DHS Interim Final Rule Removes Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants

On December 12, 2022, the Department of Homeland Security (DHS) published an interim final rule (IFR) in the Federal Register, titled Removal of Obsolete Procedures and Requirements Related to F, J, and M Nonimmigrants. The rule became effective on the date of publication, December 12, 2022; you can read the rule at 87 FR 75891 (December 12, 2022)

According to a December 8, 2022 Broadcast Message from the Student and Exchange Visitor Program (SEVP), the rule was published to "remove obsolete information, correct typographical errors, update references and citations, and make minor clarifications to regulatory language. These changes are administrative, not substantive, and are necessary to eliminate confusion, improve clarity, and remove obsolete procedures and requirements used before the implementation of the Student and Exchange Visitor Information System (SEVIS) or during the transition to SEVIS. This rulemaking does not raise existing costs and places no additional burden on F and M students, J exchange visitors, SEVP-certified schools or designated programs."

The rule is being published as an interim final rule, which means it is immediately effective as of December 12, 2022, but also gives the public 30 days to submit comments despite the rule already being in effect. The Federal Register notice contains information on how to submit comments.

The amendments remove references to obsolete procedures meant for non-SEVIS schools in the 2003 transition to SEVIS, remove references to "the Service" (which denoted INS, the legacy Immigration and Naturalization Service), and make other updates that reflect the new structures of DHS and SEVIS. One positive semi-substantive change is that the SEVP will make permanent the current COVID policy that allows schools to collect electronic signatures on Form I-17.

Nonimmigrant Visa Interview Waiver Authorization Expanded and Extended

On December 23, 2021, the Secretary of State extended through the end of 2022 existing policy guidance for visa interview waivers for certain nonimmigrant visa (NIV) applicants (with minor modifications) and expanded the authorization to include additional categories of NIV applicants, as follows:

Categories NEWLY eligible for discretionary Visa Interview Waiver consideration (H-1, H-3, H-4, L, O, P, and Q):

Consular officers were given the discretionary authority to waive the visa interview requirement for individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who were previously issued any type of visa and:

• who have never been refused a visa unless such refusal was overcome/waived; and

• who have no apparent ineligibility or potential ineligibility.

Consular officers also have the discretion to waive the visa interview requirement for first- time individual petition-based H-1, H-3, H-4, L, O, P, and Q applicants who:

• are citizens or nationals of a country that participates in the Visa Waiver Program (VWP), provided:

  • they have no apparent ineligibility or potential ineligibility; and

  • have previously traveled to the United States using an authorization obtained via the Electronic System for Travel Authorization (ESTA).

Categories with EXTENDED eligibility for discretionary Visa Interview Waiver consideration (F, M, J (academic) and H-2) through the end of 2022:

Previously approved policies authorizing consular officers to waive the visa interview requirement for F, M, academic J, and H-2 visa applicants have been extended (with minor modifications).  The current policies for F, M, and academic J visa applicants are as follows:

Consular officers have the discretion to waive the visa interview requirement for F, M, and academic J Visa applicants who:

• were previously issued any type of visa and:

  • who have never been refused a visa, unless that refusal was subsequently overcome or a waiver of ineligibility was obtained; and

  • for whom there is no indication of potential visa misuse or ineligibility;

or

• are first-time F, M, and academic J visa applicants who/whose:

  • are citizens or nationals of Visa Waiver Program (VWP) participating countries;

  • have no prior ESTA denials;

  • have previously traveled to the United States using an authorization obtained via ESTA to qualify;

  • visa applications reveal no derogatory or potentially derogatory information; and

  • have no indication of potential visa misuse or ineligibility.

Certain H-2 (temporary agricultural and non-agricultural workers) applicants also remain eligible through the end of 2022 under previous authority allowing for waiver of interviews, as do applicants renewing any visa within 48 months of expiration.

How to Apply for an Interview Waiver:

As these waivers are to be granted individually at the discretion of local DOS consular officers, applicants are advised to check the website of the relevant U.S. embassy or consulate to confirm the level of services currently offered and to find guidelines for applying for a visa without an interview.

Note: To be considered for an interview waiver, an applicant must be applying for a visa at a U.S. consular office in their country of nationality or residence.

DOS Revises FAM Provisions on International Students' Ties to Their Home Countries

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.

DHS Adds 22 Fields to STEM Designated Degree Program List

A Federal Register notice published January 21, 2022 announced that DHS "is amending the DHS STEM Designated Degree Program List by adding 22 qualifying fields of study and a corresponding Department of Education Classification of Instructional Programs (CIP) code for each." See 87 FR 3317 (January 21, 2022). This critical list controls which F-1 students are eligible to apply for a 24-month extension of their Optional Practical Training (OPT).

