[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 [www.gpo.gov]
[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:
Federal eRulemaking Portal: https://www.regulations.gov.
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 https://www.regulations.gov, 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 https://www.regulations.gov 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:
Email (alternative): [email protected] (include
the docket number and ``Attention: Desk Officer for U.S. Immigration
and Customs Enforcement, DHS'' in the subject line of the email).
Fax: 202-395-6566.
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
https://www.regulations.gov 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 https://www.regulations.gov. 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 https://www.regulations.gov 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
https://ohss.dhs.gov/topics/immigration/yearbook-immigration-statistics/yearbook-2023 (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 https://ohss.dhs.gov/sites/default/files/2023-12/Yearbook_Immigration_Statistics_1997.pdf (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 https://ohss.dhs.gov/sites/default/files/2024-06/2024_0507_ohss_legal-immigration-adjustment-of-status-fy-2023q4.xlsx (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 https://www.gao.gov/assets/hrd-83-27.pdf (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), https://georgewbush-whitehouse.archives.gov/news/releases/2001/10/text/20011030-2.html (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:
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.
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.
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.
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, (https://www.gpo.gov/fdsys/pkg/CPRT-110HPRT39618/pdf/CPRT-110HPRT39618.pdf), 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 https://studyinthestates.dhs.gov/sites/default/files/I-20_Intial.pdf (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 https://fam.state.gov/FAM/09FAM/09FAM040205.html (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 https://fam.state.gov/FAM/09FAM/09FAM040205.html (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\
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\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
https://archive.org/details/statisticalyearb1997bunit/page/n3/mode/2up (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 https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html (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 https://www.justice.gov/archive/usao/fls/PressReleases/2010/100830-02.html (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 https://www.ice.gov/news/releases/pastor-sentenced-1-year-visa-fraud-ordered-forfeit-building-housing-former-religious (last visited Mar. 20, 2025);
Press Release, U.S. Dep't of Justice, School Official Admits Visa
Fraud (Mar. 12, 2012), available at https://www.justice.gov/archive/usao/pae/News/2012/Mar/tkhir_release.htm (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 https://www.ice.gov/news/releases/owner-georgia-english-language-school-sentenced-immigration-fraud (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 https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud (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 https://www.ice.gov/news/releases/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15
(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 https://www.goffwilson.com/Blawg-entries/2019/former-DSO-Official-Guilty-of-Visa-Fraud.aspx (last visited Mar. 20,
2025); ImmigrationReform.com, U.S. Removes 4,600 Fraudulent OPT
Participants from the Program, (July 14, 2020), available at https://www.immigrationreform.com/2020/7/2014/OPT-fraud-dhs-crackdown-immigrationreform-com (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 https://www.gao.gov/assets/gao-14-356.pdf
(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.
---------------------------------------------------------------------------
\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 https://www.gao.gov/assets/700/697630.pdf (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 https://www.gao.gov/assets/320/317762.pdf (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 https://www.gao.gov/assets/600/591668.pdf (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 https://www.gao.gov/products/GAO-19-297?mobile_opt_out=1#summary_recommend (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 https://www.cnn.com/2023/01/25/politics/chinese-engineer-sentence-spying-intl-hnk/index.html (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 https://media.nbcbayarea.com/2019/09/KellyHuangCriminalComplaint.pdf (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 https://www.justice.gov/usao-ndil/pr/chinese-businesswoman-sentenced-37-months-federal-prison-conspiracy-commit-visa-fraud (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 https://www.intelligence.senate.gov/hearings/open-hearing-worldwide-threats
(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 https://www.finance.senate.gov/imo/media/doc/05JUN2019RodiSMNT.pdf (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 https://www.gao.gov/assets/gao-23-106114.pdf (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 https://www.uscc.gov/annual-report/2019-annual-report (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\
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\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 https://www.justice.gov/archives/opa/pr/chinese-government-employee-charged-manhattan-federal-court-participating-conspiracy (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 https://www.justice.gov/usao-sdny/pr/chinese-government-employee-convicted-participating-conspiracy-defraud-united-states (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.
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\79\ See Boston Herald, China may be behind theft of bio samples
by Harvard-sponsored Chinese student, fed says (Dec. 30, 2019),
available at 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/ (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
https://www.thedailybeast.com/china-might-be-behind-harvard-student-zaosong-zhengs-theft-of-cancer-research-feds-claim (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 https://www.justice.gov/archives/opa/pr/harvard-university-professor-and-two-chinese-nationals-charged-three-separate-china-related (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.
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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 https://www.justice.gov/usao-ndca/pr/officer-china-s-people-s-liberation-army-arrested-los-angeles-international-airport (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 https://www.justice.gov/usao-edmi/pr/chinese-nationals-charged-conspiracy-and-smuggling-dangerous-biological-pathogen-us.
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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.
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\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 https://i94.cbp.dhs.gov/ (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:
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).
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.
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).
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).
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 https://nces.ed.gov/programs/digest/mobile/The_Structure_of_American_Education.aspx
(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 https://nces.ed.gov/programs/digest/d23/tables/dt23_326.10.asp (last visited
Apr. 25, 2025).
\93\ See The Student and Exchange Visitor Program (SEVP), 2023
SEVIS by the Numbers Report, available at https://www.ice.gov/doclib/sevis/btn/24_0510_hsi_sevp-cy23-sevis-btn.pdf (last visited
Apr. 1, 2025).
\94\ Other programs include associate degrees, language training
programs, and Ph.D. programs, among others.
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
\96\ See U.S. Dept. of Justice Memo, Cook, Acting Asst. Comm.
Programs, HQ 70/6.2.9 (June 18, 2001), available at https://www.uscis.gov/sites/default/files/document/memos/Travpub.pdf (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 https://studyinthestates.dhs.gov/traveling-as-an-international-student (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
https://www.ice.gov/sevis/travel (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.
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\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.
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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.
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\99\ See Instructions for Application to Extend/Change
Nonimmigrant Status, available at https://www.uscis.gov/i-539 (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.
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\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\
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\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 https://support.cambridgeenglish.org/hc/en-gb/articles/202838506-Guided-learning-hours (last visited Mar.
31, 2025).
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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 https://www.insidehighered.com/news/global/international-students-us/2024/01/12/international-admission-offices-plagued-fraud-and (last visited Mar. 31, 2025).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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 ICE.gov/sevis, Study in the States (https://studyinthestates.dhs.gov), and SEVIS Broadcast Message. DHS would also
announce the implementation dates of the change in degree level
provision through SEVP's communication channels (ICE.gov/sevis, 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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 https://www.uscisguide.com/national-visa-center/processing-times-for-employment-authorization/ (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 https://www.uscis.gov/policy-manual/volume-2-part-f-chapter-6 (last visited Mar. 27, 2025).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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, attending classes as required, carrying a
full course of study, and making reasonable efforts toward program
completion. Repeatedly failing classes demonstrates that the student is
not making reasonable efforts toward completing his or her program of
study. Therefore, a student who has a pattern of failing classes that
has resulted in multiple program extensions would not be qualified for
an EOS. The prohibition against requesting an EOS would not include
students such as those who, pursuant to DHS regulations, are making
normal progress toward completing their program of study and still may
not complete the program within 4 years due to the standard timeline
and requirements for the program. Absent such factors as being placed
on academic probation or suspension, or repeatedly failing classes,
these students would be eligible for extension based upon compelling
academic reasons. The prohibition would also not include cases in which
the DSO properly authorized the student to drop below a full course of
study as well as cases in which the status has been reinstated
following a loss of status. In such a case, the student is eligible for
reinstatement if the reduced course load was within a DSO's power to
authorize. A student would be expected to provide evidence
demonstrating the compelling academic reason in order for the DSO to
recommend a program extension. The student may then apply for an EOS.
While a letter from the student may be sufficient to meet his or her
burden of proof, an immigration officer will evaluate the individual
case and make the determination as to whether additional evidence (such
as a letter from a member of the school administration or faculty) is
needed to adjudicate the case.
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\126\ DHS did not propose to update the term ``normal progress''
as defined in 8 CFR 214.2(f)(6)(i)(E) because the Department did
believe it addresses the same concerns as it does at 8 CFR
214.2(f)(5). The provision at 8 CFR 214.2(f)(6)(i)(E) relates to
study at an approved private elementary or middle school or public
or private academic high school. In that context, it is clear that
``normal progress'' is the completion of the academic year (for
example, 6th grade).
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Next, DHS is proposing to clarify that a student can qualify for a
program extension and corresponding EOS based on a documented illness
or medical
[[Page 42093]]
condition. To provide an objective standard, DHS proposes to codify
standards already included in 8 CFR 214.2(f)(6)(iii)(B), which require
a student to provide medical documentation from a licensed medical
doctor, licensed doctor of osteopathy, licensed psychologist, or
licensed clinical psychologist to substantiate the illness or medical
condition if seeking a reduced course load. See proposed 8 CFR
214.2(f)(7)(i)(C)(2). As this is already a long-standing requirement
for DSOs and students in a similar context, DHS believes that it would
be appropriate and easy to implement in the program extension and
corresponding EOS process. Further, requiring applicants to provide
documentation of their medical illness or medical condition that caused
their program delay is a reasonable request, because they are asking
DHS to provide them additional time in the United States.
DHS is also proposing a new factor in the EOS provisions--
circumstances beyond the student's control, including a natural
disaster, a national health crisis, or the closure of an institution.
See proposed 8 CFR 214.2(f)(7)(i)(C)(3). As in the reinstatement
context, DHS believes that there might be additional reasons beyond
compelling academic or documented medical reasons that result in a
student's inability to meet the program end date listed on the Form I-
20.
Therefore, DHS is proposing a third prong that would encompass
scenarios that are not envisioned in the current provisions governing
the extension of a program end date, such as those noted above. Some
scenarios are currently in the reinstatement provisions, 8 CFR
214.2(f)(16)(i)(F), such as natural disasters, pandemics, and the
negligence of a DSO, and DHS believes that they merit favorable
consideration in extension requests moving forward. Other scenarios may
present circumstances that require a more intensive, fact-specific
analysis and may fall into this proposed third prong. For example, the
circumstances surrounding the closure of a school may be considered in
determining whether the student qualifies for an EOS. By way of
illustration, if a school closes as a result of a criminal conviction
of its owners for engaging in student visa fraud by not requiring
students to attend, but the student is unable to demonstrate that he or
she was attending classes prior to closure as required to fulfill a
full course of study, the closure of the institution might not qualify
the student for a program extension. In contrast, if a school closes
but a student is able to demonstrate that he or she was attending
classes and was fulfilling all requirements to otherwise remain in
status, the closure of the institute may qualify the student for a
program extension.
The requirements to timely request an extension of the program end
date would remain largely unchanged; however, DHS proposes a technical
change to replace all references to the DSO ``granting'' an extension
of the program with the term ``recommend'' an extension of the program
in order for the student to file for EOS because USCIS, not the DSO,
would ``grant'' the EOS. See proposed 8 CFR 214.2(f)(7)(ii). For
example, a student may not necessarily be granted an EOS by USCIS if an
adjudicator determines the student has not actually maintained status
or does not actually have compelling academic or documented medical
reasons for the delay, despite the DSO's recommendation for program
extension. Where the alien requests a recommendation to extend the
program end date, the DSO could only make a recommendation to extend
the program if the alien requested the extension before the program end
date noted on the most recent Form I-20, or successor form.
Additionally, consistent with proposed changes throughout this NPRM,
once the DSO recommends the extension of the program, the alien would
need to timely file for an EOS on the form and in the manner designated
by USCIS, with the required fees and in accordance with the filing
instructions, including any biometrics required by 8 CFR 103.16 and a
valid, properly endorsed Form I-20 or successor form, showing the new
program end date barring extraordinary circumstances. See 8 CFR
214.1(c)(4) and proposed 8 CFR 214.2(f)(7)(ii) and (f)(7)(iii).
If seeking an EOS to engage in any type of practical training, the
alien in F-1 status would also need to have a valid Form I-20, properly
endorsed for practical training, and be eligible to receive the
specific type of practical training requested. See proposed 8 CFR
214.2(f)(7)(v). Finally, as with all immigration benefit requests, an
immigration officer would generally not grant an EOS where an alien in
F-1 status failed to maintain his or her status.
Finally, a student's failure to timely request, from the DSO, a
recommendation for extension of the program end date prior to
expiration of the student's authorized stay, which would result in the
DSO recommending an extension of the program end date in SEVIS after
the end date noted on the most recent Form I-20 or successor form,
would require the alien to file for a reinstatement of F-1 status,
because the alien would have failed to maintain status and would be
ineligible for an EOS. See proposed 8 CFR 214.2(f)(7)(viii). A request
for reinstatement must be filed in the manner and on the form
designated by USCIS, with the required fee, including any biometrics
required by 8 CFR 103.16. DHS is also requiring F-2 dependents seeking
to accompany the F-1 principal student to file applications for an EOS
or reinstatement, as applicable. These requirements are consistent with
current provisions.
With the transition from D/S to admission for a fixed time period,
F-1 students would need to apply for an EOS directly with USCIS, by
submitting the appropriate form and following the requirements outlined
in the form instructions. USCIS anticipates accepting the Form I-539,
Application to Change/Extend Nonimmigrant Status, for this population
but would like the flexibility to use a new form if more efficient or
responsive to workload needs. Thus, DHS is proposing to use general
language to account for a possible change in form in the future. See
proposed 8 CFR 214.2(f)(7)(iii)(A). If the form ever changes, USCIS
would provide stakeholder's advance notice on its web page and comply
with Paperwork Reduction Act requirements.
Like all other aliens who file a Form I-539, F-1 applicants might
be required to submit biometrics and may be required to appear for an
interview pursuant to 8 CFR 103.2(b)(9).
In addition, applicants would need to demonstrate that they are
eligible for the nonimmigrant classification sought. Accordingly,
applicants must submit evidence of sufficient funds to cover expenses.
A failure to provide such evidence would render the applicant
ineligible for the EOS. See proposed 8 CFR 214.2(f)(7)(i).
While the sponsoring school is required to verify the availability
of financial support before issuing the Form I-20, they may not be
well-versed in foreign documentation submitted by applicants and
circumstances may change between the issuance of a Form I-20 and a
request for an EOS. Further, it is incumbent upon DHS to determine the
veracity of the evidence submitted, and officers must ensure that the
student has sufficient funds to study in the United States without
resorting to unauthorized employment. The phrase ``sufficient funds to
cover expenses'' is referred to in existing DOS regulations concerning
issuance of F and M nonimmigrant student visas, 22 CFR
[[Page 42094]]
41.61(b)(1)(ii), and current DOS policy requires an applicant to
provide documentary evidence that sufficient funds are, or will be,
available to defray all expenses during the entire period of
anticipated study.\127\ While this does not mean that the applicant
must have cash immediately available to cover the entire period of
intended study, which may last several years, the applicant must
demonstrate enough readily available funds to meet all expenses for the
first year of study and that additional funds will be available for the
duration of the intended period of study.\128\ DHS believes requiring
evidence of readily available financial resources to cover expenses for
one year of study is reasonable given that F students are familiar with
this requirement because this is the standard used by the DOS in the
issuance of F nonimmigrant visas. DHS also considers that this standard
is appropriate because it establishes concrete resources for one full
academic year of the program. Further, applicants must demonstrate
that, barring unforeseen circumstances, adequate funds will be
available for each subsequent year of study from the same source or
from one or more other specifically identified and reliable financial
sources. Such evidence for one year and subsequent years could include,
but is not limited to: complete copies of detailed financial account
statements for each account intended to be used to fund the student's
education; other immediately available cash assets; receipts and/or a
letter from the school accounts office indicating tuition payments
already made and any outstanding account balance; affidavits of support
from a sponsor; proof of authorized private student loans; \129\ and/or
other financial documentation.
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\127\ See 9 FAM 402.5-5(G), Adequate Financial Resources,
available at https://fam.state.gov/FAM/09FAM/09FAM040205.html (last
visited Mar. 20, 2025).
\128\ Id.
\129\ Federal student loans are only available to U.S. citizens
and permanent residents.
