Washington Update

DHS Proposes New Rules for F and J Visa Programs

By: Tianlu Ma
Wednesday, October 14, 2020

On September 25, the U.S. Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking that affects international academic students and visiting scholars and postdoctoral fellows with F and J visas, respectively. The proposed rule would change the admission period from “duration of status” to a fixed time period of two or four years.

Current regulations allow F and J visa holders to be admitted for a “duration of status,” or as long as the visa holder complies with the terms and conditions of their nonimmigrant categories. Extensions for the enrolled program are granted through the Designated School Official (DSO) for F nonimmigrant students or the Alternate or Responsible Officer (ARO/RO) for J nonimmigrant exchange visitors. Approval of the extension for the enrolled program also extends the legal length of stay in the U.S.

DHS suggests current regulations do not allow immigration officers to check in regularly with F and J nonimmigrants, potentially leading to abuse and violation of the visa programs. To address this issue, the proposed rule would change the admission period from “duration of status” to a fixed period of four years or two years for applicants who pose national security, fraud, or overstay concerns. To maintain legal status at the end of this time, F and J visa holders would be required to leave the U.S. and apply for admission at a port of entry or apply with their DSO or ARO/RO for an extension of their enrolled program and file an additional Extension of Stay (EOS) application with U.S. Citizenship and Immigration Services (USCIS). Granted extensions could not exceed a maximum of four years.

In response to concerns that F nonimmigrant students continually enroll in educational programs to remain in the U.S. indefinitely, the proposed rule would place a lifetime limit of three programs at the same educational level and one program at a lower educational level for F visa holders. F visa holders would also have to apply with both their DSO and USCIS to change educational programs. Additionally, under the proposed rule, the grace period for F visa holders at the end of their program to either leave the U.S. or apply to maintain legal status would be decreased from 60 to 30 days. For F nonimmigrant students filing H-1B applications, the automatic “cap-gap extension,” which allows F students to legally remain in the U.S. between the end of the enrolled educational program and October 1, would be extended for six months to April 1 to provide increased time for USCIS to process H-1B applications.

The 30-day comment period for the proposed rule ends on October 26.