The additions span a number of fields, from Bioenergy, to Human-Centered Technology Design, Climate Science, and Business Analytics, and is a welcome step for international education.

The STEM Designated Degree Program List is used to determine whether a degree obtained by certain F-1 Students qualifies as a science, technology, engineering, or mathematics (STEM) degree, as required for the F-1 Student to be eligible to apply for a STEM Optional Practical Training (OPT) extension. The STEM OPT extension is a 24-month extension of OPT available to F-1 Students who have completed 12 months of OPT and received a degree in an approved STEM field of study as designated by the STEM list.

USCIS Announces Elimination of "Bridge" Application Requirement for Changing Status to F-1 in the U.S

Effective July 20, 2021, USCIS has eliminated its prior policy that had required applicants applying to change their status to F-1 student to file "bridge" applications while their change of status (COS) to F-1 applications were pending. Note that only change of status to F-1 is covered by the new policy; it does not apply to those seeking M-1 or J-1 status.

A July 20, 2021 news release states:

"U.S. Citizenship and Immigration Services today announced new policy guidance that eliminates the need for individuals who have applied for a change of status (COS) to F-1 student to apply to change or extend their nonimmigrant status while their initial F-1 COS application is pending.

Under the previous policy, applicants needed to maintain status up to 30 days before the program start date listed on their Form I-20, Certificate for Eligibility for Nonimmigrant Student Status, which required them to file extensions, or an initial COS and subsequent extensions ensuring that they would not have a “gap” in status.

To prevent a “gap” in status, USCIS will grant the change of status to F-1 effective the day we approve an applicant’s Form I-539, Application to Extend/Change Nonimmigrant Status. If we approve an application more than 30 days before the student’s program start date, the student must ensure they do not violate their F-1 status during that time. An example of a violation would be engaging in employment, including on-campus employment, more than 30 days before the program start date as listed on their Form I-20.

The new policy will reduce workloads and costs for both the applicants and USCIS. USCIS is in the process of revising the Form I-539 instructions to reflect these changes.

For more information, see the policy alert (PDF, 318.8 KB) and the Changing to a Nonimmigrant F or M Student Status page."

The new policy has been codified in a new section of the USCIS Policy Manual, at Volume 2: Nonimmigrants, Part F, Students (F, M), Chapter 8, Change of Status [2 USCIS PM-F.8].

USCIS Extends Flexibilities to Certain Applicants for OPT Impacted by Receipt Delays (Mar. 1, 2021)

USCIS has announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021, inclusive.

USCIS has experienced significant delays in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students, and is permitting the following flexibilities to assist certain applicants for OPT impacted by the delays.

14-month OPT Period Flexibilities

• F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period.

• To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.

• As of February 26, 2021, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

• F-1 students requesting post-completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.

Refiling Following Rejection

• Applicants for OPT must file the Form I-765 during certain timeframes. However, USCIS has recognized that due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.

• USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:

1. The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and

2. USCIS subsequently rejected it.

• Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.

• Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from the DSO, as long as they originally submitted an application for post-completion OPT within 30 days of the DSO’s recommendation or an application for STEM OPT within 60 days of the DSO’s recommendation as required by the regulations.

• Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.

Missing or Deficient Signatures

Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency. USCIS encourages applicants filing Form I-765 to review the form instructions on its website to ensure their application is complete before filing it.

If you are a student seeking OPT or STEM OPT and have been impacted by the receipt delays at USCIS or a rejection as described above, speak with your international advisor and should you need assistance requesting the flexibilities above, contact us.

District Court Denies WashTech Bid to Toss Optional Practical Training for International Students (Nov. 30, 2020)

The Washington Alliance of Technology Workers union (WashTech) has been litigating in the U.S. District Court for the District of Columbia since 2016 against both the 2016 24-month STEM Optional Practical Training (OPT) rule and the standard 12-month post-completion OPT rule, raising many of the same substantive issues it raised in a prior, unsuccessful suit against the 2008 17-month STEM OPT rule.

In a November 30, 2020 order, the district court denied Washtech’s motions of summary judgement and granted the Department of Justice’s cross-motions for summary judgement. An opinion explaining the reasons for the court’s decision is expected in the next 60 days. Importantly, the court’s order is not a final order subject to appeal, and thus this stage of litigation is not yet ended. If the court's eventual final judgement is—as expected—consistent with the order on the motions and goes against Washtech, Washtech could file a notice of appeal within 60 days of the final judgement.

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."