(1)(A) and
(g)(5)(C); 8 U.S.C. 1184(g)(1)(A) and (g)(5)(C).\117\ For purposes of
the H-1B numerical allocations, each fiscal year begins on October 1.
Petitioners may not file H-1B petitions more than 6 months before the
date of actual need for the employee.\118\ Thus, the earliest date an
H-1B cap-subject petition may be filed for an allocation for a given
fiscal year is April 1, 6 months prior to the start of the applicable
fiscal year for which initial H-1B classification is sought. Many F-1
students complete a program of study or post-completion OPT in mid-
spring or early summer. Per existing regulations, after completing
their program or post-completion OPT, F-1 students have 60 days (which
DHS is proposing to change to 30 days) to take the steps necessary to
maintain legal status or depart the United States. See 8 CFR
214.2(f)(5)(iv) and proposed 8 CFR 214.2(f)(5)(v). However, because the
change to H-1B status cannot occur until October 1, an F-1 student
whose program or post-completion OPT expires in mid-spring has two or
more months following the 60-day period before the authorized period of
H-1B status can commence. To address this situation, commonly known as
the ``cap-gap,'' DHS established regulations that automatically
extended F-1 D/S and, if applicable, post-completion OPT employment
authorization for certain F-1 nonimmigrants until April 1 of the fiscal
year for which the H-1B status is being requested or until the validity
start date of the approved petition, whichever is earlier. See 8 CFR
214.2(f)(5)(vi). The extension of F-1 D/S and OPT employment
authorization is commonly known as the ``cap-gap extension.''
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\117\ Under INA 214(g)(1)(A), 8 U.S.C. 1184(g)(1)(A), 65,000
aliens may be issued H-1B visas or otherwise provided H-1B
nonimmigrant status in a fiscal year. This limitation does not apply
to aliens who have earned a master's or higher degree from a U.S.
institution of higher education, as defined in 20 U.S.C. 1001(a),
until the number of aliens who are exempted from such numerical
limitation during such year exceeds 20,000. INA 214(g)(5)(C), 8
U.S.C. 1184(g)(5)(C).
\118\ See 8 CFR 214.2(h)(2)(i)(I).
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2. F-1 Status and Authorized Employment While EOS and/or Employment
Authorization Applications Are Pending
DHS proposes to strike ``duration of status'' from redesignated 8
CFR 214.2(f)(5)(vii) and clarify that an alien with F-1 status whose
admission period as indicated on his or her I-94 has expired, but who
has timely filed an EOS application, would be authorized to continue
pursuing a full course of study after the end date of his or her
admission until USCIS adjudicates the EOS application. See proposed 8
CFR 214.2(f)(5)(viii). This change would provide ongoing authorization
to continue studies as long as the student has timely filed his or her
EOS and will not penalize students if USCIS is unable to adjudicate an
EOS application before a student's new term or course of study is
underway. In such cases, students would be able to continue pursuing
their full course of study.
The shift to a fixed date of admission has implications for various
types of employment authorization. Currently, DSOs may authorize
certain types of employment authorization, including on campus
employment and CPT,\119\ and students generally do not need to be
concerned about a specific expiration date for their student status,
and thus their employment authorization, because they are admitted for
duration of status. This rule would change that framework with
different implications for various types of employment authorization.
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\119\ See 8 CFR 214.2(f)(9)-(12), 8 CFR 274a.12(b)(6)(iv).
---------------------------------------------------------------------------
For on-campus employment where no EAD is needed, DHS proposes to
allow aliens in F-1 status to continue to be authorized for on-campus
employment while their EOS applications with USCIS are pending, not to
exceed a period of 240 days.\120\ See proposed 8 CFR 214.2(f)(5)(viii).
If the EOS application is still pending after 240 days have passed, the
F-1 student would no longer be authorized for employment and would need
to stop engaging in on-campus employment. DHS is proposing a 240-day
automatic extension period in order to minimize disruptions to on-
campus employment by teaching assistants, post-graduates working on
research projects, and other positions that are integral to an F-1
student's educational program.
