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

Federal RegisterSep 25, 2020

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 248, and 274a.12

[DHS Docket No. ICEB-2019-0006]

RIN 1653-AA78

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, Department of Homeland Security.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

In fiscal year 2018, the Department of Homeland Security (DHS or the Department) admitted over 2 million foreign nationals into the United States in the F academic student, J exchange visitor, and I representatives of foreign information media nonimmigrant categories. This is a testament to the United States' exceptional academic institutions, cutting-edge technology, and environment that promotes the exchange of ideas, research, and mutual enrichment. Currently, aliens in the F, J, and I categories are admitted into the United States for the period of time that they are complying with the terms and conditions of their nonimmigrant category (“duration of status”), rather than an admission for a fixed time period. This duration of status framework generally lacks predetermined points in time for U.S. Citizenship and Immigration Services (USCIS) or U.S. Customs and Border Protection (CBP) immigration officers to directly evaluate whether F, J, and I nonimmigrants are maintaining their status and poses a challenge to the Department's ability to effectively monitor and oversee these categories of nonimmigrants. Specifically, because nonimmigrants admitted in the F, J, and I classifications generally do not currently begin to accrue unlawful presence until the day after there is a formal finding of a status violation by USCIS or an immigration judge, they are often are able to avoid accrual of unlawful presence for purposes of statutory inadmissibility grounds of unlawful presence, in part, because they do not file applications or petitions, such as extension of stay, that would result in a formal finding. The Department accordingly is concerned about the integrity of the programs and a potential for increased risk to national security. To address these issues, DHS proposes to amend its regulations by changing the admission period of F, J, and I aliens from duration of status to an admission for a fixed time period. Admitting individuals in the F, J, and I categories for a fixed period of time will require all F, J, and I nonimmigrants who wish to remain in the United States beyond their specifically authorized admission period to apply for an extension of stay directly with USCIS or to depart the country and apply for admission with CBP at a port of entry (POE). This change would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation's immigration laws, protect the integrity of these nonimmigrant programs, and promptly detect national security concerns.

DATES:

Written comments and related material must be submitted on or before October 26, 2020.

ADDRESSES:

You must submit comments on the proposed rule identified by DHS Docket No. ICEB-2019-0006, only through the following method:

•

Federal eRulemaking Portal (preferred): http://www.regulations.gov.

Follow the website instructions to submit comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or U.S. Immigration and Customs Enforcement (ICE) officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and ICE cannot accept any comments that are hand delivered or couriered. In addition, due to COVID-19, ICE cannot accept mailed comments whether paper or contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.

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): dhsdeskofficer@omb.eop.gov

(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.

For additional instructions on sending comments, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT:

Sharon Hageman, Acting Regulatory Unit Chief, Office of Policy and Planning, 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).

SUPPLEMENTARY INFORMATION:

This supplementary information section is organized as follows:

Table of Contents

I. Public Participation

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

II. Executive Summary

A. Purpose of the Regulatory Action

B. Summary of the Proposed Regulatory Revisions

C. Legal Authorities

D. Costs and Benefits

III. Background

A. Regulatory History of Duration of Status

B. Risks to the Integrity of the F, J, and I Nonimmigrant Classifications

IV. Discussion of the Proposed Rule

A. General Period of Admission for F and J Nonimmigrants

B. Automatic Extension of Visa Validity at Port of Entry

C. Extension of Stay (EOS)

D. Transition Period

E. Requirements for Admission, Extension, and Maintenance of Status of F Nonimmigrants

F. Requirements for Admission, Extension, and Maintenance of Status of I Nonimmigrants

G. Requirements for Admission, Extension, and Maintenance of Status of J Exchange Visitors

H. Change of Status

I. Classes of Aliens Authorized To Accept Employment

V. Statutory and Regulatory Requirements

A. Executive Orders 12866, 13563, and 13771: Regulatory Review

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Congressional Review Act

E. Unfunded Mandates Reform Act of 1995

F. Paperwork Reduction Act

G. Executive Order 13132: Federalism

H. Executive Order 12988: Civil Justice Reform

I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

J. National Environmental Policy Act (NEPA)

K. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

L. Executive Order 12630: Governmental Actions and Interference With Constitutionally Protected Property Rights

M. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

N. National Technology Transfer and Advancement Act

O. Family Assessment

P. Signature

I. Public Participation

DHS encourages all interested parties to participate in this rulemaking by submitting written data, views, comments and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Under the guidelines of the Office of the Federal Register, all properly submitted comments will be posted to

http://www.regulations.gov

as part of the public record and will include any personal information you have provided. See the

ADDRESSES

section for information on how to submit comments.

A. Submitting Comments

You must submit your comments in English or provide an English translation. The most helpful comments will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority supporting the recommended change. If you submit comments, please include the docket number for this rulemaking (ICEB-2019-0006), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and materials online. Due to COVID-19-related restrictions, ICE has temporarily suspended its ability to receive public comments by mail.

Instructions:

To submit your comments online, go to

http://www.regulations.gov

, and insert “ICEB-2019-0006” in the “Search” box. Click on the “Comment Now!” box and input your comment in the text box provided. Click the “Continue” box, and, if you are satisfied with your comment, follow the prompts to submit it.

DHS will post them to the Federal eRulemaking Portal at

http://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 you make to DHS. DHS may withhold information provided in comments from public viewing that it determines is offensive. For additional information, please read the “Privacy and Security Notice,” via the link in the footer of

http://www.regulations.gov.

DHS will consider all properly submitted comments and materials received during the comment period and may change this rule based on your comments.

B. Viewing Comments and Documents

Docket:

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to

http://www.regulations.gov

and insert “ICEB-2019-0006” in the “Search” box. Click on the “Open Docket Folder,” and you can click on “View Comment” or “View All” under the “Comments” section of the page. Individuals without internet access can make alternate arrangements for viewing comments and documents related to this rulemaking by contacting ICE through the

FOR FURTHER INFORMATION CONTACT

section above. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

C. Privacy Act

As stated in the Submitting Comments section above, please be aware that anyone can search the electronic form of comments received in any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. The Department may withhold information from public viewing that it determines is offensive. For additional information, please read the Privacy and Security Notice posted on

http://www.regulations.gov.

II. Executive Summary

A. Purpose of the Regulatory Action

Studying and participating in exchange visitor and academic programs in the United States offers foreign nationals access to world-renowned faculty, cutting edge resources, state-of-the art courses, and individualized instructional programs. Similarly, the United States fosters an environment that promotes the exchange of ideas and encourages open discussions when there are differences of opinions, which the United States also encourages by allowing foreign news and media members the same unimpeded access and opportunity to share in the constitutional freedoms of the press as domestic news and media members. These benefits have attracted hundreds of thousands of foreign nationals to the United States in the F academic student,

J exchange visitor,

and I representatives of foreign information media

categories. DHS values the benefits these nonimmigrants, in turn, bring to the United States.

INA 101(a)(15)(F), 8 U.S.C. 1101(a)(15)(F).

INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J).

INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I).

Unlike aliens in most nonimmigrant categories who are admitted until a specific departure date, F, J, and I 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.

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.

D/S for I representatives of foreign information media is the duration of his or her employment.

For dependents of principal F, J, or I nonimmigrants, D/S generally tracks the principal's period of admission so long as the dependents are also complying with the requirements for their particular classifications.

Since D/S was first introduced,

the number of F,

J, and I nonimmigrants admitted each year into the United States has significantly increased. In 2019 alone, there were over a million admissions in F status, a dramatic rise from the 263,938 admissions in F status when the legacy Immigration and Naturalization Service (INS) shifted to D/S admission in 1978.

Similar growth in the J population has also occurred over the past decades. In 2018, there were 611,373 admissions in J status, up over 300 percent from the 141,213 J admissions into the United States in 1985.

Finally, there were 44,140 admissions for foreign media representatives in the United States in 2018, over 160 percent growth from the 16,753 admissions into the U.S. in 1985.

DHS appreciates the academic benefits, cultural value, and economic contributions these foreign nationals make to academic institutions and local communities throughout the United States.

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

Immigration and Nationality Act (INA) section 214(m), 8 U.S.C. 1184(m);

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).

8 CFR 214.2(i).

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); USCIS Policy Manual, 2 USCIS-PM K.2 (Apr. 7, 2020).

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

1997 Statistical Yearbook of the Immigration and Naturalization Service at

https://www.dhs.gov/sites/default/files/publications/Yearbook_Immigration_Statistics_1997.pdf

(last visited Jan. 7, 2020).

In fiscal year (FY) 2019, there were 1,122,403 admissions in F-1 status.

