Currently, F-1 students and their dependents are admitted to the U.S. for a flexible period of time, noted on the I-94 as having a D/S end date. Duration of Status (D/S) is tied to the I-20 and allows a student to stay in the U.S. to attend the school indicated on their I-20 until the end of their program or the end of their I-20, whichever comes first, plus any authorized practical training, plus a 60 day graced period.  Students may extend their D/S by obtaining a new I-20 to extend their stay, change to a new program or level of study, transfer to a new school or apply for practical training. Extensions of D/S are generally accomplished by a notification to SEVIS.

J-1 students are admitted to the U.S. for the duration of their program, as indicated on their DS-2019, plus any authorized Academic Training, plus a 30-day grace period. J-1 scholars are similarly admitted, although the maximum period of D/S is determined by their J-1 category (6 months, 1 year or 5 years depending on whether short-term scholar, student-intern or research scholar/professor).

The proposed rule would eliminate D/S and, instead, give F-1/J-1 students, scholars and their dependents a specific end date on their I-94, which indicates how long they may stay in the U.S.  Students/scholars who are unable to complete their program by the end date would be required to request an extension from their school/J program and then apply to U.S. Citizenship and Immigration Services (USCIS) for an Extension of Stay (EOS). Currently, per USCIS posted processing times, it is taking 5.5 to 7.5 months for USCIS to process I-539 applications.

In addition to the elimination of D/S, DHS is proposing to limit students/scholars to 2 years or 4 years, depending on several factors.  Students/scholars who need more than 2/4 years would have to apply to USCIS for an EOS.

A 2-year limit would be imposed on:

• individuals who were born in or are citizens of countries the U.S. government has designated as State Sponsors of Terrorism (North Korea, Iran, Sudan and Syria),
• students/scholars from countries with a total F/J overstay rate greater than 10%,
• students/scholars at schools/programs that do not fully participate in E-Verify, and
• students/sholars when the US government determines it is in the national interest to limit a group of people to a 2-year admission period.

A 4-year limit would be imposed on students/scholars who are not otherwise indicated above, unless their program is less than 4 years in length.

The grace period allows F-1 students time to prepare to depart the U.S. after the completion of their program, allows them to apply for Optional Practical Training, or allows them to request an I-20 for a new program at the same or another school (“transfer”). The proposed rule reduces the grace period for F-1 students from 60 days to 30 days. The grace period for individuals in J status is currently 30 days and would remain unchanged under this proposal.

Currently, students in F-1 status are not restricted from pursuing multiple degrees at the same level or from downward matriculations (PhD to master’s degree participation, for example). The proposed rule would limit the number of times an F-1 student could pursue degree programs at the same level (3 times, lifetime) or could pursue a degree at a lower academic level (1 time, lifetime).

If the proposed rule goes into effect, it appears that most students will need to apply for an Extension of Stay (EOS) at least once, either to complete their studies or when seeking to extend their status to apply for OPT. Students who do need to apply for an EOS would have to submit an application, and pay a fee, to U.S. Citizenship and Immigration Services (USCIS). The application would require submission of biometrics (fingerprints) and proof of funding.

In some cases (F-1/J-1 on campus employment, STEM OPT), students and scholars could continue to work while the Extension of Stay (EOS) is pending (up to 180 or 240 days). In other cases (CPT, 12-month OPT), the EOS would have to be approved in order for the student to have employment eligibility. Timely filing applications will be very important if this proposed rule goes into effect.