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\120\ See 8 CFR 214.2(f)(9)(i) for a description of on-campus
employment. For on-campus employment that is based on severe
economic hardship resulting from emergent circumstances pursuant to
8 CFR 214.2(f)(5)(v), see later discussion for additional
restrictions.
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Likewise, DHS is proposing an automatic extension of off-campus
employment authorization for up to 240-days during the pendency of the
EOS application, for F-1 aliens who had previously demonstrated severe
economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and had
previously received an EAD from USCIS that expired at the program end
date that is now being extended with the EOS application. See proposed
8 CFR 214.2(f)(5)(viii). These circumstances may include loss of
financial aid or on-campus employment without fault on the part of the
student, substantial fluctuations in the value of currency or exchange
rate, inordinate increases in tuition and/or living costs, unexpected
changes in the financial condition of the student's source of support,
medical bills, or other substantial and unexpected expenses. In such
cases, DHS believes a 240-day automatic extension of employment
authorization would help alleviate the severe economic hardship and
avoid a disruption in their employment, especially given the fact that
an EAD is
[[Page 42091]]
required and the frequency at which these students must submit an
application for employment authorization.\121\ Additionally, given that
USCIS's average EAD processing time is typically 60-210 days for
foreign students and 90-120 for most others, a 240-day timeframe
provides sufficient flexibility in case of unexpected delays.\122\
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\121\ See 8 CFR 274a.12(c)(3). 8 CFR 214.2(f)(9)(ii)(F)(2)
provides that employment authorization based upon severe economic
hardship may be granted in one-year intervals up to the expected
date of completion of the student's current course of study.
\122\ USCIS Processing Times for Employment Authorization,
available at <a href="https://www.uscisguide.com/national-visa-center/processing-times-for-employment-authorization/">https://www.uscisguide.com/national-visa-center/processing-times-for-employment-authorization/</a> (last visited Mar.
26, 2025).
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For F-1 aliens granted off-campus employment authorization on the
basis of severe economic hardship resulting from emergent circumstances
pursuant to existing 8 CFR 214.2(f)(5)(v), DHS is proposing an
automatic extension of such employment authorization with a different
validity period than the general 8 CFR 214.2(f)(9)(ii)(C) severe
economic hardship employment authorization extension described above
while their EOS applications are pending. This will codify USCIS's
current policy, which states USCIS may grant Special Student Relief
(SSR) employment authorization for the duration of the Federal Register
notice validity period, but the period of authorization may not exceed
the F-1 student's academic program end date.\123\
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\123\ See generally USCIS Policy Manual, Vol. 2, Part F, Chap.
6, available at <a href="https://www.uscis.gov/policy-manual/volume-2-part-f-chapter-6">https://www.uscis.gov/policy-manual/volume-2-part-f-chapter-6</a> (last visited Mar. 27, 2025).
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As first promulgated in 1998, the SSR regulations provide necessary
flexibility to address unforeseeable emergencies by allowing DHS, by
notice in the Federal Register, to suspend the applicability of some or
all of the requirements for on- and off-campus employment authorization
for specified F-1 students where an emergency situation has arisen
calling for this action. These F-1 students must continue to attend
classes but are allowed to take a reduced course load. By regulation,
aliens approved for SSR must take at least 6 semester or quarter hours
of instruction at the undergraduate level or 3 semester or quarter
hours of instruction at the graduate level. See existing 8 CFR
214.2(f)(5)(v). Failure to take the required credits could be
considered a failure to maintain F-1 status. The SSR regulations are
announced by notice in the Federal Register and such employment may
only be undertaken during the validity period of the SSR notice.
Due to the shift to a fixed admission period, DHS proposes to
provide an automatic extension of SSR-based employment so aliens'
ability to benefit from this long-standing regulatory relief is not
interrupted by USCIS processing times. This change is consistent with
current USCIS policy, which allows for SSR employment authorization to
be granted for the duration of the Federal Register notice validity
period, so long as the period of authorization may not exceed the F-1
student's academic program end date. It is also consistent with
existing practice for certain nonimmigrants who require an EAD.\124\
DHS proposes to automatically extend SSR authorization if an F-1 alien
has a timely-filed EOS pending for up to the end date stated in the
Federal Register notice announcing the suspension of certain
requirements, or 240 days, whichever is earlier. See proposed 8 CFR
214.2(f)(5)(viii).
