Shortlink to this page: https://www.nafsa.org/dsproposal2025

The DHS/ICE (Department of Homeland Security-US Immigration and Customs Enforcement) proposed rule to end "duration of status" (D/S) for F, J, and I nonimmigrants was published in the Federal Register on Thursday, August 28, 2025. Public comments are due on or before September 29, 2025.

Read:

• The proposed rule, published at 90 FR 42070 (August 28, 2025), 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.
• NAFSA's press statement in response to the proposed rule.
• A NAFSA Duration of Status Explainer brief including a PDF version for printing.

Participate:

• NAFSA Regulatory Perspectives: Proposed Rule to Eliminate D/S. On September 2, 2025 NAFSA staff held a high-level discussion of the proposed rule to eliminate “D/S” (duration of status) for F and J nonimmigrants. We shared our initial perspectives, reviewed some key aspects of the rule and how they might impact F and J programs. We also discussed NAFSA’s response, particularly our planned comment letter, how you may contribute to it, and considerations for your own comment letter. The webinar recording and slides are now available to NAFSA members at www.nafsa.org/eventresourcedsproposal

Since this is at the proposed rule stage, a rule would not become final until after DHS reviews public comments on the proposed rule, submits a final rule for OMB review, and then publishes a final rule in the Federal Register with a future effective date. See NAFSA's page General Rulemaking Process Under the APA for basic information on the rulemaking process.

Comment periods

There is a 30-day comment period ending on September 29, 2025 on the rule changes. 

NAFSA is preparing a comment letter and encourages individuals and institutions to comment as well. The Federal Register notice contains detailed instructions on submitting comments.

• The notice says: "Comments providing the most assistance to DHS will reference a specific portion of this rule, explain the reason for any recommended change and include the data, information, or authority that supports the recommended change."
• For reference, also consult: How You Can Effectively Participate in the Regulatory Process Through Public Comment

There is also a 60-day comment period ending on October 27, 2025 on proposed changes to affected "information collection" instruments, including SEVIS (Forms I-17 and I-20) and USCIS Forms I-539 and I-765 (see below for more on that).

We are continuing to analyze the 2025 proposed rule language and will update this page as we progress.

On this page

1. Executive Summary
2. Detailed Summary of Key Proposals
3. Replacing D/S for F and J Nonimmigrants with a Fixed Admission Period
4. Reducing the F-1 "grace period" from 60 days to 30 days
5. ESL students limited to 24-month admission period
6. Limits on changes in F-1 educational objectives
7. Limits on transfers and changes to educational objectives during first academic year of below-graduate study
8. Inexplicable limits on graduate study
9. Prohibition on lateral and reverse matriculation by F-1 students
10. F-1 change of education level procedures
11. School Transfers
12. Standards for DHS to Approve an Extension of Stay
13. Extension of stay mechanics and standards of eligibility
14. If USCIS denies an extension of stay application
15. Transition Provisions
16. Employment and the Extension of Stay Process
17. Other Miscellaneous Provisions
18. Institutional impacts
19. Resources
20. Bulleted Summary from the Proposed Rule Preamble
21. Comments on the Information Collection (Form) Proposals

Executive Summary

In a nutshell: The proposed DHS rule would replace “duration of status” admissions with fixed end dates on Form I-94s, require students and exchange visitors to file formal extension applications with USCIS, shorten grace periods, and impose new limits on program changes. DHS argues the changes will improve oversight, program integrity, and national security, but institutions would face higher compliance costs and legal risks, enrollment impacts, and heavier advising burdens.

Key changes included in the proposed rule:

• Fixed-date admissions to the United States. Instead of being admitted for "duration of status" (D/S) as they currently are (since 1991 for F students and 1993 for J exchange visitors), individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would be admitted for a fixed date, recorded on the F or J nonimmigrant's Form I-94, that would be limited to the program end date noted on their Form I-20 or DS-2019, not to exceed 4 years, plus a period of 30 days following their program end date; the F-1 grace period would be reduced from the current 60 days to 30 days;
• Formal I-539 extension of stay process with USCIS. Individuals who need time beyond their period of admission for whatever reason (e.g., an extension of program, school transfers, moving academic levels, use of post-completion practical training or academic training) would have to timely file a complete Form I-539 extension of stay application with USCIS before their prior admission expires, with Form I-539 with fee, biometrics, and possible interview)
• Cap on ESL duration of admission. Capping English language training students at 24 months;
• Restrictions on transfers and changes of educational objectives. Restricting transfers and changes of educational objectives (with graduate students prohibited from changing programs); and
• Prohibition on lateral or reverse matriculation. Barring F-1 students from pursuing a program at the same or lower educational level after completing one.

The proposal also outlines standards for extension eligibility, expands USCIS discretion, revises related employment authorization and dependent rules, and establishes transition provisions for F and J nonimmigrants who were admitted for duration of status prior to the effective date of an eventual final rule.

In the preamble DHS acknowledges potential enrollment impacts and institutional compliance costs, but frames the changes as enhancing program oversight and integrity, and national security.

If finalized as proposed, schools and exchange visitor programs should anticipate:

• Increased student and exchange visitor confusion and workload due to the new USCIS filing requirement.
• Higher costs and delays for students and exchange visitors (filing fees, biometrics, possible interviews, possible legal representation).
• Potential enrollment and research impacts if students and exchange visitors view U.S. study and research as more burdensome and less predictable.
• Training and adaptation costs for DSOs/ROs, estimated by DHS at $93.3 million across the sector in year one.
• Possible increase in legal liability

Since this is at the proposed rule stage, a rule would not become final until after DHS reviews public comments on the proposed rule, submits a final rule for OMB review, and then publishes a final rule in the Federal Register with a future effective date. See NAFSA's page General Rulemaking Process Under the APA for basic information on the rulemaking process.

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Detailed Summary of Key Proposals

In a nutshell: This section outlines DHS’s major proposals affecting F and J nonimmigrants: replacing D/S with fixed admission periods, requiring extension filings, capping ESL study, and restricting transfers and educational changes. Institutions should anticipate broad impacts on student mobility, program flexibility, and compliance responsibilities.

This NAFSA summary includes only proposed changes to duration of status for F and J nonimmigrants. DHS also proposes eliminating duration of status for I information media nonimmigrants.

We are continuing to analyze the 2025 proposed rule language and will continue to update this page as we progress.

Shortlink to this page: https://www.nafsa.org/dsproposal2025

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Replacing D/S for F and J Nonimmigrants with a Fixed Admission Period

In a nutshell: Under the rule, F and J nonimmigrants would be admitted only until their program end date, not to exceed four years, plus a 30-day grace period. Any extension would require filing with USCIS. This change shifts the long-standing practice of flexible D/S admissions into a rigid system of deadlines and filings.

Under the rule, F and J nonimmigrants would be admitted only until their program end date, not to exceed four years, plus a 30-day grace period. Any extension would require filing with USCIS. This change shifts the long-standing practice of flexible D/S admissions into a rigid system of deadlines and filings.

Instead of being admitted for "duration of status" (D/S) as they currently are (since 1991 for F students and 1993 for J exchange visitors), individuals applying for admission in either F or J status (F-1 students, F-2 dependents, J-1 exchange visitors, and J-2 dependents) would be admitted only until the program end date noted in their Form I-20 or DS-2019, not to exceed 4 years, plus a period of 30 days following their program end date.

F and J nonimmigrants seeking a program extension will first request a recommendation for an extension through the P/DSO or A/RO along with a Form I-20 reflecting that recommendation, likely in a process much like is done under current regulations. If such a program extension is recommended by the P/DSO or A/RO, the F-1 or J-1 must timely apply for an extension of stay (EOS) on Form I-539 with USCIS to remain in the U.S. beyond the status expiration date on their I-94.

The rule would not change the program period a school or program could put on I-20 or DS-2019… it would limit the period of admission that CBP or USCIS would give on the F or J’s Form I-194.

This 4-year maximum period of admission is not an aggregate cap on time spent in F-1 status... it is the maximum time for which an F or J nonimmigrant may be admitted with reference to the end date on their Form I-20 or DS-2019 certificate of eligibility (COE), or, in the case of post-completion or STEM OPT, the employment end date of their OPT EAD.

Examples

Consider these examples when determining how the proposal would impact your campus if finalized as proposed.

• Full four-year program. The program period on a prospective F-1 student's Form I-20 is September 1, 2026 - August 31, 2030. CBP may admit this person to the United States in F-1 status on August 1, 2026 (up to 30 days before the report date) and record the I-94 expiration date as September 30, 2030 (to reflect the proposed 30-day grace post-completion "grace" period). Although this student is admitted to the United States for a period longer than 4 years, it satisfies the regulation because the program is only for 4 years.
  • If this student needed one more semester to complete the program, they would have to timely apply for an extension recommendation and receive an extension I-20 from their DSO and then file an extension of stay (EOS) application with USCIS on Form I-539 (with fee) to extend status for the additional time needed to complete the program.
• Shorter program. The master's degree program period on a prospective F-1 student's Form I-20 is September 1, 2026 - August 31, 2028. This student would only be admitted until September 30, 2028 (for the duration of the program on the Form I-20 plus the proposed 30-day grace post-completion "grace" period.)
  • If this student completes the master's program and wants to change levels to a doctoral degree program they would have to timely apply for and receive a change of level Form I-20 from their DSO and then file an extension of stay (EOS) with USCIS on Form I-539 (with fee) to extend status for the additional time needed to complete the program.
• Programs longer than 4 years. The program period on a prospective J-1 research scholar's Form DS-2019 is 5 years, from September 1, 2026 - August 31, 2031. Because of the 4-year maximum period of admission, this J-1 scholar would be admitted in J-1 status only for 4 years, and would have to timely apply for an extension of stay (EOS) to USCIS on Form I-539 (with fee) to extend status for the additional year needed to complete the program.

Proposed regulatory wording

Note that in addition to changing the subject heading of paragraph (f)(5) from the current F-1 rule's "Duration of status" heading to "Period of stay," and otherwise eliminating all reference to "duration of status," the proposal would also remove the current rule's provision that states "The student is considered to be maintaining status if the student is making normal progress toward completing a course of study."