See

DHS Office of Immigration Statistics (OIS) Legal Immigration and Adjustment of Status Report Data Tables (FY 2019), available at

https://www.dhs.gov/immigration-statistics/readingroom/special/LIASR

(last visited Aug. 27, 2020). In fiscal year 2016, there were approximately 1.11 million F and J nonimmigrants residing in the United States.

See

DHSOIS Population Estimates, Nonimmigrants Residing in the United States: Fiscal Year 2016 (Mar. 2018), available at

https://www.dhs.gov/sites/default/files/publications/Nonimmigrant_Population%20Estimates_2016_0.pdf

(last visited Jan. 22, 2020). That same year, 48,405 aliens were admitted into the United States in I status.

See

DHS OIS 2018 Yearbook of Immigration Studies (Nov. 13, 2019) available at

https://www.dhs.gov/immigration-statistics/yearbook/2018

(last visited Jan. 29, 2020).

See

DHS OIS Annual Flow Report, Annual Flow Report, U.S. Nonimmigrant Admissions: 2018 (Oct. 2019) available at

https://www.dhs.gov/sites/default/files/publications/immigration-statistics/yearbook/2018/nonimmigrant_admissions_2018.pdf

(last visited Jan. 22, 2020).

Id.

NAFSA: Association of International Educator's latest analysis finds that international students studying at U.S. colleges and universities contributed $41 billion and supported 458,290 jobs to the U.S. economy during the 2018-2019 academic year.

See https://www.nafsa.org/policy-and-advocacy/policy-resources/nafsa-international-student-economic-value-tool-v2.

However, 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 categories of 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 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.

Given these concerns, DHS believes that the admission of F, J, and I nonimmigrants for D/S is no longer 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 with DHS for an extension of stay.

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. In addition, as proposed, certain categories of aliens would be eligible for shorter periods of admission based on national security, fraud, or overstay concerns but like all aliens with fixed admission periods, would have a specific date upon which they would be required to depart the United States or would need to apply to DHS to have their continued eligibility for F, J, or I status reviewed by immigration officers. DHS believes that this process would help to mitigate risks posed by foreign adversaries who seek to exploit these programs.

See generally

8 CFR 214.1(c) (setting forth the general extension of stay (EOS) requirements applicable to most other nonimmigrants).

Replacing admissions for D/S with admissions for a fixed period of authorized stay is consistent with most other nonimmigrant categories,

would provide additional protections and oversight of these nonimmigrant categories, 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.,

by filing an application for adjustment of status) at the end of this specific admission period is consistent with requirements applicable to most other nonimmigrant classifications.

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).

These changes would ensure that the Department 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 they 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 categories 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 the Immigration and Nationality Act (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.

The Department believes that the provisions of each new regulatory

amendment function sensibly independent of other provisions. However, to protect the Department'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 provision is rendered inoperable.

B. Summary of the Proposed Regulatory Revisions

DHS proposes the following major changes:

• Amend 8 CFR 214.1, Requirements for admission, extension, and maintenance of status, by:

○ Striking all references to D/S for F, J, and I nonimmigrants;

○ Describing requirements for F and J nonimmigrants seeking admission;

○ 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 after an absence not exceeding 30 days solely in a contiguous territory or adjacent islands;

○ Outlining the process for extension of stay (EOS) applications for F, J, and I nonimmigrants;

○ 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;

○ Providing procedures specific to the transition from D/S to admission for a fixed time period of authorized stay for F, J, and I nonimmigrants; and

○ 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, maintenance, and change of status, by:

○ Setting the authorized admission and extension periods for F and J nonimmigrants (with limited exceptions) up to the program length, not to exceed a 2- or 4-year period;

○ Listing the circumstances, including factors that relate to national security and program integrity concerns, when the period of admission for F and J nonimmigrants may be limited to a maximum of 2 years;

○ Outlining procedures and requirements for F-1 nonimmigrants who change educational levels while in F-1 status;

○ Providing limits on the number of times that F-1 nonimmigrants can change educational levels while in F-1 status;

○ Decreasing from 60 to 30 days the allowed period for F aliens to prepare to depart from the United States after completion of a course of study or authorized period of post-completion practical training;

○ Proposing to lengthen the automatic EOS for individuals covered by the authorized status and employment authorization provided by 8 CFR 214.2(f)(5)(vi) (the H-1B cap gap provisions);

○ Initiating a routine biometrics collection in conjunction with an EOS application for F, J, and I nonimmigrants;

○ Limiting language training students to an aggregate 24-month period of stay, including breaks and an annual vacation;

○ Providing that a delay in completing one's program by the program end date on Form I-20, due to a pattern of behavior demonstrating a student is repeatedly unable or unwilling to complete his or her course of study, such as failing grades, in addition to academic probation or suspension, is an unacceptable reason for program extensions for F nonimmigrants;

○ Providing that F nonimmigrants who have timely filed an EOS application and whose EOS application is still pending after their admission period indicated on Form I-94 has expired will receive an automatic extension of their F nonimmigrant status and, as applicable, of their on-campus employment authorization, off-campus employment authorization due to severe economic hardship, or Science Technology Engineering and Mathematics Optional Practical Training (STEM OPT) employment authorization, as well as evidence of employment authorization, for up to 180 days or until the relevant application is adjudicated, whichever is earlier;

○ 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 8 CFR 214.2(f)(5)(v). The length of the auto-extension of employment authorization would be up to 180 days or the end date of the

Federal Register

notice (FRN) announcing the suspension of certain regulatory requirements related to employment, whichever is earlier;

○ Prohibiting F nonimmigrants whose admission period, as indicated on their Form I-94, has expired while their timely filed EOS applications and applications for employment authorization based on either an internship with an international organization, curricular practical training (CPT), pre-completion Optional Practical Training (OPT), or post-completion OPT are pending to engage in such employment until their applications are approved;

○ 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 an EOS available for I nonimmigrants who can meet specified EOS requirements;

○ Codifying the definition of a foreign media organization for I nonimmigrant status, consistent with long-standing USCIS and Department of State (DOS) practice;

○ Updating the evidence an alien must submit to demonstrate eligibility for the I nonimmigrant category;

○ Clarifying that I and 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 spouses, who must apply for employment authorization as evidenced by an EAD, do not have the benefit of continued work authorization once the EAD expires;

○ Striking all references to “duration of status” and/or “duration of employment” for the F, J, and I nonimmigrant categories; and

○ Including a severability clause. In the event that any provision 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:

○ 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 readmission after the Final Rule's effective date; and

○ 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:

○ Striking references to “duration of status,” to Form I-539, Application to Extend/Change a Nonimmigrant Status, and to Form I-765, Application for Employment Authorization;

○ Updating the employment authorization provisions to incorporate the proposed revisions in 8 CFR 214.2.

C. Legal Authorities

The Secretary of Homeland Security's (the Secretary) authority to propose the regulatory amendments in this rule can be found in various provisions of the immigration laws and the changes in this rule are proposed pursuant to these statutory authorities.

Section 102 of the Homeland Security Act of 2002 (HSA) (Pub. L. 107-296, 116 Stat. 2135), 6 U.S.C. 112, and section 103(a)(1) and (3) of the Immigration and Nationality Act (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 ICE's authority to collect information relating to foreign students and exchange visitor 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 Act, 8 U.S.C. 1182(a)(9)(B)(i). Like extensions of stay, change of status adjudications are discretionary determinations.

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.

See

INA 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a).

Finally, the INA establishes who may be admitted as F, J, or I aliens. Specifically, section 101(a)(15)(F) 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 and solely for the purpose of pursuing a full course of study at an academic or language training school certified by ICE, Student and Exchange Visitor Program (SEVP), as well as for the spouse and minor children of such aliens.

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).

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.

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 to participate in exchange visitor programs designated by the DOS, as well as for the spouses and minor children of such aliens.

Within DHS, ICE's SEVP is authorized to administer the program to collect information related to nonimmigrant students and exchange visitors under various statutory authorities. Section 641 of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Public Law 104-208, 110 Stat. 3009-546, 3009-704 (Sep. 30, 1996) (codified as amended at 8 U.S.C. 1372) (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,

http://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). 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 two years of enactment, and every two years thereafter.