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\124\ See 8 CFR 214.2(f)(10)-(12), 8 CFR 274a.12(b)(6)(iv).
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As evidence of these automatic extensions of employment
authorization, DHS is proposing that the F-1 alien's I-94 (or successor
form) or EAD (Form I-766, or successor form), for F-1 nonimmigrants
requiring an EAD, when combined with a notice issued by USCIS
indicating receipt of a timely filed EOS application (such as the Form
I-797), would be considered unexpired until USCIS issues a decision on
the EOS application, not to exceed 240 days. See proposed 8 CFR
214.2(f)(5)(viii). SSR-based employment authorization that has been
automatically extended can be evidenced by the F-1 alien's EAD and the
receipt notice issued by USCIS (the Form I-797), not to exceed the
lesser of 240 days or the end date stated in the Federal Register
notice announcing the suspension of certain requirements.
v. New Process for EOS Application
Under existing regulations, F-1 students may obtain a program
extension from a DSO as long as they are maintaining status and making
normal progress toward the completion of their educational objectives.
See existing 8 CFR 214.2(f)(7)(i) and (iii). The problem with the
``normal progress'' standard is that it is undefined, and DHS believes
that retaining it could lead to inconsistent adjudications. Even now,
the lack of a standard definition for normal progress leads DSOs to
inconsistently extend F-1 students' program end dates and thus their
stay in the United States. Some DSOs use a strict standard, evaluating,
for example, documentation to support a student's claim of a compelling
medical condition or illness that serve as the basis for the student's
request for extension of the student's current program. However, other
DSOs claim that the student is making ``normal progress'' whenever a
student simply needs more time to complete the program. This
inconsistency results in some students being able to remain in F-1
status for years simply by having the DSO update the Form I-20 without
providing a justification as to how the student is making ``normal
progress'' and what academic or medical circumstances necessitate the
extension of the program.
Therefore, DHS proposes not to use a ``normal progress'' standard
with respect to seeking a program extension of an authorized period of
stay. In addition to the requirement that the applicant obtain a Form
I-20 from the DSO recommending extension of the program, the applicant
would be required to file an EOS application to request additional time
to complete their current course of study beyond their authorized
period of admission. See proposed 8 CFR 214.2(f)(7)(i).
Apart from pursuing a new course of study, DHS appreciates that the
time for study can legitimately fluctuate given the changing goals and
actions of the student. For example, a student may experience
compelling academic or medical reasons or circumstances beyond their
control that cause them to need additional time in the United States
beyond the predetermined end date of the program in which they were
initially enrolled. DHS understands these circumstances arise and
believes these scenarios present an appropriate situation for the
Department to directly evaluate the nonimmigrant's eligibility for
additional time in the United States. However, instead of effectively
extending their stay through a DSO's program extension recommendation
in SEVIS, students would have to obtain a Form I-20 from the DSO
recommending a program extension and apply to USCIS for an EOS under
the proposed regulations. Immigration officers thereby would be able to
conduct appropriate background and security checks on the applicant at
the time of the EOS application and directly review the proffered
evidence to ensure that the alien is eligible for the requested EOS,
including through assessing whether the alien remains admissible. See 8
CFR 214.1(a)(3)(i). This extra step is necessary because an immigration
officer will be able to see a more fulsome picture while considering
the
[[Page 42092]]
student's particular circumstances, and be able to identify potential
fraud and criminality, thereby ensuring public safety and program
integrity.