F provisions at proposed 8 CFR 214.2(f)(5)(i)

(5) Period of Stay —(i) General. An F-1 student is admitted for a fixed period of time, which is the period necessary to complete the course of study indicated on the Form I-20, or successor form, not to exceed a period of 4 years, plus additional times noted in this paragraph. A continuing F-1 student may be granted additional time following the completion of studies to engage in post-completion optional practical training (OPT) and Science Technology Engineering and Mathematics (STEM) OPT, as described in paragraph (f)(5)(i)(D) of this section. An F-1 student described in this section may be admitted for a period of up to 30 days before the indicated report date or program start date listed on Form I-20 or successor form. An alien described in this paragraph may remain in the United States for an additional 30 days as provided in paragraph (f)(5)(v) of this section. The 30-day period before the indicated report date or program start date and 30 additional days following the program end date or the 4-year maximum period of admission do not count toward the maximum length of stay. The admission periods described in this paragraph are subject to the following exceptions:

Proposed paragraphs 8 CFR 214.2(f)(5)(i)(A)-(D) relate to several exceptions to the general rules of admission, including:

• Proposed 8 CFR 214.2(f)(5)(i)(A): Maximum 24 for month admission period for ESL programs: "(A) F-1 students whose course of study is in an English language training program are restricted to a maximum of 24 months admission period, plus an additional 30-day period of stay for the purposes of departure or to otherwise seek to maintain lawful status."
• Proposed 8 CFR 214.2(f)(5)(i)(B): Border commuter students: "(B) Border commuter students under the provisions in paragraph (f)(18) of this section may be admitted for the applicable period described under that paragraph." The border commuter student provision itself is unchanged by the proposed rule.
• Proposed 8 CFR 214.2(f)(5)(i)(C): Public high school students: "(C) F-1 students attending a public high school are restricted to an aggregate of no more than 12 months to complete their course of study, including any school breaks and annual vacations." This relates to the pre-existing statute INA 214(m) [8 USC 1184(m)] that restricts F-1 study at public K-12 and adult education programs. Under the statute, an individual may be accorded F-1 status in order to pursue a course of study at a public secondary school, but only under the following conditions: the aggregate period of such status the student spends at the public secondary school does not exceed 12 months; and the student has reimbursed the local educational agency that administers the school for the "full, unsubsidized per capita cost of providing education at such school for the period of the alien’s attendance." The proposed rule does not include any other regulatory provisions regarding public high school study.
• Proposed 8 CFR 214.2(f)(5)(i)(D): This confusing paragraph appears to address the situation where an OPT or STEM OPT applicant travels while their OPT or STEM OPT Form I-765 application is pending. But the language of the provision is so obtuse, more analysis or clarification from DHS is needed. The proposed provision reads: "(D) Students with pending employment authorization applications who are admitted based on the designated school official's recommended employment end date for post-completion OPT or STEM OPT specified on their Form I-20, with a notice issued by USCIS indicating receipt of the Application for Employment Authorization, Form I-765, or successor form for post-completion OPT or STEM OPT, who cease employment pursuant to an employment authorization document (EAD) that expires before the alien's fixed date of admission as noted on their Arrival-Departure Record, Form I-94, or successor form, will be considered to be in the United States in a period of authorized stay from the date of the expiration noted on their EAD until the fixed date of admission as noted on their Form I-94." In the preamble to the proposed rule, DHS simply repeats this language without further explanation.
• Proposed 8 CFR 214.2(f)(5)(i)(D): Admission period for F-2 dependents: "(E) The authorized period of stay for F-2 dependents may not exceed the authorized period of stay of the principal F-1 student."

J provisions at proposed 8 CFR 214.2(j)(i)(ii)(A)-(C)

(ii) Admission period and period of stay. (A) J-1 exchange visitor. A J-1 exchange visitor may be admitted for the duration of the exchange visitor program, as stated by the program end date noted on Form DS-2019 or successor form, not to exceed a period of 4 years.

(B) J-2 accompanying dependents. The authorized period of initial admission for a J-2 spouse and unmarried children under the age of 21 may not exceed the period of authorized admission of the principal J-1 exchange visitor.

(C) Period of stay. A J-1 exchange visitor and J-2 spouse and unmarried children under the age of 21 may be admitted for a period up to 30 days before the report date or start of the approved program listed on Form DS-2019 or successor form. The dependents accompanying a J-1 exchange visitor are eligible for admission in J-2 status if the exchange visitor is admitted in J-1 status. A J-1 exchange visitor and J-2 accompanying dependents may remain in the United States for a period of 30 days from the program end date or the 4-year maximum period of admission, whichever is earlier, for the purposes of departure or to otherwise seek to maintain lawful status. The 30-day period will be reflected on the alien's Arrival/Departure Record, Form I-94 or successor form. The 30-day period before the indicated report date or program start date and 30 additional days following the program end date or the 4-year maximum period of admission do not count towards the maximum period of admission.

Preamble extracts to consider

Here are selected extracts from the preamble in which DHS talks about these proposed provisions:

• Extract: "Under this proposal, aliens applying for admission in either F or J status who, under this proposal, would be eligible to be admitted for a maximum period of 4 years or the length of program as specified on Form I-20 or DS-2019, whichever is shorter, or the end date of the approved employment authorization for post-completion OPT and Science Technology Engineering and Mathematics (STEM) OPT, as applicable, plus additional 30 day periods for arrival and a 30-day period to prepare for departure or to otherwise seek to obtain lawful authorization to remain in the United States."
• Extract: "DHS believes it is appropriate for the DSO to recommend an extension of an academic program and an RO to recommend an extension of an exchange visitor program; however, an EOS involves an adjudication of whether an alien is legally eligible to extend his or her stay in the United States in a given immigration status and has been complying with the terms and conditions of his or her admission.58 DHS believes that the determinations of program extension and EOS should be separated, with the DSO's and RO's recommendation being one factor an immigration officer reviews while adjudicating an application for EOS. Changing to a fixed period of admission would give immigration officers a mechanism to make this evaluation at reasonably frequent intervals."
• Extract: "Additionally, DHS expects this change would deter and prevent fraud, as a requirement to check-in directly with an immigration officer is inherently likely to deter exploitation of perceived vulnerabilities in the F and J nonimmigrant classifications."
• Extract: "The calculation of the 4-year maximum periods of admission would not begin from the date of admission during that 30-day window, but from the program start date. Similarly, the 30-day departure periods for F-1 and J-1 nonimmigrants would not count towards the 4-year maximum period of admission."
• Note also that DHS is also proposing to revise Form I-20 to "to facilitate a DSO recommendation for an F student Extension of Stay" - see the information collection comments section below.

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Reducing the F-1 "grace period" from 60 days to 30 days

In a nutshell: DHS proposes cutting the F-1 grace period in half, from 60 to 30 days, aligning it with J and M classifications. Students would have less time to prepare for departure, change status, or file extensions after completing their studies or training, increasing pressure on both students and advisers.

Under existing regulations, F-1 students are provided 60 days following the completion of their studies and any practical training to prepare for departure from the United States. See current 8 CFR 214.2(f)(5)(iv). The proposed rule would reduce this post-completion "grace" period to 30 days, the same post-completion period that J exchange visitors and M-1 students currently have.

Proposed regulatory wording

F provisions at proposed 8 CFR 214.2(f)(5)(i)

(5) Period of Stay —(i) General. An F-1 student is admitted for a fixed period of time, which is the period necessary to complete the course of study indicated on the Form I-20, or successor form, not to exceed a period of 4 years, plus additional times noted in this paragraph. A continuing F-1 student may be granted additional time following the completion of studies to engage in post-completion optional practical training (OPT) and Science Technology Engineering and Mathematics (STEM) OPT, as described in paragraph (f)(5)(i)(D) of this section. An F-1 student described in this section may be admitted for a period of up to 30 days before the indicated report date or program start date listed on Form I-20 or successor form. An alien described in this paragraph may remain in the United States for an additional 30 days as provided in paragraph (f)(5)(v) of this section. The 30-day period before the indicated report date or program start date and 30 additional days following the program end date or the 4-year maximum period of admission do not count toward the maximum length of stay.

Preamble extracts to consider

• Preamble: "DHS believes that 30 days for the F nonimmigrant population is the appropriate balance between a 60-day and a 10-day period of departure. DHS believes that the F classification, albeit distinct from M or J, shares a core similarity in that many aliens in these classifications are seeking admission to the United States to study at United States educational institutions. Thus, DHS thinks that these classifications should have a standard period of time to prepare for departure, or take other action to extend, change, or otherwise maintain lawful status. DHS thinks that 30 days is an adequate period for F-1 students to prepare for departure and is in line with similar classifications (the M and J departure periods)."
• Preamble: "DHS believes that the time allotted for F students to prepare for departure should be revised from 60 to 30 days. See8 CFR 214.2(f)(5)(iv) and proposed 8 CFR 214.2(f)(5)(v). Under existing regulations, F-1 students are provided 60 days following the completion of their studies and any practical training to prepare for departure from the United States. See8 CFR 214.2(f)(5)(iv). However, this is twice as long as other student and exchange visitor programs (J and M nonimmigrants). See8 CFR 214.2(j)(1)(ii) and (m)(10)(i). In addition, this 60-day period is also six times longer than certain nonimmigrants who are authorized to remain in the United States for years but are only provided with a 10-day period to depart the United States. For example, DHS provides a 10-day period following the end of the alien's admission period as stated on his or her I-94 for individuals in the E-1, E-2, E-3, H-1B, L-1, and TN classifications in a 2016 rulemaking.[112] In the rulemaking discussing this 10-day period for departure, DHS noted that a grace period of up to 10 days after the end of an authorized validity period provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.[113] It is thus unclear to DHS why F students would need a significantly longer period of time—60 days—to prepare for departure when other nonimmigrants have less time to prepare for departure.[114]"
• Preamble: "DHS also proposes to clarify that the proposed period is 30 days from the Form I-94 (or successor form) end date or the expiration date noted on the EAD (Form I-766 or successor form), as applicable, to prepare for departure from the United States, or to otherwise maintain status, including timely filing an extension of stay application in accordance with paragraph (f)(7) of this section and 8 CFR 214.1 or timely filing a change of status application in accordance with 8 CFR 248.1(a)."
• Preamble: "DHS proposes removing the reference to completing a course of study or a program in order to provide consistency in the admission of all F-1 and J-1 nonimmigrants and to allow the departure period to be reflected on the I-94 at admission, so that the F-1 and J-1 nonimmigrants would have an unambiguous end date of their period of authorized admission, easily referenced on the I-94. USCIS, when adjudicating applications for a change of status to F-1 and J-1 nonimmigrant status and EOS applications of F-1 and J-1 status would similarly provide I-797 approval notices reflecting the 30-day departure period following the program end date or the 4-year maximum period of admission, or period of OPT or STEM OPT, as applicable."

The DHS proposal dips into several areas that are traditionally within the purview of the academic institution.

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ESL students limited to 24-month admission period

In a nutshell: The rule caps English language training students at a 24-month admission limit, plus a 30-day grace period. DHS says this prevents program abuse, but the vague wording leaves uncertainty about whether the limit is per program, per uninterrupted F-1 stay, or lifetime, raising concerns for language programs and conditional-admit pipelines.

DHS proposes restricting F-1 students in a language training program to "a maximum of 24 months admission period" plus a 30-day grace period. The 24 month count would include breaks and vacations, but not the 30-day grace period.

Proposed regulatory wording

Proposed 8 CFR 214.2(f)(5)(i)(A):

"(A) F-1 students whose course of study is in an English language training program are restricted to a maximum of 24 months admission period, plus an additional 30-day period of stay for the purposes of departure or to otherwise seek to maintain lawful status."

Preamble extracts to consider

• Preamble: "DHS proposes a 24-month aggregate limit for F-1 students to participate in a language training program, as it would provide a reasonable period of time for students to attain proficiency while mitigating the Department’s concerns about the integrity of the program. This timeframe generally comports with the amount of time needed to gain the highest level of English proficiency under the Cambridge English Exam."
• Preamble: "DHS is proposing this limitation as a way to prevent abuse of the F-1 program... DHS has found students enrolling in lengthy periods of language training, in some cases for more than two decades. DHS has also identified students who enrolled in language training programs despite previously being enrolled in or completing undergraduate and graduate programs requiring English language proficiency... The lengthy enrollment in a language program, including enrollment in language courses for long periods subsequent to completion of a program of study that requires proficiency in English, raises concerns about whether the F-1 nonimmigrants meet the statutory definition of a bona fide student with the intent of entering the United States for temporary study."

NAFSA notes

• The preamble uses the word "aggregate" but that word is not used in the proposed regulatory language. The 2020 proposed rule used the phrase "a lifetime aggregate of 24 months of language study," but the 2025 proposal does not. This may indicate that in the new proposal DHS is not attempting to impose a lifetime aggregate for ESL study, but rather prohibiting extensions of stay for ESL study that would extend beyond 24 months. DHS should be asked to clarify this.