D. Costs and Benefits

Currently, aliens in the F (academic student), J (exchange visitor), and I (representatives of foreign information media) categories are admitted to the United States under the duration of status framework. However, admitting a nonimmigrant for duration of status creates a challenge to the Department's ability to efficiently monitor and oversee these nonimmigrants, because they may remain in the United States for indefinite periods of time without being required to have immigration officers periodically assess whether they are complying with the terms and conditions of their status. Nor are immigration officers required to make periodic assessments of whether these nonimmigrants present national security concerns. Under the D/S framework, these nonimmigrants are required to have direct interaction with DHS officials only if they file certain applications, such as when applying for employment authorization for optional practical training or for reinstatement if they have failed to maintain status, or if they are the subject of an enforcement action. To address these vulnerabilities, DHS proposes to replace D/S with an admission for a fixed time period. Admitting individuals in the F, J, and I categories 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 or if abroad then to apply for admission at a POE with CBP, thus requiring periodic assessments by DHS in order to remain in the United States for a longer period. This change would impose incremental costs on F, J, and I nonimmigrants, 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.

The period of analysis for the rule covers 10 years and assumes the proposed rule would go into effect in 2020. Therefore, the analysis period goes from 2020 through 2029. This analysis estimates the annualized value of future costs using two discount rates: 3 percent and 7 percent. In Circular A-4, OMB recommends that a 3 percent discount rate be used when a regulation

affects private consumption, and a 7 percent discount rate be used in evaluating a regulation that will mainly displace or alter the use of capital in the private sector. The discount rate accounts for how costs that occur sooner are more valuable. The NPRM would have an annualized cost ranging from $229.9 million to $237.8 million (with 3 and 7 percent discount rates, respectively).

III. Background

A. Regulatory History of Duration of Status

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 minor children may accompany or follow to join them as F-2 dependents.

INA 101(a)(15)(F)(i)-(ii), 8 U.S.C. 1101(a)(15)(F)(i)-(ii); 8 CFR 214.2(f)(3).

From 1973 to 1979, F students were admitted for 1-year and could be granted an EOS in increments of up to 1-year if they established that they were maintaining status.

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.

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.

On November 22, 1978, the final rule was published amending the regulations at 8 CFR 214 to allow INS to admit F-1 aliens for the duration of their status as students.

The new rule became effective on January 1, 1979.

See

38 FR 35425 (Dec. 28, 1973) (The period of admission of a non-immigrant student shall not exceed one-year.)

See

43 FR 32306 (Jul. 26, 1978).

See

43 FR 32306, 32306-07 (Jul. 26, 1978).

See

43 FR 54618 (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 1-20 indicates that he/she will remain in the United States as a student for more than 1 year. If the information on form 1-20 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).

Id.

Subsequently, the regulations addressing the admission periods for nonimmigrant students were amended four more times between January 23, 1981, and October 29, 1991.

On January 23, 1981, the former INS issued a rule eliminating D/S for F-1 nonimmigrants and limiting their admission 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.

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.

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).

See

46 FR 7267 (Jan. 23, 1981).

Id.

On April 5, 1983, legacy INS reinstituted D/S, while addressing areas of concern identified after the 1978 implementation of D/S for nonimmigrant students.

The amendments implemented new notification procedures for transfers between schools and new record-keeping and reporting requirements for Designated School Officials (DSO).

These amendments also limited D/S to the period when a student was enrolled in one educational level and required nonimmigrant students to apply for an EOS and, if applicable, a school transfer to pursue another educational program at the same level of educational attainment.

See

48 FR 14575 (Apr. 5, 1983).

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).

See

48 FR 14575, 84 (Apr. 5, 1983).

On April 22, 1987, legacy INS refined the April 5, 1983, regulatory package, again amending regulations regarding F-1 students.

Additional regulations explained which medical and academic reasons allowed F-1 students to drop below a full-time course of study and remain in status and clarified when F-1 students must request an EOS or reinstatement.

See

52 FR 13223 (Apr. 22, 1987).

Id.

In 1991, the regulations were further 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.

In the 1991 Final Rule, legacy INS also clarified and simplified the procedures for F-1 students seeking EOS and employment authorization. This included giving DSOs authority to grant a program extension (and therefore an EOS) for in-status students with a compelling academic or medical reason for failing to complete their educational program by the program end date on their Form I-20.

The rule required DSOs to notify legacy INS of the extension.

In the rulemaking, legacy INS specifically agreed to allow DSOs to issue program extensions, explaining that “with the DSOs screening out ineligible students, the Service is satisfied that the purposes of the EOS can be effectively met through the notification procedure.”

Pursuant to the 1991 Final Rule, DHS has relied on DSOs to report student status violators, issue program extensions, and transfer students between programs and schools.

See

56 FR 55608 (Oct. 29, 1991).

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/student-forms?form=Forms_I-20

(last visited Jan. 29, 2020).

See

56 FR 55608 (Oct. 29, 1991).

Id.

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 foreign nationals 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.

See

INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J), and 22 CFR 62.20-62.32.

Prior to 1985, J exchange visitors were granted an initial admission for the period of their program up to one year.

In 1985, the regulations were amended to allow J exchange visitors to be admitted for the duration of their program plus 30 days.

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.

See

8 CFR 214.2(j)(1)(ii) (1985).

See

50 FR 42006 (Oct. 17, 1985).

Id.

A prospective exchange visitor must be sponsored by a DOS-designated program sponsor to be admitted to the United States in the J nonimmigrant category 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.

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 Education 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 minor children. J visa applicants must present a signed Form DS-2019 at the time of their visa interview. Once the visa is issued, however, 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 for a dependent spouse or child, the system will not permit a new Form DS-2019 to be created until after the primary's SEVIS record is validated.

See

9 FAM 402.5-6(D)(1) (U) The Basic Form available at

https://fam.state.gov/fam/09FAM/09FAM040205.html#M402_5_6_D

(last visited Jan. 29, 2020). 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 Jan. 29, 2020).

Extensions of J exchange visitor programs are governed by DOS regulations.

If there is authority to extend a program, the exchange visitor program sponsor's Responsible Officer (RO),

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.

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.

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 five years.

See

22 CFR 62.20(i)(1). And alien physicians, are generally limited to seven years.

See

22 CFR 62.27(e)(2).

A Responsible Officer (RO) is an employee or officer of a sponsor who has been nominated by the sponsor, and approved by the Department of State, to carry out the duties outlined in 22 CFR 62.11.

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.

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. Nonimmigrant foreign information media representatives 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.

See

8 CFR 214.2(i).

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.

In 1985, legacy INS amended the regulations to allow nonimmigrant foreign information media representatives to be admitted for the duration of their employment.

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.

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.

See

38 FR 35425 (Dec. 28, 1973).

See also

50 FR 42006 (Oct. 17, 1985), stating that prior to the publication of this rule, I nonimmigrants were admitted for one year.

See

8 CFR 214.2(i); 50 FR 42006 (Oct. 17, 1985).

Id.

85 FR 27645 (May 11, 2020). Note that the requirements in the May 11, 2020 Final Rule do not apply to Hong Kong Special Administrative Region (SAR) or Macau SAR passport holders. This proposed rule updates the requirements to remove the exception for Hong Kong passport holders, who will be admitted in the same manner as those presenting a passport issued by the People's Republic of China.

B. Risks to the Integrity of the F, J, and I Nonimmigrant Classifications

i. General Risks

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 its oversight and vetting functions. Since legacy INS introduced D/S in 1979, the number of F nonimmigrant students admitted into the United States has more than quadrupled. 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 more than doubled.

As noted above, in fiscal year (FY) 2016, there were approximately 1.11 million F and J nonimmigrants residing in the United States.

See

DHS Office of Immigration Statistics (OIS) Population Estimates, Nonimmigrants Residing in the United States: Fiscal Year 2016 (March 2018), [USCIS: see edits] available at

https://www.dhs.gov/sites/default/files/publications/Nonimmigrant_Population%20Estimates_2016_0.pdf

(last visited Jan. 22, 2020). In 2018, 48,405 aliens were admitted into the United States in I status.

See

DHS OIS 2018 Yearbook of Immigration Studies (Nov. 13, 2019) available at

https://www.dhs.gov/immigration-statistics/yearbook/2018

(last visited Jan. 29, 2020).

The Department uses the Student and Exchange Visitor Information System (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 spouses and dependents).

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.

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. The Department 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. The Department believes that the determinations of program extension and extension of stay 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.

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).

Additionally, DHS expects this change would deter and prevent fraud, as a requirement to check-in directly with an immigration officer inherently is likely to deter some bad actors from exploiting perceived vulnerabilities in the F and J nonimmigrant categories. The same benefits of direct evaluation, better recordkeeping, and fraud prevention also would apply to the I population.

ii. Risks to the F Classification

While the F program provides enormous 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.

In some cases, convicted school owners operated multiple schools and transferred students among them to conceal the fraud.

DHS is also concerned that DSOs at these schools were complicit in these abuses; some DSOs intentionally recorded a student's status inaccurately,

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,

and some DSOs permitted students who failed to maintain status to transfer to another school rather than apply for reinstatement.