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F-1 applicants generally would need to timely file their EOS
application--meaning that USCIS would need to receive the application
on or before the date the authorized admission period expires. See
proposed 8 CFR 214.2(f)(7)(iii)(B). This application timeframe for
timely filing an EOS application would include the 30-day period of
preparation for departure allowed after the completion of studies or
any authorized practical training. However, if the extension
application is received during the 30-day period of preparation for
departure provided in proposed 8 CFR 214.2(f)(5)(v) following the
completion of studies, the alien in F-1 status may continue studying
but may not continue or begin engaging in practical training or other
employment until the extension request is approved and, as applicable,
an EAD is issued. See proposed 8 CFR 214.2(f)(5)(iii)(B).
The length of the extension granted could be up to the period of
time needed to complete the program or requested practical training,
not to exceed 4 years, unless the alien is a border commuter, enrolled
in language training, or attending a public high school, in which case
further restrictions apply, as described above. By permitting admission
only ``up to'' the prescribed period, USCIS and CBP are afforded
discretion as to the ultimate length of time to grant the applicant and
consider factors such as program length.
F-2 dependents seeking to accompany the F-1 principal student would
need to file applications for an EOS or reinstatement, as applicable.
See proposed 8 CFR 214.2(f)(7)(iv). A dependent F-2 spouse and
unmarried children under the age of 21 seeking to accompany the
principal F-1 student during the additional period of admission would
need to either be included on the primary applicant's request for
extension or properly file their own EOS applications on the form
designated by USCIS. If the dependent files a separate Form I-539, he
or she would need to pay a separate Form I-539 filing fee. However, if
the dependent files a Form I-539A as part of the primary applicant's
EOS request on a Form I-539, only one fee would be required.
USCIS generally would need to receive the extension applications on
or before the expiration of the previously authorized period of
admission, including the 30-day period following the completion of the
course of study, as indicated on the F-2 dependent's I-94. To qualify
for an EOS, the F-2 dependent would need to demonstrate the qualifying
relationship with the principal F-1 student who is maintaining status,
also be maintaining his or her own status, and not have engaged in any
unauthorized employment. See proposed 8 CFR 214.2(f)(7)(iv). Extensions
of stay for F-2 dependents would not be able to exceed the authorized
admission period of the principal F-1 student. By removing duration of
stay for family members, DHS is ensuring that a spouse who engages in
unauthorized employment would be denied extensions of stays and must
return home.
Under proposed 8 CFR 214.2(f)(7)(vii), if USCIS denies the request
for an extension, and the period of admission for the student and his
or her dependents has expired, then the student and his or her
dependents would need to immediately depart the United States. As with
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 standard provides parity
across nonimmigrant classifications and invites the public to submit
comments on this issue as well as the proposed EOS application process.
vii. School Transfers and Changes in Educational Objectives
As discussed above, a significant concern with the current D/S
framework is that it has enabled fraudulent ``pay-to-stay'' schemes in
which students were falsely reported as maintaining status in return
for cash payments to DSOs. In some cases, school owners have operated
multiple schools and transferred students between these schools to
conceal this fraud. For example, in 2018, a defendant was sentenced by
a federal judge in the Central District of California to 15 months in
prison and ordered to forfeit more than $450,000 for running such a
scheme involving three schools that he owned.\130\ Furthermore, as
discussed more thoroughly above, the D/S framework has enabled some
aliens to become ``professional students'' who spend years enrolled in
programs at the same educational level (for example, multiple associate
degree programs) or complete programs at one educational level and
enroll in lower educational levels (such as completing a master's
degree and then enrolling in an associate program). DHS believes the
proposed changes previously discussed regarding admission for a fixed
time period and limitations on program changes within and between
educational levels will help to address these concerns and serve to
further strengthen the integrity of the F nonimmigrant visa
classification by better ensuring that aliens are in the
[[Page 42095]]
United States primarily to study, rather than to reside permanently in
the United States. See proposed 8 CFR 214.2(f)(8)(i).
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\130\ Press Release, U.S. Dep't of Justice, Owner of Schools
that Illegally Allowed Foreign Nationals to Remain in U.S. as
`Students' Sentenced to 15 months in Federal Prison (Apr. 19, 2018),
available at https://www.justice.gov/usao-cdca/pr/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15
(last visited March 3, 2025).
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DHS proposes to retain some of the current school transfer and
change of educational level conditions. First, as is the case
currently, aliens would need to begin classes at the transfer school or
program within 5 months of transferring out of the current school or
within 5 months of the program completion date on his or her current
Form I-20; and second, if the alien is authorized to engage in post-
completion OPT, he or she must be able to resume classes within 5
months of changing programs or transferring out of the school that
recommended OPT or the date the OPT authorization ends, whichever is
earlier. See proposed CFR 214.2(f)(8)(i)(E) and (F).
Another indication of a violation of F-1 status is failing to
pursue a full course of study at the school that the alien is
authorized to attend. See proposed 8 CFR 214.2(f)(8)(i). DHS is
proposing to retain the current provisions rendering aliens who do not
pursue a full course of study ineligible to change programs or transfer
schools, and is clarifying that failure to pursue a full course of
study includes, but is not limited to, a student whose pattern of
behavior demonstrates a repeated inability or unwillingness to complete
his or her course of study. Just as delays caused by unacceptable
patterns of behavior, academic probation or suspension would not be
acceptable reasons for program extensions and corresponding EOS of a
student's current program, neither would they be an acceptable reason
for failing to carry a full course load. Such aliens would have failed
to maintain F status, are ineligible for a change of program and school
transfers, and would be required to file for a reinstatement of status,
if eligible. See proposed 8 CFR 214.2(f)(8)(i).
DHS also proposes clarifying that a change to a higher education
level can be accomplished in accordance with the transfer procedures
outlined in paragraph (f)(8)(ii) of 8 CFR 214.2 See proposed 8 CFR
214.2(8)(iii).
Next, if the new program to which the student changes or transfers
will not be completed within the authorized admission period
established in paragraphs (f)(5)(i) of 8 CFR 214.2, then, consistent
with the other provisions throughout this proposed rule, the F-1
student would need to apply for EOS in the manner and on the form
designated by USCIS, with the required fee and in accordance with form
instructions, together with a valid, properly endorsed Form I-20
indicating the new program end date, and would need to provide
biometrics as authorized by 8 CFR 103.16, if required. See proposed 8
CFR 214.2(f)(8)(iv).
viii. Border Commuter Students
DHS proposes to strike the sentence referencing how ``duration of
status'' is inapplicable to border commuter students because DHS is
proposing to eliminate D/S for all F nonimmigrants. See proposed 8 CFR
214.2(f)(18)(iii).
ix. Severability
In the event a provision in the section was not implemented, DHS
proposes that the remaining provisions be implemented as an independent
rule in a severability clause. See proposed 8 CFR 214.2(f)(20).
F. Requirements for Admission, Extension, and Maintenance of Status of
J Exchange Visitors
i. Initial Admission Period and Period of Stay
1. Principal Applicants
The proposed revisions to the J regulations at 8 CFR closely align
with the proposed changes for F nonimmigrants. Under proposed 8 CFR
214.2(j)(1), J exchange visitors would be able to receive an initial
period of admission not to exceed the program end date as stated on the
Form DS-2019, up to a period of 4 years. Currently, the permissible
initial time periods for J program categories (as opposed to the
periods of admission) are as follows, though further extensions are
possible with DOS approval for all categories:
Professors and research scholars: The length of program,
not to exceed 5 years. See 22 CFR 62.20(i)(1).
Short-term scholars: The length of the program not to
exceed 6 months. See 22 CFR 62.21(g).
Trainees and interns: General trainees may be granted 18
months; trainees in the field of agriculture, hospitality and tourism
may be granted 12 months, and interns may be granted 12 months. See 22
CFR 62.22(k).
College and university students: The length of time
necessary to complete the goals and objectives of the training. See 22
CFR 62.23(f)(4). For undergraduate and pre-doctoral academic training,
not to exceed 18 months, and for post-doctoral training, not to exceed
a total of 36 months. 22 CFR 62.23(f)(4). Students enrolled in a degree
program do not have a definite admission period but must comply with
duration of participation requirements at 22 CFR 62.23(h).\131\ If
enrolled in a non-degree program, students may be granted up to 24
months. See 22 CFR 62.23(h)(2).
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\131\ A student who is in a degree program may be authorized to
participate in the Exchange Visitor Program as long as he or she is
either: (i) Studying at the post-secondary accredited academic
institution listed on his or her Form DS-2019 and: (A) Pursuing a
full course of study as set forth in 22 CFR 62.23(e), and (B)
Maintaining satisfactory advancement towards the completion of the
student's academic program; or (ii) Participating in an authorized
academic training program as permitted in 22 CFR 62.23(f). See 22
CFR 62.23(h).
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Student intern: Up to 12 months. See 22 CFR 62.23(h)(3)
and (i).
Teachers: The length of time necessary to complete the
program, not to exceed 3 years, unless a specific extension of 1 or 2
years is authorized by DOS. See 22 CFR 62.24(j).
Secondary school students: Not more than two academic
semesters (or quarter equivalency). See 22 CFR 62.25(c)(2).
Specialists: The length of time necessary to complete the
program, not to exceed 1 year. See 22 CFR 62.26(i).
Alien physicians: Limited to 7 years, unless the alien
physician has demonstrated to the satisfaction of the Secretary of
State that the country to which the alien physician will return at the
end of additional specialty education or training has an exceptional
need for an individual with such additional qualification. See 22 CFR
62.27(e).
International visitors: The length of time necessary to
complete the program, not to exceed 1 year. See 22 CFR 62.28(g).
Government visitors: The length of time necessary to
complete the program, not to exceed 18 months. See 22 CFR 62.29(h).
Camp counselors: 4 months. See 22 CFR 62.30(h)(2).
Au pairs: Not more than 1 year. See 22 CFR 62.31(c)(1).
Summer work travel: Up to 4 months. See 22 CFR 62.32(c).
As with the F classification, many J exchange visitors are admitted
to participate in programs shorter than 4 years. Some J exchange
visitors, like most F nonimmigrants, enter as post-secondary students.
Similar to the F-1 Ph.D. student, some J nonimmigrants, like
physicians, may need to stay longer than a 4-year period to complete
their J program. However, all categories of J nonimmigrants would be
covered by the same 4-year period proposed for F nonimmigrants. As
such, DHS strives to treat these similarly situated nonimmigrants in a
consistent manner by providing them with the same proposed maximum
admission period.
[[Page 42096]]
DHS is implementing the same 4-year maximum period of admission. See
proposed 8 CFR 214.2(j)(1)(ii)(A). This would help ensure compliance by
providing consistency between the J program and the F program, which
have programmatic similarities in that both go through the SEVIS system
and need approval by their respective DSOs or ROs for exchanges and
changes.
DHS proposes to retain the 30-day period that J nonimmigrants are
provided before the report date or start of the approved program listed
on the DS-2019 and the 30-day period for preparation for departure. As
DHS expects these nonimmigrants to use the 30-day period of time after
the program ends to prepare for departure, the Department proposes to
revise the language currently in 8 CFR 214.2(j)(1)(ii) that reads,
``period of 30 days for the purposes of travel or for the period
designated by the Commissioner . . .,'' to instead read ``a period of
30 days from the program end date or the 4-year maximum period of
admission, whichever is earlier, for the purposes of departure or to
otherwise seek to maintain lawful status.'' See proposed 8 CFR
214.2(j)(1)(ii)(C). DHS believes that the proposed language more
accurately reflects the purpose of the period at the end of the program
and accounts for other ways J exchange visitors may seek to maintain
status during this period, such as by filing an EOS or change of status
application. As explained in the context of F-1s above, DHS proposes
changes to clarify that all J-1 nonimmigrants will be allowed the 30-
day departure period following their program end date or the 4-year
maximum period of admission.
2. Dependents
Consistent with the EOS eligibility requirements for J-1
nonimmigrants found at 8 CFR 214.1(c)(4), DHS proposes to codify the
policy that extensions for spouses or children who are granted J-2
status based on their derivative relationship as a spouse or child of
the principal J-1 nonimmigrant may not exceed the period of authorized
admission of the principal J-1. The existing regulations state that the
initial admission of a spouse or children may not be for longer than
the principal exchange visitor.\132\ That is, the authorized period of
initial admission for J-2 dependents would be subject to the same
requirements as the J-1 exchange visitor and may not exceed the period
of authorized admission of the principal J-1 exchange visitor. See
proposed 8 CFR 214.2(j)(1)(ii)(B).
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\132\ See 8 CFR 214.2(j)(1)(ii).
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ii. EOS
The shift from D/S to admission for a fixed time period would mean
that J nonimmigrants wishing to remain in the United States beyond
their authorized period of stay would need to file for an EOS with
USCIS. Like other nonimmigrants applying for EOS, they would need to
file an EOS application on the form and in the manner designated by
USCIS, with the required fee and in accordance with filing
instructions, including any biometrics required by 8 CFR 103.16. See
proposed 8 CFR 214.2(j)(1)(iv)(A). J-1 nonimmigrants seeking a program
extension will continue to first request such an extension through the
RO, as provided for under existing regulations.\133\ If such a program
extension is recommended by the RO and approved by DOS, if necessary,
the J-1 must apply for an EOS with USCIS to remain in the U.S. beyond
the status expiration date on their I-94.
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\133\ See 22 CFR 62.43, describing J-1 program extension
procedures.
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There are times when an exchange visitor's program status becomes
inactive prior to program completion, which would result in the RO
recommending a reinstatement of J-1 status to include an extension of
the program beyond the end date noted on the most recent Form DS-2019
or successor form.\134\ A request for reinstatement must be filed in
the manner designated by DOS, with the required fee. If the DOS
approves the reinstatement, the RO shall provide the exchange visitor
with a new Form DS-2019 and the exchange visitor must file for an
extension of stay with USCIS within 30 calendar days of the DOS's
decision.
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\134\ One example is when a sponsor issues Form DS-2019 for one
year at a time for exchange visitors on multi-year programs. Prior
to the end of the first year, the sponsor should have submitted an
extension prior to the Program End Date but failed to do so and now
must submit a Reinstatement. If approved, the request would change
the status of the exchange visitor from Inactive to Active and
extend the Program End Date for another year.
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A dependent J-2 spouse and children seeking to accompany the J-1
exchange visitor in eligible J-1 categories during the additional
period of admission would either need to be included on the primary
applicant's request for extension or file their own EOS applications on
the form designated by USCIS and may be required to provide biometrics
consistent with 8 CFR 103.16. See proposed 8 CFR 214.2(j)(1)(iv)(D). If
a J-1 exchange visitor is denied EOS, then the J-2 family members will
also be denied EOS, and all will be required to leave the United States
immediately. However, a J-2 family member also could be denied EOS for
other reasons, including due to criminal activity or not maintaining
his or her status, for example, by working when not authorized, and
would be required to depart the United States, but the J-1 and other J-
2 dependents would be allowed to remain in the United States if EOS is
approved for them.
As with other nonimmigrant classifications, the period of stay for
J-2 dependents cannot exceed the period of stay authorized for the
principal J-1 exchange visitor, including any EOS granted. And, as with
other nonimmigrant classifications, if an EOS request is denied, the
aliens would need to immediately depart the United States once their
authorized period of stay expires.
iii. Employment and Pending EOS and Employment Authorization
Applications
Like I nonimmigrants, J-1 exchange visitors in some categories are
authorized to engage in employment incident to status.\135\ This means
that they are authorized to work per the terms of their program, and
they do not have to apply to USCIS for authorization to engage in
employment. If an alien's J-1 status has expired, but he or she timely
filed an EOS application, DHS proposes to allow the alien to continue
engaging in activities consistent with the terms and conditions of the
alien's program, including any employment authorization, beginning on
the day after the admission period expires, for up to 240 days. See 8
CFR 274a.12(b)(20). As discussed in more detail below, DHS also
proposes to allow an alien whose J-1 status has expired but who timely
filed an extension of stay application on or before 6 months after the
effective date of the final rule (or longer if extended by DHS by an
announcement in the Federal Register), to engage in J-1 activities,
including authorized training and employment, as permitted by the
alien's exchange visitor program, while the EOS application is pending
with USCIS, for the period up to the program end date on the DS-2019
(or successor
[[Page 42097]]
form) filed with the pending application. Such authorization would be
subject to any conditions and limitations of the initial authorization.
See proposed 8 CFR 214.2(j)(1)(vii). This policy is consistent with
current practice and prevents J-1 exchange visitors from being
penalized on account of USCIS processing times, allows the alien to
participate in the program without interruption, and, as applicable,
prevents disruption to U.S. institutions employing or otherwise relying
on the alien.