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Limits on changes in F-1 educational objectives

In a nutshell: DHS introduces a new regulatory concept of “educational objectives” covering majors, programs, and levels. The rule restricts repeated or immediate changes and prohibits graduate students from switching programs. DHS admits implementation may require delays if SEVIS systems cannot accommodate the change.

Proposed 8 CFR 214.2(f)(5)(ii) would regulate "change of educational objectives," a new concept in the F-1 regulations. Proposed 8 CFR 214.2(f)(5)(ii)(A) refers to "educational objectives" as:

"i.e., programs, majors, or educational levels"

And proposed 8 CFR 214.2(f)(8)(i)(b), within a newly-labeled "School transfer and change in educational objectives" paragraph, defines the term "educational objectives" as:

"'Educational objectives' refers to an F-1 student’s educational level or major."

As background, DHS notes in the preamble that the current F-1 "full course of study" regulations at 8 CFR 214.2(f)(6)(i) require a student's program to “lead to the attainment of a specific educational or professional objective,” and then opines that:

"Repeated changes to a program of study either within the same educational level or to move to a lower level, as well as immediate changes to a program of study upon initial entry into the United States, are not consistent with attainment of such an educational or professional objective."

DHS then proposes limits to these changes in ways that differ for graduate study and study below the graduate degree level.

But in what can only be a recognition that its proposal regarding limits to changes of educational objectives may be unworkable right out of the box, DHS includes this "escape clause" at proposed 8 CFR 214.2(f)(5)(ii)(E):

(E) DHS may delay or suspend the implementation of paragraphs (f)(5)(ii)(A) through (C) of this section, in its discretion, if it determines that implementation is infeasible for any reason. If DHS delays or suspends any provisions in paragraphs (f)(5)(ii)(A) through (C) governing the change in educational objectives, DHS will make an announcement of the delay or suspension on SEVP's website at https://www.studyinthestates.dhs.gov (or successor uniform resource locator). DHS thereafter will announce the implementation dates of a delayed or suspended educational objective provision on the SEVP website at https://www.studyinthestates.dhs.gov (or successor uniform resource locator), at least 30 calendar days in advance.

The preamble addresses the challenges that implementing the rule in the SEVIS environment, saying:

"DHS recognizes that this proposal may require updates to SEVIS and other systems. Because the timeframe for those updates is not fixed and there could be technical issues regarding implementation, DHS is proposing to include a provision whereby the Department may delay or suspend implementation, at its discretion, if it determines that the change in educational level limitation is inoperable for any reason. See proposed 8 CFR 214.2(f)(5)(ii)(E). If DHS delays or suspends the provisions in this section governing the change in educational level, DHS will make an announcement of the delay or suspension to the academic community through SEVP's various communication channels, including ICE.gov/sevis, Study in the States (https://studyinthestates.dhs.gov), and SEVIS Broadcast Message. DHS would also announce the implementation dates of the change in degree level provision through SEVP's communication channels (ICE.gov/sevis, Study in the States, and SEVIS Broadcast Message) at least 30 calendar days in advance."

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Limits on transfers and changes to educational objectives during first academic year of below-graduate study

In a nutshell: Students below the graduate level would be locked into their initial institution and program for at least one academic year, unless SEVP authorizes an exception for extenuating circumstances. Graduate students, by contrast, would be completely barred from transferring or changing programs.

DHS proposes requiring that students below the graduate level complete their first academic year of a program of study at the school that initially issued their Form I-20 before changing educational objectives or transferring schools, unless an exception is authorized by SEVP for "extenuating circumstances." Graduate students are not so "lucky." Under the proposed rule an "F-1 student at the graduate degree level or above may not change programs at any point during a program of study." More on that in the next section below.

Proposed regulatory wording

Proposed 8 CFR 214.2(f)(5)(ii)(A) says:

"(A) An F-1 student at any level below the graduate degree level may not change programs or educational objectives, i.e. programs, majors, or educational levels, within the first academic year of a program of study, unless an exception is authorized by SEVP for extenuating circumstances that may include, but are not limited to, a school closure or a school’s prolonged inability to hold in-person classes due to a natural disaster or other cause. An F-1 student at the graduate degree level or above may not change programs at any point during a program of study."

And to make sure, proposed 8 CFR 214.2(f)(8)(i)(D) requires that:

"(D) Unless an exception has been authorized by SEVP, the student has completed his or her academic year of a program of study at the school that initially issued his or her Form I-20 or successor form;"

Although both proposed 8 CFR 214.2(f)(5)(ii)(A) and proposed 8 CFR 214.2(f)(8)(i)(D) require SEVP to pre-authorize changing educational objectives or transferring before the completion of the first academic year at the school whose I-20 was used to enter the United States, the proposed rule does not specify what the procedure is to request that SEVP authorization, nor does the proposed rule further explain what might constitute "extenuating circumstances" for this purpose.

Preamble extracts to consider

• Preamble: "DHS proposes to restrict school transfers and changes of educational objectives within a student's first academic year of a program of study, unless an exception is authorized by SEVP, and to prohibit F-1 students in a graduate level program of study from changing educational objectives or transferring from within the United States. 'Educational objectives' refers to an F-1 student's educational level or major. See proposed 8 CFR 214.2(f)(5)(ii)(A) and 8 CFR 214.2(f)(8)(i)(b). DHS believes these proposed changes would accommodate the legitimate academic activities of bona fide students, such as a desire to pursue a different field of study or more specialized studies in their current field. These proposed changes would also provide SEVP with flexibility to grant exceptions for extenuating circumstances. For example, an exception may be appropriate when a school closes or when a school has a prolonged inability to hold in-person classes due to a natural disaster or other causes."
• Preamble: "DHS has also observed a pattern of students immediately transferring schools or changing educational levels or programs of study upon their arrival in the United States. These students often use an admission letter and Form I-20 from a well-known school to increase their odds of obtaining a student visa and then immediately request a transfer to their intended school or program of study once they have gained admission to the United States. Some of the most egregious examples are those who apply to a 4-year university, which requires demonstration of sufficient English level skills for enrollment in classes through the passage of the Test of English as a Foreign Language test (commonly known as TOEFL), receive their visa based on their declared intention of attending a 4-year university, and then transfer to English language programs upon arrival. Other, more dangerous examples, include those foreign students who receive a visa based on their declared intention to study the humanities, but then transfer into sensitive programs such as nuclear science. A handful of those have been arrested for spying for China.[107] The existing regulations are vulnerable to exploitation by aliens who threaten U.S. national security. This proposed rule is designed to reduce this vulnerability. Since 2020, there have been over 13,000 F-1 students who transferred before the start of classes or within their first term, including over 4,400 students transferring from a higher education to English language training program of study within their first term or session of a program of study. The number of F-1 students who changed their educational levels within the first 60 days of their program is close to 8,400. While the number of students transferring or changing educational levels represents a small percentage of the total F-1 student population, these transfers are often promoted by third-party recruiters and other for-profit entities to allow aliens to use the student visa process to mask their intent in the United States or circumvent F-1 restrictions.[108] In addition, school officials are often burdened with the administrative costs of processing SEVIS transfer requests from F-1 students who misrepresented their intentions of studying at their institution."

NAFSA notes

• Most DSOs would likely associate “Majors” with the “major field of study” the school chooses to put on a student’s Form I-20. But that too becomes vague in the context of the proposed restrictions on change of major, for example:
  • Does it make a difference if the CIP codes are within the same 2-digit series, e.g., would a change of major field of study from CIP 14.01 (engineering, general) to CIP 14.08 (civil engineering) be prohibited?
  • Or if the majors are within the same 4-digit series but different 6-digit series, e.g. a change from CIP 14.0802 (geotechnical engineering) to CIP 14.0803 (structural engineering)?
  • DHS focuses in the preamble on changes from a non-sensitive major to a sensitive major, e.g. from a master’s in fine art under CIP 50.0708 (painting) to a master’s under CIP 14.2301 (nuclear engineering). The example they give in the preamble: “Other, more dangerous examples, include those foreign students who receive a visa based on their declared intention to study the humanities, but then transfer into sensitive programs such as nuclear science. A handful of those have been arrested for spying for China.” However, DHS does not limit the proposed restrictions to "sensitive" changes of major in the proposed regulatory wording.

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Inexplicable limits on graduate study

In a nutshell: The proposed rule inexplicably limits changes in educational objectives and transfers for graduate students. These provisions appear unusually harsh and could severely restrict academic flexibility for graduate-level study.

Proposed 8 CFR 214.2(f)(8)(i), in a newly-labeled paragraph "School transfer and change in educational objectives," defines the term "educational objectives" for purposes of the rule stating that:

"... An F-1 student changing educational objectives or transferring to an SEVP-certified school also must meet the following requirements: ...

(C) The student is not currently in a graduate level program of study;"

The "Period of Stay" provision at proposed 8 CFR 214.2(f)(5)(ii)(A) also states:

"... An F-1 student at the graduate degree level or above may not change programs at any point during a program of study."

In the preamble regarding these provisions, DHS says that it's proposing:

"... to prohibit F-1 students in a graduate level program of study from changing educational objectives or transferring from within the United States."

Together these would seem to prohibit for graduate students all transfers, change of programs (whatever that means) and change in educational objectives (which DHS proposes to define as “an F-1 student's educational level or major.”

DHS does not include in the preamble any rationale for these graduate study limitations.

The drastic wording of the proposed provisions and the unexplained rationale should be addressed in comments submitted to DHS.

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Prohibition on lateral and reverse matriculation by F-1 students

In a nutshell: F-1 students who complete a program would be barred from starting another at the same or a lower educational level. DHS frames this as necessary to deter indefinite study, but offers inadequate justification for applying the rule to all F-1 students. It also introduces ambiguity about defining “educational levels.”

The proposed rule would prohibit an F-1 student who has completed a program at one educational level from pursuing another program at the same educational level (lateral matriculation) or lower educational level (reverse matriculation).

Proposed 8 CFR 214.2(f)(5)(ii)(C), in the newly proposed "change of educational objectives" paragraph, provides:

(C) An alien who has completed a program in the United States as an F-1 nonimmigrant at one educational level may not maintain, be admitted, or otherwise be provided F-1 status through a program at the same educational level or a lower educational level.

This proposed rule language could possibly be read as a lifetime limit, although the preamble talks about this as prohibiting "a change to the same or a lower educational level while in F-1 status," which may indicate an intention that the limit resets with a new admission as an F-1. DHS must clarify this.

As proposed, a change of educational level could be approved only for students moving to a higher educational level. Proposed 8 CFR 214.2(f)(5)(ii)(B) says:

(B) An F-1 student who has completed a program in the United States at one educational level and begins a new program at a higher educational level is considered to be maintaining F-1 status if otherwise complying with requirements under 8 CFR 214.2(f).

Issues with the term "educational level"

The use of the term "educational level" is as vague and problematic for this proposed purpose as it is for the current optional training regulations at 8 CFR 214.2(f)(10) which provide that a student "becomes eligible for another 12 months of practical training when they change to a higher educational level."

For example:

• Is a Juris Doctor (J.D.) degree at an educational level equivalent to, higher than, or lower than a Master's degree?
• Is a post-Master's certificate at an educational level equivalent to, higher than, or lower than a Master's degree?
• Is an M.D. degree at an educational level equivalent to, higher than, or lower than a Ph.D degree?
• Etc.

Note that DHS is also proposing to revise Form I-20 to "update the list of educational levels" - see the information collection comments section below.