Beyond cases publicly identified by DHS and the Department of Justice (DOJ), DHS is concerned about cases where DSOs were not aware of status violations by students.

DOJ Press Release, “Operator of English language schools charged in massive student visa fraud scheme,” April 9, 2008, available at

https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html

(last visited Jan. 27, 2020); DOJ Press Release, “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 Jan. 27, 2020); ICE Press Release, “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 Jan. 27, 2020); DOJ Press Release, “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 Jan. 27, 2020); ICE Press Release, “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 Jan. 27, 2020); ICE Press Release, “3 senior executives of for-profit schools plead guilty to student visa, financial aid fraud,” (last visited Jan. 27, 2020); Apr. 30, 2015, available at

https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud

(Jan. 27, 2020); ICE Press Release “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 Jan. 27, 2020).

ICE Press Release, “3 senior executives of for-profit schools plead guilty to student visa, financial aid fraud,” April 30, 2015, available at

https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud

(last visited Jan. 27, 2020).

DOJ Press Release, “Operator of English language schools charged in massive student visa fraud scheme,” April 9, 2008, see

https://www.justice.gov/archive/usao/cac/Pressroom/pr2008/038.html;

DOJ Press Release, “Owner/Operator and employee of Miami-based school sentenced for immigration-related fraud,” Aug. 30, 2010, see

https://www.justice.gov/archive/usao/fls/PressReleases/2010/100830-02.html;

ICE Press Release, “Pastor sentenced to 1 year for visa fraud, ordered to forfeit building housing former religious school,” June 13, 2011,

see https://www.ice.gov/news/releases/pastor-sentenced-1-year-visa-fraud-ordered-forfeit-building-housing-former-religious;

DOJ Press Release, “School Official Admits Visa Fraud,” Mar. 12, 2012,

see https://www.justice.gov/archive/usao/pae/News/2012/Mar/tkhir_release.htm;

ICE Press Release, “Owner of Georgia English language school sentenced for immigration fraud,” May 7, 2014,

see https://www.ice.gov/news/releases/owner-georgia-english-language-school-sentenced-immigration-fraud;

ICE Press Release, “3 senior executives of for-profit schools plead guilty to student visa, financial aid fraud,” Apr. 30, 2015,

see https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud;

ICE Press Release “Owner of schools that illegally allowed foreign nationals to remain in US as `students' sentenced to 15 months in federal prison,” Apr. 19, 2018,

see https://www.ice.gov/news/releases/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15.

For example, DHS identified a nonimmigrant who has been an F-1 student at a dance school since 1991 and who has been issued 16 program extensions since 2003, when the use of SEVIS was first mandated. Although the reported normal length of the program is 5 years, the school has issued multiple program extensions by claiming that “[t]he student needs more time” despite 28 years of enrollment. In another concerning extension of an academic program, an F-1 student was enrolled at an accredited language training school from 2007 to 2020, requiring 15 program extensions. Another student who was enrolled at the same school from 2009 to 2020 and has been an F-1 student since 2005, was granted 14 program extensions. The school, which has had its SEVP-certification withdrawn, issued multiple program extensions for each student with the justification of “[e]xtended studies.” F-1 students in doctoral programs have taken over 20 years to complete their programs. 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.

ICE Press Release, “3 senior executives of for-profit schools plead guilty to student visa, financial aid fraud,” April 30, 2015,

see

https://www.ice.gov/news/releases/3-senior-executives-profit-schools-plead-guilty-student-visa-financial-aid-fraud.

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.

DHS has identified aliens who have been in the United States in F-1 status since the 1990s and early 2000s, some of whom are in active F-1 status today. To extend their stay,

these aliens enrolled in consecutive educational programs, transferred to new schools, or repeatedly requested DSOs to extend 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 and for the primary purpose of studying, not as a way to remain in the United States indefinitely.

Monitoring F-1 students on post-completion OPT can be even more complicated because the students are no longer attending classes.

See

GAO, Student and Exchange Visitor Program, DHS Needs to Assess Risks and Strengthen Oversight of Foreign Students with Employment Authorization, GAO-14-356 (Washington, DC, Feb. 27, 2014).

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.

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 have the financial resources to cover tuition and living expenses without engaging in unauthorized employment.

See

INA section 101(a)(15)(F)(i), 8 U.S.C. 1101(a)(15)(F)(i).

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.

Because F-1 nonimmigrant students are admitted for D/S, they generally do not file applications or petitions, such as extension of stay, with USCIS, and 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.

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).

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.

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. ICE is making a concerted effort to comply with GAO's recommendations, and has implemented controls to address the fraud risks identified in the GAO report through stricter scrutiny during the SEVP school certification, recertification and compliance process.

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

DHS Can Take Additional Steps to Manage Fraud Risks Related to School Recertification and Program Oversight, GAO-19-297: Published: Mar 18, 2019 available at

https://www.gao.gov/assets/700/697630.pdf;

Overstay Enforcement: Additional Mechanisms for Collecting, Assessing, and Sharing Data Could Strengthen DHS's Efforts but Would Have Costs, GAO-11-411: Published Apr. 15, 2011. Available at

https://www.gao.gov/assets/320/317762.pdf;

and Student and Exchange Visitor Program: DHS Needs to Assess Risks and Strengthen Oversight Functions, GAO-12-572: Published June 18, 2012 available at

https://www.gao.gov/assets/600/591668.pdf.

Since publishing its 2019 report, GAO has updated its website to include comments to the Recommendations for Executive Action included therein. The comments indicate that ICE is in the process of addressing GAO's concerns and 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. Government Accountability Office, Student and Exchange Visitor Program: DHS Can Take Additional Steps to Manage Fraud Risks Related to School Recertification and Program Oversight, RECOMMENDATIONS,

GAO.gov, https://www.gao.gov/products/GAO-19-297?mobile_opt_out=1#summary_recommend

(last visited April 7, 2020).

DHS believes it can mitigate these 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 2- or 4-year period. It would establish a mechanism for immigration officers to assess these nonimmigrants at defined periods (such as when applying for an extension of stay in the United States beyond a 2- or 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 DHS to identify and hold accountable aliens who violate their F-1 status and their educational institutions. 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.

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 actors 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 that 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.

For example, SEVP may withdraw a school's certification or deny a school's recertification if a DSO 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).

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.

Detecting and deterring emerging threats to U.S. national security posed by adversaries exploiting the F-1 program requires additional oversight. 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.

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 criminal activity) from F nonimmigrant students more frequently, thereby enhancing the Government's oversight and monitoring of these aliens.

In Dec. 2019, Weiyn Huang, the owner of Findream and Sinocontech pleaded guilty to conspiracy to commit visa fraud in the U.S. District Court in Chicago. In return for payments, Findream listed aliens as OPT workers, providing them with what appeared to be legal status. The FBI has charged one of those aliens with spying. See

https://media.nbcbayarea.com/2019/09/KellyHuangCriminalComplaint.pdf.

This vulnerability presented in the nonimmigrant student category 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 naiveté 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-0#.

See also Foreign Threats to Taxpayer—Funded Research: Oversight Opportunities and Policy Solutions: Hearing before the Senate Finance Committee (2019) (Statement of Louis A. Rodi III). DSOs are not trained immigration officers nor are they in a position to make such determinations.

In addition, DSOs may not be aware of a student's failure to maintain status, including engaging in criminal activity, nor do they have the authority or ability to acquire such information. Admitting F-1s for a fixed period of admission would provide trained immigration officers with the opportunity to vet these individuals.

iii. Risks to 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.

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's policies and systems by not disclosing foreign support (grants), laboratories, or funded faculty positions in other countries.”

There are multiple examples of these ongoing national security threats. 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 Liu Zhongsan 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.

Additionally, in December 2019, 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.”

Recently, 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 People's Republic of China's (PRC) People's Liberation Army 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.

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.

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.

U.S. Department of Justice, Chinese Government Employee Charged in Manhattan Federal Court with Participating in Conspiracy to Fraudulently Obtain U.S. Visas, Sept. 16, 2019.

See 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/. See also https://www.thedailybeast.com/china-might-be-behind-harvard-student-zaosong-zhengs-theft-of-cancer-research-feds-claim.

U.S. Department of Justice, Officer of China's People's Liberation Army Arrested At Los Angeles International Airport, June 11, 2020,

https://www.justice.gov/usao-ndca/pr/officer-china-s-people-s-liberation-army-arrested-los-angeles-international-airport,

(last accessed June 20, 2020).

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, 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.

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.

Thus, admitting J exchange visitors for a fixed time 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. 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.

See

8 CFR 214.1(a)(3).

ROs may not be aware of a student's failure to maintain status, including 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.

iv. Risks to the I Classification

Admitting I nonimmigrants for duration of status 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.