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\135\ See 8 U.S.C. 1101(a)(15)(J) (including teaching,
instructing, lecturing, and consulting among the permissible
activities of nonimmigrants in the J classification for
participation in programs authorized by the Department of State); 8
CFR 214.2(j)(1)(v) (discussing employment authorization for J
exchange visitors); 22 CFR 62.16 (stating that an exchange visitor
program participant may receive compensation ``when employment
activities are part of the exchange visitor's program'').
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If the alien's initial date of admission passes, DHS proposes to
consider the alien's I-94 unexpired when combined with a USCIS receipt
notice indicating receipt of a timely filed EOS application and a
valid, properly endorsed Form DS-2019 indicating his or her program's
end date. An EOS application would be considered timely filed if the
date on the receipt notice for the application of EOS is on or before
the date the authorized stay expires. The extension of an alien's
employment authorization would terminate on the date of denial of an
individual's application for an EOS. See proposed 8 CFR
214.2(j)(1)(iv)(E). DHS believes that such provision would clarify how
exchange visitors would demonstrate authorization to continue engaging
in employment authorized pursuant to their program and better
facilitate employer compliance with I-9 employment verification
requirements.
Unlike J-1 exchange visitors, J-2 spouses and eligible children may
only engage in employment with authorization by USCIS. See 8 CFR
214.2(j)(1)(v) and 8 CFR 274a.12(c)(5). DHS also proposes to retain the
current restriction on the J-2 dependent's income described in 8 CFR
214.2(j)(1)(v)(A); the J-2 nonimmigrant's income may be used to support
the family's customary recreational and cultural activities and related
travel, among other things, but not to support the J-1. See proposed 8
CFR 214.2(j)(1)(v).
Consistent with current regulatory requirements, if a J-2 dependent
wants to engage in employment, he or she will need to file an
application for employment authorization, in the manner designated by
USCIS, with the required fee and in accordance with form instructions.
If a J-2 dependent nonimmigrant's requested period of employment
authorization exceeds his or her current admission period, the J-2
dependent would need to file an EOS application or be included as part
of the J-1 principal's EOS application in the manner designated by
USCIS, with the required fee and in accordance with form instructions.
The validity of the J-2 dependent's employment authorization may not
exceed the authorized admission period granted to the J-2 dependent
pursuant to the EOS application. See proposed 8 CFR 214.2(j)(1)(iv)(A),
(j)(1)(v), and (j)(1)(vii)(C).
As noted above in the discussion concerning EOS applications for F
nonimmigrants, DHS considered but declined to adopt a policy that will
result in abandonment of the EOS application upon traveling outside the
United States while the EOS is pending. A J-1 or J-2 alien who travels
during the time the EOS is pending may not be considered to have
abandoned the EOS application. See proposed 8 CFR 214.1(c)(8).
DHS proposes to allow J-1 nonimmigrants to continue employment or
authorized training while an EOS application is pending with USCIS.
Specifically, DHS proposes to allow J-1s who have properly filed an EOS
on or before 6 months after the effective date of the final rule, to
engage in the activities consistent with pursuing the terms and
conditions of the exchange program objectives, including authorized
training, while the EOS is pending, up to the DS-2019 end date filed
with the EOS application. If a J-1 nonimmigrant's EOS is still pending
upon the end date of the DS-2019 filed with the EOS application, and
the J-1 obtains a program extension from the sponsor and/or DOS, as
applicable, DHS proposes to allow the alien to continue engaging in
activities consistent with the exchange program objectives, including
authorized training, so long as the EOS application is pending, and he
or she has filed a subsequent EOS request with an end date beyond the
DS-2019 end date requested in the preceding EOS request. In the future,
the date which is initially 6 months after the effective date of the
final rule may be extended, if DHS determines such an extension is
necessary. See proposed 8 CFR 214.2(j)(1)(vii).
Finally, DHS proposes minor technical updates. First, in 8 CFR
214.2(j)(1)(vi) DHS proposes to strike the reference to duration of
status, to update references to the ``Commissioner'' to refer to USCIS,
and to replace the title with `Automatic Extension of J-1 stay and
grant of employment authorization for aliens who are the beneficiaries
of a cap-subject H-1B petition' to eliminate the prior reference to
``duration of status'' and to provide more details on the paragraph.
Second, because proposed 8 CFR 214.2(j)(1)(vii) is being revised to
describe J nonimmigrants with pending EOS applications and their
employment authorization, it is necessary to revise and reassign
existing 8 CFR 214.2(j)(1)(vii) and (viii) to proposed 8 CFR
214.2(j)(1)(viii) and (ix) respectively. Third, DHS proposes conforming
amendments to the provision which requires exchange visitors to report
legal changes to their name and any changes in their address, replacing
the term `Service' with `USCIS' and clarifying the number of days
during which changes need to be reported by revising from 10 days to 10
`calendar' days for exchange visitors to report changes in their names
and addresses and from 21 days to 10 business days for the RO to update
SEVIS, in order to conform with existing DOS regulations.\136\ See
proposed 8 CFR 214.2(j)(1)(ix). This change is proposed because the
differing number of days for ROs to report changes between DHS and DOS
regulations may cause confusion given that the time frames are both
regarding the requirement for ROs to update changes in SEVIS, and this
change provides for a common timeframe. In that same provision, DHS
proposes to strike the sentence which references non-SEVIS programs, as
SEVIS enrollment is now a mandatory requirement. Finally, in the event
a provision in the paragraph was not implemented, DHS proposes that the
remaining provisions be implemented as an independent rule in a
severability clause. See proposed 8 CFR 214.2(j)(6).
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\136\ 22 CFR 62.10(d)(3) clarifies that the J-1 exchange visitor
must inform the RO or ARO of address changes within ``10 calendar
days'' of the change, and 22 CFR 62.10(d)(4) states that the
reporting window for ROs or AROs to update SEVIS is ``10 business
days'' from receiving the J-1 exchange visitor's address change
notification from the J-1 exchange visitor.
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G. Requirements for Admission, Extension, and Maintenance of Status of
I Nonimmigrants
i. Definition of Foreign Media Organization
Changes in technology and in the way that the public consumes media
information have raised novel questions as to whether certain
individuals fit within the statutory and regulatory provisions that are
applicable to representatives of foreign information media. To address
these questions, DHS proposes to define a foreign media organization as
``an organization engaged in the regular gathering, production or
dissemination via print, radio, television, internet distribution, or
other media, of journalistic information and has a home office in a
foreign country.'' See proposed 8 CFR 214.2(i)(1).
[[Page 42098]]
This proposal clarifies long-standing practice that the alien be a
representative of a media organization with a home office in a foreign
country by codifying what is considered a foreign media organization
when seeking qualification as an I nonimmigrant.\137\ By requiring
evidence that shows that the foreign organization that employs or
contracts the I nonimmigrant has a home office in a foreign country,
and that the office in a foreign country continues to operate while the
I nonimmigrant is in the United States, DHS would help ensure that the
I nonimmigrant, at the time of application for admission, change of
status, or application for EOS, is a bona fide representative of
foreign media organization. See proposed 8 CFR 214.2(i)(2). Further, to
conform to the statutory intent of the I classification, DHS is
proposing to clarify and codify the DOS and USCIS long-standing
practice interpreting ``foreign information media'' under INA
101(a)(15)(I) as ``journalistic information.'' This standard is in
place when aliens apply for an I visa abroad or seek to change to I
nonimmigrant status in the United States and aligns with statutory
intent, which is to facilitate foreign press and journalism, rather
than for entertainment or promotional purposes, such as performing or
appearing on reality television programs. There are other options for
those aliens, such as the O or P nonimmigrant classifications.\138\
---------------------------------------------------------------------------
\137\ See generally USCIS Policy Manual, Vol. 2, Part K, Chap.
2. Available at https://www.uscis.gov/policy-manual/volume-2-part-k-chapter-2 (last visited Apr. 8, 2025); 22 CFR 41.52; 9 FAM 402.11-
3(a)(1), available at https://fam.state.gov/FAM/09FAM/09FAM040211.html (last visited Apr. 9, 2025).
\138\ INA section 101(a)(15)(O) or (P), 8 U.S.C. 1101(a)(15)(O)
or (P).
---------------------------------------------------------------------------
DOS is the entity that determines whether an alien qualifies for an
I visa, while USCIS is the entity that determines whether an alien who
is in the United States in another nonimmigrant status can change to I
status or whether an I alien who is already in the United States and
seeks to change his or her employer or information medium continues to
qualify for an I status. USCIS and DOS guidance discuss the distinction
between journalistic content and content that is primarily for
entertainment. DOS considers journalistic information as content that
is primarily informational in nature, such as the reporting on recent
or important events, investigative reporting, or producing educational
materials, such as documentaries. It does not include content that is
primarily designed to provide entertainment rather than information,
including scripted or contrived situations, such as most ``reality
television'' shows. It also does not include most personal content,
such as discussions of personal experiences in the United States or
materials aimed at fan engagement or works produced for promotional or
marketing purposes.\139\ DOS' definition aligns with current USCIS
practice where the ``officer should consider whether the intended use
is journalistic, informational, or educational, as opposed to
entertainment. The officer should also consider the foreign
distribution of the film or video footage in addition to other factors,
including the timeliness of the project relative to the subject
event.'' \140\
---------------------------------------------------------------------------
\139\ See DOS guidance for consular officers adjudicating I visa
applications at 9 FAM 402.11-3, Definitions of ``Information Media
Representative'' and ``Journalistic Information,'' available at
https://fam.state.gov/FAM/09FAM/09FAM040211.html (last visited Apr.
9, 2025).
\140\ See USCIS Policy Manual, Vol. 2, Part K, Chap. 3,
available at https://www.uscis.gov/policy-manual/volume-2-part-k-chapter-3 (last visited Apr. 8, 2025) (stating that
``[i]ncreasingly, because of the growing popularity of documentary-
type biographies and similar nonfiction film productions, the
distinction between commercial filmmaking for entertainment and
genuine news gathering is less clear. For example, filmed
biographies may be regarded as documentary filmmaking or as news
gathering.'').
---------------------------------------------------------------------------
Consistent with DOS guidance and current USCIS practice, whether
content is journalistic information would depend on the nature of the
content featured on the new media outlet. For example, a political
blogger traveling to the United States to cover an election could
qualify for I status, as election coverage would generally be
considered journalistic information. In this example, the applicant
would still need to demonstrate that he or she satisfies the other
qualifications of an information media representative, including that
he or she represents an organization involved in the regular gathering,
production, or dissemination of journalistic information that has a
home office in another country.\141\
---------------------------------------------------------------------------
\141\ See 9 FAM 402.11-10, New Media--Blogging And Other
Electronic Media Platforms, available at https://fam.state.gov/FAM/09FAM/09FAM040211.html (last visited Apr. 9, 2025).
---------------------------------------------------------------------------
Similarly, a professional travel blogger traveling to the United
States to obtain and produce materials on national parks in the United
States could also qualify for I classification if all aspects of the
definition of an information media representative are established,
including the requirement that the media content generated will be
journalistic information and that he or she represents an organization
having an office in a foreign country and that is involved in the
regular gathering, production, or dissemination of journalistic
information. However, a blogger traveling to the United States to
report on his or her own activities at a national park may not qualify
for I status if the applicant does not represent an organization
involved in the regular gathering, production, or dissemination of
journalistic information and the media content is not primarily
journalistic information. Individuals who are not professional
bloggers, but maintain a personal blog and will produce content on
their blog based on their personal experiences in the United States,
such as providing information and reviews of their personal vacation,
generally would not qualify for I classification, but may qualify for a
B classification, depending on the circumstances.
These standards facilitate the travel of representatives of foreign
information media. These proposed standards codify and clarify existing
U.S. government practice and thus would not significantly alter the
current guidance used by DHS officers adjudicating these cases or by
DOS when determining whether an I visa should be issued. Rather,
codifying these standards in the regulation would clarify how
representatives of foreign press, radio, film or other journalistic
information media qualify for the I classification. DHS does not
anticipate that the changes proposed in this rule would represent a
significant departure from current processing.
ii. Evidence
In order to be granted I classification, an alien would need to
meet his or her burden of proof to establish eligibility for admission
in that nonimmigrant classification. DHS believes that evidence
presented by such individuals to establish employment as a bona fide
representative of foreign press, radio, film or other journalistic
information media should be provided in a letter from the employing
foreign media organization verifying the employment, the work to be
performed, and the remuneration involved. See proposed 8 CFR
214.2(i)(2). This evidence would provide a standard basis for DHS to
evaluate whether the applicant intends to comply with the I
classification and only engage in the regular gathering, production or
dissemination via print, radio, television, internet distribution or
other media of journalistic information and represents, as an employee
or under contract, an organization with an office in a foreign country.
For example, such
[[Page 42099]]
a letter would be able to describe the content that the foreign
information media representative is covering in the United States,
which must be primarily journalistic information in nature, such as the
reporting on recent or important events, investigative reporting, or
producing educational materials, such as documentaries. Foreign media
organizations would be able to describe how the content is primarily
designed to provide information rather than entertainment, such as
scripted or contrived situations, such as most ``reality television''
shows, which do not qualify an individual for admission under the I
nonimmigrant classification.\142\
---------------------------------------------------------------------------
\142\ For more information about what qualifies as `journalistic
information' see 9 FAM 402.11-3 Definitions of ``Information Media
Representative'' and ``Journalistic Information,'' available at
https://fam.state.gov/FAM/09FAM/09FAM040211.html (last visited Apr.
9, 2025).
---------------------------------------------------------------------------
Where an alien is self-employed or freelancing, the alien must
provide an attestation that verifies the employment, establishes that
he or she is a representative of a qualifying foreign media
organization that meets the foreign home office requirement, and
describes the remuneration and work to be performed. In order to
maintain the home office in another country, a self-employed applicant
would need to demonstrate that he or she intends to depart the United
States within a reasonable time frame consistent with the intended
purpose of travel. Like the letter from the employing foreign media
organization, the attestation from the alien would help to ensure that
the individual is engaging in qualifying activities, not activities
primarily intended for personal fan engagement, or promotional or
marketing purposes, which are unrelated to the regular gathering,
production, or dissemination of journalistic information. See proposed
8 CFR 214.2(i)(2).
iii. Admission Period and EOS
DHS is proposing that aliens in I nonimmigrant classification have
admission periods not to exceed 240 days or the period of time
necessary to complete their activities, whichever is shorter, while
also allowing such alien to apply for an ``extension of stay'' of up to
240 days. See proposed 8 CFR 214.2(i)(3)(i) and 214.2(i)(5)(i). The
proposed rule further provides that an I nonimmigrant ``may be eligible
for an extension of stay, each of up to 240 days or until the
activities or assignments consistent with the I classification are
completed, whichever is shorter.'' See proposed 8 CFR 214.2(i)(5)(i).
However, I nonimmigrants presenting passports from the PRC (other than
a Hong Kong SAR passport or Macau SAR passport) would be given
admission and extension of stay periods of up to 90 days or until the
activities or assignments consistent with the I classification are
completed, whichever is shorter. See proposed 8 CFR 214.2(i)(3)(ii) and
214.2(i)(5). In each instance of applying for an EOS, DHS proposes that
the I nonimmigrant must demonstrate planned work activities consistent
with the I classification to justify the additional time sought. See
proposed 8 CFR 214.2(i)(5).
As I nonimmigrants who file a Form I-539 request with USCIS to
request a change in information medium are currently allowed an
automatic extension of employment authorization with the same employer
while a Form I-539 application is pending for a period not to exceed
240 days, CFR 274a.12(b)(20), DHS believes that it is appropriate to
extend such period of time to most other I nonimmigrant contexts. As
stated above and in 8 CFR 214.2(i)(5), DHS proposes allowing an I
nonimmigrant to continue activities consistent with the I
classification while the timely application for EOS is pending, as
provided for in 8 CFR 274a.12(b)(20), for a period not to exceed 240
days or the actual additional time requested on the EOS application,
whichever is shorter (with the exception of an I nonimmigrant
submitting a passport from the PRC, except Hong Kong SAR and Macau SAR,
who can request extensions of up to 90 days), and beginning on the date
of the expiration of the authorized period of stay.
In the event that the EOS application remains pending at the end of
this period (the 240 day auto-extension or 90 days for certain aliens
from PRC), DHS proposes the I nonimmigrant, whose status has expired,
may remain in the United States so long as the EOS application is
pending, and he or she has filed a subsequent EOS request to remain
beyond the period requested in the preceding EOS request. But DHS
proposes that the alien cease working until his or her initial/
preceding EOS application is approved, and USCIS may deny an EOS
application if it finds that the alien did not cease working. See
proposed 8 CFR 214.2(i)(5)(i) and (iii).