Preamble extracts to consider

• Preamble: "Additionally, DHS proposes to retain the term “educational” with respect to a change in level as the Department believes it accurately reflects current academic models... Specifically, 'educational' captures programs for non-degree students, whereas using a term such as 'degree' may not. For example, an F-1 student currently would not qualify for additional post-completion OPT if he or she changes to a non-degree certificate program, given that the certificate program is not a 'higher educational level.' Similarly, certificate programs for professional advancement are typically not considered to be a 'higher educational level' that would allow F-1 students to qualify for additional post-completion OPT."
• The preamble description of how this operates says that it requires: "any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level while in F-1 status and prohibiting a change to the same or a lower educational level while in F-1 status."
• Preamble: "Repeated changes to a program of study either within the same educational level or to move to a lower level, as well as immediate changes to a program of study upon initial entry into the United States, are not consistent with attainment of such an educational or professional objective."
• Preamble: "DHS has observed that some students continuously enroll in different programs at the same degree level, such as by pursuing multiple associate, master's, undergraduate, bachelor's, or certificate programs. Alternatively, some students change to a lower educational level, such as completing a master's degree and then changing to an associate's program or an English language training program.[105] This has enabled some aliens to remain in the United States for lengthy periods of time in F-1 student status, raising concerns about the temporary nature of their stay. In 2024, DHS identified nearly 77,000 F-1 students who have spent more than 10 years in student status since SEVIS was implemented in 2003.[106] This includes individuals who enrolled in programs at the same educational level as many as 19 times, as well as students who completed graduate programs and then enrolled in undergraduate programs, including associate's degrees."
• Preamble: "While there may be legitimate cases of students who wish to change their educational objective to gain knowledge at a lower or at the same educational level, the traditional path of study typically progresses from a lower educational program to a higher one."
• Preamble: "DHS believes that it is reasonable for a student to progress to a higher educational level as that is the traditional trajectory in the pursuit of higher education. Movement within the same level after completion of a program or to a lower educational level raises concerns regarding whether the F-1 alien is a bona fide student who intends to temporarily and solely pursue a full course of study rather than pursuing different degrees as a de facto way to prolong their stay in the United States."
• Preamble: "DHS believes these proposals would encourage F-1 students to complete the programs of study for which they were admitted to the United States and to only pursue additional programs of study that demonstrate an upward progression in degree levels, which is expected from a qualified bona fide student who is coming to the United States temporarily and solely to pursue a course of study. The Department believes that these new restrictions would not significantly impact the choice of bona fide students who come to the United States temporarily to complete a full course of study. The F-1 program, with its statutory requirement that an alien be a bona fide student who seeks to enter the United States temporarily and solely for the purpose of pursuing a full course of study at the school listed on his or her Form I-20 or successor form, should not be used by aliens wishing to remain in the United States indefinitely. These proposals will better ensure that this statutory intent is fulfilled without hindering the options presented to bona fide students seeking study at higher educational levels and thus would create a balanced solution to this issue."

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F-1 change of education level procedures

In a nutshell: Gaps remain between SEVIS functionality and regulatory requirements, leaving institutions and students exposed to confusion and filing risks.

As complicated as the proposed change of level substantive rules are, proposed 8 CFR 214.2(f)(8)(iii) perpetuates a disconnect between SEVIS functionality and the change in level regulations by simply stating:

(iii) Change of education level procedures. A change of education level can be accomplished according to the transfer procedures outlined in paragraph (f)(8)(ii) of this section.

This mirrors some of the language of the current regulation at 8 CFR 214.2(f)(5)(ii), which also refers to the "transfer procedures."

Both the current and the proposed provision for change of educational level are inadequate, because the cross-referenced transfer procedure paragraphs reference SEVIS functionality that exists for SEVIS transfers, but not for change of level. For example, the transfer regulation and SEVIS functionality have a "release date" that the SEVIS change of level functionality does not (see the SEVIS Help Hub Change Education Level page for background on COL SEVIS functionality).

In addition to the above, students who do change education levels would also have to file a complete Form I-539 extension of stay application with USCIS. Proposed 8 CFR 214.2(f)(5)(ii)(D) provides:

(D) When seeking a change in educational objectives, F-1 students referenced in paragraphs (f)(5)(ii)(A) through (C) of this section must, if seeking an extension of stay, apply for an extension of stay on the form designated by USCIS, with the required fee and in accordance with the form instructions, including any biometrics required by 8 CFR 103.16.

The Form I-539 must be timely filed:

• If they are D/S students covered by the transition rules, they must file the I-539 EOS before the end of their current program end date;
• Post transition, if their current Form I-94 end date is insufficient to cover the change of level program, they must file before their current Form I-94 end date.

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School Transfers

In a nutshell: The rule consolidates transfer and educational objective change rules into one section, creating overlapping eligibility conditions. Graduate students can apparently not transfer at all, while others face new restrictions such as completing one year at their initial school and avoiding patterns of repeated program changes.

School transfer regulations

The proposed rule would create a combined paragraph (f)(8) labeled "School transfer and change in educational objectives." Proposed paragraph (f)(8)(i) creates a long set of eligibility conditions that sometimes mix transfer eligibility conditions, change of educational objectives conditions, and conditions for both.

New eligibility conditions that apply to both transfers and "change in educational objectives" include:

• Paragraph (8)(i)(C) would establish a draconian prohibition on transfers and change in educational objectives for graduate students
• Paragraph (8)(i)(D) would prohibit transfers and change in educational objectives for students below the graduate level until they have completed one academic year of a program of study at the school that initially issued their Form I-20, unless SEVP authorizes an exception for "extenuating circumstances."
• Paragraph (8)(i)(F) would establish a new condition that prohibits transfers and change in educational objectives for students with "a pattern of behavior demonstrating a repeated inability or unwillingness to complete his or her course of study"

Here is the full proposed paragraph (f)(8)(i):

(8) School transfer and change in educational objectives.

(i) Eligibility. An F-1 student may change educational objectives or transfer to SEVP-certified schools if he or she is maintaining status as described in paragraphs (f)(5)(ii)(A) through (D) of this section. “Educational objectives” refers to an F-1 student's educational level or major. An F-1 student changing educational objectives or transferring to an SEVP-certified school also must meet the following requirements:

(A) The student is currently maintaining status;

(B) To be eligible to transfer, the student must:

(1) Have been pursuing a full course of study, unless a reduced course load was properly authorized under 8 CFR 214.2(f);

(2) Have completed a degree program; or

(3) Be currently completing or have completed post-completion or STEM optional practical training (OPT);

(C) The student is not currently in a graduate level program of study;

(D) Unless an exception has been authorized by SEVP, the student has completed his or her academic year of a program of study at the school that initially issued his or her Form I-20 or successor form;

(E) The student has not been placed on academic probation or school suspension;

(F) The student does not have a pattern of behavior demonstrating a repeated inability or unwillingness to complete his or her course of study;

(G) The student will begin classes at the transfer school or program within 5 months of transferring out of the current school or within 5 months of the program completion date on his or her current Form I-20, or successor form, whichever is earlier; and

(H) If the F-1 student is authorized to engage in post-completion or STEM OPT, he or she must be able to resume classes within 5 months of transferring out of the school that recommended the post-completion or STEM OPT or the date the post-completion or STEM OPT authorization ends, whichever is earlier.

Extension of stay required in most transfer scenarios

In a nutshell: Students transferring to a new school whose program runs beyond their current I-94 date would need to file a full extension of stay application on Form I-539. Failure to secure approval would leave the student out of status, creating higher filing burdens and risk for institutions.

Proposed 8 CFR 214.2(f)(8)(iv) would require the student to file an application for extension of stay on Form I-539 after obtaining the Form I-20 from the transfer-in school if the student's Form I-94 will expire before the program end date of the transfer-in program.

(iv) Extension of Stay. If the new program to which the student transferred will not be completed within the authorized period of stay established in paragraph (f)(5)(i) of this section, the F-1 student must apply to USCIS for an extension of stay in the manner and using the form designated by USCIS, with the required fee and in accordance with form instructions, including any biometrics required by 8 CFR 103.16, together with a valid, properly endorsed Form I-20 or successor form indicating the new program end date. Upon approval of the extension of stay application, USCIS will transmit the approval to SEVIS. If the application is denied, the student is out of status, and the student's record must be terminated in SEVIS.

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Standards for DHS to Approve an Extension of Stay

In a nutshell: DHS would establish a two-step process: school or exchange program officials recommend extensions in SEVIS, but USCIS ultimately adjudicates the extension application under strict eligibility standards. This removes the current regulatory language on “normal progress” and adds costs, delays, and uncertainty to routine academic transitions.

Two-step process

For students or exchange visitors who need more time in the United States to complete their program or program of study, the proposed rule would establish a two-step process for extensions of stay.

• Step 1 would be for the DSO or RO to recommend an extension using SEVIS procedures similar (or exactly the same) as those they use now to obtain a Form I-20 or DS-2019 for:
  • A program extension
  • Moving educational levels
  • Transfer to a new school or exchange program
  • F-1 post-completion OPT or STEM OPT
  • F-1 reinstatement*
  • J-1 academic training
  • J-1 reinstatement (must file Form I-539 within 30 days of DOS approval of J-1 reinstatement application)
• Step 2 would be for the student or exchange visitor (and their dependents) to timely file a full extension of stay application on Form I-539, with fee, which would have to be adjudicated by USCIS under revised standards.
  • DHS also says in the preamble: "Like all other aliens who file a Form I-539, F-1 applicants might be required to submit biometrics and may be required to appear for an interview pursuant to 8 CFR 103.2(b)(9)."
• * Note that for F-1 reinstatement applicants, the proposed changes to the online Form I-539 instructions state: "If you are applying to reinstate your F-1 status, and you will be unable to complete your program of study within your authorized period of stay within six months after your F-1 status is reinstated, you will also need to apply for an extension of stay on another Form I-539, and you will need to submit the required filing fee for each Form I-539. USCIS encourages you to file both Forms I-539 at the same time to avoid unnecessary adjudication delays if your reinstated authorized period of stay will expire within six months. If your application to reinstate student status is denied, your application for extension of stay will also be denied, and both fees will not be refunded."

Proposed F-1 regulatory wording

As stated at the beginning of this resource, the proposal would eliminate the reference to "normal progress" that's in the current F-1 regulations, and at proposed 8 CFR 214.2(f)(7)(i) would establish the following extension of stay eligibility conditions. A DSO would have to issue an extension of stay Form I-20 through SEVIS, certifying that the student is eligible under those conditions, and then the student would have to apply to USCIS before the expiration of the period of admission on their Form I-94, and then USCIS would adjudicate the extension application on those same standards, which include that the student:

(A) Has continually maintained lawful status;

(B) Is currently pursuing a full course of study; and

(C) Has one of the following:

(1) A currently issued Form I-20, or successor form, indicating additional time is left to complete his or her program of study; or

(2) Documentation demonstrating the request for an extension is based on one of the following reasons:

(i) A compelling academic reason, such as a change of major or research topic or unexpected research problems. Unexpected research problems are those caused by an unexpected change in faculty advisor, need to refine an investigatory topic based on initial research, research funding delays, and similar issues. Delays including, but not limited to, those caused by academic probation or suspension or a student's repeated inability or unwillingness to complete his or her course of study are not acceptable reasons for an extension;

(ii) A documented illness or medical condition that is a compelling medical reason, such as a serious injury, that is supported by medical documentation from a licensed medical doctor, a licensed doctor of osteopathy, a licensed psychologist, or a licensed clinical psychologist; or

(iii) Circumstances beyond the student's control, including a natural disaster, national health crisis, or the closure of an institution.