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.

IV. Discussion of the Proposed Rule

All persons arriving at a port-of-entry to the United States must be inspected by a CBP officer and must apply for admission into the United States with CBP.

In the case of an alien, a CBP officer determines whether an alien is eligible for admission and, if they are, issues the Form I-94, Arrival/Departure Record with the nonimmigrant category and period of admission.

For the vast majority of aliens, their Form I-94 includes a specific date through which their status is valid; they must depart the United States on or before 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.

8 CFR 235.

The Form 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

I-94 website, U.S. Customs and Border Protection,

https://i94.cbp.dhs.gov/I94/#/recent-search

(last visited Dec. 9, 2019).

However, as described above, certain nonimmigrant categories, 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. General Period of Admission for F and J Nonimmigrants

As a foundational matter, DHS proposes to add a new paragraph explaining the period of admission for nonimmigrants described in section 101(a)(15)(F) and (J) who are seeking admission after [effective date of the final rule]. In formulating this proposed rule, DHS considered and addressed various circumstances that might apply when F and J nonimmigrants apply for admission at a POE.

i. Application for Admission in F or J Nonimmigrant Status

Aliens applying for an admission in either F or J status who, under this proposal, would be eligible to be admitted for the length of time indicated by the program end date noted in their Form I-20 or DS-2019, not to exceed 4 years, unless they are subject to a 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), 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 214.1(a)(4)(i)(A) and (ii)(A).

ii. Application for Admission in the Same Status Following Departure From the United States

a. Aliens With Pending Extension of Stay Applications at Time of Application for Admission Whose Previous Period of Authorized Stay Has Expired

Aliens who departed the United States and are applying for 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, unless they are subject to the 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), 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)(6).

b. Aliens With Pending Extension of Stay Applications at Time of Application for Admission Whose Previous Period of Authorized Stay Has Not Expired

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:

i. 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, unless they are subject to the 2-year admission proposed in 8 CFR 214.2(f)(20) or (j)(6), 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 2 or 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

ii. The period of time remaining on their previously authorized period of admission. As proposed, 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)(6), an alien's EOS application is not considered abandoned and USCIS will grant a new period of stay upon subsequent adjudication of the EOS.

See

proposed 8 CFR 214.1(a)(4)(i)(B) and (a)(4)(ii)(B).

c. Aliens Applying for Admission Without a Pending Application of Extension of Stay

Aliens who departed the United States and are applying for admission in F or J status would be eligible to be admitted up to the length of their program listed on the Form I-20 or Form DS-2019, not to exceed a period of 4 years, plus an additional 30 days at the end of the program, as specified in 8 CFR 214.2(f)(5) and (j)(1)(ii)(A), respectively, if the alien seeks admission with a Form I-20 or DS-2019 for a program end date beyond their previously authorized period of admission, or for a period up to the unexpired period of stay authorized prior to departure.

See

proposed 8 CFR 214.1(a)(4)(i)(A) and (a)(4)(ii)(A).

d. Aliens Applying for Admission After EOS is Granted

For aliens who departed the United States after timely filing an EOS application and are applying for admission in F or J status after their EOS application is granted, DHS proposes that 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).

e. Aliens Applying for Admission To Engage in Post-Completion or STEM OPT

F nonimmigrants who departed the U.S. and are applying for admission to engage in post-completion or STEM OPT.

See

proposed 8 CFR 214.1(a)(4)(i)(D). These aliens may, generally, be admitted either up to the end date of the approved employment authorization 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. In instances where the EAD has not been approved and the alien is admitted based on the DSO's recommended employment end date on the Form I-20, USCIS's subsequent approval of the alien's EAD may result in less time for the EAD than the time for which the alien was admitted. Therefore, in the limited circumstance where the alien ceases employment because his or her EAD expires before the alien's fixed date of admission as noted on their I-94, the alien generally 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 I-94.

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 post-completion or STEM OPT (currently Form I-797).

Finally, under this proposal, aliens applying for admission pursuant to the provisions relating to automatic extension of visa validity could be admitted for the unexpired period of stay authorized prior to their departure.

See

proposed 8 CFR 214.1(b)(1).

All of these cases assume, consistent with this proposed rule, that the admission period 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 an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants.

See

proposed 8 CFR 214.2(f)(5) and (j)(1). DHS believes that this proposal would provide adequate notice because all students and exchange visitors in F or J nonimmigrant status who want 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 approving a program extension, but the nonimmigrant must apply for an EOS directly with DHS and such EOS must be granted to remain lawfully in the United States. Under current policy, F and J nonimmigrants 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.

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.

See “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, available at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

(last accessed June 20, 2020). The policy reflected by this memorandum currently applies to F, J, and I nonimmigrants in relation to duration of status but will change accordingly when duration of status no longer applies to them.) ICE does not make findings of status violations that result in the accrual of unlawful presence.

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 4 years from the effective date of the final rule, as the fixed date of admission best aligns with the normal progress these nonimmigrants should be making. This alignment is based on the general structure of post-secondary education in the United States. According to the Department of Education (ED), students can normally earn a bachelor's degree in 4 years.

The total number of F-1 students pursuing a bachelor's degree in 2018 was 522,155, constituting almost 40 percent of the 2018 nonimmigrant student population. The total number of F-1 students pursuing a master's degree, generally 2-year programs, in 2018 was 498,625, representing almost 38 percent of the nonimmigrant student population. Taken together, this population represents almost 80 percent of the nonimmigrant students in the United States. Therefore, DHS believes that a 4-year period of admission would not pose an undue burden on them, 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.

As a significantly smaller percentage of students are engaged in programs which may last longer than 4 years, DHS considered that the proposed framework would accommodate many students, creating a less burdensome process.

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 Feb. 4, 2020).

See

the Student and Exchange Visitor Program (SEVP), “2018 SEVIS by the Numbers Report” available at

https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf

(last visited Feb. 4, 2020).

Other programs include Associate's degrees, language training programs, and Ph.D.s., among others.

Id.

The proposed 4-year period of admission would not apply to all F and J nonimmigrants. DHS believes a shorter admission period, up to 2 years, would be appropriate for a subset of the F and J population due to heightened concerns related to fraud, abuse, and national security, as discussed below.

See

proposed 8 CFR 214.2(f)(20) and (j)(6). For this subset of the F and J population, DHS believes that a 2-year maximum period of admission would be appropriate. This would give the Department an opportunity to verify that they are complying with the terms and conditions of their status more frequently and thereby better address any national security concerns. Using this risk-based approach, which focuses on certain factors predetermined by DHS and presented by some aliens, DHS anticipates that most F and J nonimmigrants would not need to file an EOS application at some point during their stay, and DHS consequently could allocate its resources more efficiently.

Before arriving at the 2- and 4-year admission periods, DHS considered various options. DHS considered a standard 1-year admission for all F and J nonimmigrants. This option would treat all nonimmigrants with F and J status equally and would likely allow for easier implementation by CBP at the POEs. Nevertheless, it could result in significant costs to nonimmigrants and the Department. There are more than 1 million F students enrolled in programs of study that last longer than 1 year.

With a 1-year admission period, students and exchange visitors participating in programs of greater duration would need to apply for additional time. This would be a significant cost to students and exchange visitors, and DHS is particularly mindful of those who comply with the terms and conditions of their admission and participate in programs, such as undergraduate programs, that typically require several years to complete.

See

the Student and Exchange Visitor Program (SEVP), “2018 SEVIS by the Numbers Report” available at

https://www.ice.gov/doclib/sevis/pdf/sevisByTheNumbers2018.pdf

(last visited Feb. 4, 2020).

Another alternative DHS considered was to admit all F and J nonimmigrants to their program end date, not to exceed 3 years. 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. Even considering those F or J nonimmigrants who are admitted into the U.S. after having already completed a portion of their program outside of the U.S., instituting a 3-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 3-year maximum period of stay than a 4-year one. Therefore, DHS believes an admission for the program end date, not to exceed 4 years (except for limited exceptions that would limit admissions to 2 years) is the best option. DHS welcomes comments on this proposal.

B. Automatic Extension of Visa Validity at Port of Entry

DHS proposes to change the admission language in the provision relating to extension of visa validity from “shall” to “may” clarifying that CBP always maintains the discretion to determine whether to admit an alien and for the 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.

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 readmission if eligible for admission as an F, J, or M nonimmigrant and if they are applying for readmission after an absence from the United States not exceeding thirty days solely in contiguous territory or adjacent islands.

See

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 port of entry. These provisions apply when, for example, a nonimmigrant finds himself or herself applying for reentry 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 can readmit the nonimmigrant

whose visa validity is automatically extended by operation of Department of State regulations.