DHS proposes each extension request for an I nonimmigrant conform
to the current requirements outlined in 8 CFR 214.1(c)(4) that the
request be timely filed, and that an alien file his or her EOS while
the alien maintains his or her previously accorded lawful status or
prior to the expiration of his or her status.\143\ Thus, under 8 CFR
214.1(c)(4), if an EOS remains pending and the alien needs to continue
working in the United States beyond the time period requested in that
particular EOS application, then DHS proposes he or she must file a
second EOS application before the date (up to 240 days or 90 days for
an I nonimmigrant submitting a passport from the PRC or the actual time
period requested, whichever is shorter) when the preceding EOS request
would have expired. When multiple, timely filed consecutive EOS
applications are necessary, and the alien is required to cease work
activities as described above because the preceding EOS application(s)
remain pending, DHS proposes the filing of a subsequent EOS application
does not confer authorization to continue work activities until the
preceding EOS application(s) are approved. Upon approval of any and all
preceding EOS application(s), DHS proposes the alien may resume work
activities for the period of time remaining on the latest EOS request.
At any time, the denial of an extension application requires the alien
to cease work activities and depart the United States immediately. See
proposed 8 CFR 214.2(i)(6). As with other nonimmigrant classifications,
they will 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 will begin to accrue unlawful
presence the day after the issuance of the denial. DHS believes this
standard provides parity across nonimmigrant classifications.
---------------------------------------------------------------------------
\143\ Current DHS regulations allow for USCIS, in its
discretion, to excuse an alien's failure to file before the period
of previously authorized status expired where the alien is able to
demonstrate that certain circumstances apply to him or her: See
generally 8 CFR 214.1(c)(4).
---------------------------------------------------------------------------
DHS proposes amendments at 8 CFR 214.2(i)(5)(ii) to clarify that
the dependents of an I nonimmigrant may be eligible for an EOS, under
the same conditions and subject to the same restrictions as the
principal I nonimmigrant. DHS also proposes regulatory text at 8 CFR
214.2(i)(5)(iv), clarifying the meaning of ``timely filing'' in the
context of these I EOS applications.
Aliens applying for an EOS currently file a Form I-539 with USCIS,
with required fee and in accordance with form instructions, but DHS is
using general terms in the proposed regulatory text when referencing
the EOS application. DHS is using general terms, rather than
referencing form names and
[[Page 42100]]
numbers, in the regulatory text to provide flexibility for the future--
if the form name or number changes, the Department would not need to
engage in rulemaking to make the update. See proposed 8 CFR
214.2(i)(5). And, as with other applicants who file a Form I-539, under
the proposed rule applicants might be required to submit biometrics.
See proposed 8 CFR 214.2(i)(5). Specific guidance and any changes to
the filing procedure would be provided in the form instructions, which
USCIS would post on its website, making it easily accessible to
applicants.
DHS proposes to apply the same fixed period of admission applicable
to aliens seeking to change from a different nonimmigrant status to, if
eligible, I status. See proposed 8 CFR 214.2(i)(7).
iv. Severability
In the event a provision in the paragraph was not implemented, DHS
proposes that the remaining provisions be implemented as an independent
rule in a severability clause. See proposed 8 CFR 214.2(i)(8).
H. Change of Status
DHS is proposing to add two provisions to 8 CFR part 248, which
governs changes of status. First, DHS is proposing to clarify that
aliens who were granted a change to F or J status before the effective
date of the final rule, and are applying for admission as an F or J
after the final rule's effective date may be admitted up to the program
end date as noted on the Form I-20 or DS-2019 that accompanied the
change of status application that was approved prior to the alien's
departure, not to exceed 4 years, plus a period of 30 days following
their program end date, to prepare for departure or to otherwise seek
to obtain lawful authorization to remain in the United States. See
proposed 8 CFR 248.1(e). CBP may admit these aliens into the United
States up to the program end date, on the Form I-20 or DS-2019 that
accompanied the approved change of status prior to the alien's
departure, plus an additional 30 days, thus ensuring that they do not
get more time than allocated by their program end date, since these F
and J nonimmigrants would have received an admission period for D/S on
the I-94 that accompanied the change of status approval.
Second, DHS is proposing to codify the long-standing policy that,
when an alien timely files an application to change to another
nonimmigrant status, including F or J status, but departs the United
States while the application is pending, USCIS will consider the
application abandoned. Under section 248 of the INA, DHS may authorize
a change of status to a nonimmigrant who, among other things, continues
to maintain his or her status. Thus, pursuant to a policy that has been
in place for decades, the change of status application of an alien who
travels outside of the United States during the pendency of his or her
request for a change of status is deemed abandoned. See proposed 8 CFR
248.1(f). Note, however, if there is an underlying petition filed along
with the change of status, that petition may still be approved, but the
alien generally would have to obtain the necessary visa at a U.S.
Embassy or Consulate abroad before applying for admission to the United
States in the new nonimmigrant classification.
I. Classes of Aliens Authorized To Accept Employment
DHS is proposing the following updates to regulations pertaining to
employment authorization:
First, DHS proposes to strike the reference to D/S and update the
reference to 8 CFR 214.2(f)(5)(vi) in 8 CFR 274a.12(b)(6)(v).
Second, in proposed 8 CFR 274a.12(b)(10), DHS proposes to cross-
reference language in proposed 8 CFR 214.2(i) for I nonimmigrants,
which clarifies that limitations currently in the provision (stating
that an alien in this status may be employed only for the sponsoring
foreign news agency or bureau) allow for freelance and self-employment
situations where the I nonimmigrant may not have a ``sponsoring''
foreign news agency or bureau, and instead would need to show, among
other requirements indicated in proposed 8 CFR 214.2(i), that they are
working for a qualifying foreign media organization.
VI. Statutory and Regulatory Requirements
DHS developed this proposed rule after considering numerous
statutes and executive orders related to rulemaking. The below sections
summarize our analyses based on a number of these statutes or executive
orders.
A. Executive Order 12866: Regulatory Review
Executive Orders 12866 (Regulatory Planning and Review), and 13563
(Improving Regulation and Regulatory Review), direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits. Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, harmonizing
rules, and promoting flexibility. Executive Order 14192 (Unleashing
Prosperity Through Deregulation) directs agencies to significantly
reduce the private expenditures required to comply with Federal
regulations and provides that ``any new incremental costs associated
with new regulations shall, to the extent permitted by law, be offset
by the elimination of existing costs associated with at least 10 prior
regulations.''
This rule has been designated a ``significant regulatory action''
that is economically significant under section 3(f)(1) of Executive
Order 12866. Accordingly, the rule has been reviewed by the Office of
Management and Budget.
This rule is not an Executive Order 14192 regulatory action because
it is being issued with respect to an immigration-related function of
the United States. The rule's primary direct purpose is to implement or
interpret the immigration laws of the United States (as described in
INA Sec. 101(a)(17), 8 U.S.C. 1101(a)(17)) or any other function
performed by the U.S. Federal Government with respect to aliens. See
OMB Memorandum M-25-20, ``Guidance Implementing Section 3 of Executive
Order 14192, titled `Unleashing Prosperity Through Deregulation' ''
(Mar. 26, 2025).
DHS provides a summary of the Regulatory Impact Analysis (RIA) of
the economic impacts below. For the full analysis, please see the RIA
posted in the docket of this proposed rule on regulations.gov.
Under the proposed changes, DHS would more frequently have
opportunities to review and collect nonimmigrant information, enhancing
the Government's oversight and monitoring of these aliens, resulting in
costs and benefits. 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, DHS estimates that annualized costs
would range from $86.3 million to $88.1 million (using 3 and 7 percent
discount rates, respectively).
Need for the Rule
The proposed rule would ensure an effective mechanism for DHS to
periodically and directly assess whether these nonimmigrants are
complying with the conditions of their classifications and U.S.
immigration laws, as well as allow DHS to obtain
[[Page 42101]]
timely and accurate information about the activities they have engaged
in and plan to engage in during their temporary stay in the United
States. The opportunity to assess the nonimmigrant status with timely
and accurate information allows immigration officers to verify that the
nonimmigrants have not obtained any criminal convictions and do not
pose a threat to national security. In addition, as F, J, and I
nonimmigrants would be admitted for a fixed period of admission under
the proposed rule, they would generally begin to accrue unlawful
presence following the expiration of their authorized period of
admission, as noted on the Form I-94 (Arrival/Departure Record issued
at the port of entry), and could potentially become inadmissible based
on that accrual of unlawful presence under INA section 212(a)(9)(B) and
(C), 8 U.S.C. 1182(a)(9)(B) and (C), upon departing the United States.
These grounds of inadmissibility have important and far-reaching
implications on an alien's future eligibility for a nonimmigrant or
immigrant visa, admission to the United States, or adjustment of status
to that of a lawful permanent resident. Therefore, the proposed
regulatory changes may deter F, J, and I nonimmigrants from failing to
maintain status and deter them from engaging in fraud and abuse. By
increasing DHS assessments and clarifying when unlawful presence
accrual begins, the proposed rule would strengthen the integrity of
these nonimmigrant classifications.
Affected Population
The proposed rule would impact F, J, and I nonimmigrants, DSOs and
ROs from SEVP-certified schools and exchange visitor sponsors that run
a SEVP- or DOS-designated program and foreign media representatives.
Overall, approximately 2.1 million persons participated annually in the
F, J, and I nonimmigrant programs combined.\144\ DHS estimated the 3-
year average active nonimmigrants based on data from fiscal years 2022
to 2024.\145\ Active nonimmigrants are those present in the United
States with a valid visa. Over the 3-year period, there were
approximately 1.6 million F nonimmigrants, 523,000 J nonimmigrants, and
24,000 I nonimmigrants active per year.
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\144\ Source: ICE SEVIS and U.S. Customs and Border Protection
Arrival and Departure Information System (ADIS).
\145\ In 2022, this cutoff is 10/01/2022; in 2023, it is 10/01/
2023; in 2024 it is 10/01/2024.
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The number of nonimmigrant EOS requests under the proposed rule
depends on the unique circumstances of each nonimmigrant visa holder.
For example, in situations when the nonimmigrant intends to extend
their stay in the United States in furtherance of their academic
training and following the proposed regulatory criteria for their visa
and program, they would be expected to file an EOS. Therefore, DHS
estimates the number of EOS requests over the 10-year analysis period
based on the historical nonimmigrant data and criteria from the
proposed regulatory provisions. Further, DHS accounts for the proposed
transition period in the estimated number of EOS requests. Based on the
historical data, regulatory criteria, and the transition period
assumptions, DHS estimates an annual average of 205,000; 203,000; 6,000
EOS requests for F, J, and I nonimmigrants, respectively, over the ten-
year period of analysis.
Costs
DHS recognizes that the proposed rule would incur costs. Some of
the costs have been quantified based on available data, and the
remaining costs are qualitative. DHS welcomes comments on these costs,
including data or information that could support quantification as well
as proposed alternatives to reduce burdens and impacts.
Quantitative Costs
Depending on each nonimmigrant's need to extend his or her stay in
the United States, nonimmigrants on an F1, F2, J1, J2 and I visa would
incur costs to request an EOS. The cost burden includes application
fees and time for filing Form I-539 or I-539A. DHS assumes a percentage
of nonimmigrants would incur costs for additional help filing their
request for EOS. DHS estimates the annualized EOS costs for the
nonimmigrants would range from $304.0 million to $304.3 million (using
3 and 7 percent discount rates, respectively).
Further, DSOs and ROs would incur a burden for processing
additional EOS requests resulting from this proposed rule. When a
nonimmigrant is or would be employed under OPT or CPT, DHS assumes HR
staff would incur burden per EOS request to track form updates and
avoid inadvertent unauthorized employment due to form discrepancies
with the Form I-9. DHS estimates the annualized EOS costs for the DSOs
and ROs, and HR staff would range from $76.1 million to $76.2 million
(using 3 and 7 percent discount rates, respectively).
Additionally, DHS assumes DSOs and ROs would incur costs to
familiarize themselves with the rule and to create and modify training
materials, and other adaptations such as system wide briefings and
systemic changes. DHS estimates the annualized familiarization and
adaptation costs to DSOs and ROs would range from $10.1 million to
$11.8 million (using 3 and 7 percent discount rates, respectively).
Qualitative Costs
DHS acknowledges there could be other costs that the Department was
not able to quantify and discusses these in the following section.
Generally, DHS lacked data and information to quantify the qualitative
costs below. DHS welcomes comments on these costs, including data or
information that could support quantification as well as proposed
alternatives to reduce burdens and impacts.
Federal Government Costs
DHS acknowledges there would be implementation and operational
costs to the U.S. Government associated with assessing aliens at POEs
for purposes of authorizing an admission period of 4 years. CBP
officers would need training on new systems and procedures for
conducting inspections at POEs. DHS continues to explore the necessary
upgrades to systems and procedures that would allow CBP officers to
perform their duties in accordance with this proposed rule. There may
be additional costs to DHS associated with potential requests for
additional information, in-person interviews, or biometric
appointments.
Costs to Schools and Enrollments
The global market for nonimmigrant students is competitive and many
U.S. schools hold an advantage over foreign institutions due to the
quality of the programs they offer, however the proposed rule may have
a marginal impact on nonimmigrant student enrollment. The proposed rule
affects only those F-1 and J-1 nonimmigrants who need additional time
to complete their program; however, DHS maintains that eligible
students should have no difficulty with getting their EOS requests
approved, which should alleviate concerns about the uncertainty of EOS
approval. Schools may also incur costs for changes to their information
systems and practices to implement processing under the proposed rule.
DHS expects this proposed rule would affect relatively few English
language programs; the majority of English language training students
were enrolled in programs shorter than 2 years. Some schools may choose
to change their curriculum to be covered in a 2-year time period. It is
possible
[[Page 42102]]
that some language training programs would experience reduced
enrollment due to the proposed rule.
DHS expects that the proposed rule would not have a significant
impact on participation of other J exchange visitors or I foreign
information media representatives. Equivalent U.S.-based exchange
visitor programs (outside of academia) may be more difficult to find in
other countries, providing less of an incentive for nonimmigrants to
choose an alternative.
Benefits
DHS expects this proposed rule to have qualitative benefits for
national security by providing DHS additional opportunities to evaluate
whether F, J, and I nonimmigrants are complying with their status
requirements, or if they present a national security concern. It would
deter fraud and abuse of the F, J, and I visa classifications, as
requiring EOS requests at frequent intervals allow DHS to review the
standing of the nonimmigrant. DHS would be able to enforce the unlawful
presence provisions of the INA for those who are not complying with the
terms of their visa status.
Accounting Statement
DHS has prepared a full analysis according to E.O. 12866 and E.O.
13563, which can be found in the docket for this rulemaking or by
searching for RIN 1653-AA95 on www.regulations.gov. Table 1 presents
the accounting statement as required by Circular A-4 for total impacts
of the rule. The proposed rule would have a quantified annualized cost
ranging from $390.3 million to $392.4 million (with 3- and 7-percent
discount rates, respectively) when considering U.S. and non-U.S.
parties. When considering U.S. parties only, annual costs would range
from $86.3 million to $88.1 million (with 3- and 7-percent discount
rates, respectively).
Table 1--OMB A-4 Accounting Statement, U.S. and Non-U.S. Parties
[2024$]
----------------------------------------------------------------------------------------------------------------
3-percent 7-percent Source citation (RIA,
Category discount rate discount rate preamble, etc.)
----------------------------------------------------------------------------------------------------------------
Benefits:
Annualized Monetized $millions/year.... N/A N/A N/A.
Annualized Quantified.................. N/A N/A N/A.
--------------------------------------
Qualitative............................ Would enhance DHS's ability Preamble, RIA Section A.4.
to enforce the unlawful presence
provisions of the INA at the
conclusion of F, J, and I
nonimmigrants' fixed period of
admission.
Would deter F, J, and I .............................
nonimmigrants from engaging in fraud
and abuse and strengthen the
integrity of these nonimmigrant
classifications.
Would provide DHS with .............................
additional information to promptly
detect national security concerns.
Would increase DHS's .............................
ability to detect those
nonimmigrants who are not complying
with the terms and conditions of
their status.