NAFSA notes

The wording is a bit odd, especially regarding condition (C)(1), which on first read might appear to subsume the alternative conditions in (C)(2). It is likely, though, that condition (C)(1) is intended for situations where the program end date on the student's Form I-20 exceeds the time for which they were last admitted to the United States. For example, if a student was issued a Form I-20 for a 5-year Ph.D. program and had been admitted under the new rule for only 4 years. This paragraph could also be seen, though, to apply to situations where a student has been issued a transfer I-20 or change of level I-20 whose program end date is beyond the student's Form I-94 expiration date.

The extension condition in paragraph (C)(2)(i) is very similar to the current extension of stay regulation, but adds "a student's repeated inability or unwillingness to complete his or her course of study" as a new condition of ineligibility for an extension of stay.

Preamble extracts to consider

DHS says in the preamble that they are

"proposing to eliminate a reference to "normal progress" with respect to seeking a program extension, and incorporate a new standard that makes it clear that acceptable reasons for requesting an extension of a stay for additional time to complete a program are: (1) compelling academic reasons; (2) a documented illness or medical condition; and (3) exceptional circumstances beyond the control of the alien."

Also in the preamble:

• Preamble. "A student would be expected to provide evidence demonstrating the compelling academic reason in order for the DSO to recommend a program extension. The student may then apply for an EOS. While a letter from the student may be sufficient to meet his or her burden of proof, an immigration officer will evaluate the individual case and make the determination as to whether additional evidence (such as a letter from a member of the school administration or faculty) is needed to adjudicate the case."
• Preamble: "DHS proposes to clarify that, in addition to academic probation and suspension, a student's repeated inability or unwillingness to complete his or her course of study, as demonstrated by a pattern of failing classes and requesting multiple program extension, is not an acceptable reason to request an EOS for additional time to complete a program."
• Preamble: "DHS is also proposing a new factor in the extension of stay provisions - circumstances beyond the student's control, including a natural disaster, a national health crisis, or the closure of an institution... As in the reinstatement context, DHS believes that there might be additional reasons beyond compelling academic or documented medical reasons that result in a student's inability to meet the program end date listed on the Form I-20."
• Preamble: Regarding circumstances beyond the student's control, DHS says in the preamble: "Some scenarios are currently in the reinstatement provisions, 8 CFR 214.2(f)(16)(i)(F), such as natural disasters, pandemics, and the negligence of a DSO, and DHS believes that they merit favorable consideration in extension requests moving forward. Other scenarios may present circumstances that require a more intensive, fact-specific analysis and may fall into this proposed third prong. For example, the circumstances surrounding the closure of a school may be considered in determining whether the student qualifies for an EOS. By way of illustration, if a school closes as a result of a criminal conviction of its owners for engaging in student visa fraud by not requiring students to attend, but the student is unable to demonstrate that he or she was attending classes prior to closure as required to fulfill a full course of study, the closure of the institution might not qualify the student for a program extension. In contrast, if a school closes but a student is able to demonstrate that he or she was attending classes and was fulfilling all requirements to otherwise remain in status, the closure of the institute may qualify the student for a program extension."
• Preamble: "...a student's failure to timely request, from the DSO, a recommendation for extension of the program end date prior to expiration of the student's authorized stay, which would result in the DSO recommending an extension of the program end date in SEVIS after the end date noted on the most recent Form I-20 or successor form, would require the alien to file for a reinstatement of F-1 status, because the alien would have failed to maintain status and would be ineligible for an EOS."

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Extension of stay mechanics and standards of eligibility

I-539 as the extension of stay application form

The form and fee for extensions of stay that would have to filed under the proposal would be the standard Form I-539, Application to Extend/Change Nonimmigrant Status, and the applicable fee for that form.

• Preamble: "With the transition from D/S to admission for a fixed time period, F-1 students would need to apply for an EOS directly with USCIS, by submitting the appropriate form and following the requirements outlined in the form instructions. USCIS anticipates accepting the Form I-539, Application to Change/Extend Nonimmigrant Status, for this population but would like the flexibility to use a new form if more efficient or responsive to workload needs. Thus, DHS is proposing to use general language to account for a possible change in form in the future... If the form ever changes, USCIS would provide stakeholder's advanced notice on its webpage and comply with Paperwork Reduction Act requirements." ... "applicants would need to demonstrate that they are eligible for the nonimmigrant classification sought."

USCIS would have to receive an application for extension of stay before the expiration of the period of admission recorded on Form I-94.

Automatic extension of F and J stay and employment authorization while extension of stay and employment authorization applications are pending

Analysis forthcoming.

Period of extension - program end date or 4 years, whichever is less

Extensions of stay would be granted for the period of time needed to complete the program or requested practical training or academic training, not to exceed 4 years (i.e., whichever is less).

• Preamble: "F-1 applicants generally would need to timely file their EOS application—meaning that USCIS would need to receive the application on or before the date the authorized admission period expires. See proposed 8 CFR 214.2(f)(7)(iii)(B). This application timeframe for timely filing an EOS application would include the 30-day period of preparation for departure allowed after the completion of studies or any authorized practical training. However, if the extension application is received during the 30-day period of preparation for departure provided in proposed 8 CFR 214.2(f)(5)(v) following the completion of studies, the alien in F-1 status may continue studying but may not continue or begin engaging in practical training or other employment until the extension request is approved and, as applicable, an EAD is issued."

Biometrics

• Preamble: "Like all other aliens who file a Form I-539, F-1 applicants might be required to submit biometrics and may be required to appear for an interview pursuant to 8 CFR 103.2(b)(9)."

Possibility of an interview

While unlikely, DHS reminds the public that under current regulations at 8 CFR 103.2(b)(9), "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."

• Preamble: "As part of the EOS application, USCIS requires biometric collection and will require such collection from F, J, and I nonimmigrants under the proposed rule. USCIS has the general authority to require and collect biometrics from applicants, petitioners, sponsors, beneficiaries, or other individuals residing in the United States for any immigration and naturalization benefit. See8 CFR 103.16. Biometric collection helps USCIS confirm an individual's identity and conduct background and security checks. Further, USCIS may also require any applicant, petitioner, sponsor, beneficiary or individual filing a benefit request, or any group or class of such persons submitting requests to appear for an interview. See8 CFR 103.2(b)(9). USCIS may require such an interview as part of the screening and adjudication process that helps confirm an individual's identity, elicit information to assess the eligibility for an immigration benefit, and screen for any national security or fraud concerns."

Proof of sufficient funding for F-1 students extending their stay

In addition to a properly executed extension Form I-20 students will also have to submit proof of sufficient funding as part of their application for extension of stay submitted to USCIS.

• Preamble: "While the sponsoring school is required to verify the availability of financial support before issuing the Form I-20, they may not be well-versed in foreign documentation submitted by applicants and circumstances may change between the issuance of a Form I-20 and a request for an EOS. Further, it is incumbent upon DHS to determine the veracity of the evidence submitted, and officers must ensure that the student has sufficient funds to study in the United States without resorting to unauthorized employment. The phrase “sufficient funds to cover expenses” is referred to in existing DOS regulations concerning issuance of F and M nonimmigrant student visas, 22 CFR 41.61(b)(1)(ii), and current DOS policy requires an applicant to provide documentary evidence that sufficient funds are, or will be, available to defray all expenses during the entire period of anticipated study.[127] While this does not mean that the applicant must have cash immediately available to cover the entire period of intended study, which may last several years, the applicant must demonstrate enough readily available funds to meet all expenses for the first year of study and that additional funds will be available for the duration of the intended period of study.[128] DHS believes requiring evidence of readily available financial resources to cover expenses for one year of study is reasonable given that F students are familiar with this requirement because this is the standard used by the DOS in the issuance of F nonimmigrant visas. DHS also considers that this standard is appropriate because it establishes concrete resources for one full academic year of the program. Further, applicants must demonstrate that, barring unforeseen circumstances, adequate funds will be available for each subsequent year of study from the same source or from one or more other specifically identified and reliable financial sources. Such evidence for one year and subsequent years could include, but is not limited to: complete copies of detailed financial account statements for each account intended to be used to fund the student's education; other immediately available cash assets; receipts and/or a letter from the school accounts office indicating tuition payments already made and any outstanding account balance; affidavits of support from a sponsor; proof of authorized private student loans; [129] and/or other financial documentation.

One question not addressed in the preamble or the proposed regulatory language is whether students applying for post-completion OPT would also have to submit proof of funding sufficient to cover the period of OPT they are requesting. Note that DHS is not proposing to change the OPT regulations, which do not require an offer of employment before the DSO recommends OPT.

Dependents

F-2 and J-2 dependents seeking to accompany the F-1 or J-1 principal would need to file applications for an EOS or reinstatement, as applicable. If the dependent files a separate Form I-539, he or she would need to pay a separate Form I-539 filing fee. However, if the dependent files a Form I-539A as part of the primary applicant's EOS request on a Form I-539, only one fee would be required... To qualify for an EOS, the F-2 or J-2 dependent would need to demonstrate the qualifying relationship with the principal F-1 or J-1 principal who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment. Extensions of stay for dependents would not be able to exceed the authorized admission period of the principal.

Excerpts from the preamble to consider

• F-2 dependents. Preamble: " F-2 dependents seeking to accompany the F-1 principal student would need to file applications for an EOS or reinstatement, as applicable. See proposed 8 CFR 214.2(f)(7)(iv). A dependent F-2 spouse and unmarried children under the age of 21 seeking to accompany the principal F-1 student during the additional period of admission would need to either be included on the primary applicant's request for extension or properly file their own EOS applications on the form designated by USCIS. If the dependent files a separate Form I-539, he or she would need to pay a separate Form I-539 filing fee. However, if the dependent files a Form I-539A as part of the primary applicant's EOS request on a Form I-539, only one fee would be required... USCIS generally would need to receive the extension applications on or before the expiration of the previously authorized period of admission, including the 30-day period following the completion of the course of study, as indicated on the F-2 dependent's I-94. To qualify for an EOS, the F-2 dependent would need to demonstrate the qualifying relationship with the principal F-1 student who is maintaining status, also be maintaining his or her own status, and not have engaged in any unauthorized employment. See proposed 8 CFR 214.2(f)(7)(iv). Extensions of stay for F-2 dependents would not be able to exceed the authorized admission period of the principal F-1 student. By removing duration of stay for family members, DHS is ensuring that a spouse who engages in unauthorized employment would be denied extensions of stays and must return home."
• J-2 dependents. Preamble: "Consistent with the EOS eligibility requirements for J-1 nonimmigrants found at 8 CFR 214.1(c)(4), DHS proposes to codify the policy that extensions for spouses or children who are granted J-2 status based on their derivative relationship as a spouse or child of the principal J-1 nonimmigrant may not exceed the period of authorized admission of the principal J-1. The existing regulations state that the initial admission of a spouse or children may not be for longer than the principal exchange visitor.[132] That is, the authorized period of initial admission for J-2 dependents would be subject to the same requirements as the J-1 exchange visitor and may not exceed the period of authorized admission of the principal J-1 exchange visitor. See proposed 8 CFR 214.2(j)(1)(ii)(B)."