See

22 CFR 41.112(d). DHS does not believe it is necessary to make a nonimmigrant get 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.

See

proposed 8 CFR 214.1(b)(1)-(3). Second, DHS proposes to update the cross reference to 22 CFR, from 22 CFR 41.125(f) to 22 CFR 41.112(d), which is the current provision describing automatic extension of visa validity at ports of entry. Third, DHS proposes to strike the reference to “duration of status” in 8 CFR 214.1(b)(1).

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, USCIS is in the process of transitioning from paper-based to electronic form processing and 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 regulations with generally applicable language, specifically, “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 any biometrics required by 8 CFR 103.16.”

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.

Additionally, DHS proposes to strike “other than as provided in 214.2(f)(7)” from 8 CFR 214.1(c)(3)(v) to make it clear 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 (such as fingerprints, photograph, and or a digital signature) from applicants, petitioners, sponsors, beneficiaries, or other individuals residing in the United States for any immigration and naturalization benefit.

See

8 CFR 103.16, and 103.2(b)(9). 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 USCIS' 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 any corresponding applications 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,

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).

See

Memo, Cook, Acting Asst. Comm. Programs, HQ 70/6.2.9 (June 18, 2001), reprinted in 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 6, 1993).

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 not consider the EOS application abandoned.

See

proposed 8 CFR 214.1(c)(6)(i). In such circumstances, the pending EOS would remain relevant and ultimately determine the alien's fixed date of admission.

However, where the alien leaves the United States and applies for admission while his or her EOS application is pending and is admitted with a Form I-20 or DS-2019 for a program end date beyond their previously authorized period of admission, the pending EOS is deemed abandoned, and the admit until date provided by CBP on the alien's Form I-94 governs.

See

proposed 8 CFR 214.1(c)(6)(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-1s and J-2s, CBP does not adjudicate applications for employment authorization. USCIS would continue processing any such applications, notwithstanding a departure, and, if the application is approved, USCIS will 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 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 application are

adjudicated, USCIS would not consider the employment authorization application abandoned.

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 USCIS only sends RFEs to U.S. addresses, 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.

Failure to do so could result in USCIS denying an employment authorization or EOS application for abandonment.

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 Jan. 9, 2020).

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 a request for evidence while you are away, however, so you would 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 Jan. 9, 2020).

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, not to exceed 4 years from the effective date of the Final Rule, plus an additional 60 days for F nonimmigrants and 30 days for J nonimmigrants. An alien who departs the United States and seeks admission after the Final Rule's effective date becomes subject to the fixed date framework imposed by this rule.

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 would be readmitted 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). Aliens whose admission period is converted from D/S to a fixed period who would like to seek additional time to complete their studies, including those requesting post-completion OPT or STEM OPT extensions or starting a new course of study or exchange visitor program, would need to file an EOS application with USCIS for an admission period up to the new program end date listed on the Form I-20 or DS-2019, or successor form, reflecting such an extension or transfer, up to a maximum of 4-years, or 2 years, as appropriate.

See

proposed 8 CFR 214.1(m)(1) and 8 CFR 214.2(f)(20).

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 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; and (3) their application is pending on the final rule's effective date. 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 will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60 days as provided in their previous admission. If the employment application is denied, the F-1 would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, plus 60 days as 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.

Aliens in F-1 status with pending employment authorization applications, other than post-completion OPT and STEM OPT, also do not need to file for an extension or refile an employment authorization application. As long as these F-1s 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. 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 Fs and 30 days for Js 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 four 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 four 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 four year maximum period of stay from the final rule's effective date, plus an additional 60 days for Fs, and 30 days for Js.

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 reliance interests of these nonimmigrants admitted for D/S. DHS is not proposing to change the fundamental requirements to qualify for these nonimmigrant statuses, rather the proposal is only to change the length of time that an individual may lawfully remain in the United States in F or J status without filing an extension of stay. Admitting these categories 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 extension of stay request.

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 a significant 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 four 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;

(v) having 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 Fs, Js, 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.

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.

Fourth, DHS weighed whether requiring various categories of F or J nonimmigrants to apply for an EOS within 60 days after the final rule's effective date would better address national security and fraud issues rather than transitioning all nonimmigrants from D/S to an admission for a fixed time period by using the program end date up to a maximum period of four years. To identify the categories that would be required to file an EOS soon after the final rule's effective date, DHS considered adopting the limiting factors listed at proposed 8 CFR 214.2(f)(20) and (j)(6) (including certain countries and U.S. national interests, unaccredited institutions, E-Verify participation, and language training programs). While such an approach could prioritize certain aliens for prompt, direct vetting and oversight, applying it to hundreds of thousands of nonimmigrants who had been admitted into the United States under D/S could have a significant impact. DHS believes that this approach could result in lengthy processing timeframes as the affected population would be required to file an EOS at the same time. Given USCIS' processing times, DHS does not believe there would be significant efficiency to excepting certain F or J categories from applying for EOS later than other F or J categories. In addition, this short timeframe to file EOS may be burdensome on F, Js, and the institutions and sponsors as they adapt to a new process, as compared with the proposed transition period within the 4-year period.

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 Fs and 30 days for Js 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 Fs and Js 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 adequate notice of the events that would trigger the transition to a fixed admission date to a fixed admission date and their responsibilities resulting from such change.

ii. I Nonimmigrants

Turning to I nonimmigrants, 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 continue employment with the same employer, including for I nonimmigrants who have timely filed a Form I-539, Application to Extend/Change Nonimmigrant Status,

see

8 CFR 214.2(i), which currently is required when an I nonimmigrant changes information mediums.

DHS believes that adopting an already established timeframe, to which I nonimmigrants are already accustomed, is reasonable. 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.

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.

See

Instructions for Application to Extend/Change Nonimmigrant Status, available at

https://www.uscis.gov/i-539

(last visited April 13, 2020).

Typically, fewer than 50,000 aliens enter the U.S. in I classification annually.

See 2017 Yearbook of Immigration Statistics,

Published by the DHS Office of Immigration Statistics, July 2019, page 63.

Finally, 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)(1)-(m)(3).

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 current 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 and subject to eligibility limitations, as well as national security and fraud concerns.

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)(D). 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 paragraph (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 or 2-year maximum period of admission and they would need to apply for an extension of stay with DHS if staying beyond this period.

See

proposed 8 CFR 214.2(f)(7)(vi).

Fourth, DHS is proposing to exempt border commuter students from the general length of admission provisions.

See

proposed 8 CFR 214.2(f)(5)(i)(C). The regulations at 8 CFR 214.2(f)(18) would continue to govern these border commuter students, including that DHS to admit them for a fixed time period.

Fifth, 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.

See

proposed 8 CFR 214.2(f)(5)(i)(B). 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 the Secretary of Education. DHS consistently sees students enrolled in language training schools for very lengthy periods of time, including instances of enrollment for over a decade, either by extending a program at one school or transferring between language schools.

DHS has also found students enrolling in lengthy periods of language training despite previously enrolling in or completing undergraduate and graduate programs requiring English language proficiency.

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-1s meet the statutory definition of a bona fide student with the intent of entering the U.S. for temporary study.

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 length of language training classes offered by schools that are accredited by ED-recognized agencies.

DHS seeks

comments on whether 24 months is sufficient for a language training program.

For example, at one accredited English language training school, five students have been enrolled in language training since 2010; eight since 2011; three since 2012; two since 2013; two since 2014; and two since 2015.

For example, one student has been enrolled in English language training programs at four different schools since 2015 despite being an F-1 student since at least 2002. She was enrolled in an English language training program from 2002-2004 and subsequently enrolled in an associate's program that required English language proficiency from 2004-2008. Her Form I-20 noted that she had the required English language proficiency for that program.

See

INA (101)(a)(15)(F).

Courses listed by language training schools accredited by the Accrediting Council For Continuing Education & Training reflect that most

Intensive English Programs can be completed within 24 months, website available at

https://accet.org/

(last visited Feb. 7, 2020). For example, ELS Language Center's longest English as a Second Language (ESL) program is 1440 hours. Attending 18 clock hours per week, the minimum for a full course of study, for that period of time would result in 18.4 months.

Sixth, DHS proposes a maximum admission period of up to 2 years for certain students.