Would ensure that .............................
immigration officers, who are U.S.
Government officials, are
responsible for reviewing and
deciding each F, J, or I
nonimmigrant's extension of stay
(EOS) request.
--------------------------------------
Costs:
Annualized Monetized $millions/year.... $390.3 $392.4 RIA Section A.4.
Annualized Quantified.................. N/A N/A N/A.
--------------------------------------
Qualitative............................ Potential burden for DHS RIA Section A.4.
and nonimmigrants associated with
government requests for additional
information or in-person interviews.
--------------------------------------
Potential reduction in .............................
enrollment of nonimmigrant students
and exchange visitors and subsequent
revenue effects on sponsoring
institutions.
DHS costs for rule .............................
familiarization and training and
additional steps at POEs to assess
fixed period of time for admission.
[[Page 42103]]
Potential burden to schools/ .............................
program sponsors and DHS to update
batch processing systems that
facilitate exchange of data between
DSOs/ROs and SEVIS.
Potential costs to F-1 .............................
students and schools from
limitations on changes to only
higher educational levels.
Potential burden on F-1 .............................
English language training (ELT)
program students and schools from
the restriction against ELT study
beyond 24 months.
--------------------------------------
Transfers:
Annualized Monetized $millions/year.... N/A N/A N/A.
Annualized Quantified.................. N/A N/A N/A.
--------------------------------------
Qualitative............................ Potential reduction in fees RIA Section A.4.
collected by SEVP and DOS to cover
the cost of the programs due to a
potential reduction in international
enrollment.
State, Local, and/or Tribal Government. Some public schools will incur RIA Section A.4.
incremental costs to comply with the
proposed rule and a potential
decline in international enrollment.
Small Business......................... Some small businesses will incur RIA Section B. Initial
incremental costs to comply with the Regulatory Flexibility
proposed rule. Analysis.
Wages.................................. N/A N/A.
Growth................................. N/A N/A.
----------------------------------------------------------------------------------------------------------------
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires Federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The term ``small
entities'' is comprised of small business, not-for-profit organizations
that are independently owned and operated and are not dominant in their
fields and governmental jurisdictions with populations of less than
50,000. DHS requests information and data from the public that would
assist in better understanding the impact of this proposed rule on
small entities. DHS also seeks input from the public on alternatives
that will accomplish the same objectives and minimize the proposed
rule's economic impact on small entities. DHS has prepared a full
initial regulatory flexibility analysis (IRFA), which can be found in
the docket for this rulemaking or by searching for RIN 1653-AA95 on
www.regulations.gov. A summary of the initial regulatory flexibility
analysis (IRFA) follows.
DHS performed an IRFA of the impacts on small entities from this
proposed rule in the first year of the analysis and found that it may
affect an estimated 6,665 U.S. entities (5,494 SEVP-certified
institutions (schools), and 1,171 J exchange visitor program sponsors).
DHS analyzed all the entities that would be affected by the proposed
rule and DHS found that 78 percent of SEVP-certified institutions and
60 percent of J exchange visitor program sponsors would be considered
small entities.
Under the proposed rule, DSOs and ROs will have to spend
approximately 67 hours for rule familiarization and adaptation in the
first year after the rule takes effect. For each DSO, rule
familiarization would cost $3,342 in the first year after the rule
takes effect. Further, each year DSOs/ROs will spend approximately 3
hours per F-1/J-1 EOS request to review the Form I-539 completed by the
F-1/J-1 nonimmigrant, update the SEVIS record and track EOS requests,
and advise the F-1/J-1 nonimmigrant about the extension process and the
requirements to file an EOS with USCIS. Additionally, HR staff will
spend approximately 1.5 hours per F-1 EOS request to track form updates
related to each EOS request and avoid inadvertent unauthorized
employment due to form discrepancies with the I-9. The DSO cost per EOS
request is $233.
DHS estimates that 93.4% of small schools will experience an impact
less than or equal to one percent of their annual revenue. DHS
estimates that the majority of small J sponsors would experience an
impact less than or equal to one percent of their annual revenue. DHS
invites all interested parties to submit data and information regarding
the potential economic impact on small entities that would result from
the adoption of the requirements in the proposed rule.
C. Small Business Regulatory Enforcement Fairness Act of 1996
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104-121, we want to assist small
entities in understanding this proposed rule so that they can better
evaluate its effects on them and participate in the rulemaking. If the
proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult ICE using the
contact information
[[Page 42104]]
provided in the FOR FURTHER INFORMATION CONTACT section above.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any year. Though this proposed rule would not
result in such an expenditure, DHS does discuss the effects of this
rule elsewhere in this preamble.
E. Paperwork Reduction Act--Collection of Information
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995) (PRA), all Departments are required to submit to OMB,
for review and approval, any reporting or recordkeeping requirements
inherent in a rule. DHS, USCIS and ICE are revising one information
collection and proposing non-substantive edits to one information
collection in association with this rulemaking action:
ICE Forms I-20 and I-17
DHS and ICE invite the general public and other federal agencies to
comment on the impact to the proposed collection of information. In
accordance with the PRA, the information collection notice is published
in the Federal Register to obtain comments regarding the proposed edits
to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1653-0038 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Student and Exchange Visitor
Information System (SEVIS).
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-20 and I-17, U.S. Immigration and
Customs Enforcement.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary Non-profit institutions and
individuals or households. SEVIS is an internet-based data entry,
collection and reporting system. It collects information on SEVP-
certified school via the Form I-17, ``Petition for Approval of School
for Attendance by Nonimmigrant Student,'' and collects information on
the F and M nonimmigrant students that the SEVP- certified schools
admit into their programs of study via the Forms I-20s: ``Certificate
of Eligibility for Nonimmigrant (F-1) Students Status-- For Academic
and Language Students'' and ``Certificate of Eligibility for
Nonimmigrant (M-1) Students Status-- For Vocational Students.''
Revisions to the SEVIS collections include substantive and non-
substantive changes to SEVIS to support additional recordkeeping and
reporting requirements associated with recommendations for an F-1
student extension of stay. The revision is to add fields to facilitate
a DSO recommendation for an F student Extension of Stay, add a field to
collect graduation/degree conferral date, update the list of
educational levels, and update the Form I-20 instructions page.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information requests Form I-17 and
Form I-20 is 47,757. The estimated hour burden per response is 22.3
hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information in hours is 1,064,757.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $50,807,659.
USCIS Forms I-539 and I-539A
DHS, USCIS and ICE invite the general public and other federal
agencies to comment on the impact to the proposed collection of
information. In accordance with the PRA, the information collection
notice is published in the Federal Register to obtain comments
regarding the proposed edits to the information collection instrument.
Comments are encouraged and will be accepted for 60 days from the
publication date of the proposed rule. All submissions received must
include the OMB Control Number 1615-0003 in the body of the letter and
the agency name. To avoid duplicate submissions, please use only one of
the methods under the ADDRESSES and Public Participation section of
this rule to submit comments. Comments on this information collection
should address one or more of the following four points:
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of information collection:
(1) Type of Information Collection: Revision of a Currently
Approved Collection.
(2) Title of the Form/Collection: Application to Extend/Change
Nonimmigrant Status.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: I-539 and I-539A; USCIS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Primary: Individuals or households. This form
will be used for nonimmigrants to apply for an extension of stay, for a
change to
[[Page 42105]]
another nonimmigrant classification, or for obtaining V nonimmigrant
classification.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: The estimated
total number of respondents for the information collection Form I-539
(paper) is 459,860 and the estimated hour burden per response is 1.667
hours; the estimated total number of respondents for the information
collection Form I-539 (e-file) is 197,083 and the estimated hour burden
per response is 1 hour; the estimated total number of respondents for
the information collection Supplement A is 207,600 and the estimated
hour burden per response is .35 hours; the estimated total number of
respondents providing biometrics is 864,543 and the estimated hour
burden per response is 1.17 hours.
(6) An estimate of the total public burden (in hours) associated
with the collection: The total estimated annual hour burden associated
with this collection of information in hours is 2,072,660.
(7) An estimate of the total public burden (in cost) associated
with the collection: The estimated total annual cost burden associated
with this collection of information is $103,652,444.
USCIS Form I-765
Under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-12, DHS
must submit to OMB, for review and approval, any reporting requirements
inherent in a rule unless they are exempt. Although this rule does not
impose any new reporting or recordkeeping requirements under the PRA
for this information collection, this rule will require non-substantive
edits to USCIS Form I-765, Application for Employment Authorization.
Accordingly, USCIS has submitted a Paperwork Reduction Act Change
Worksheet, Form OMB 83-C, and amended information collection
instruments to OMB for review and approval in accordance with the PRA.
F. Executive Order 13132: Federalism
This proposed rule would not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. DHS does not expect that this proposed
rule would impose substantial direct compliance costs on State and
local governments or preempt State law. Therefore, in accordance with
section 6 of Executive Order 13132, Federalism, it is determined that
this rule does not have sufficient federalism implications to warrant
the preparation of a federalism summary impact statement.
G. Executive Order 12988: Civil Justice Reform
This proposed rule meets applicable standards set forth in sections
3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to
eliminate drafting errors and ambiguity, minimize litigation, provide a
clear legal standard for affected conduct, and promote simplification
and burden reduction.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
DHS has analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. DHS has determined that it is not a ``significant
energy action'' under that order because it is a ``significant
regulatory action'' under Executive Order 12866 but is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy.
I. National Environmental Policy Act (NEPA)
DHS and its components analyze final actions to determine whether
the National Environmental Policy Act of 1969 (``NEPA''), 42 U.S.C.
4321 et seq., applies to them and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 \146\ and Instruction Manual
023-01-001-01 Rev. 01 (Instruction Manual) \147\ establish the policies
and procedures that DHS and its components use to comply with NEPA.
---------------------------------------------------------------------------
\146\ Dept. of Homeland Sec., Implementation of the National
Environmental Policy Act, Directive 023-01, Revision 01 (Oct. 31,
2014), available at https://www.dhs.gov/sites/default/files/publications/mgmt/environmental-management/mgmt-dir_023-01-implementation-national-environmental-policy-act_revision-01.pdf
(last visited Apr. 16, 2025).
\147\ Dept. of Homeland Sec., Instruction Manual 023-01-001-01,
Rev 01, ``Implementation of the National Environmental Policy Act
(NEPA)'' (Nov. 6, 2014).
---------------------------------------------------------------------------
NEPA allows Federal agencies to establish categories of actions
(``categorical exclusions'') that experience has shown do not,
individually or cumulatively, have a significant effect on the human
environment and, therefore, do not require an environmental assessment
(EA) or environmental impact statement (EIS).\148\ An agency is not
required to prepare an EA or EIS for a proposed action ``if the
proposed agency action is excluded pursuant to one of the agency's
categorical exclusions.'' See 42 U.S.C. 4336(a)(2), 4336e(1). The
Instruction Manual, Appendix A, Table 1, lists the DHS Categorical
Exclusions.\149\
---------------------------------------------------------------------------
\148\ See also 40 CFR 1501.4 and 1507.3(e)(2)(ii).
\149\ See Appendix A, Table 1.
---------------------------------------------------------------------------
Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\150\ DHS proposes to
amend its regulations to eliminate the practice of admitting F-1
nonimmigrant students, I nonimmigrant representatives of information
media, and J-1 exchange visitors (and F-2/J-2 family members) for D/S.
The proposed rule would provide for nonimmigrants seeking entry under
F, J, or I visas to be admitted for the period required to complete
their academic program, foreign information media employment, or
exchange program, not to exceed the periods of time defined in this
proposed rule. The proposed rule would also require nonimmigrants
seeking to continue their studies, foreign information media
employment, or exchange program beyond the admission period granted at
entry to apply for extension.
---------------------------------------------------------------------------
\150\ Dept. of Homeland Sec., Instruction Manual 023-01-001-01,
Rev 01, ``Implementation of the National Environmental Policy Act
(NEPA)'' (Nov. 6, 2014).
---------------------------------------------------------------------------
DHS has analyzed this proposed rule under MD 023-01 Rev. 01 and IM
023-01-001-01 Rev. 01. DHS has determined that this proposed rulemaking
action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
proposed rule completely fits within the Categorical Exclusion found in
IM 023-01-001-01 Rev. 01, Appendix A, Table 1, number A3(d):
``Promulgation of rules. that interpret or amend an existing regulation
without changing its environmental effect.'' This proposed rule is not
part of a larger action. This proposed rule presents no extraordinary
circumstances creating the potential for significant environmental
effects. Therefore, this proposed rule is categorically excluded from
further NEPA review.
[[Page 42106]]
DHS seeks any comments or information that may lead to the
discovery of any significant environmental effects from this proposed
rule.
J. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed rule does not have tribal implications under
Executive Order 13175, Consultation and Coordination with Indian Tribal
Governments, because it would not have a substantial direct effect on
one or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
K. Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule would not cause a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
L. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045, Protection of Children from Environmental
Health Risks and Safety Risks, requires agencies to consider the
impacts of environmental health risk or safety risk that may
disproportionately affect children. DHS has reviewed this proposed rule
and determined that even though this rule is an economically
significant rule, it would not create an environmental risk to health
or risk to safety that might disproportionately affect children.
Therefore, DHS has not prepared a statement under this executive order.
M. National Technology Transfer and Advancement Act
The National Technology Transfer and Advancement Act of 1995 (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impracticable. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies. This proposed rule does not use technical standards.
Therefore, we did not consider the use of voluntary consensus
standards.
N. Family Assessment
DHS has determined that this proposed action will not affect family
well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act of 1999
(Pub. L. 105-277, 112 Stat. 2681).
List of Subjects
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 248
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Cultural exchange
program, Employment, Penalties, Reporting and recordkeeping
requirements, Students.
Regulatory Amendments
Accordingly, DHS proposes to amend parts 214, 248, and 274a of
chapter I, subchapter B, of title 8 of the Code of Federal Regulations
as follows:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 continues to read as follows:
Authority: 6 U.S.C. 202, 236; 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305, 1357, and 1372;
section 643, Pub. L. 104-208, 110 Stat. 3009-708; Pub. L. 106-386,
114 Stat. 1477-1480; section 141 of the Compacts of Free Association
with the Federated States of Micronesia and the Republic of the
Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901
note, and 1931 note, respectively; 48 U.S.C. 1806; 8 CFR part 2;
Pub. L. 115-218, 131 Stat. 1547 (48 U.S.C. 1806).
0
2. Section 214.1 is amended by:
0
a. Adding paragraph (a)(4);
0
b. Revising paragraphs (b) subject heading, (b)(1) introductory text,
(b)(2) introductory text, and (b)(3) introductory text;
0
c. Removing paragraph (b)(4);
0
d. Revising paragraphs (c)(2), (c)(3)(v), and (c)(5);
0
e. Adding paragraph (c)(8); and
0
f. Adding paragraph (m).
The additions and revisions read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(4) Requirements for admission of aliens under section
101(a)(15)(F) and (J). Aliens applying for admission as F or J
nonimmigrants after [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE] will be inspected and may be admitted
into the United States, if in possession of a valid Form I-20 or Form
DS-2019, or successor form, and otherwise eligible, and subject to the
following:
(i) Aliens applying for admission as F nonimmigrants.
(A) Aliens seeking admission to the United States, including those
seeking admission with a properly filed pending application for an
extension of stay, as an F nonimmigrant after a previously authorized
period of admission as an F nonimmigrant expired, may be admitted for a
maximum period of 4 years or the length of program as specified on Form
I-20, whichever is shorter, plus additional 30 day periods for arrival
and departure as provided in 8 CFR 214.2(f)(5)(i);
(B) Aliens seeking admission to the United States as an F
nonimmigrant with a properly filed pending application for extension of
stay as an F nonimmigrant may, if they have time remaining on the
period of stay authorized prior to departure, be admitted for a period
up to the unexpired period of stay authorized prior to the alien's
departure, plus an additional 30 days as provided in 8 CFR
214.2(f)(5)(v), subject to the requirements in paragraph (c)(8) of this
section, or if the alien seeks admission with a Form I-20 for a program
end date beyond their previously authorized period of admission, the
alien may be admitted for the period specified in 8 CFR 214.2(f)(5),
subject to the requirements in paragraph (c)(8) of this section;
(C) Aliens seeking admission to the United States as an F
nonimmigrant with an approved extension of stay for F nonimmigrant
status may be admitted until the expiration of the approved extension
of stay, plus an additional 30 days, as provided in 8 CFR
214.2(f)(5)(v);
(ii) Aliens applying for admission as J nonimmigrants.