Late requests for extension of program end date require reinstatement

The proposed rule requires reinstatement if a program end-date extension is entered in SEVIS after the date on the student or exchange visitor’s current Form I-20 or DS-2019 has lapsed. For F-1 students, the late extension requires the student to file a reinstatement application with USCIS, including fees and biometrics, and F-2 dependents must separately file for reinstatement or extension of stay. For J-1 exchange visitors, the sponsor must first request reinstatement of status from the Department of State with the applicable fee; if DOS approves, the J-1 visitor must then submit an extension of stay request to USCIS within 30 days.

Proposed regulatory wording:

Proposed 8 CFR 214.2(f)(7)(viii) - F student provision. "(viii) Late requests of extension of current program end date. If the designated school official enters an extension of the program end date in SEVIS after the end date noted on the most recent Form I-20 or successor form, the F-1 student must file a request for reinstatement of F-1 status in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. F-2 dependents seeking to accompany the F-1 principal student must file applications for an extension of stay or reinstatement, as applicable."

Proposed 8 CFR 214.2(j)(iv)(D) - J exchange visitor provision: "(D) Late requests for extension of current program end date. If the responsible officer is required to reinstate the program status and submits an extension of the program end date in SEVIS after the end date noted on the most recent Form DS-2019 or successor form, the sponsor must file a request for reinstatement of J-1 status in the manner required by the Department of State, with the required fee at 22 CFR 62.43. If the Department of State approves the request, the J-1 exchange visitor must file a request for extension of stay with USCIS within 30 days of the decision."

Extension of stay as a USCIS discretionary decision

Proposed 8 CFR 214.1(c)(5) reiterates that extension of stay is a USCIS discretionary decision.

(5) Decisions for extension of stay applications. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at USCIS's discretion. The denial of an application for extension of stay may not be appealed.

As a reminder, the USCIS Policy Manual at 1 USCIS-PM E.8. - Discretionary Analysis explains generally that:

"In general, an officer may exercise favorable adjudicative discretion to approve a benefit request when the requestor has met the applicable eligibility requirements and negative factors impacting discretion are not present. An exercise of discretion to grant a benefit may also be appropriate when the requestor has met the eligibility requirements for the benefit, and the positive factors outweigh the negative factors. An exercise of discretion to deny, rather than to grant, may likewise be appropriate when the requestor has met the requirements of the request, but negative factors found in the course of the adjudication outweigh the positive factors."

USCIS states that this exercise of adjudicative discretion requires a "totality of the circumstances" approach:

"The act of exercising discretion involves the weighing of positive and negative factors and considering the totality of the circumstances in the specific case. In the immigration context, the goal is to assess whether, based on the totality of the circumstances, the person warrants a favorable exercise of discretion."

For an example of recent USCIS actions involving discretion, see NAFSA's page USCIS to Consider "Anti-Americanism," "Anti-Semitism," Other Factors in Immigration Benefit Requests.

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If USCIS denies an extension of stay application

In a nutshell: Denial of a student’s extension of stay would render them immediately out of status if the denial is made after the student's Form I-94 expiration date, requiring SEVIS termination and eliminating their ability to continue study or work. This provision raises the stakes for administrative or filing errors and creates major institutional risks.

Proposed regulatory wording

Proposed 8 CFR 214.2(f)(7)(vii) - USCIS denial of an F-1 extension of stay application

(vii) Denials. If an F-1 student's extension of stay application is denied and the F-1 student's authorized admission period has expired, the F-1 student and his or her dependents must immediately depart the United States.

Proposed 8 CFR 214.2(j)(1)(iv)(F) - USCIS denial of a J-1 extension of stay application

(F) Denials. If an alien's extension of stay application is denied, and the alien's authorized admission period has expired, he or she and his or her dependents must immediately depart the United States.

Preamble excerpts to consider

• Preamble: "Under proposed 8 CFR 214.2(f)(7)(vii), if USCIS denies the request for an extension, and the period of admission for the student and his or her dependents has expired, then the student and his or her dependents would need to immediately depart the United States. As with other nonimmigrant classifications, they would not be given any period of time to prepare for departure from the United States after the denial, and there may be significant immigration consequences for failing to depart the country immediately. For example, such aliens generally would begin to accrue unlawful presence the day after the issuance of the denial. DHS believes this standard provides parity across nonimmigrant classifications and invites the public to submit comments on this issue as well as the proposed EOS application process."
• Preamble: "...as with other nonimmigrant classifications, if an EOS request is denied, the aliens would need to immediately depart the United States once their authorized period of stay expires."

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Transition Provisions

In a nutshell: Students and exchange visitors admitted in D/S before the effective date would be allowed to remain until their program end date (up to four years). After that, they must transition into the new fixed-admission and USCIS extension system. This dual framework could complicate compliance during the phase-in period.

The DHS proposal also contains transition rules at proposed 8 CFR 214.1(m), that specify how F or J nonimmigrants present in the United States in F or J status for D/S on the future effective date of the final rule will be transitioned to the new date-specific admission system.

Summary of transition provisions

• In U.S. in D/S on final rule effective date. F or J nonimmigrants previously admitted for D/S would be transitioned to a fixed date of admission, which would be:
  • the program end date of the Form I-20 (or OPT EAD) or DS-2019 that is valid on the final rule's effective date (i.e., 60 days after the publication of the final rule),
  • plus an additional period of 60 days for F nonimmigrants and 30 days for J nonimmigrants, but
  • not to exceed a period of 4 years from the final rule's effective date
  • F-1 students and J-1 exchange visitors who need additional time to complete their current program of study, F-1 OPT or STEM OPT, or J-1 academic training, or who would like to start a new program of study or exchange visitor program, must apply for an extension of stay with USCIS in accordance with proposed 8 CFR 214.1(c)(2) for an admission period to a fixed date.
• Travel and reentry after the final rule effective date.
  • An F or J nonimmigrant who departs the United States and seeks admission after the final rule's effective date becomes subject to the fixed date framework that would be imposed by this rule.
  • DHS's full regulatory impact analysis (p. 30) discusses the choice between filing an extension of stay application with USCIS or instead traveling and reentering through a port of entry, saying: "Under the proposed rule, nonimmigrants who want to extend their stay beyond their fixed period of admission would need to apply for additional time directly with DHS. Under the framework, nonimmigrants could choose to file an EOS using the appropriate form from USCIS or apply for admission with CBP at a POE if they are eligible to do so. DHS assumes eligible nonimmigrants with existing international travel plans may prefer to request readmission with CBP at a POE rather than incur the costs of filing an EOS (see proposed 8 CFR 214.1(a)(4)(i)(A) and (ii)(A)). This process does incur risk, as the CBP officer may deny the nonimmigrant entry into the country. Therefore, DHS assumes that, while requesting an EOS at a POE is an option, many nonimmigrants wishing to remain in the country will file an EOS and remain in country until it is approved to reduce the risk of being denied and unable to re-enter the country."
• OPT and STEM OPT transition.
  • F-1 applicants for OPT or STEM OPT whose I-765 is pending with USCIS on the final rule effective date could remain in the U.S. while the application is pending. For the first six months following the final rule effective date they would not have to file an I-539 or re-file an I-765.
  • If USCIS approves the OPT, the F-1 could remain in F status until the expiration date of the OPT EAD, plus 60 days.
  • If USCIS denies the OPT: If the student’s program end date has not yet passed, student could remain in the United States until the program end date listed on their Form I-20, plus 60 days. If the program end date and 60-day grace period has passed by the time USCIS denies the I-765, student must immediately depart the United States with no grace period.

General transition

Generally, the status of F and J nonimmigrants who are in the United States for "duration of status" on the future effective date of the final rule (i.e., 60 days after the publication of the final rule) would be allowed to remain in the United States in F or J nonimmigrant status until:

• the program end date noted on their Form I-20 or Form DS-2019 that is valid on the final rule's effective date; or
• the expiration date on their Employment Authorization Document (EAD), in the case of F-1 students on post-completion or STEM OPT (and their F-2 dependents); plus
• a 60-day grace period for transitioning F nonimmigrants and a 30-day grace period for transitioning J nonimmigrants

Neither of these expiration dates, however, can exceed a period of 4 years from the rule's effective date plus the relevant grace periods.

Any authorized employment or training approved before the final rule's effective date also continues under the transition provisions until the program end date on the F or J nonimmigrant's relevant Form I-20 or DS-2019, or expiration date on the individual's EAD.

Transitioned individuals who need additional time to complete their current program of study, including requests for post-completion optional practical training (OPT) and Science Technology Engineering and Mathematics (STEM) OPT, or exchange visitor program, including academic training, or would like to start a new program of study or exchange visitor program must apply for an extension of stay with USCIS in accordance with proposed 8 CFR 214.1(c)(2) for an admission period to a fixed date. But see the discussion below on the "Six-month 'grace' period for OPT applicants."

The transition procedures would not apply to individuals who are outside the United States when the final rule takes effect, or to any individuals present in the United States in violation of their status.

Six-month "grace" period for OPT applications

Proposed 8 CFR 214.1(m)(1)(i) would also create a 6-month period that relieves F-1 students who were in the United States in D/S on the effective date of the final rule from the new requirement of filing a Form I-539 to cover requested periods of post-completion and STEM optional practical training, during which:

• F-1 students recommended for standard post-completion OPT who file a Form I-765 before their period of admission expires (including the transition's 60 day grace period), would not have to also file Form I-539 for the requested period of post-completion OPT; and
• F-1 students recommended for STEM OPT who file a Form I-765 before their standard post-completion OPT EAD expires (including the transition's 60 day grace period), would not have to also file Form I-539 for the requested period of post-completion OPT.

This "grace" period would last for 6 months from the effective date of the final rule. After the 6-month grace period, OPT/STEM OPT applicants would have to file not only Form I-765, but a Form I-539 extension of stay application to cover their requested OPT period as well.

If USCIS approves the applicant's I-765 application for post-completion OPT or STEM-OPT, under the six-month transition period they will be authorized to remain in the United States in F status until the expiration date of the EAD plus 60 days.

If USCIS denies the applicant's I-765 application for post-completion OPT or STEM-OPT, the F-1 student would continue to be authorized to remain in the United States as follows:

• Applicants for standard post-completion OPT could remain in the United States only until the program end date listed on their Form I-20 valid on the effective date of the final rule plus 60 days, as long as they to pursue a full course of study and otherwise meet the requirements for F-1 status;
• Applicants for STEM OPT could remain in the United States only until the end date of their post-completion OPT EAD, as long as they continue to meet the requirements for F-1 status, plus 60 days.

Travel before filing I-765 renders student ineligible for 6-month I-539 filing exception. Under proposed 8 CFR 214.1(m)(1)(ii), students covered by the transition provisions who depart the U.S. after the final rule's effective date but before filing a Form I-765 for standard post-completion OPT or STEM OPT would be readmitted with a fixed period of admission under the new rule and would not be covered by the six-month "grace" period, i.e., they would have to file both Form I-765 and Form I-539 for the requested period of post-completion or STEM OPT.

Finally, proposed 8 CFR 214.1(m)(1)(ii) also provides that DHS can choose to extend this 6-month period exempting the filing of Form I-539, in 6 month increments through announcement in the Federal Register.

Preamble excerpts:

• Preamble: "DHS proposes to generally allow all F and J nonimmigrants present in the United States on the final rule's effective date who are validly maintaining that status and who were admitted for D/S to remain in the United States in F or J status, without filing an EOS request, up to the program end date reflected on their Form I-20 or DS-2019 that is valid on the Final Rule's effective date, for a period not to exceed 4 years from the effective date of the Final Rule, plus an additional 60 days for these F nonimmigrants and 30 days for J nonimmigrants to depart the country."

