How eliminating D/S will impact current students

In my previous blog post titled Proposal to eliminate F and J visa duration of status & decrease the grace period, DHS (Department of Homeland Security)’s legislative changes that restrict international students were discussed. In summary, it tries to establish a fixed time period of admission and an extension of stay procedure for F visa holders (nonimmigrant academic students), J visa holders (exchange visitors), and I visa holders (representatives of foreign information media). The proposed regulation- eliminating D/S that impacts current students- has received 32,083 comments from the public including students, higher education professionals, associations just to name a few.

Now, how this new rule would impact current international students? There’s one part in the proposed rule regarding the “transition provision,” and NAFSA: Association of International Educators well outlined how students would be affected by the rule. This blog post is a must know for current international students who are studying in the United States as it will decide how long you can study and stay in the United States.

Contents

• Eliminating D/S for Current students in the United States
• Current students who seek reentry after the final rule effective date
• Eliminating D/S and OPT and STEM OPT participants

Eliminating D/S for Current students in the United States

Current regulation

F and J students, who have all the required documents when they enter the United States, will be stamped D/S (Duration of Status). This allows students to stay as long as the program end date on their I-20s (for F visa) or DS-2019s (for J visa), plus grace periods (60 days for F students and 30 days for J students). As D/S is not a fixed date, students are not required to file any additional forms to extend their stays to participate in OPT, STEM OPT, change their education levels or transfer to other institutions.

The proposed rules

Under the proposed rule, F or J nonimmigrants previously admitted for D/S would be transitioned to a fixed date of admission, which would be:

• the program end date of the Form I-20 (or OPT EAD) or DS-2019 that is valid on the final rule’s effective date,
• plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants, but
• not to exceed a period of 4 years from the final rule’s effective date (even if in a “2-year” category)

In other words, students who are enrolled in 4-year category eligible schools will be allowed to stay until the program end date that is written on the I-20 or DS-2019 plus allowed grace period. However, if the program end date is beyond the 4 years from the “effective date of final rule,” these students are required to go through an extension of the stay process.

This applies to students who are enrolled in unaccredited schools. For those readers who didn’t get to read my previous blog post Proposal to eliminate F and J visa duration of status & decrease the grace period, I will explain briefly regarding the “4-year” and “2-year” category here. According to the proposed rules, students who are enrolled in unaccredited higher education institutions will only be granted 2 years to stay and study in the United States. After the initial 2 years, students will have to complete the extension of stay form (I-539, Application To Extend/Change Nonimmigrant Status) and go through the process to finish their degree. This new “2-year” rule will not apply for current students who are maintaining F and J status in the United States regardless of which institutions they are enrolled in.

Transition provision. The status of F and J nonimmigrants who are in the United States for “duration of status” on the future effective date of a final rule 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 an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. The proposed regulatory wording would be added by a new paragraph at 8 CFR 214.1(m):
(m) Transition period from duration of status to a fixed admission date—
(1) Transition from D/S admission to a fixed admission period for aliens properly maintaining F and J status on [EFFECTIVE DATE OF FINAL RULE]. Aliens with F or J status who are properly maintaining their status on [EFFECTIVE DATE OF FINAL RULE] with admission for duration of status are authorized to remain in the United States in F or J nonimmigrant status until the later date of either the expiration date on an Employment Authorization Document (Form I-766, or successor form), or the program end date noted on their Form I-20 or Form DS-2019, as applicable, not to exceed a period of 4 years from [EFFECTIVE DATE OF FINAL RULE], plus the departure period of 60 days for F nonimmigrants and 30 days for J nonimmigrants.

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

Current students who seek reentry after the final rule effective date

Current regulation

(Same as the first scenario) F and J students, who have all the required documents when they enter the United States, will be stamped D/S (Duration of Status). This allows students to stay as long as the program end date on their I-20s, plus grace periods (60 days for F students and 30 days for J students). As D/S is not a fixed date, students are not required to file any additional forms to extend their stays to participate in OPT, STEM OPT, change their education levels or transfer to other institutions.

The proposed rules

Current students who seek to re-enter the United States after the final rule effective date, become subject to the new fixed date rule. Therefore, how long the student can stay and study in the States will be evaluated at the border. If the student is enrolled in the college that is considered in a “2-year” category, he or she will be admitted for a 2-year maximum.

Eliminating D/S and OPT and STEM OPT participants

Current regulation

Regardless of how long it took for F students to finish the program, students can file the OPT application. If the OPT request is approved, students can stay until the OPT end date plus 60 days of grace period. If the OPT request is denied, students can stay until the program end date plus the grace period.

The proposed rules

Pasted below is NAFSA’s summary of the proposed rules’ implications on OPT/STEM OPT applicants:

• F-1 applicants for OPT or STEM OPT whose I-765 is pending with USCIS on the final rule effective date could remain in the U.S. while the application is pending. They would not have to file an I-539 or re-file an I-765.
• If USCIS approves the OPT, the F-1 could remain in F status until the expiration date of the OPT EAD, plus 60 days.
• If USCIS denies the OPT: If the student’s program end date has not yet passed, could remain in the United States until the program end date listed on their Form I-20, plus 60 days. If the program end date and 60-day grace period has passed by the time USCIS denies the I-765, student must immediately depart the United States with no grace period.

Additionally, what would happen to OPT applicants who apply after the final rule is in full swing? It is highly likely that they need to file Form I-539 along with Form I-765 (Application for Employment Authorization) given that both first and second scenarios allow students to stay until the program end date on their I-20s.

Below is the regulation regarding the employment authorization that is going to be added under the current regulations.

(1) Transition from D/S admission to a fixed admission period for aliens properly maintaining F and J status on [EFFECTIVE DATE OF FINAL RULE]. … Any authorized employment or training continues until the program end date on such F or J nonimmigrant’s Form I-20 or DS-2019, as applicable and as endorsed by the DSO or RO for employment or training, or expiration date on Employment Authorization Document (Form I-766, or successor form).

(2) Pending employment authorization applications with USCIS on [EFFECTIVE DATE OF FINAL RULE] filed by aliens with F-1 status. F-1 aliens described in paragraph (m)(1) of this section who have timely and properly filed applications for employment authorization pending with USCIS on [EFFECTIVE DATE OF FINAL RULE] do not have to file for an extension or re-file such applications for employment authorization, unless otherwise requested by USCIS.

(i) If the F-1’s application for post-completion OPT or STEM-OPT employment authorization is approved, the F-1 will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60-days. If the employment authorization application is denied, the F-1 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 long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status.

(ii) Aliens in F-1 status with pending employment authorization applications, other than post-completion OPT and STEM-OPT, who continue to pursue a full course of study and otherwise meet the requirements for F-1 status, 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 application is approved or denied.

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

Now that the public comment section is closed, there’s nothing we can do about the rule. Updates on this rule will be shared on the blog so don’t forget to subscribe to the newsletter and follow @sevissavvy (Instagram, @sevissavvy.fb for Facebook) on social media.