(A) Aliens seeking admission to the United States, including those
seeking admission with a properly filed,
[[Page 42107]]
pending application for an extension of stay as a J nonimmigrant after
a previously authorized period of admission as a J nonimmigrant
expired, may be admitted for the period specified in 8 CFR
214.2(j)(1)(ii);
(B) Aliens seeking admission to the United States as a J
nonimmigrant with a properly filed pending extension of stay as a J
nonimmigrant may, if they have time remaining on the period of stay
authorized prior to departure, be admitted for a period up to the
unexpired period of stay authorized prior to the alien's departure,
plus an additional 30 days as provided in 8 CFR 214.2(j)(1)(ii)(C),
subject to the requirements in paragraph (c)(8) of this section,
provided that if the alien seeks admission with a Form DS-2019 for a
program end date beyond his or her previously authorized period of
admission, the alien may be admitted for the period specified in 8 CFR
214.2(j)(1), subject to the requirements in paragraph (c)(8) of this
section;
(C) Aliens seeking admission to the United States as a J
nonimmigrant with an approved extension of stay in J nonimmigrant
status may be admitted up to the expiration of the approved extension
of stay, plus an additional 30 days as provided in 8 CFR
214.2(j)(1)(ii)(C).
(iii) Post-completion Optional Practical Training (OPT) and Science
Technology Engineering and Mathematics (STEM) OPT extension. Aliens
seeking admission to the United States as an F nonimmigrant to pursue
post-completion OPT or a STEM OPT extension may be admitted until the
end date of the approved employment authorization for post-completion
OPT or STEM OPT, or if the Application for Employment Authorization,
Form I-765 or successor form for post-completion OPT or STEM OPT is
still pending with USCIS, as evidenced by a notice issued by USCIS
indicating receipt of such application, until the Designated School
Official's recommended employment end date for post-completion OPT or
STEM OPT specified on the Form I-20, subject to the requirements in
paragraphs (c)(8) of this section and 8 CFR 274a.12(b)(6)(iv), plus a
30-day period as provided in 8 CFR 214.2(f)(5)(v).
(b) Admission of nonimmigrants under section 101(a)(15) (F), (J),
or (M) whose visa validity is considered automatically extended to
complete unexpired periods of previous admission or extension of stay--
(1) Section 101(a)(15)(F). The inspecting immigration officer may
admit, up to the unexpired period of stay authorized prior to the
alien's departure, any nonimmigrant alien whose nonimmigrant visa
validity is considered automatically extended pursuant to 22 CFR
41.112(d) and who is applying for admission under section 101(a)(15)(F)
of the Act, if the alien:
* * * * *
(2) Section 101(a)(15)(J). The inspecting immigration officer may
admit, up to the unexpired period of stay authorized prior to the
alien's departure, any nonimmigrant alien whose nonimmigrant visa
validity is considered automatically extended pursuant to 22 CFR
41.112(d) and who is applying for admission under section 101(a)(15)(J)
of the Act, if the alien:
* * * * *
(3) Section 101(a)(15)(M). The inspecting immigration officer may
admit, up to the unexpired period of stay authorized prior to the
alien's departure, any nonimmigrant alien whose nonimmigrant visa
validity is considered automatically extended pursuant to 22 CFR
41.112(d) and who is applying for admission under section 101(a)(15)(M)
of the Act, if the alien:
* * * * *
(c) * * *
(2) Filing for an extension of stay. Any other nonimmigrant who
seeks to extend his or her stay beyond the currently authorized period
of admission must apply for an extension of stay by filing an extension
request in the manner and on the form prescribed by USCIS, together
with the required fees and all initial evidence specified in the
applicable provisions of 8 CFR 214.2, and in the form instructions,
including the submission of any biometrics required by 8 CFR 103.16.
More than one person may be included in an application if the co-
applicants are all members of a single-family unit and either all hold
the same nonimmigrant status, or one holds a nonimmigrant status, and
the other co-applicants are his or her spouse and/or children who hold
derivative nonimmigrant status based on his or her status. Extensions
granted to members of a family unit must be for the same period of
time. The shortest period granted to any member of the family will be
granted to all members of the family. In order to be eligible for an
extension of stay, nonimmigrant aliens in K-3/K-4 status must do so in
accordance with 8 CFR 214.2(k)(10).
(3) * * *
(v) Any nonimmigrant admitted for duration of status.
* * * * *
(5) Decisions for extension of stay applications. Where an
applicant or petitioner demonstrates eligibility for a requested
extension, it may be granted at USCIS's discretion. The denial of an
application for extension of stay may not be appealed.
* * * * *
(8) Abandonment of extension of stay and pending employment
authorization applications for F, I, and J nonimmigrant aliens. (i) If
an alien in F, I, or J nonimmigrant status timely files an application
for an extension of stay, USCIS will not consider the application
abandoned if the alien departs the United States while the application
is pending, provided that when the alien seeks admission, the
previously authorized period of admission has not expired, and the
alien seeks admission for the balance of the previously authorized
admission period.
(ii) An application for extension of stay in F, I, or J
nonimmigrant status may be deemed abandoned if an alien departs the
United States and seeks admission with a Form I-20 or DS-2019 for a
program end date beyond their previously authorized period of admission
while the application for an extension of stay is pending. USCIS will
not consider as abandoned any corresponding applications for employment
authorization.
(iii) When an alien described in paragraphs (c)(8)(i) or (ii) of
this section departs, the alien should travel with a copy of their Form
I-797C, Notice of Action, or successor form, which confirms the receipt
of either their Form I-539, Application to Extend/Change Nonimmigrant
Status, or Form I-765, Application for Employment Authorization, along
with proposed length of stay as evidenced by the Form I-20, DS-2019, or
letter of employment for a foreign media organization.
* * * * *
(m) Transition period from duration of status to a fixed admission
date.
(1) Transition from duration of status admission to a fixed
admission period for aliens properly maintaining F and J status on [DHS
WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE].
Aliens with F or J status who are properly maintaining their status on
[DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE] and who were admitted 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 [DHS WILL
[[Page 42108]]
INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], plus
the departure period of 60 days for F nonimmigrants, which is [DHS WILL
INSERT DATE 4 YEARS AND 120 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE], and 30 days for J nonimmigrants, which is [DHS WILL INSERT DATE
4 YEARS AND 90 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE].
Subject to 8 CFR 274a.14, 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 designated school
official or responsible officer for employment or training, or
expiration date on the alien's Employment Authorization Document, Form
I-766, or successor form. Aliens who need additional time to complete
their current program of study, including requests for post-completion
optional practical training (OPT) and Science Technology Engineering
and Mathematics (STEM) OPT, or exchange visitor program, including
academic training, or would like to start a new program of study or
exchange visitor program must apply for an extension of stay with USCIS
in accordance with paragraph (c)(2) of this section for an admission
period to a fixed date.
(i) Notwithstanding paragraph (m)(1) of this section, an F-1
student recommended for post-completion OPT who files before his or her
period of admission expires, including the 60 day departure period, an
Application for Employment Authorization, Form I-765, or successor form
on the form and in the manner designated by USCIS, with the required
fee, as described in the form's instructions, on or before [DHS WILL
INSERT DATE SIX MONTHS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], is
not required to file an Application to Extend/Change Nonimmigrant
Status, Form I-539, or successor form for the requested period of post-
completion OPT. An F-1 student recommended for STEM OPT who files,
prior to his or her current OPT Employment Authorization Document, Form
I-766, or successor form expires, an Application for Employment
Authorization, Form I-765, or successor form on or before [DHS WILL
INSERT DATE SIX MONTHS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], is
not required to file an Application to Extend/Change Nonimmigrant
Status, Form I-539, or successor form for the requested period of STEM
OPT. If the alien's application for post-completion OPT or STEM-OPT
employment authorization is approved, the alien 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 student would continue to
be authorized to remain in the United States until the program end date
listed on their Form I-20, valid on [DHS WILL INSERT DATE 60 DAYS AFTER
DATE OF PUBLICATION OF THE FINAL RULE] 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, or until the end date of the employment
authorization document for post-completion OPT, as long as he or she
continues to meet the requirements for F-1 status, plus 60 days.
(ii) An F-1 student described in this paragraph who departs the
United States before filing the application for post-completion OPT or
STEM OPT, and is admitted to the United States with a fixed period of
admission is required to file both an Application for Employment
Authorization, Form I-765, or successor form and an Application to
Extend/Change Nonimmigrant Status, Form I-539, or successor form
pursuant to 8 CFR 214.2(11)(i)(B)(2) or (C). An alien described in this
section who departs the United States while the Application for
Employment Authorization, Form I-765, or successor form is pending or
once approved will be admitted pursuant to 8 CFR 214.1(a). DHS reserves
the discretion to extend the period exempting the filing of the
Application to Extend/Change Nonimmigrant Status, Form I-539, or
successor form beyond [DHS WILL INSERT DATE SIX MONTHS AFTER THE
EFFECTIVE DATE OF THE FINAL RULE], in 6 month increments through
announcement in the Federal Register.
(2) Pending employment authorization applications with USCIS on
[DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE] filed by F-1 students. F-1 students described in paragraph (m)(1)
of this section who have timely and properly filed applications for
employment authorization pending with USCIS on [DHS WILL INSERT DATE 60
DAYS AFTER DATE OF PUBLICATION OF THE 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 student's application for post-completion OPT or
STEM-OPT employment authorization is approved, the F-1 student 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 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 long
as he or she continues to pursue a full course of study and otherwise
meets the requirements for F-1 status.
(ii) F-1 students 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.
(3) Transition from duration of status admission to a fixed
admission period for aliens with I status present in the United States
on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE]. Except for those aliens described in 8 CFR 214.2(i)(3)(ii),
aliens in I nonimmigrant status who are properly maintaining their
status on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF
THE FINAL RULE] and who were admitted for duration of status are
authorized to remain in the United States in I nonimmigrant status for
a period necessary to complete their activity, not to exceed [DHS WILL
INSERT DATE 300 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] with
the exception of aliens in I nonimmigrant status presenting with
passports described in 8 CFR 214.2(i)(3)(ii), who are authorized to
remain in the United States in I nonimmigrant status for a period
necessary to complete their activity, not to exceed [DHS WILL INSERT
DATE 150 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE]. Aliens who
need additional time to complete their employment beyond [DHS WILL
INSERT DATE 300 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] or
[DHS WILL INSERT DATE 150 DAYS AFTER DATE OF PUBLICATION OF THE FINAL
RULE], as applicable, must apply for an extension of stay with USCIS in
accordance with paragraph (c)(2) of this section and 214.2(i)(5).
(4) Severability. The provisions in 8 CFR 214.1(m) are intended to
be independent severable parts. In the
[[Page 42109]]
event that any provision in this paragraph is not implemented, DHS
intends that the remaining provisions be implemented as an independent
rule.
0
3. Section Sec. 214.2 is amended by:
0
a. Redesignating paragraphs (f)(5)(iii), (iv), (v), (vi) as (f)(5)(iv),
(v), (vi), and (vii) respectively;
0
b. Revising redesignated paragraphs (f)(5)(vii)(B)-(D) to remove the
citation to ``paragraph (f)(5)(vi)(A)'' and add, in its place, the
citation to ``paragraph (f)(5)(vii)(A)'';
0
c. Revising the paragraph (f)(5) subject heading and paragraphs
(f)(5)(i) and (ii) and redesignated paragraph (f)(5)(v);
0
d. Revising redesignated paragraph (f)(5)(vii) to remove the words
``duration of'' in the subject heading and throughout all paragraphs
and subparagraphs;
0
e. Adding paragraph (f)(5)(iii) and (f)(5)(viii);
0
f. Revising paragraph (f)(7);
0
g. Revising paragraph (f)(8);
0
h. Revising paragraph (f)(10)(ii)(D);
0
i. Revising paragraph (f)(11)(i)(B)(2) by removing the number ``60''
and add, in its place, the number ``30'';
0
j. Revising paragraph (f)(18)(iii) by removing the words ``duration of
status and'' from the last sentence;
0
k. Adding paragraph (f)(20);
0
l. Revising paragraphs (i), (j)(1)(ii), and (j)(1)(iv)-(viii); and
0
m. Adding paragraphs (j)(1)(ix) and (j)(6).
The revisions and additions read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(f) * * *
(5) Period of Stay--(i) General. An F-1 student is admitted for a
fixed period of time, which is the period necessary to complete the
course of study indicated on the Form I-20, or successor form, not to
exceed a period of 4 years, plus additional times noted in this
paragraph. A continuing F-1 student may be granted additional time
following the completion of studies to engage in post-completion
optional practical training (OPT) and Science Technology Engineering
and Mathematics (STEM) OPT, as described in paragraph (f)(5)(i)(D) of
this section. An F-1 student described in this section may be admitted
for a period of up to 30 days before the indicated report date or
program start date listed on Form I-20 or successor form. An alien
described in this paragraph may remain in the United States for an
additional 30 days as provided in paragraph (f)(5)(v) of this section.
The 30-day period before the indicated report date or program start
date and 30 additional days following the program end date or the 4-
year maximum period of admission do not count toward the maximum length
of stay. The admission periods described in this paragraph are subject
to the following exceptions:
(A) F-1 students whose course of study is in an English language
training program are restricted to a maximum of 24 months admission
period, plus an additional 30-day period of stay for the purposes of
departure or to otherwise seek to maintain lawful status.
(B) Border commuter students under the provisions in paragraph
(f)(18) of this section may be admitted for the applicable period
described under that paragraph.
(C) F-1 students attending a public high school are restricted to
an aggregate of no more than 12 months to complete their course of
study, including any school breaks and annual vacations.
(D) Students with pending employment authorization applications who
are admitted based on the designated school official'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, who cease employment pursuant
to an employment authorization document (EAD) that expires before the
alien's fixed date of admission as noted on their Arrival-Departure
Record, Form I-94, or successor form, will 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 Form I-94.
(E) The authorized period of stay for F-2 dependents may not exceed
the authorized period of stay of the principal F-1 student.
(ii) Change of educational objectives.
(A) An F-1 student at any level below the graduate degree level may
not change programs or educational objectives, i.e. programs, majors,
or educational levels, within the first academic year of a program of
study, unless an exception is authorized by SEVP for extenuating
circumstances that may include, but are not limited to, a school
closure or a school's prolonged inability to hold in-person classes due
to a natural disaster or other cause. An F-1 student at the graduate
degree level or above may not change programs at any point during a
program of study.
(B) An F-1 student who has completed a program in the United States
at one educational level and begins a new program at a higher
educational level is considered to be maintaining F-1 status if
otherwise complying with requirements under 8 CFR 214.2(f).
(C) An alien who has completed a program in the United States as an
F-1 nonimmigrant at one educational level may not maintain, be
admitted, or otherwise be provided F-1 status through a program at the
same educational level or a lower educational level.
(D) When seeking a change in educational objectives, F-1 students
referenced in paragraphs (f)(5)(ii)(A) through (C) of this section
must, if seeking an extension of stay, apply for an extension of stay
on the form designated by USCIS, with the required fee and in
accordance with the form instructions, including any biometrics
required by 8 CFR 103.16.
(E) DHS may delay or suspend the implementation of paragraphs
(f)(5)(ii)(A) through (C) of this section, in its discretion, if it
determines that implementation is infeasible for any reason. If DHS
delays or suspends any provisions in paragraphs (f)(5)(ii)(A) through
(C) governing the change in educational objectives, DHS will make an
announcement of the delay or suspension on SEVP's website at https://www.studyinthestates.dhs.gov (or successor uniform resource locator).
DHS thereafter will announce the implementation dates of a delayed or
suspended educational objective provision on the SEVP website at
https://www.studyinthestates.dhs.gov (or successor uniform resource
locator), at least 30 calendar days in advance.
(iii) Report date on Form I-20 or successor form. When determining
the report date on the Form I-20 or successor form, the designated
school official may choose a reasonable date to accommodate a student's
need to be in attendance for required activities at the school prior to
the actual start of classes. Such required activities may include, but
are not limited to, research projects and orientation sessions.
However, for purposes of employment, the designated school official may
not indicate a report date more than 30 days prior to the start of
classes.