See

proposed 8 CFR 214.2(f)(5)(i)(A) and (f)(20). This period is based on factors that DHS identified as involving national security and public safety concerns, with the goal of encouraging compliance with immigration laws. They are:

• Aliens who were born in or are citizens of countries on the State Sponsor of Terrorism List. The State Sponsor of Terrorism List are countries, as determined by the Secretary of State, to have repeatedly provided support for acts of international terrorism pursuant to three laws: Section 6(j) of the Export Administration Act, section 40 of the Arms Export Control Act, and section 620A of the Foreign Assistance Act. Designation as a “State Sponsor of Terrorism” under these authorities also implicates other sanctions laws that penalize persons and countries engaging in certain trade with state sponsors. There are currently four countries designated as a state sponsor of terrorism under these authorities: The Democratic People's Republic of Korea (North Korea), Iran, Sudan, and Syria. Under this proposal, DHS anticipates admitting those who were born in or are citizens of those countries for a maximum period of up to 2 years. The Department believes it is appropriate to apply additional scrutiny on those born in these countries and citizens of these countries who are temporarily studying in the United States to ensure that these aliens do not pose risks to the national security of the United States. For easier reference and to ensure affected stakeholders have advanced notice of the countries on the State Sponsors of Terrorism List prior to choosing a country and institution to study in, DHS proposes to publish a

Federal Register

notice (FRN) with the DOS list. If DOS makes changes to the list, DHS proposes to publish an FRN with the updated list. Any future FRN will also announce the date that the new maximum 2-year period of admission would apply.

• Aliens who are citizens of countries with a student and exchange visitor total overstay rate of greater than 10 percent according to the most recent DHS Entry/Exit Overstay report.

The DHS Entry/Exit Overstay report compiles overstay rates for different classifications. It provides overstay rates per country for F, M, and J nonimmigrants together, rather than a separate overstay rate by classification, per country. Given the overlap between the F and J classifications, utilizing the data for both exchange visitors and students to establish overstay rates is useful in that it may deter aliens who may attempt to seek admission in one status rather than the other in order to obtain a lengthier period of admission. A key goal of shifting aliens in F status from D/S to an admission for a fixed time period is to provide pre-defined time periods for immigration officers to evaluate whether a nonimmigrant has maintained his or her status. If an immigration officer finds that an alien violated his or her status prior to or during the course of an EOS adjudication and denies the EOS request, the alien generally would begin accruing unlawful presence the day after issuance of the denial.

The Department finds it appropriate to apply additional oversight to nonimmigrants from countries with consistently high student and exchange visitor overstay rates, by requiring these aliens to more frequently request extensions of stay. Because there is an increased risk of overstay by nonimmigrants from these countries as reflected by the DHS Entry/Exit Overstay reports, DHS would be able to identify such violations sooner. Further, DHS believes this more frequent oversight could deter aliens from engaging in activities that would violate their status, as the consequences of doing so would arise more quickly.

The overstay report for 2019 can be found at

https://www.dhs.gov/sites/default/files/publications/20_0513_fy19-entry-and-exit-overstay-report.pdf.

See Table 4, Column 6.

See

USCIS Policy Memo,

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, available at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/2009/revision_redesign_AFM.PDF

(last accessed June 20, 2020). This policy currently applies to F, J, and I nonimmigrants in relation to duration of status but will change accordingly when duration of status no longer applies to them).

A primary aim 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 or practical training ends. Under this proposed rule, aliens who remain in the United States beyond a fixed time period generally would begin accruing unlawful presence. Depending on the extent of unlawful presence accrual, an alien may become inadmissible upon departing the United States and will be ineligible for benefits for which admissibility is required, such as adjustment of status to that of a lawful permanent resident.

See

INA 212(a)(9)(B), (C), 8 U.S.C. 1189(a)(9)(B), (C); INA 245(a), 8 U.S.C. 1255(a). Placing restrictions on citizens of countries with high overstay rates incentivizes timely departure. The aggregate effect of the policy may help reduce a country's overstay rate on the DHS Entry/Exit report below 10 percent, in which case nationals of the country would become eligible for a longer period of admission under the F nonimmigrant classification.

Finally, the “greater than 10%” student and exchange visitor overstay rate threshold aligns with the percentage described by the Administration as a `high' overstay rate for the purpose of enabling DHS and DOS to “immediately begin taking all appropriate actions that are within the scope of their respective authorities to reduce overstay rates for all classes of nonimmigrant visas.”

The “greater than 10%” overstay rate threshold is more than double the general overstay rate for nonimmigrant student and exchange visitors as noted in the 2018 DHS Entry/Exit Overstay report,

meaning that countries with such overstay rates are well outside the norm. DHS believes that it is appropriate to require more frequent check-ins on citizens of those countries to ensure that they are in compliance with the terms and conditions of their admission.

See

Presidential Memorandum on Combating High Nonimmigrant Overstay Rates (April 22, 2019) available at

https://www.whitehouse.gov/presidential-actions/presidential-memorandum-combating-high-nonimmigrant-overstay-rates/(last

visited April 13, 2020). The Presidential Memorandum identified countries with a total overstay rate greater than 10 percent in the combined B-1 and B-2 nonimmigrant visa category as appropriate for additional engagement by the DOS, which “should identify conditions contributing to high overstay rates among nationals of those countries . . .”

According to the FY 2018 DHS Entry/Exit Overstay Report, for nonimmigrants who entered on a student or exchange visitor visa (F, M, or J visa) there were 1,840,482 students and exchange visitors scheduled to complete their program in the United States, of which 3.73 percent (68,593) stayed beyond the authorized window for departure at the end of their program.

To ensure affected stakeholders have notice of which countries have an overstay rate exceeding that threshold, DHS proposes to issue FRNs listing countries with overstay rates triggering the 2-year admission period. The first such FRN would also list countries that have been designated as State Sponsors of Terrorism, and provide a link where

stakeholders could access information about schools that have been accredited by an ED-recognized accrediting agency.

The Department of Education (ED) provides this information on its Database of Accredited Postsecondary Institutions and Programs web page at

https://ope.ed.gov/dapip/#/home

(last visited Feb. 1, 2020).

DHS proposes to publish this FRN contemporaneously with the final rule. Any changes to the list would be made by a new FRN.

• U.S. national interest. Other factors that would be incorporated into a FRN would be a limitation of a student's period of stay to a maximum of a 2-year period based on factors determined to be in the U.S. national interest, which may include but not be limited to circumstances where they may be national security concerns or risks of fraud and abuse. For example, the Secretary of Homeland Security could determine that it is appropriate to limit the length of admission of students who are enrolled in specific courses of study, such as nuclear science. DHS believes collecting information more often and applying additional vetting helps mitigate national security risks. If the DHS Secretary determines that U.S. national interests warrant limiting admission to a 2-year maximum period in certain circumstances, then it would publish an FRN to give the public advance notice of such circumstance.

• Aliens who are not attending institutions accredited by an accrediting agency recognized by the Secretary of Education. The goal of accreditation is to ensure that by post-secondary institution provides an education that meets acceptable levels of quality. Specifically, the accreditation process involves the periodic review of institutions and programs to determine whether they meet established standards. and are achieving their stated educational objectives. Schools meeting the accreditation requirement are subjected to significant oversight by the accrediting body, including recurring assessment of the institutions' programs to ascertain their effectiveness in helping students attain both academic knowledge and professional skills. The intervals at which schools must submit to accreditation review vary across accrediting agencies, but review typically occurs at least every 10 years, with the accrediting agencies themselves subject to review by ED, to determine whether to grant or renew recognition, at least every 5 years.

Report from U.S. Department of Education Office of the Inspector General,

U.S. Department of Education's Recognition and Oversight of Accrediting Agencies,

ED-OIG/A09R 0003, June 27, 2018.

Accreditation may be institutional, meaning it applies to the school as a whole and covers any educational programs the school offers, or specialized/programmatic, meaning it covers specific programs only.

ED classifies each recognized accrediting agency as institutional or programmatic to help schools identify which agencies might be appropriate for their needs.

DHS believes the independent, third-party checks offered through accreditation minimize the risk of fraud and abuse by schools and DSOs.

Id.

List of ED's Database of Accredited Postsecondary Institutions and Programs,

https://ope.ed.gov/dapip/#/agency-list

(last visited Feb. 4, 2020).

The history of problems encountered at unaccredited schools approved for the attendance of F-1 students demonstrates the value of promoting attendance at accredited schools. For example, in 2014, the founder of Tri-Valley University, an unaccredited institution in Pleasanton, California, Susan Xiao-Ping Su, was sentenced to more than 16 years in prison for her role in a massive, highly profitable visa fraud scheme that lasted 2 years.

To execute the fraud, Su submitted fabricated paperwork to DHS to obtain certification to enroll nonimmigrant students. Once certified, Su issued F-1 visa-related documents to students on false premises, with no criteria for admission or graduation, and no requirement that students maintain the course loads required for F-1 status.

