The Department of Homeland Security (DHS) published a proposed rule Thursday in the Federal Register which could have a major impact on the F, J, and I nonimmigrant classifications.
The rule proposes eliminating "duration of status" for those visa holders and instead admitting these foreign nationals to the United States until a specific program end date. If enacted, that nonimmigrant status end date could not exceed a four-year period, plus a 30-day period (a decrease from the current 60-day period) "to prepare to depart from the United States after completion of a course of study or authorized period of post-completion practical training."
F, J, and I nonimmigrant visa holders who need additional time following the end date to complete their course of study "generally would be able to request an extension to their period of admission from an immigration officer," according to the proposed rule. This extension would need to be filed before the expiration of their current admission period.
Other key changes proposed in the rule released this week include:
- Preventing F-1 students at the graduate level from switching programs at any time during their studies.
- Barring F-1 students from switching programs of study or transferring schools until they complete their first academic year.
- Requiring nonimmigrants to begin a program at a higher educational level than they have already completed while in F-1 status, and prohibiting them from changing to the same or a lower educational level.
- Explaining 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."
It is important to note that the proposed rule will not take effect as published this week. Portions of the proposed rule are subject to a 30-and-60-day comment period, and it will not take effect until comments are reviewed, and a final version is re-published in the Federal Register. The rule will also likely face challenges in federal court.
The attorneys at Garfinkel Immigration Law Firm continue to monitor the situation closely and will alert clients as circumstances evolve.
What is duration of status?
"Duration of status" is a designation used on the I-94 Record for individuals in the F, J, or I visa categories. Foreign nationals with this designation are authorized to remain in the United States for as long as they are complying with the terms of and maintaining their nonimmigrant status, instead of having a fixed end date on the I-94 record. For F-1 students, their status expiration is currently governed by their Form I-20, and for J-1 exchange visitors, their status is currently governed by their Form DS-2019.
If it takes effect in its current form, the new proposed rule would admit F, J, or I foreign nationals to the United States until a fixed end date noted on their I-94 Record, instead of for the duration of their status.
What are the F, J, and I nonimmigrant visa classifications?
The most frequently used method for foreign nationals to attend a U.S. college, university or other academic institution is the F-1 student visa. Foreign nationals are eligible for an F-1 visa if they are attempting to enter the country with the purposes of studying at a "Student and Exchange Visitor Program (SEVP)-certified school," which includes most United States colleges and universities.
A J-1 visa permits foreign nationals from any country to come to the United States in an exchange program designated by the U.S. Department of State. The foreign national must enter the United States for the purpose of teaching, instructing, lecturing, studying, observing, conducting research, consulting, demonstrating special skills or receiving training. The foreign national must have a residence in a foreign country which they have no intention of abandoning.
I visas are available for foreign nationals who are members of the media, which includes reporters, film crews, editors, and similar occupations. Foreign nationals in this visa category must represent a foreign information media outlet, be coming to the United States to engage solely in their profession, and their employer must have a home office in a foreign country.
How does this proposed rule affect physicians?
A majority of physicians enter the U.S. pursuant to the J-1 visa program to pursue graduate medical training, such as residency and fellowship. Therefore, the new rule proposed this week would require physicians to enter the United States with an initial approval of no more than four years, and then apply for an extension, instead of for the duration of their status.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