* * * * *
(v) Period of preparation for departure or to otherwise maintain
lawful status in the United States. An F-1 student who has completed a
course of study and any authorized practical training will be allowed
an additional 30-day period
[[Page 42110]]
from the program end date or the 4 year maximum period of admission, or
the end date of the approved employment authorization for post-
completion OPT or STEM OPT, as applicable, to prepare for departure
from the United States, or to otherwise seek to maintain lawful status,
including timely filing an extension of stay application in accordance
with paragraph (f)(7) of this section and Sec. 214.1 or timely filing
a change of status application in accordance with 8 CFR 248.1(a). The
30-day period will be reflected on the F-1 student's Arrival-Departure
Record, Form I-94, or successor form. An F-1 student authorized by the
designated school official to withdraw from classes will be allowed a
15-day period from the date of the withdrawal to depart the United
States. An F-1 student who fails to maintain a full course of study or
otherwise fails to maintain status is not eligible for any additional
period of time for departure.
* * * * *
(viii) Automatic Extension of F stay and employment authorization
while extension of stay and employment authorization applications are
pending. An F-1 student whose status as indicated on the Arrival-
Departure Record, Form I-94, or successor form has expired will be
considered to be in a period of authorized stay if he or she has timely
filed an extension of stay application pursuant to paragraph (f)(7) of
this section until USCIS issues a decision on the extension of stay
application. Subject to paragraphs (f)(9)(i), (f)(9)(ii) and (f)(10)(i)
of this section and 8 CFR 274a.12(b)(6)(i) and (iii) and 8 CFR
274a.12(c)(3)(iii), any F-1 student's current on-campus, curricular
practical training (CPT), and severe economic hardship authorized
employment is automatically extended during the pendency of the
extension of stay application, but such automatic extension may not
exceed 240 days beginning from the end date of his or her period of
admission as indicated on the alien's Arrival-Departure Record, Form I-
94, or successor form. However, severe economic hardship employment
authorization resulting from emergent circumstances under paragraph
(f)(5)(vi) of this section is automatically extended for up to 240 days
or until the end date stated in the Federal Register notice announcing
the suspension of certain requirements, whichever is earlier. If an F-1
student files an extension of stay application during the 30-day period
provided in paragraph (f)(5)(v) of this section, he or she does not
receive an automatic extension of authorized employment, including on-
campus, CPT, and severe economic hardship, and must wait for approval
of the extension of stay application (and employment authorization
application, if required) before engaging in CPT or employment. For
purposes of employment eligibility verification (Form I-9) under 8 CFR
274a.2(b)(1)(v), for CPT under (f)(10)(i) of this section, on-campus
employment under (f)(9)(i) of this section, and severe economic
hardship employment authorization resulting from emergent circumstances
under paragraph (f)(5)(vi) of this section, the alien's authorized
employment period, which ends 30 days before their Form I-94 or
successor form admit until date, or Employment Authorization Document,
Form I-766, or successor form based on severe economic hardship, when
combined with a notice issued by USCIS indicating receipt of an
extension of stay application, is considered unexpired for up to 240
days or until USCIS issues a decision on the extension of stay
application, or for CPT, until the CPT end date authorized by the
designated school official on Form I-20 or successor form, whichever is
earlier, or for severe economic hardship employment based on emergent
circumstances under paragraph (f)(5)(vi) of this section, the end date
stated in the Federal Register notice announcing suspension of certain
requirements, whichever is less.
* * * * *
(7) Extension of stay
(i) Eligibility. USCIS may grant an extension of stay to an F-1
student who has maintained his or her F-1 status, but who is unable to
complete his or her program by the end of his or her authorized period
of admission. Such student may be eligible for an extension if the
designated school official issues a new Form I-20 or successor form
certifying that the student is eligible under this paragraph. An F-1
student may be granted an extension if it is established that the
student:
(A) Has continually maintained lawful status;
(B) Is currently pursuing a full course of study; and
(C) Has one of the following:
(1) A currently issued Form I-20, or successor form, indicating
additional time is left to complete his or her program of study; or
(2) Documentation demonstrating the request for an extension is
based on one of the following reasons:
(i) A compelling academic reason, such as a change of major or
research topic or unexpected research problems. Unexpected research
problems are those caused by an unexpected change in faculty advisor,
need to refine an investigatory topic based on initial research,
research funding delays, and similar issues. Delays including, but not
limited to, those caused by academic probation or suspension or a
student's repeated inability or unwillingness to complete his or her
course of study are not acceptable reasons for an extension;
(ii) A documented illness or medical condition that is a compelling
medical reason, such as a serious injury, that is supported by medical
documentation from a licensed medical doctor, a licensed doctor of
osteopathy, a licensed psychologist, or a licensed clinical
psychologist; or
(iii) Circumstances beyond the student's control, including a
natural disaster, national health crisis, or the closure of an
institution.
(ii) SEVIS Update. The Form I-20 or successor form must be endorsed
with the designated school official recommendation and new program end
date for submission to USCIS.
(iii) USCIS Application.
(A) Form. An F-1 student must file an extension of stay application
using the form and in the manner designated by USCIS, including
submitting the updated, properly endorsed Form I-20 or successor form;
submitting evidence of sufficient funds to cover expenses; appearing
for any biometrics collection required by 8 CFR 103.16; and remitting
the appropriate fee. The F-1 student must be maintaining his or her
status and must never have engaged in any unauthorized employment.
(B) Timely filing. An extension of stay application is considered
timely filed if the receipt date, pursuant to 8 CFR 103.2(a)(7), is on
or before the date the authorized period of stay expires, which
includes the 30-day period provided in paragraph (f)(5)(v) of this
section. USCIS must receive the extension application on or before the
expiration of the authorized period of stay, including the 30-day
period provided in paragraph (f)(5)(v) of this section that is allowed
after the completion of studies or any authorized practical training.
If the extension of stay application is received during the 30-day
period provided in paragraph (f)(5)(v) of this section, the F-1 student
is authorized to continue a full course of study but may not continue
or begin engaging in practical training or other employment.
Notwithstanding 8 CFR 214.1(c)(4), USCIS must receive the extension of
stay application on or before the expiration of the previously
authorized period of stay.
(iv) Dependents. An F-2 spouse and unmarried children under the age
of 21 seeking to accompany the principal F-
[[Page 42111]]
1 student during the additional period of admission must either be
included on the principal F-1 student's application for an extension of
stay or file their own extension of stay application on the form
designated by USCIS. The application must be submitted using the form,
and in the manner, designated by USCIS, including submitting the
updated, properly endorsed Form I-20, or successor form; submitting
evidence of sufficient funds to cover expenses; appearing for any
biometrics collection required by 8 CFR 103.16; and remitting the
appropriate fee. The F-2 dependents must demonstrate the qualifying
relationship with the principal F-1 student, be maintaining his or her
status, and must not have engaged in any unauthorized employment.
(v) Practical training. If seeking an extension of stay to engage
in any type of practical training, the alien in F-1 status also must
have a valid, properly endorsed Form I-20 and be eligible to receive
the specific type of practical training requested.
(vi) Period of Stay. If an application for extension is granted,
the F-1 student and the student's F-2 spouse and children, if
applicable, are to be given an extension of stay for the period of time
necessary to complete the program as listed on the F-1 student's Form
I-20, or successor form, or requested practical training, not to exceed
4 years. The 30-day period before the indicated report date or program
start date and 30 additional days following the program end date or the
4-year maximum period of admission do not count toward the maximum
length of an extension. Extensions of stay for F-2 dependents may not
exceed the authorized admission period of the principal F-1 student.
(vii) Denials. If an F-1 student's extension of stay application is
denied and the F-1 student's authorized admission period has expired,
the F-1 student and his or her dependents must immediately depart the
United States.
(viii) Late requests of extension of current program end date. If
the designated school official enters an extension of the program end
date in SEVIS after the end date noted on the most recent Form I-20 or
successor form, the F-1 student must file a request for reinstatement
of F-1 status in the manner and on the form designated by USCIS, with
the required fee, including any biometrics required by 8 CFR 103.16. F-
2 dependents seeking to accompany the F-1 principal student must file
applications for an extension of stay or reinstatement, as applicable.
(8) School transfer and change in educational objectives.
(i) Eligibility. An F-1 student may change educational objectives
or transfer to SEVP-certified schools if he or she is maintaining
status as described in paragraphs (f)(5)(ii)(A) through (D) of this
section. ``Educational objectives'' refers to an F-1 student's
educational level or major. An F-1 student changing educational
objectives or transferring to an SEVP-certified school also must meet
the following requirements:
(A) The student is currently maintaining status;
(B) To be eligible to transfer, the student must:
(1) Have been pursuing a full course of study, unless a reduced
course load was properly authorized under 8 CFR 214.2(f);
(2) Have completed a degree program; or
(3) Be currently completing or have completed post-completion or
STEM optional practical training (OPT);
(C) The student is not currently in a graduate level program of
study;
(D) Unless an exception has been authorized by SEVP, the student
has completed his or her academic year of a program of study at the
school that initially issued his or her Form I-20 or successor form;
(E) The student has not been placed on academic probation or school
suspension;
(F) The student does not have a pattern of behavior demonstrating a
repeated inability or unwillingness to complete his or her course of
study;
(G) The student will begin classes at the transfer school or
program within 5 months of transferring out of the current school or
within 5 months of the program completion date on his or her current
Form I-20, or successor form, whichever is earlier; and
(H) If the F-1 student is authorized to engage in post-completion
or STEM OPT, he or she must be able to resume classes within 5 months
of transferring out of the school that recommended the post-completion
or STEM OPT or the date the post-completion or STEM OPT authorization
ends, whichever is earlier.
(ii) Transfer procedure. An F-1 student must first notify his or
her current school (``transfer-out school'') of the intent to transfer
and then obtain a valid Form I-20 or successor form from the school to
which he or she intends to transfer (``transfer-in school''). Upon
notification by the student, the transfer-out school will update the
student's record in SEVIS as a ``transfer-out'' and indicate the
transfer-in school and a release date. The release date will be the
current semester or session completion date, or the date of expected
transfer if earlier than the completion date of the established
academic cycle. The transfer-out school will retain control over the
student's record in SEVIS until the student completes the current term
or reaches the release date, whichever is earlier. At the request of
the student, the designated school official of the current school may
cancel the transfer request at any time prior to the release date. As
of the release date specified by the current designated school
official, the transfer-in school will be granted full access to the
student's SEVIS record and then becomes responsible for that student.
(iii) Change of education level procedures. A change of education
level can be accomplished according to the transfer procedures outlined
in paragraph (f)(8)(ii) of this section.
(iv) Extension of Stay. If the new program to which the student
transferred will not be completed within the authorized period of stay
established in paragraph (f)(5)(i) of this section, the F-1 student
must apply to USCIS for an extension of stay in the manner and using
the form designated by USCIS, with the required fee and in accordance
with form instructions, including any biometrics required by 8 CFR
103.16, together with a valid, properly endorsed Form I-20 or successor
form indicating the new program end date. Upon approval of the
extension of stay application, USCIS will transmit the approval to
SEVIS. If the application is denied, the student is out of status, and
the student's record must be terminated in SEVIS.
* * * * *
(10) * * *
(ii) * * *
(D) Extension of stay for post-completion optional practical
training (OPT). Unless described in section 214.1(m)(1)(i), an F-1
student recommended for post-completion OPT must apply for an extension
of stay and employment authorization and may not engage in post-
completion OPT unless such employment authorization is granted. If the
application for an extension of stay and post-completion OPT are
granted, the student will receive an additional 30-day period provided
in paragraph (f)(5)(v) of this section following the expiration of the
status approved to complete post-completion OPT.
* * * * *
(20) Severability. The provisions in 8 CFR 214.2(f) are intended to
be independent severable parts. In the event that any provision in this
paragraph is not implemented, DHS intends that the remaining provisions
be implemented as an independent rule.
* * * * *
[[Page 42112]]
(i) Representatives of information media. (1) Foreign Media
Organization. A foreign information media organization is an
organization engaged in the regular gathering, production or
dissemination via print, radio, television, internet distribution, or
other media, of journalistic information and has a home office in a
foreign country.
(2) Evidence. Aliens applying for I nonimmigrant status must:
(i) Demonstrate that the foreign media organization that the alien
represents has a home office in a foreign country, and that the home
office will continue to operate in the foreign country while the alien
is in the United States; and
(ii) Provide a letter from the employing foreign media organization
or, if self-employed or freelancing, an attestation from the alien,
that verifies the employment, establishes that the alien is a
representative of that media organization, and describes the
remuneration and work to be performed.
(3) Admission.
(i) Length of admission. Generally, aliens seeking admission in I
nonimmigrant status may be admitted for a period of time necessary to
complete the planned activities or assignments consistent with the I
classification, not to exceed 240 days unless paragraph (i)(3)(ii) of
this section applies.
(ii) Foreign nationals travelling on a passport issued by the
People's Republic of China (with the exception of Hong Kong Special
Administrative Region passport holders and Macau Special Administrative
Region passport holders). An alien who presents a passport from the
People's Republic of China (with the exception of Hong Kong Special
Administrative Region passport holders and Macau Special Administrative
Region passport holders), may be admitted until the activities or
assignments consistent with the I classification are completed, not to
exceed 90 days.
(4) Change in activity. Aliens admitted pursuant to section
101(a)(15)(I) of the Act may not change the information medium or
employer until they obtain permission from USCIS. Aliens must request
permission by submitting the form designated by USCIS, in accordance
with that form's instructions, and with the required fee, including any
biometrics required by 8 CFR 103.16, as appropriate.
(5) Extensions of stay. (i) Eligibility; effect of timely filing.
(A) Aliens in I nonimmigrant status may be eligible for extensions
of stay, each of up to 240 days or until the activities or assignments
consistent with the I classification are completed, whichever is
shorter (except for aliens who present a passport from the People's
Republic of China, with the exception of Hong Kong Special
Administrative Region passport holders and Macau Special Administrative
Region passport holders, who may be eligible for extensions of stay,
each up to 90 days or until the activities or assignments consistent
with the I classification are completed, whichever is shorter).
(B) To request an extension of stay, aliens in I nonimmigrant
status must file an application to extend their stay by submitting the
form designated by USCIS, in accordance with that form's instructions,
and with the required fee, including any biometrics required by 8 CFR
103.16, and provide all the evidence required in paragraph (2) of this
section, as appropriate. An alien whose I nonimmigrant status, as
indicated on the alien's Arrival/Departure Record, Form I-94, has
expired but who has timely filed an extension of stay application is
authorized to continue engaging in activities consistent with the I
classification on the day after the Form I-94 expired, for a period of
up to 240 days, as provided in 8 CFR 274a.12(b)(20). Such authorization
shall be subject to any conditions and limitations of the initial
authorization.
(C) If an extension of stay application remains pending at the end
of this 240-day period, the I nonimmigrant alien, whose status has
expired, may remain in the United States so long as the extension of
stay application is pending, he or she has timely filed a subsequent
extension of stay request to remain beyond the period requested in the
preceding request, and he or she does not otherwise violate the terms
of his or her authorized period of stay. The alien, however, must cease
working until his or her initial extension of stay application is
approved. USCIS will deny the extension of stay application if the
alien did not cease working after the 240-day period and before the
extension of stay request was approved.
(ii) Dependents accompanying or following to join the principal I
representative of foreign information media. A spouse or unmarried
children under the age of 21 of an alien in I nonimmigrant status may
be eligible for extensions of stay. The dependent applicant must either
be included on the primary applicant's request for an extension of stay
or file his or her own extension of stay application on the form
designated by USCIS in accordance with paragraph (i)(5)(i) or
(i)(5)(iii) of this section. The dependents must demonstrate the
qualifying relationship with the principal I representative of foreign
information media, be maintaining status, and must not have engaged in
any unauthorized employment. Extensions of stay for I dependents may
not exceed the authorized admission period of the principal I
representative of foreign information media.
(iii) Aliens with a passport from People's Republic of China.
(A) In the case of an alien who presents a passport issued by the
People's Republic of China (other than a Hong Kong Special
Administrative Region passport or a Macau Special Administrative Region
passport), an extension of stay may be authorized until the activities
or assignments consistent with the I classification are completed, not
to exceed the maximum period of stay of 90 days. To request an
extension of stay, these aliens must file an application to extend
their stay by submitting the form designated by USCIS, in accordance
with that form's instructions, and with the required fee, including any
biometrics required by 8 CFR 103.16, as appropriate. Notwithstanding
paragraph (i)(5)(i) of this section and 8 CFR 274a.12(b)(20), an alien
in I nonimmigrant status who is described in paragraph (i)(3)(ii) of
this section whose status, as indicated on the alien's Arrival/
Departure Record, Form I-94, has expired but who has timely filed an
extension of stay application is authorized to continue engaging in
activities consistent with the I classification and continue employment
with the same employer on the day after the status indicated on the
Form I-94 expired, for a period of up to 90 days. Such authorization
shall be subject to any conditions and limitations of the initial
authorization.
