- Currently, foreign nationals entering the U.S. in F, J, and I visa categories are admitted for the period of time that they are complying with the terms and conditions of their nonimmigrant category, or duration of status (i.e. D/S). These visa categories represent academic students, exchange visitors, and foreign information media, respectively.
- Under duration of status entry, there is no fixed time period of admission for foreign nationals, in comparison to other visa entries (e.g. H-1B or L-1) which provide a fixed I-94 expiration date.
- Lack of a fixed time period admission on F, J, and I entries has posed challenges to USCIS and CBP officers to determine whether a foreign national on this status has been maintaining their lawful status and not accruing unlawful presence in the U.S.
- The Department of Homeland Security (DHS) has proposed to amend its regulations by changing the admission period of F, J, and I nonimmigrants from duration of status to a fixed period of admission.
- Admitting the above categories for a fixed period of admission would require foreign nationals holding those visa categories to apply for extensions of status with USCIS or depart the U.S. and apply for admission at a Port of Entry with the CBP prior to a status expiration.
- Under the proposed regulation, failure to maintain lawful presence in the U.S. by foreign nationals on F, J, or I visas would make them subject to accrual of unlawful presence should they fail to maintain their status or overstay their period of lawful admission in the U.S.
- The proposal also seeks to the make the following changes to these programs:
- Automatic extension of employment authorization for some F-1s: Pending a timely filed extension that remains pending beyond the F-1s authorized period of admission, F-1s would receive a 180-day automatic extension of STEM employment authorization. This would not be available to CPT or pre- or post-STEM OPT.
- Extension of 240-day rule for Js and Is: Timely filed extensions for Js and Is that remain pending beyond the period of admission would receive automatic extension of employment authorization up to 240 days, while the extension remains pending.
- Shorter grace periods for F-1s: Grace periods for F-1s following the completion of their program or practical training are proposed to be shortened from 60-day to 30 days.
- Cap-Gap Extension: The proposal seeks to extend cap-gap work authorization and F-1 extensions of stay from October 1 to April 1 of the following year pending a timely filed H-1B cap petition. This would seek to limit disruptions in employment for H-1B petitions that have delayed adjudication.
- Potential J-1 extension during H-1B cap adjudication: Pending delays in H-1B cap adjudication, the proposal would give the DHS the option of extending J-1 nonimmigrant status while the H-1B is pending.
- The DHS will accept comments on the proposed regulation change until October 26, 2020. After the comment period, DHS will review the feedback and pending any revisions, could prepare to issue a final rule publication in the Federal Register, which could take several months to complete.
- Pending approval and finalization of the regulation, clients and foreign nationals should expect increased compliance responsibilities to ensure nonimmigrants in F, J, and I status are maintaining lawful presence in the US with timely filed extensions of status, as needed.
Meltzer Hellrung will continue to monitor the proposed regulation and provide updates when available. Please reach out to your designated Meltzer Hellrung attorney with any questions or contact our firm at: firstname.lastname@example.org.