The Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) website shows that on June 3, 2020 DHS submitted for review a DHS proposed rule titled, 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. This item at the proposed rule stage, which means that future rule making will proceed through normal APA public notice and comment procedures before any final rule is published. After OMB/OIRA approves it and returns it to DHS, the next step is for DHS to send the proposed rule to be published in the Federal Register, and open it for public comment. The first time we will be able to see the content of the proposed rule is when the Office of the Federal Register makes a public inspection copy of the rule available on its website at least 24 hours before it’s scheduled to be published.

Background

In the Fall 2018 regulatory agenda, DHS added reference to a planned proposal to replace the duration of status (D/S) admission period with "a maximum period of authorized stay, and options for extensions, for each applicable visa category." DHS indicated a target date of 09/00/2019 in the Fall 2018 regulatory agenda. The item was retained in the Spring 2019 regulatory agenda, with a revised target date of 02/00/2020. It continues to appear in the Fall 2019 agenda, with the same target date of 02/00/2020.

Regulation Identifier Number (RIN) 1653-AA78 Abstract:

Establishing a Maximum Period of Authorized Stay for Students, Exchange Visitors, and Media Representatives.

Abstract: U.S. Immigration and Customs Enforcement (ICE) will propose to modify the period of authorized stay for certain categories of nonimmigrants traveling to the United States from "duration of status” (D/S) and to replace such with a maximum period of authorized stay, and options for extensions, for each applicable visa category.

Additional descriptors from the Fall 2019 agenda:

Statement of Need: The failure to provide certain categories of nonimmigrants with specific dates for their authorized periods of stay can cause confusion over how long they may lawfully remain in the United States and has complicated the efforts to reduce overstay rates for nonimmigrant students. The clarity created by date-certain admissions will help reduce the overstay rate.

Summary of the Legal Basis: The Secretary of Homeland Security (Secretary) has broad authority to administer and enforce the nation’s immigration laws. See generally 6 U.S.C. 202; Immigration and Nationality Act of 1952, as amended (INA), Sec. 103, 8 U.S.C. 1103. Section 101(a)(15)(F) of the INA establishes the F nonimmigrant classification for individuals who wish to come to the United States temporarily to enroll in a full course of study at an academic or language training school certified by ICE’s SEVP. 8 U.S.C. 1101(a)(15)(F)(i). INA Section 101(a)(15)(I) establishes the I nonimmigrant classification for bona fide representatives of foreign press, radio, film, or other information media seeking to enter the United States to engage in such vocation as well as the spouse and children of such nonimmigrant. 8 U.S.C. 1101(a)(15)(I). INA Section 101(a)(15)(J) establishes the J nonimmigrant classification for aliens who wish to engage in exchange visitor programs so designated by the Department of State as well as the spouse and minor children of such nonimmigrant. 8 U.S.C. 1101(a)(15)(J). Under section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), the Secretary has broad authority to prescribe by regulation the time and conditions of admission of all nonimmigrants.

Anticipated Costs and Benefits: ICE is in the process of assessing the costs and benefits that would be incurred by regulated entities and individuals, as well as the costs and benefits to the public at large. ICE, SEVP certified schools, nonimmigrant students, and the employers of nonimmigrant students who participate in practical training would incur costs for increased requirements. This rule is intended to decrease the incidence of nonimmigrant student overstays and improve the integrity of the nonimmigrant student visa.

The Fall 2019 agenda clarified that the action is directed to the F, J, and I nonimmigrant categories. First, DHS changed the title of the action from "Establishing a Maximum Period of Authorized Stay for F-1 and Other Nonimmigrants" to "Establishing a Maximum Period of Authorized Stay for Students, Exchange Visitors, and Media Representatives;" Second, DHS added a Summary of the Legal Basis that further identifies the F, J, and I categories. No further details are available at this time.

Note: Under a final DHS rule published May 11, 2020 but effective May 8, 2020, representatives of foreign information media holding passports from the People's Republic of China (PRC) will be admitted to the United States in I nonimmigrant status only for the period necessary to accomplish the authorized purpose of their stay in the United States, not to exceed 90 days. The rule also allows such visitors to apply for extensions of stay. Prior to this, all I nonimmigrants were admitted for duration of status (D/S). Read the final rule at 85 FR 27645 (May 11, 2020). The rule applies only to I nonimmigrants presenting passports from the PRC. It does not apply to Hong Kong Special Administrative Region (SAR) or Macau SAR passport holders, or to I nonimmigrants presenting passports from countries other than the PRC. This final rule also does not affect admission to the United States in D/S categories other than I, such as F-1 or J-1.

This item is listed at the proposed rule stage, which means that future rule making will proceed through normal APA public notice and comment procedures before any final rule is published.

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