(B) If an extension of stay application remains pending at the end
of this 90-day period, the I nonimmigrant alien, whose status has
expired, may remain in the United States so long as the extension of
stay application is pending, he or she has timely filed a subsequent
extension of stay request to remain beyond the period requested in the
preceding request, and he or she does not otherwise violate the terms
of his or her authorized period of stay. The alien, however, must cease
working until his or her initial extension of stay application is
approved. USCIS may deny the extension of stay application if the alien
did not cease working after the 90-day period and before the extension
of stay request was approved.
(iv) Documentation. The facially expired Arrival-Departure Record,
Form I-94, or successor form of an alien described in (i)(5)(i), (ii),
and (iii) is
[[Page 42113]]
considered unexpired when combined with a USCIS receipt notice
indicating receipt of a timely filed extension of stay application. An
application is considered timely filed if the receipt notice for the
application is on or before the date the admission period expires. Such
extension may not exceed the earlier of 240 days (90 days for aliens
who present a passport issued by the People's Republic of China (with
the exception of Hong Kong Special Administrative Region passport
holders and Macau Special Administrative Region passport holders)) as
provided in 8 CFR 274a.12(b)(20), or the date of denial of the alien's
application for an extension of stay.
(6) Denials. If an alien's extension of stay application is denied
and the alien's authorized admission period has expired, the alien and
his or her dependents must immediately depart the United States.
(7) Change of status. An alien seeking to change from a different
nonimmigrant status to, if eligible, an I nonimmigrant status as
described in this section, may be granted a period of stay until the
activities or assignments consistent with the I classification are
completed, not to exceed the maximum period of stay stated in paragraph
(i)(3) of this section. To request a change from a different
nonimmigrant status to an I nonimmigrant status as described in this
section, an alien must file an application to change his or her status
by submitting the form designated by USCIS, in accordance with that
form's instructions, and with the required fee, including any
biometrics required by 8 CFR 103.16, as appropriate.
(8) Severability. The provisions in this paragraph (i) are intended
to be independent severable parts. In the event that any provision in
this paragraph is not implemented, DHS intends that the remaining
provisions be implemented as an independent rule.
(j) Exchange visitors
(1) * * *
(ii) Admission period and period of stay. (A) J-1 exchange visitor.
A J-1 exchange visitor may be admitted for the duration of the exchange
visitor program, as stated by the program end date noted on Form DS-
2019 or successor form, not to exceed a period of 4 years.
(B) J-2 accompanying dependents. The authorized period of initial
admission for a J-2 spouse and unmarried children under the age of 21
may not exceed the period of authorized admission of the principal J-1
exchange visitor.
(C) Period of stay. A J-1 exchange visitor and J-2 spouse and
unmarried children under the age of 21 may be admitted for a period up
to 30 days before the report date or start of the approved program
listed on Form DS-2019 or successor form. The dependents accompanying a
J-1 exchange visitor are eligible for admission in J-2 status if the
exchange visitor is admitted in J-1 status. A J-1 exchange visitor and
J-2 accompanying dependents may remain in the United States for a
period of 30 days from the program end date or the 4-year maximum
period of admission, whichever is earlier, for the purposes of
departure or to otherwise seek to maintain lawful status. The 30-day
period will be reflected on the alien's Arrival/Departure Record, Form
I-94 or successor form. The 30-day period before the indicated report
date or program start date and 30 additional days following the program
end date or the 4-year maximum period of admission do not count towards
the maximum period of admission.
* * * * *
(iv) Extension of stay. A program end date as indicated on the Form
DS-2019 or successor form, standing alone, does not allow aliens with J
status to remain in the United States in lawful status. An alien in J-1
status seeking to extend his or her stay beyond the currently
authorized period of admission must apply for an extension of stay,
including if a sponsor issues a Form DS-2019 or successor form
extending an alien's program end date for any reason, including for a
request for reinstatement, academic training, change of program, or
program extension or the alien requires additional time to complete his
or her program.
(A) Form. To request an extension of stay, an alien in J status
must file an extension of stay application on the form and in the
manner designated by USCIS, including submitting the valid Form DS-2019
or successor form, appearing for any biometrics collection required by
8 CFR 103.16, and remitting the appropriate fee.
(B) Timely filing. An extension of stay application is considered
timely filed if the receipt date, pursuant to 8 CFR 103.2(a)(7), is on
or before the date the authorized admission period expires. USCIS must
receive the extension of stay application on or before the expiration
of the authorized period of admission, which includes the 30-day period
of preparation for departure. If the extension application is received
during the 30-day period provided in paragraph (j)(1)(ii)(C) of this
section following the completion of the exchange visitor program, the
alien in J-1 status may continue to participate in his or her exchange
visitor program.
(C) Length of extensions. Subject to the restrictions in the
regulations at 22 CFR part 62, extensions of stay may be granted for a
period up to the length of the program, as listed on the Form DS-2019,
or successor form, not to exceed 4-years, unless the J-1 exchange
visitor is otherwise restricted by regulations at 22 CFR part 62. The
30-day period before the indicated report date or program start date
and 30 additional days following the program end date or the maximum
period of admission do not count towards the maximum length of an
extension.
(D) Late requests for extension of current program end date. If the
responsible officer is required to reinstate the program status and
submits an extension of the program end date in SEVIS after the end
date noted on the most recent Form DS-2019 or successor form, the
sponsor must file a request for reinstatement of J-1 status in the
manner required by the Department of State, with the required fee at 22
CFR 62.43. If the Department of State approves the request, the J-1
exchange visitor must file a request for extension of stay with USCIS
within 30 days of the decision.
(E) Dependents. A J-2 spouse and unmarried children under the age
of 21 seeking to accompany the J-1 exchange visitor during the
additional period of admission must either be included on the primary
applicant's request for extension or file their own extension of stay
applications on the form designated by USCIS, including any biometrics
required by 8 CFR 103.16. USCIS must receive the extension of stay
applications on or before the expiration of the previously authorized
period of admission, including the 30-day period following the
completion of the program provided in paragraph (j)(1)(ii)(C) of this
section, as indicated on the J-2 dependent's Form I-94 or successor
form. J-2 dependents must demonstrate the qualifying relationship with
the principal J-1 exchange visitor, be maintaining status, and not have
engaged in any unauthorized employment. Extensions of stay for J-2
dependents may not exceed the authorized admission period of the
principal J-1 exchange visitor.
(F) Denials. If an alien's extension of stay application is denied,
and the alien's authorized admission period has expired, he or she and
his or her dependents must immediately depart the United States.
(v) Employment of J-2 dependents. The accompanying spouse or
unmarried children under the age of 21 of a J-1
[[Page 42114]]
exchange visitor may only engage in employment if authorized by USCIS.
The employment authorization is valid only if the J-1 is maintaining
status, and the J-2 employment authorization dates may not exceed the
J-1 principal alien's authorized stay as indicated on Form I-94. An
application for employment authorization must be filed in the manner
prescribed by USCIS, together with the required fee and any additional
evidence required in the filing instructions. Income from the J-2
dependent's employment may be used to support the family's customary
recreational and cultural activities and related travel, among other
things. Employment will not be authorized if this income is needed to
support the J-1 principal exchange visitor. If the requested period of
employment authorization exceeds the current admission period, the J-2
dependent must file an extension of stay application or be included in
the J-1 principal's extension of stay application, in addition to the
application for employment authorization, in the manner designated by
USCIS, with the required fee and in accordance with form instructions.
(vi) Automatic extension of J-1 stay and grant of employment
authorization for aliens who are the beneficiaries of a cap-subject H-
1B petition. USCIS may, by notice in the Federal Register, at any time
it determines that the H-1B numerical limitation as described in
section 214(g)(1)(A) of the Act will likely be reached prior to the end
of a current fiscal year, extend for such a period of time as deemed
necessary to complete the adjudication of the H-1B petition, the status
of any J-1 alien on behalf of whom an employer has timely filed an H-1B
petition requesting change of status. The alien, in accordance with 8
CFR part 248, must not have violated the terms of his or her
nonimmigrant stay and not be subject to the 2-year foreign residence
requirement at 212(e) of the Act. Any J-1 exchange visitor whose status
has been extended shall be considered to be maintaining lawful
nonimmigrant status for all purposes under the Act, provided that the
alien does not violate the terms and conditions of his or her J
nonimmigrant stay. An extension made under this paragraph also applies
to the J-2 dependent alien.
(vii) Pending extension of stay applications and employment
authorization.
(A) An alien whose J-1 status, as indicated on the alien's Arrival/
Departure Record, Form I-94, has expired but who has timely filed an
extension of stay application is authorized to continue engaging in
activities consistent with pursuing the terms and conditions of the
alien's program objectives and including authorized training, beginning
on the day after the admission period expires, for a period of up to
240 days as provided in 8 CFR 274a.12(b)(20). An alien whose J-1
status, as indicated on the alien's Arrival/Departure Record, Form I-
94, has expired but who has timely filed an extension of stay
application on or before [DHS WILL INSERT DATE SIX MONTHS AFTER THE
EFFECTIVE DATE OF THE FINAL RULE], is authorized to continue engaging
in activities consistent with pursuing the terms and conditions of the
alien's program objectives, including authorized training and
activities pursuant to a new or transferred program, while the
extension of stay application is pending with USCIS, not to exceed the
program end date on the Form DS-2019 (or successor form) filed with the
pending application. Such authorization may be subject to any
conditions and limitations of the initial authorization. If the
extension of stay application remains pending beyond the Form DS-2019
(or successor form) end date filed with the application, the alien,
whose status has expired, may remain in the United States and continue
engaging in activities consistent with pursuing the terms and
conditions of the alien's program objectives and including authorized
training so long as the extension of stay application is pending and he
or she has filed a subsequent extension of stay request with a Form DS-
2019 (or successor form) indicating an end date beyond the Form DS-2019
(or successor form) end date requested in the preceding extension of
stay request. DHS reserves the discretion to extend the period
permitting an alien in J-1 status to continue engaging in activities
consistent with pursuing the terms and conditions of the alien's
program objectives and including authorized training, up to the end
date of the Form DS-2019 (or successor form) so long as the extension
of stay application is pending, beyond [DHS WILL INSERT DATE SIX MONTHS
AFTER THE EFFECTIVE DATE OF THE FINAL RULE], in 6 month increments
through announcement in the Federal Register. Consistent with 8 CFR
214.2(j)(1)(iv)(E), the denial of an extension of stay application
requires the alien to cease activities and depart the United States
immediately.
(B) The facially expired Arrival-Departure Record, Form I-94, or
successor form of an alien described in (j)(1)(vii)(A) is considered
unexpired when combined with a USCIS receipt notice indicating receipt
of a timely filed extension of stay application and a valid Form DS-
2019, or successor form, indicating the duration of the program. An
application is considered timely filed if the receipt notice for the
application is on or before the date the admission period expires. Such
extension may not exceed the earlier of 240 days, as provided in 8 CFR
274a.12(b)(20), or for those extension of stay applications filed on or
before [DHS WILL INSERT DATE SIX MONTHS AFTER THE EFFECTIVE DATE OF THE
FINAL RULE], the end date of the Form DS-2019 (or successor form) filed
with the application, or the date of denial of the alien's application
for an extension of stay.
(C) An alien in J-2 status whose admission period has expired (as
indicated on his or her Form I-94) may not engage in employment until
USCIS approves his or her application for employment authorization.
(viii) Use of SEVIS. The use of the Student and Exchange Visitor
Information System (SEVIS) is mandatory for designated program
sponsors. All designated program sponsors must issue a SEVIS Form DS-
2019 to any exchange visitor requiring a reportable action (e.g.,
program extensions and requests for employment authorization), or for
any aliens who must obtain a new nonimmigrant J visa. As of 2003, the
records of all current or continuing exchange visitors must be entered
in SEVIS.
(ix) Current name and address. A J-1 exchange visitor must inform
DHS and the responsible officer of the exchange visitor program of any
legal changes to his or her name or of any change of address within 10
calendar days of the change, in a manner prescribed by the program
sponsor. A J-1 exchange visitor enrolled in a SEVIS program can satisfy
the requirement in 8 CFR 265.1 of notifying USCIS by providing a notice
of a change of address within 10 calendar days to the responsible
officer, who in turn shall enter the information in SEVIS within 10
business days of notification by the exchange visitor. In cases where
an exchange visitor provides the sponsor a mailing address that is
different than his or her actual physical address, he or she is
responsible to provide the sponsor his or her actual physical location
of residence. The exchange visitor program sponsor is responsible for
maintaining a record of, and must provide upon request from USCIS, the
actual physical
[[Page 42115]]
location where the exchange visitor resides.
* * * * *
(6) Severability. The provisions in this paragraph (j) are intended
to be independent severable parts. In the event that any provision in
this paragraph is not implemented, DHS intends that the remaining
provisions be implemented as an independent rule.
* * * * *
PART 248--CHANGE OF NONIMMIGRANT CLASSIFICATION
0
4. The authority citation for part 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
0
5. Section 248.1 is amended by redesignating paragraph (e) as paragraph
(g), and adding new paragraphs (e) and (f);
The additions read as follows:
Sec. 248.1 Eligibility.
* * * * *
(e) Admission of aliens under section 101(a)(15)(F) and (J)
previously granted duration of status--Aliens who were granted a change
to F or J status prior to [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF
PUBLICATION OF THE FINAL RULE] and who departed the United States and
are applying for admission on or after [DHS WILL INSERT DATE 60 DAYS
AFTER DATE OF PUBLICATION OF THE FINAL RULE] will be inspected and may
be admitted into the United States up to the program end date as noted
on the Form I-20 or Form DS-2019 that accompanied the change of status
application that was approved prior to the alien's departure, not to
exceed a period of 4 years. To be admitted into the United States, all
aliens must be eligible for the requested status and possess the proper
documentation including a valid passport, valid nonimmigrant visa, if
required, and valid Form I-20 or Form DS-2019 or successor form.
(f) Abandonment of change of status application. If an alien timely
files an application to change to another nonimmigrant status but
departs the United States while the application is pending, USCIS will
consider the change of status application abandoned.
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
6. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1105, 1324a; 48 U.S.C. 1806;
Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 114-74, 129
Stat. 599; Title VII of Pub. L. 110-229, 122 Stat. 754; Pub. L. 115-
218, 132 Stat. 1547; 8 CFR part 2.
0
7. Section 274a.12 is amended by:
0
a. Revising paragraph (b)(6)(v) to remove the words ``duration of''
0
b. Revising paragraph (b)(6)(v) to remove the words ``8 CFR
214.2(f)(5)(vi)'' and add, in their place, the words ``8 CFR
214.2(f)(5)(vii)''; and
0
c. Revising paragraphs (b)(10), and (c)(3)(iii) to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
* * * * *
(10) An alien who is a foreign information media representative in
I status under 8 CFR 214.2(i) may be employed pursuant to the
requirements of 8 CFR 214.2(i). Employment authorization does not
extend to the dependents of a foreign information media representative.
* * * * *
(c) * * *
(3) * * *
(iii) Is seeking employment because of severe economic hardship
pursuant to 8 CFR 214.2(f)(9)(ii)(C) and has an Employment
Authorization Document, Form I-766 or successor form, based on severe
economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C), and whose
timely filed application for employment authorization and application
for extension of stay, both filed on applicable forms and in the manner
designated by USCIS, with the required fees, as described in the form's
instructions, are pending, is authorized to engage in employment
beginning on the expiration date of the Employment Authorization
Document issued under paragraph (c)(3)(i)(B) of this section and ending
on the date of USCIS' written decision on the current Application for
Employment Authorization, Form I-765, or successor form, but not to
exceed 240 days. For this same period, such Employment Authorization
Document, Form I-766 or successor form, is automatically extended and
is considered unexpired when combined with a Certificate of Eligibility
for Nonimmigrant (F-1/M-1) Students, Form I-20 or successor form,
endorsed by the Designated School Official recommending such an
extension.
* * * * *
Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2025-16554 Filed 8-27-25; 8:45 am]
BILLING CODE 9111-CB-P