Proposed regulatory wording:

The transition provisions would be housed in a new paragraph at 8 CFR 214.1(m). The substantial section reads:

(m) Transition period from duration of status to a fixed admission date.

(1) Transition from duration of status admission to a fixed admission period for aliens properly maintaining F and J status on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE]. Aliens with F or J status who are properly maintaining their status on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] and who were admitted for duration of status are authorized to remain in the United States in F or J nonimmigrant status until the later date of either the expiration date on an Employment Authorization Document, Form I-766, or successor form or the program end date noted on their Form I-20 or Form DS-2019, as applicable, not to exceed a period of 4 years from [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], plus the departure period of 60 days for F nonimmigrants, which is [DHS WILL INSERT DATE 4 YEARS AND 120 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], and 30 days for J nonimmigrants, which is [DHS WILL INSERT DATE 4 YEARS AND 90 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE]. Subject to 8 CFR 274a.14, any authorized employment or training continues until the program end date on such F or J nonimmigrant's Form I-20 or DS-2019, as applicable and as endorsed by the designated school official or responsible officer for employment or training, or expiration date on the alien's Employment Authorization Document, Form I-766, or successor form. Aliens who need additional time to complete their current program of study, including requests for post-completion optional practical training (OPT) and Science Technology Engineering and Mathematics (STEM) OPT, or exchange visitor program, including academic training, or would like to start a new program of study or exchange visitor program must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section for an admission period to a fixed date.

(i) Notwithstanding paragraph (m)(1) of this section, an F-1 student recommended for post-completion OPT who files before his or her period of admission expires, including the 60 day departure period, an Application for Employment Authorization, Form I-765, or successor form on the form and in the manner designated by USCIS, with the required fee, as described in the form's instructions, on or before [DHS WILL INSERT DATE SIX MONTHS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], is not required to file an Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form for the requested period of post-completion OPT. An F-1 student recommended for STEM OPT who files, prior to his or her current OPT Employment Authorization Document, Form I-766, or successor form expires, an Application for Employment Authorization, Form I-765, or successor form on or before [DHS WILL INSERT DATE SIX MONTHS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], is not required to file an Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form for the requested period of STEM OPT. If the alien's application for post-completion OPT or STEM-OPT employment authorization is approved, the alien will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60 days. If the employment authorization application is denied, the F-1 student would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, valid on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status, or until the end date of the employment authorization document for post-completion OPT, as long as he or she continues to meet the requirements for F-1 status, plus 60 days.

(ii) An F-1 student described in this paragraph who departs the United States before filing the application for post-completion OPT or STEM OPT, and is admitted to the United States with a fixed period of admission is required to file both an Application for Employment Authorization, Form I-765, or successor form and an Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form pursuant to 8 CFR 214.2(11)(i)(B)(2) or (C). An alien described in this section who departs the United States while the Application for Employment Authorization, Form I-765, or successor form is pending or once approved will be admitted pursuant to 8 CFR 214.1(a). DHS reserves the discretion to extend the period exempting the filing of the Application to Extend/Change Nonimmigrant Status, Form I-539, or successor form beyond [DHS WILL INSERT DATE SIX MONTHS AFTER THE EFFECTIVE DATE OF THE FINAL RULE], in 6 month increments through announcement in the Federal Register .

(2) Pending employment authorization applications with USCIS on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] filed by F-1 students. F-1 students described in paragraph (m)(1) of this section who have timely and properly filed applications for employment authorization pending with USCIS on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] do not have to file for an extension or re-file such applications for employment authorization, unless otherwise requested by USCIS.

(i) If the F-1 student's application for post-completion OPT or STEM-OPT employment authorization is approved, the F-1 student will be authorized to remain in the United States in F status until the expiration date of the employment authorization document, plus 60-days. If the employment authorization application is denied, the F-1 student would continue to be authorized to remain in the United States until the program end date listed on their Form I-20, plus 60 days, as long as he or she continues to pursue a full course of study and otherwise meets the requirements for F-1 status.

(ii) F-1 students with pending employment authorization applications, other than post-completion OPT and STEM-OPT, who continue to pursue a full course of study and otherwise meet the requirements for F-1 status, continue to be authorized to remain in the United States until the program end date listed on the Form I-20, plus 60 days, regardless of whether the employment authorization application is approved or denied.

(3) Transition from duration of status admission to a fixed admission period for aliens with I status present in the United States on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE]. Except for those aliens described in 8 CFR 214.2(i)(3)(ii), aliens in I nonimmigrant status who are properly maintaining their status on [DHS WILL INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] and who were admitted for duration of status are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DHS WILL INSERT DATE 300 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] with the exception of aliens in I nonimmigrant status presenting with passports described in 8 CFR 214.2(i)(3)(ii), who are authorized to remain in the United States in I nonimmigrant status for a period necessary to complete their activity, not to exceed [DHS WILL INSERT DATE 150 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE]. Aliens who need additional time to complete their employment beyond [DHS WILL INSERT DATE 300 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE] or [DHS WILL INSERT DATE 150 DAYS AFTER DATE OF PUBLICATION OF THE FINAL RULE], as applicable, must apply for an extension of stay with USCIS in accordance with paragraph (c)(2) of this section and 214.2(i)(5).

Immigration status

The nature of status while the EOS is pending. Proposed 8 CFR 214.2(f)(5)(viii) itself does not clearly extend F-1 status while the EOS application is pending. Rather it states that a student whose I-94 expires while the EOS is pending "will be considered to be in a period of authorized stay… until USCIS issues a decision on the extension of stay application." A "period of authorized stay" is very different than F-1 nonimmigrant status. While being considered in "a period of authorized stay" may protect an applicant from being subject to the INA 222(g) overstay penalty and from accruing unlawful presence under INA 212(a)(9)(B), DHS has long distinguished between valid nonimmigrant status and a "period of authorized stay."

F-1 and F-2 reinstatement. Preamble: "[A] a student's failure to timely request, from the DSO, a recommendation for extension of the program end date prior to expiration of the student's authorized stay, which would result in the DSO recommending an extension of the program end date in SEVIS after the end date noted on the most recent Form I-20 or successor form, would require the alien to file for a reinstatement of F-1 status, because the alien would have failed to maintain status and would be ineligible for an EOS. See proposed 8 CFR 214.2(f)(7)(viii). A request for reinstatement must be filed in the manner and on the form designated by USCIS, with the required fee, including any biometrics required by 8 CFR 103.16. DHS is also requiring F-2 dependents seeking to accompany the F-1 principal student to file applications for an EOS or reinstatement, as applicable. These requirements are consistent with current provisions."

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Employment and the Extension of Stay Process

• On-campus employment, CPT, and economic hardship employment could continue while extension pending, but only for up to 240 days
  • Proposed 8 CFR 214.2(f)(5)(viii): "An F-1 student whose status as indicated on the Arrival-Departure Record, Form I-94, or successor form has expired will be considered to be in a period of authorized stay if he or she has timely filed an extension of stay application pursuant to paragraph (f)(7) of this section until USCIS issues a decision on the extension of stay application... any F-1 student's current on-campus, curricular practical training (CPT), and severe economic hardship authorized employment is automatically extended during the pendency of the extension of stay application, but such automatic extension may not exceed 240 days beginning from the end date of his or her period of admission as indicated on the alien's Arrival-Departure Record, Form I-94, or successor form. However, severe economic hardship employment authorization resulting from emergent circumstances under paragraph (f)(5)(vi) of this section is automatically extended for up to 240 days or until the end date stated in the Federal Register notice announcing the suspension of certain requirements, whichever is earlier."
  • However, to benefit from this automatic extension, the student's I-539 must be received by USCIS before the program end date. If USCIS receives the I-539 during the student's 30-day grace period, even though the extension of status is approvable, a student's current on-campus, curricular practical training (CPT), and severe economic hardship authorized employment cannot continue beyond the prior program end date while the I-539 is pending.
  • Preamble: "For on-campus employment where no EAD is needed, DHS proposes to allow aliens in F-1 status to continue to be authorized for on-campus employment while their EOS applications with USCIS are pending, not to exceed a period of 240 days... If the EOS application is still pending after 240 days have passed, the F-1 student would no longer be authorized for employment and would need to stop engaging in on-campus employment. DHS is proposing a 240-day automatic extension period in order to minimize disruptions to on-campus employment by teaching assistants, post-graduates working on research projects, and other positions that are integral to an F-1 student's educational program."
  • Preamble: "DHS is proposing an automatic extension of off-campus employment authorization for up to 240-days during the pendency of the EOS application, for F-1 aliens who had previously demonstrated severe economic hardship pursuant to 8 CFR 214.2(f)(9)(ii)(C) and had previously received an EAD from USCIS that expired at the program end date that is now being extended with the EOS application... DHS believes a 240-day automatic extension of employment authorization would help alleviate the severe economic hardship and avoid a disruption in their employment, especially given the fact that an EAD is required and the frequency at which these students must submit an application for employment authorization.^[121] Additionally, given that USCIS's average EAD processing time is typically 60-210 days for foreign students and 90-120 for most others, a 240-day timeframe provides sufficient flexibility in case of unexpected delays.^{[122] "}
• Students applying for F-1 post-completion OPT and STEM OPT would also have to file an application to extend their stay. As is the case currently for M-1 students, under the proposal an F-1 student whose I-94 will expire before the end date of the post-completion OPT he or she is requesting on Form I-765 must also file an I-539 EOS application to cover the period of requested post-completion OPT.
• J-1 exchange visitors can benefit from 240-day rule. Preamble: "J-1 exchange visitors are authorized to engage in employment incident to status. This means that they are authorized to work per the terms of their program, and they do not have to apply to USCIS for authorization to engage in employment. f an alien's J-1 status has expired, but he or she timely filed an EOS application, DHS proposes to allow the alien to continue engaging in activities consistent with the terms and conditions of the alien's program, including any employment authorization, beginning on the day after the admission period expires, for up to 240 days. See 8 CFR 274a.12(b)(20)." This is not a rule change, since 8 CFR 274a.12(b)(20) already covers J-1 exchange visitors.

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Other Miscellaneous Provisions

Formalization of policy on abandonment of pending COS applications on departure from United States

The proposed rule also introduces some changes that would apply to all nonimmigrant categories, not just to F and J categories. The include:

Proposed 8 CFR 248.1(f) would incorporate long-standing USCIS (and legacy INS) policy that departing the United States while an application for change of status is pending is considered an abandonment of the change of status application. It reads:

(f) Abandonment of change of status application. If an alien timely files an application to change to another nonimmigrant status but departs the United States while the application is pending, USCIS will consider the change of status application abandoned.

Erroneous or beyond-the-scope removal of I-129 deference language

The proposed rule would replace the "deference" to prior Form I-129 determinations language in the current regulation at 8 CFR 214.1(c)(3)(v) with completely new language relating to USCIS discretion in granting extension of stay applications:

• Current 8 CFR 214.1(c)(5): "(5) Deference to prior USCIS determinations of eligibility. When adjudicating a request filed on Form I-129 involving the same parties and the same underlying facts, USCIS gives deference to its prior determination of the petitioner's, applicant's, or beneficiary's eligibility. However, USCIS need not give deference to a prior approval if: there was a material error involved with a prior approval; there has been a material change in circumstances or eligibility requirements; or there is new, material information that adversely impacts the petitioner's, applicant's, or beneficiary's eligibility."
• Proposed 8 CFR 214.1(c)(5): "(5) Decisions for extension of stay applications. Where an applicant or petitioner demonstrates eligibility for a requested extension, it may be granted at USCIS's discretion. The denial of an application for extension of stay may not be appealed."

