The US Department of Homeland Security (DHS) has proposed eliminating the “duration of status” (D/S) framework for F-1 students and J-1 exchange visitors, replacing it with fixed admission periods of up to 4 years. F-1 and J-1 nonimmigrants who need to remain in the US beyond that time would need to file extension of status (I-539) applications with USCIS, which may cause work authorization gaps. The proposed rule also includes a shortened 30-day grace period after F-1 status ends.
The current approach—“duration of status”(D/S)
Foreign nationals who travel to and enter the US at an official port of entry receive an admission record (Form I-94) from DHS. The I-94 ordinarily includes a fixed status end date and the foreign national is required to depart the United States on or before this end date. However, certain visa holders are allowed to remain in the US for a more flexible period, noted on the I-94 as “duration of status” (D/S).
Since 1979, F-1 academic students and J-1 exchange visitors (along with their dependents) have been admitted to the US for “duration of status” (D/S). “Duration of status” allows F-1 and J-1 nonimmigrants to remain in the US so long as they meet the terms of their program. F-1 nonimmigrants may remain in the US during post-completion Optional Practical Training (OPT), without needing to file extension of stay (Form I-539) applications with USCIS. Specifically, the current approach does not require students moving from OPT into STEM OPT to reapply for F-1 status with USCIS. F-1 students only have to work with their Designated School Official (DSO) to update their eligibility and timely file for a STEM OPT Employment Authorization Document (EAD) to extend their work authorization.
Those who no longer hold F-1 or J-1 status are allowed a 60-day grace period to apply for a different immigration status in the US or leave the US.
The proposed approach—eliminating “duration of status”(D/S)
Under the new proposed rule, DHS would eliminate the “duration of status” designation and move toward issuing I-94 records for F-1 and J-1 nonimmigrants with a set admission period. For F-1 visa holders, DHS states that the admission period would be tied to the student’s academic program length, but not to exceed 4 years. Admission periods may also be shortened further based on DHS-defined risk factors, including the country of origin or school compliance history.
Critically, students or exchange visitors needing more time for study or practical training (including OPT and STEM OPT) would be required to proactively file for an “extension of status” with USCIS via Form I-539. For example, a F-1 student transitioning from OPT to STEM OPT would need to maintain valid fixed status and have a timely filed extension of status application to avoid gaps in their work authorization, otherwise they could potentially fall out of immigration status. Although DHS has proposed a 240-day automatic extension of work authorization while the I-539 is pending, this provision only applies under certain conditions (e.g., hardship criteria) and is not yet aligned with current I-9 or E-Verify guidance.
Those working on OPT or STEM OPT before the rule becomes final will not have to file a I-539 application to remain on OPT or STEM OPT.
The proposed rule would also shorten the F-1 and J-1 grace period from 60 days to 30 days.
The timing
DHS has provided a 30 day period to comment on the proposed rule, after which the agency may make changes before publishing the final rule. The process to issue the final rule is likely to take several months and may be subject to litigation which could delay the implementation of the rule or potentially block it from going into effect.
The proposed shift away from “duration of status” would alter how F-1 students and J-1 exchange visitors manage their immigration status, particularly during program transitions and practical training (including post-completion OPT and STEM OPT). F-1 and J-1 nonimmigrants and their dependents would need to track admission end dates to maintain their immigration status and work authorization. The higher number of I-539 applications would create additional backlogs in USCIS adjudications and processing delays.
Under the proposed rule, employers would need to be mindful that F-1 and J-1 nonimmigrants nearing the end of their fixed admission period would need a I-539 application to continue working, including those transitioning from OPT to STEM OPT where this was not previously required. Fixed admission periods would also mean more I-9 reverifications for these workers. F-1 and J-1 nonimmigrant workers who leave their employment would also have a significantly shorter time to change status or leave the US.
Vialto will continue to monitor the proposed rule and provide further information when the rule is finalized or potentially delayed due to litigation.
For a deeper discussion on the above, please reach out to your Vialto Partners point of contact, or alternatively:
Manish Daftari
Partner
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