On December 20, 2021, the U.S. Department of State (DOS) updated the Foreign Affairs Manual (FAM), which governs DOS operations and is used by consular officers in determining visa eligibility, to restore helpful guidance related to students seeking to study in the U.S. While acknowledging that F-1 or M-1 students must possess a foreign residence that they have no intention of abandoning and must have the present intention to depart the U.S. upon completion of their studies, the new guidance recognizes that young students do not typically have the strong ties to their home countries (e.g., family, property, employment, etc.) that is typical of other temporary visa applicants. The revisions should help deter denials of student visas by consular officers based on speculative conclusions about applicants’ future plans and possible immigrant intent.
DOS Provides Opportunity for Additional Academic Training for J-1 College and University Students in STEM Fields
The U.S. Department of State, through the BridgeUSA program, announced an opportunity for certain College and University Student Exchange Visitors in DHS-designated STEM fields to obtain additional Academic Training time.
Eligible Exchange Visitors must be undergraduate and pre-doctoral degree-seeking J-1 College and University Students who are pursuing or recently completed STEM-related studies. The initiative, which will run for the next two academic years (2021-2022 and 2022-2023), will increase the maximum length of Academic Training from 18 months to 36 months.
Academic Training is a limited form of work authorization for J-1 College and University Students which permits practical training opportunities during or immediately after studies that are directly related to the student’s major field of study. Current regulations cap Academic Training for undergraduate and pre-doctoral candidates at 18 months, with a limited exception permitting “additional time for academic training . . . to the extend necessary for the exchange visitor to satisfy the mandatory requirements of his or her degree program in the United States.” 22 CFR 62.23(f)(4)(ii).
The new initiative further supports the Biden Administration’s recent actions to advance predictability and clarity for pathways for international STEM scholars, students, researchers, and experts to contribute to innovation and job creation efforts across America.
Sponsors seeking DOS approval of STEM Academic Training extension requests are reminded they must comply with the regulations at 22 CRR 62.43(c), including submitting extension requests through the Private Sector’s Office of Designation by email, and including the student’s STEM field and corresponding CIP code.
U.S. State Department Updates Guidance on Confucius Institutes and J Program Sponsorship (Nov. 18, 2020)
On November 18, 2020, the Department of State's (DOS) Exchange Visitor Program (BridgeUSA) issued Guidance Directive 2020-01, Exchange Visitor Program - Confucius Institutes, which provides guidance on the relationship of college and university J-1 exchange programs to Confucius Institutes and associated activities at K-12 schools and universities. Confucius Institutes, sponsored by the Chinese government, serve to promote Chinese language, literature, and culture throughout the world, and they commonly partner with U.S. institutions of higher education. The Guidance identifies “areas of concern” to DOS, and seeks to “provide sponsors more clarity regarding the possible regulatory violations presented in some CI operations so they can make informed choices about sponsoring exchange visitors coming on program through CIs.” Some J program sponsors affiliated with Confucius Institute on their campuses report having received DOS requests for documents and exchange visitor records related to their Confucius Institute.
DHS Issues Proposed Rule to Eliminate Decades-Long Duration of Status Policy for International Students, Exchange Visitors (Sept. 25, 2020)
On September 25, 2020, the Department of Homeland Security (DHS) published a proposed rule to eliminate duration of status (D/S) for F students and their dependents, J exchange visitors and their dependents, and I media representatives. This is a proposed rule, which means that it is not yet law and does not have an effective date. It will proceed through normal APA public notice and comment procedures before any final rule is published.
The rule proposes several changes that would disrupt administration of international education programs and sends a strong message that international students and scholars are not welcome in the U.S.:
Date-Specific admission of F and J nonimmigrants: Instead of being admitted for "duration of status" (D/S) as they currently are, 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, unless they are subject to a more limited 2-year admission, plus a period of 30 days following their program end date.
F and J nonimmigrants seeking a program extension would be required to 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, including filing fees and biometrics, and including when seeking Optional Practical Training or Academic Training.
Reduces the F-1 "grace period" from 60 days to 30 days.
Limit on aggregate ESL study. F-1 students in a language training program would be restricted to a lifetime aggregate of 24 months of language study, which would include breaks and an annual vacation.
Limit on pursuing new F-1 programs at the same educational level. DHS proposes to limit the number of times a student can change to another program within an educational level, such as to pursue another bachelor's or master's degree. Specifically, any student who has completed a program at one educational level would be allowed to change to another program at the same educational level no more than two additional times while in F-1 status, for a total of three programs for the lifetime of the student.
Limit on "reverse matriculation" by F-1 students. An F-1 student who has completed a program at one educational level would be allowed to change to a lower educational level one time while in F-1 status. The one-time limit on changing to a lower educational level following completion of a program at a higher level is a lifetime restriction and does not reset with a new admission as an F-1.
The Trump administration says the proposed rule is necessary to increase oversight of international students and combat fraud and visa overstays. Advocates for international students say the proposed rule creates unnecessary new burdens for international students and makes the U.S. a less welcoming destination at a time when international student enrollment has already been declining.
The more than one million international students in the U.S. are estimated to have a $41 billion economic impact and account for 5.5 percent of all students enrolled in higher education in this country.
"This proposed rule is set to replace a proven, flexible policy that has served international students and exchange visitors for decades, with one that is both complicated and burdensome," Esther D. Brimmer, the executive director and CEO of NAFSA: Association of International Educators, said in a statement. "In a system that is already extremely complex, this rule would undoubtably create a high degree of uncertainty for international students and exchange visitors. If finalized, this rule would also make it more difficult for international students and scholars to maintain their legal status in the United States and make it far more difficult for international educators to administer. Sadly, this proposal sends another message to immigrants, and in particular international students and exchange visitors, that their exceptional talent, work ethic, diverse perspectives, and economic contributions are not welcome in the United States."