DHS Interim Final Rule Removes Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants

On December 12, 2022, the Department of Homeland Security (DHS) published an interim final rule (IFR) in the Federal Register, titled Removal of Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants. The rule became effective on the date of publication, December 12, 2022; you can read the rule at 87 FR 75891 (December 12, 2022)

According to a December 8, 2022 Broadcast Message from the Student and Exchange Visitor Program (SEVP), the rule was published to "remove obsolete information, correct typographical errors, update references and citations, and make minor clarifications to regulatory language. These changes are administrative, not substantive, and are necessary to eliminate confusion, improve clarity, and remove obsolete procedures and requirements used before the implementation of the Student and Exchange Visitor Information System (SEVIS) or during the transition to SEVIS. This rulemaking does not raise existing costs and places no additional burden on F and M students, J exchange visitors, SEVP-certified schools or designated programs."

The rule is being published as an interim final rule, which means it is immediately effective as of December 12, 2022, but also gives the public 30 days to submit comments despite the rule already being in effect. The Federal Register notice contains information on how to submit comments.

The amendments remove references to obsolete procedures meant for non-SEVIS schools in the 2003 transition to SEVIS, remove references to "the Service" (which denoted INS, the legacy Immigration and Naturalization Service), and make other updates that reflect the new structures of DHS and SEVIS. One positive semi-substantive change is that the SEVP will make permanent the current COVID policy that allows schools to collect electronic signatures on Form I-17.

DHS Issues Proposed Rule to Eliminate Decades-Long Duration of Status Policy for International Students, Exchange Visitors (Sept. 25, 2020)

On September 25, 2020, the Department of Homeland Security (DHS) published a proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. This is a proposed rule, which means that it is not yet law and does not have an effective date. It will proceed through normal APA public notice and comment procedures before any final rule is published.

The rule proposes several changes that would disrupt administration of international education programs and sends a strong message that international students and scholars are not welcome in the U.S.:

• Date-Specific admission of F and J nonimmigrants: Instead of being admitted for "duration of status" (D/S) as they currently are, individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would be admitted only until the program end date noted in their Form I-20 or DS-2019, not to exceed 4 years, unless they are subject to a more limited 2-year admission, plus a period of 30 days following their program end date.

  • F and J nonimmigrants seeking a program extension would be required to timely apply for an extension of stay (EOS) on Form I-539 with USCIS to remain in the U.S. beyond the status expiration date on their I-94, including filing fees and biometrics, and including when seeking Optional Practical Training or Academic Training.

  • Reduces the F-1 "grace period" from 60 days to 30 days.

• Limit on aggregate ESL study. F-1 students in a language training program would be restricted to a lifetime aggregate of 24 months of language study, which would include breaks and an annual vacation.

• Limit on pursuing new F-1 programs at the same educational level. DHS proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor's or master's degree. Specifically, any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times while in F-1 status, for a total of three programs for the lifetime of the student.

• Limit on "reverse matriculation" by F-1 students. An F-1 student who has completed a program at one educational level would be allowed to change to a lower educational level one time while in F-1 status. The one-time limit on changing to a lower educational level following completion of a program at a higher level is a lifetime restriction and does not reset with a new admission as an F-1.

The Trump administration says the proposed rule is necessary to increase oversight of international students and combat fraud and visa overstays. Advocates for international students say the proposed rule creates unnecessary new burdens for international students and makes the U.S. a less welcoming destination at a time when international student enrollment has already been declining.

The more than one million international students in the U.S. are estimated to have a $41 billion economic impact and account for 5.5 percent of all students enrolled in higher education in this country.

"This proposed rule is set to replace a proven, flexible policy that has served international students and exchange visitors for decades, with one that is both complicated and burdensome," Esther D. Brimmer, the executive director and CEO of NAFSA: Association of International Educators, said in a statement. "In a system that is already extremely complex, this rule would undoubtably create a high degree of uncertainty for international students and exchange visitors. If finalized, this rule would also make it more difficult for international students and scholars to maintain their legal status in the United States and make it far more difficult for international educators to administer. Sadly, this proposal sends another message to immigrants, and in particular international students and exchange visitors, that their exceptional talent, work ethic, diverse perspectives, and economic contributions are not welcome in the United States."