While it was operating, the school helped approximately 1,500 foreign nationals enter the country for work or other purposes by helping them illegally obtain F-1 visas.

See

U.S. Department of Justice (DOJ), U.S. Attorney's Office Northern District of California News Release, “CEO and President of East Bay University Sentenced to 198 Months for Fraud Scheme,” (Nov. 3, 2014) available at

https://www.justice.gov/usao-ndca/pr/ceo-and-president-east-bay-university-sentenced-198-months-fraud-scheme

(last visited Feb. 7, 2020).

Id.

See

The Chronicle of Higher Education, “Little-Known Colleges Exploit Visa Loopholes to Make Millions Off Foreign Students” (March 20, 2011) available at

https://www.chronicle.com/article/Little-Known-Colleges-Make/126822

(last visited Feb. 7, 2020).

Also in 2014, the former head of College Prep Academy in Duluth, Georgia, another unaccredited institution, was sentenced to nearly 2 years in prison for overseeing an immigration fraud scheme that brought women into the country through illegally obtained F-1 visas.

Once in the United States, the women were put to work in bars operated by associates of the school's owner, with no expectation that they would ever attend classes at the school.

See

DOJ News Release, “English Language School Owner Sentenced for Immigration Fraud,” (May 7, 2014) available at

https://www.justice.gov/usao-ndga/pr/english-language-school-owner-sentenced-immigration-fraud

(last visited Feb. 7, 2020).

Id.

More recently, in 2018, the owner of four unaccredited schools in and around Los Angeles was sentenced to over 1 year in prison for his role in conducting a “sophisticated, extensive, and lucrative” immigration document fraud scheme that lasted for at least 5 years.

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The owner and his co-conspirators falsified student records and transcripts for thousands of foreign nationals as part of a “pay-to-stay” scheme. They enabled the nonimmigrants to remain in the United States illegally, despite rarely or ever attending the classes for which they were allegedly enrolled.

101

100

See DOJ News Release,

Owner of Schools that Illegally Allowed Foreign Nationals to Remain in U.S. as `Students' Sentenced to 15 Months in Federal Prison,

https://www.justice.gov/usao-cdca/pr/owner-schools-illegally-allowed-foreign-nationals-remain-us-students-sentenced-15

(last visited April 13, 2020).

101

Id.

DHS believes that the accreditation limitation will curtail the potential for fraudulent use of F-1 student status. It will provide a direct check-in point with the Department if a nonimmigrant enrolled in an unaccredited school wishes to remain in the U.S. beyond 2 years. While DHS is not imposing an ED-accreditation requirement on post-secondary institutions in order to be certified by SEVP to accept foreign students, the Department is proposing to rely on the accreditation process as a means to promote the integrity of the immigration system. DHS hopes that post-secondary institutions enrolling foreign students thereby would be incentivized to pursue accreditation by an ED-recognized agency, including meeting all requirements, rather than potentially lose future international students and associated revenue to those schools that do.

Because ED only has the authority to recognize post-secondary accreditors, aliens attending elementary, middle or high school would not be subject to this limitation and may be eligible for the maximum 4-year period of admission. A link to information about ED-accredited agencies would be included in a FRN that would be published concurrently with the final rule and updated as needed (including if ED changes the web page where it publishes accredited agencies).

• E-Verify Participation. USCIS administers E-Verify, a web-based

system that electronically compares information from an employee's Employment Eligibility Verification (Form I-9) with records available to DHS. E-Verify accesses millions of government records available to DHS and the Social Security Administration. It is the best means for employers to confirm the identity and employment eligibility of their new hires. E-Verify has over 850,000 enrolled employers and other participants of all sizes, encompassing more than 2.5 million hiring sites. It is one of the Federal Government's highest-rated services for user satisfaction. Twenty-two states currently have various forms of statutes or other legal requirements making participation in E-Verify a condition of business licensing or state contracting laws.

DHS believes that schools that are willing to go above and beyond to ensure compliance with immigration law in one respect (verifying identity and employment eligibility as required under section 274A of the INA and taking the additional step to confirm Form I-9 information using E-Verify) are more likely to comply with immigration law in other respects (SEVP purposes) by successfully monitoring their F students. DHS therefore proposes that E-Verify participation warrants a 4-year admission period for students of those schools, subject to other limitations on admission that may apply. Conversely, there is less confidence in schools that are unwilling to do all they can to ensure they have a legal workforce to support students' academic programs by participating in E-Verify. Accordingly, DHS proposes that it would monitor whether students of such schools maintain status more frequently by limiting their admission period to 2 years.

DHS believes that the E-Verify proposal would incentivize more schools to enroll in E-Verify. Should more schools enroll in E-Verify, DHS would be better assured that schools were meeting the certification standards at 8 CFR 214.3(a)(3). This provision is associated with evaluating whether an educational institution is a bona fide school possessing the necessary facilities, personnel, and finances. It helps ensure that F nonimmigrants are choosing educational institutions that have demonstrated a willingness to best ensure compliance with immigration laws in one respect (

i.e.,

hiring), and which DHS believes therefore would be more likely to comply with requirements pertaining to school certification and enrollment of F nonimmigrants.

E-Verify could also provide DHS another data point to assess and independently verify whether an educational institution has teachers, employees, and/or offices proportionate to the number of students that are enrolled and in attendance. When enrolling in E-Verify, employers indicate the size of the organization which can provide DHS with additional information about whether the school has necessary personnel as required by 8 CFR 213.3(a)(3). A school that uses E-Verify when they hire such employees is doing as much as it can to ensure they have a stable workforce to operate as a school. While the school's certification requirements would not be assessed when a student applies for EOS, the fact that a school participates in E-Verify should give DHS a greater level of assurance that the school is likely to comply with all other federal requirements and operates in accordance with the certification standards for which it is responsible.

When determining how to apply the 2-year admission limitation, DHS considered how to address situations when an alien admitted in F status for a 4-year period subsequently would become subject to a 2-year period if seeking admission. For example, a student may have a 4-year period of admission, but in the midst of this period, an FRN may be published indicating that his or her home country now has a student and exchange visitor total overstay rate of greater than 10 percent, as stated in the DHS Entry/Exit Overstay Report. Notwithstanding such intervening events, aliens will remain subject to the period of admission approved upon his or her application for admission, extension of stay, or change of status. Further, changing the terms of admission at irregular intervals for particular classes of F nonimmigrants would introduce significant confusion, make their stay unpredictable, and so potentially discourage some students from pursuing their studies in the United States. Therefore, DHS is proposing to allow such aliens to remain in the United States for the remainder of whatever period of admission is afforded them when they are admitted in, extend their stay in, or change status to F-1 status.

However, if such aliens depart the United States, the departure and subsequent application for admission would trigger a new review and these aliens would be treated the same as any other aliens applying for admission. At that point they would become subject to applicable terms and conditions of admission, including the 2-year limitation. Similarly if a student needs to file an EOS application in the midst of his or her 4-year admission period (for example, a student decides to request pre-completion OPT and receives a Form I-20 reflecting the new program end date), and their EOS application is filed on or after the student is subject to a 2-year maximum period of stay, that would trigger the new 2-year maximum period of stay. Similarly, if a student needs to file an EOS or departs and applies for readmission, and the student files or applies after he or she is no longer subject to the 2-year limitation, that would trigger the 4-year maximum period of stay.

DHS invites comments on all these proposals, and specifically the limitations on the language training schools, the U.S. national interest factor, E-Verify, whether additional limitations should be added, and whether exemptions to the limitations on admission should be possible.

ii. Changes in Educational Levels

Under current regulations, F-1 students who continue from one educational level to another are considered to be maintaining status.

See

8 CFR 214.2(f)(5)(ii). However, 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, or certificate programs. Alternatively, some students change to a lower educational level, such as by completing a master's degree and then changing to an associate's program. 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 2019, DHS identified nearly 29,000 F-1 students who, since SEVIS was implemented in 2003, have spent more than 10 years in student status.

102

This includes individuals who enrolled in programs at the same educational level as many as 12 times, as well as students who have completed graduate programs followed by enrolling in undergraduate programs, including associate's degrees.

102

DHS compiled this information while conducting an internal case analysis; however, the Department is withholding this information to prevent the disclosure of PII.

While there are legitimate cases of students wishing to gain knowledge at a lower or the same educational level, the traditional path of study progresses from a lower educational program to a higher one. The regulations contemplate a model consistent with the vast majority of bona fide students following

this upward trajectory. The term “full course of study” as defined in the regulations requires that the program “lead to the attainment of a specific educational or professional objective.”

103

Frequent or repeated changes within an educational level or to a lower level are not consistent with attainment of such an 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 extension of stay 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 le

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