This is odd for two reasons. First, it revises a petition-based immigration provision in a rulemaking on F students, J exchange visitors, and I media professionals. Second, it would leave 8 CFR 214.1(c) with two almost identical "discretion" paragraphs, as the proposed rule leaves intact the existing "discretion" provision at current 8 CFR 214.1(c)(7):

(7) Decision on extension or amendment of stay request. Where an applicant or petitioner demonstrates eligibility for a requested extension or amendment of stay, USCIS may grant the extension or amendment in its discretion. The denial of an extension or amendment of stay request may not be appealed.

Comments should point out this anomaly and perhaps suggest that DHS meant to revise paragraph (c)(7) rather than paragraph (c)(5).

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Institutional impacts

In a nutshell: DHS acknowledges the proposed rule will impose significant new costs, training needs, and advising challenges, estimating $93.3 million in first-year institutional compliance costs alone. Institutions may also see enrollment declines if students view U.S. study as less flexible and more burdensome.

DSO and RO Rule Familiarization and Adaptation Costs

DHS says in the preamble to the proposed rule:

• Preamble: "Under the proposed rule, DSOs and ROs will have to spend approximately 67 hours for rule familiarization and adaptation in the first year after the rule takes effect. For each DSO, rule familiarization would cost $3,342 in the first year after the rule takes effect. Further, each year DSOs/ROs will spend approximately 3 hours per F-1/J-1 EOS request to review the Form I-539 completed by the F-1/J-1 nonimmigrant, update the SEVIS record and track EOS requests, and advise the F-1/J-1 nonimmigrant about the extension process and the requirements to file an EOS with USCIS. Additionally, HR staff will spend approximately 1.5 hours per F-1 EOS request to track form updates related to each EOS request and avoid inadvertent unauthorized employment due to form discrepancies with the I-9. The DSO cost per EOS request is $233."
  • Note: DHS's full regulatory impact analysis states this breakdown of the 67 hours familiarization/adaptation burden cited in the preamble: "35 hours for rule familiarization, 16 hours to create and modify training materials, and 16 hours to adapt to the proposed rule through system-wide briefings and systemic changes."
• "DHS estimates that 93.4% of small schools will experience an impact less than or equal to one percent of their annual revenue. DHS estimates that the majority of small J sponsors would experience an impact less than or equal to one percent of their annual revenue. DHS invites all interested parties to submit data and information regarding the potential economic impact on small entities that would result from the adoption of the requirements in the proposed rule."

Potential legal liability

An extension of stay application is a personal application of the individual applying for that benefit, and can have complex impact on the applicant's immigration status and eligibility for future immigration benefits. Although college-based advisers need to be aware of the general issues surrounding extension of stay, they cannot provide legal advice. Applicants needing immigration advice and help weighing risks or planning an immigration strategy should be referred to an experienced immigration attorney.

An experienced immigration lawyer is best positioned to advise on all aspects of any extension of stay application, including responding to Requests for Evidence (RFEs), applicability of overstay and unlawful presence rules, dependents, and other matters that relate to the personal immigration status of applicants and their dependents.

Potential reduction in enrollment and exchange participation

DHS mischaracterizes as "minimal" the effect that the proposed rule would have on nonimmigrant student enrollment. DHS avers in the preamble:

"The global market for nonimmigrant students is competitive and many U.S. schools hold an advantage over foreign institutions due to the quality of the programs they offer, however the proposed rule may have a marginal impact on nonimmigrant student enrollment. The proposed rule affects only those F-1 and J-1 nonimmigrants who need additional time to complete their program; however, DHS maintains that eligible students should have no difficulty with getting their EOS requests approved, which should alleviate concerns about the uncertainty of EOS approval. Schools may also incur costs for changes to their information systems and practices to implement processing under the proposed rule.

DHS expects this proposed rule would affect relatively few English language programs; the majority of English language training students were enrolled in programs shorter than 2 years. Some schools may choose to change their curriculum to be covered in a 2-year time period. It is possible that some language training programs would experience reduced enrollment due to the proposed rule.

DHS expects that the proposed rule would not have a significant impact on participation of other J exchange visitors or I foreign information media representatives. Equivalent U.S.-based exchange visitor programs (outside of academia) may be more difficult to find in other countries, providing less of an incentive for nonimmigrants to choose an alternative."

Compare this 2025 DHS assessment with the assessment it made in the 2020 proposed rule, where it had said more accurately that "the proposed changes could decrease nonimmigrant student enrollments in the United States with corresponding increased enrollments in other English-speaking countries."

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Resources

Reference documents for the current duration of status system for F and J nonimmigrants

• NAFSA's Brief History of F-1 Duration of Status summarizes the development of F-1 duration of status since 1979.
• The current duration of status system for F nonimmigrants went into effect in 1991 after a legacy INS regulation was published in the Federal Register at 56 FR 55608 (October 29, 1991). That change is referenced in the preamble to the proposed rule, but the link is not active. For convenient reference, NAFSA provides the 1991 Federal Register notice in PDF format.
• The current duration of status system for J nonimmigrants went into effect in 1993 after a legacy USIA regulation was published in the Federal Register at 58 FR 15180 (March 19, 1993). Also See Legacy INS field memo CO 214j-P, James Puleo, July 9, 1993 - J-1 processing by INS, which implemented J-1 D/S for exchange visitors.

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Bulleted Summary from the Proposed Rule Preamble

DHS lists the following major changes in the preamble to the proposed rule:

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, including after travel abroad and those approved for OPT and academic training;
• Updating the cross reference and clarifying the standards for admission in the automatic extension visa validity provisions that cover F and J nonimmigrants applying at a port of entry (POE) after an absence not exceeding 30 days solely in a contiguous territory or adjacent islands;
• Outlining the process for 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 up to the program length, not to exceed a 4-year period;
• For F-1 students changing educational objectives or transferring to an SEVP-certified school, requiring that the student complete his or her first academic year of a program of study at the school that initially issued his or her Form I-20 or successor form, unless an exception is authorized by SEVP;
• Prohibiting F-1 students at the graduate education level from changing programs at any point during a program of study.
• Outlining procedures and requirements for F-1 nonimmigrants who change educational objectives while in F-1 status;
• Requiring any nonimmigrant who has completed a program at one educational level to only be allowed to begin another program at a higher educational level while in F-1 status and prohibiting a change to the same or a lower educational level while in F-1 status;
• Decreasing from 60 to 30 days the allowed period for F-1 nonimmigrants to prepare to depart from the United States after completion of a course of study or authorized period of post-completion practical training;
• Providing for collection of biometric information in conjunction with an EOS application for F, J, and I nonimmigrants as may be required by 8 CFR 103.16;
• 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 specified on the Form I-20, which includes but is not limited to delays caused by academic probation or suspension or a student's repeated inability or unwillingness to complete his or her course of study, generally is an unacceptable reason for program extensions for F nonimmigrants;
• Allowing F nonimmigrants whose timely filed EOS applications remain pending after their admission period has expired to receive an auto-extension of their current authorization for on-campus and off-campus employment based on severe economic hardship resulting from emergent circumstances under existing 8 CFR 214.2(f)(5)(v). The length of the auto-extension of employment authorization would be up to 240 days or the end date of the Federal Register notice announcing the suspension of certain regulatory requirements, whichever is earlier;
• Replacing D/S for I nonimmigrants with admission for a fixed time period until they complete the activities or assignments consistent with the I classification, not to exceed 240 days (with the exception of some I aliens from the People's Republic of China), with an EOS available for I nonimmigrants who can meet specified EOS requirements;
• Codifying the definition of a foreign media organization for I nonimmigrant status, consistent with long-standing U.S. Citizenship and Immigration Services (USCIS) and U.S. Department of State (DOS) practice;
• Updating the evidence an alien must submit to demonstrate eligibility for the I nonimmigrant classification;
• Clarifying that J-1 nonimmigrants who are employment authorized with a specific employer incident to status, continue to be authorized for such employment for up to 240 days under the existing regulatory provision at 8 CFR 274a.12(b)(20), if their status expires while their timely filed EOS application is pending, whereas J-2 dependents, who must apply for employment authorization as evidenced by an EAD, do not have the benefit of continued work authorization once the EAD expires;
• Clarifying that I nonimmigrants are authorized to continue working in the United States for their foreign employer, under 8 CFR 274a.12(b)(20), while their timely filed EOS application is pending for up to 240 days; [22]
• Striking all references to “duration of status” and/or “duration of employment” for the F, J, and I nonimmigrant classifications; and
• Including a severability clause. In the event that any provision of this rule is not implemented for whatever reason, DHS proposes that the remaining provisions be implemented in accordance with the stated purposes of this rule.

Amend 8 CFR 248.1, Eligibility, by:

• Establishing requirements to determine the period of stay for F or J nonimmigrants whose change of status application was approved before the Final Rule's effective date and who depart the United States, then seek admission after the Final Rule's effective date; and
• 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:

• Amend 8 CFR 274a.12, Classes of aliens authorized to accept employment, by updating the employment authorization provisions to incorporate the revisions in 8 CFR 214.2.

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Comments on the Information Collection (Form) Proposals

In the world of the Paperwork Reduction Act (PRA), codified at 44 USC 3501, what we generally refer to as "forms" are called "information collections" because they collect information from the public. The PRA requires all agencies to seek Office of Management and Budget (OMB) review and approval any reporting or recordkeeping requirements, including those that are inherent in a rule like this one.

In addition to its substantive provisions, the proposed rule notice also sets out to revise several "forms" connected to the substantive proposals, as described below.

The deadline for commenting on these information collections is October 27, 2025, which is 60 days from the date the Federal Register notice was published, compared to the 30-day deadline of September 29, 2025 for comments on the substantive rule proposals. 

The preamble to the proposed rule also contains general instructions for submitting comments on the information collections, as well as in the Paperwork Reduction Act section of the preamble.

SEVIS Forms

• Form I-17 and Form I-20 (OMB Control Number 1653-0038). Preamble: "Revisions to the SEVIS collections include substantive and non-substantive changes to SEVIS to support additional recordkeeping and reporting requirements associated with recommendations for an F-1 student extension of stay. The revision is to add fields to facilitate a DSO recommendation for an F student Extension of Stay, add a field to collect graduation/degree conferral date, update the list of educational levels, and update the Form I-20 instructions page."

USCIS Forms

• Forms I-539 and I-539A (OMB Control Number: 1615-0003), Application to Extend/Change Nonimmigrant Status. Preamble: "DHS, USCIS and ICE invite the general public and other federal agencies to comment on the impact to the proposed collection of information. In accordance with the PRA, the information collection notice is published in the Federal Register to obtain comments regarding the proposed edits to the information collection instrument."
• Form I-765 (OMB Control Number: 1615-0040), Application for Employment Authorization. Preamble: "Although this rule does not impose any new reporting or recordkeeping requirements under the PRA for this information collection, this rule will require non-substantive edits to USCIS Form I-765, Application for Employment Authorization."

You can review draft versions of the proposed changes to the I-20 instructions, Forms I-539 and I-539 instructions in the proposed rule docket's Supporting & Related Material.

The general instructions for commenting on any information collection notice say that comments should address one or more of the following four points:

"(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses."

Commenters should also respond to the agency's estimates of financial and time burdens for completing the forms.

Scope of Information on this Page

Remember, this NAFSA page is for information purposes only. It does not constitute and should not be construed as legal advice. Individuals with questions about how laws, regulations, and policies apply to specific situations, including this proposed rule comment opportunity, should contact an experienced immigration lawyer.