In these circumstances, the Department would only extend the stay
beyond the prior admission date (typically the program end date for
which the student was admitted to the United States as a F-1
nonimmigrant or was granted based on a change of status or EOS) of an
otherwise eligible F-1 student requesting additional time to complete
their program if the additional time needed is due to a compelling
academic reason, documented medical illness or medical condition, or
circumstance that was beyond the student's control. As with all
nonimmigrant EOS, an alien seeking an EOS generally must have
continually maintained status.\125\ If an F-1 student dropped below a
full course of study, that drop must have been properly authorized. F-1
students seeking extensions of stay must primarily be seeking to
temporarily stay in the United States solely to pursue a full course of
study, INA section 101(a)(15)(F)(i), 8 U.S.C. 1101(a)(15)(F)(i), and
not for other reasons separate from, or in addition to, pursuing a full
course of study. If an F-1 student were to violate the terms of his or
her F-1 status, the F-1 student would need to apply to USCIS for
reinstatement, consistent with current 8 CFR 214.2(f)(16). If a student
is reinstated and his or her admit until date expires within 6 months,
but the student is unable to complete his or her program of study
within that time, then the F-1 student also would need to apply to
USCIS for an EOS. In that scenario, the F-1 student would need to make
separate requests for reinstatement and for EOS by submitting a
separate form for each request, including the required filing fee for
each form, by marking reinstatement on one form and then EOS on the
other. Both forms can then be submitted together at the same time to
avoid unnecessary adjudication delays. In the event both forms are
submitted together, and the F-1 student's application to reinstate
student status is denied, his or her application for EOS would also be
denied, with both filing fees being retained by USCIS and not refunded.
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\125\ Failure to file on or before the expiration of the
previously accorded status or failure to maintain such status may be
excused at the discretion of USCIS if the alien demonstrates that at
the time of filing: the delay was due to extraordinary circumstances
beyond the control of the applicant, and USCIS finds the delay
commensurate with the circumstances, the alien has not otherwise
violated his or her status, and is not subject to deportation. See 8
CFR 214.1(c)(3)(viii).
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By way of illustration, a student with a fixed date of admission
may request an additional 4 months to complete his or her program
because the student was authorized to drop below a full course of study
for one semester due to illness. Under the existing regulation, the
student would need to request an updated Form I-20 from the DSO
recommending a program extension. Under the proposed regulation, an
immigration officer could review the proffered evidence and ensure that
the claim is supported by documentation from a medical doctor.
Conversely, a student may request an EOS for additional time to
complete an associate program but fail to submit evidence they were
properly authorized to drop below a full course of study. Under the
proposed regulation, the immigration officer would have discretion to
request transcripts from the student. If a student's transcripts
reflect that the student failed multiple classes one semester, an
immigration officer could determine the student has failed to maintain
status due to a failure to carry a full course of study as required. In
another example, a student could submit an EOS request to continue in
the same program because he or she was unable to take all the required
classes for his or her major due to over-enrollment at the school.
Again, an officer could request additional information, if needed, to
determine that the student was maintaining a full course of study (or,
if not, was properly authorized to reduce his or her course load), but
due to the school's high enrollment, the student may validly require an
additional semester to complete the degree requirements in order to
graduate.
Therefore, DHS is proposing to eliminate a reference to ``normal
progress'' with respect to seeking a program extension and incorporate
a new standard clarifying that acceptable reasons for requesting an
extension of a stay for additional time to complete a program are: (1)
compelling academic reasons; (2) a documented illness or medical
condition; or (3) exceptional circumstances beyond the control of the
alien. See proposed 8 CFR 214.2(f)(7)(i)(C).\126\ The first two factors
are based on the current regulatory provisions for program extension, 8
CFR 214.2(f)(7)(iii), from current text (e.g., changes of major or
research topics, and unexpected research problems). DHS proposes to
clarify that, in addition to academic probation and suspension, a
student's repeated inability or unwillingness to complete his or her
course of study, as demonstrated by a pattern of failing classes and
requesting multiple program extension, is not an acceptable reason to
request an EOS for additional time to complete a program. See proposed
8 CFR 214.2(f)(7)(i)(C)(1). DHS expects bona fide students to be
committed to their studies,
[…truncated; see source link]Indexed from Federal Register on August 28, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.