Oct 27 2020

Comment on DHS Proposed Rule of Establishing a Fixed Time Period of Admission for F/J/I status

Link to the proposed rule: https://www.federalregister.gov/documents/2020/09/25/2020-20845/establishing-a-fixed-time-period-of-admission-and-an-extension-of-stay-procedure-for-nonimmigrant

Summary: DHS published this proposed rule on September 25, 2020. The proposed rule, by imposing a fixed period of admission of up to 4 years, will unduly burden F academic students and USCIS itself without being able to achieve the goal it is setting out to achieve, i.e., cracking down on fraud and misuse.

DHS’s concern with fraud is legitimate, but the solution is misplaced. There are better ways to target those who commit fraud or overstay than to place such excessive and unnecessary burdens on international students and researchers in the U.S., among whom the majority are bona fide students and researchers. For example, stricter enforcement measures like USCIS’s announcement on August 18, 2020 reminding F academic students and their DSOs to enter employer information in SEVIS are already helping improve compliance with OPT rules and regulations.

Therefore, with the exception of the cap-gap extension, which is very much needed in light of the current lengthy processing times for cap-subject H-1B petitions and the launch of the new H-1B registration system and new filing schedule, we oppose DHS’s proposed rule.

We provide an outline of our major objections below.

  • Imposing a 4-year fixed period of admission and requiring EOS for subsequent stays would discourage the best and brightest scholars from coming to the U.S.
    • Ph.D. students, on average, take 5.8 years to complete their programs.[1]
    • If a scholar were to face the risk of being denied status in their last year or last few years of study in the U.S., it would be a great loss to the individual, the university, and the U.S.
  • Imposing a 2-year fixed period of admission based on the factors listed in the proposed rule would create uncertainty as to the period of admission. The rule lists the following factors:
    • From countries listed as state-sponsors of terrorism;
    • Countries with a greater than 10% overstay rate;
    • U.S. national interest (the example given is studying nuclear science);
    • Non-accredited schools;
    • E-Verify participation.

This is unprecedented. Currently, no other nonimmigrant classification, B/H/L/O/P/E, etc., varies the admission of stay based on factors like a country’s overstay rate or subjective standards like the U.S. national interest. Imposing a fixed period of admission is wrong to begin with and varying the period of admission based on these factors just makes it more wrong for the following reasons:

  • These factors have already been considered, on a case by case basis and through the visa interview, when a visa is issued to the person by the U.S. consulate. Shortening the period of admission soon after the visa is issued serves no meaningful interest.
  • The period of admission must be certain, because the most severe consequence in immigration law, i.e., unlawful presence, begins accruing from the date the period of admission lapses. Lack of certainty would potentially subject innocent students to harsh consequences.
  • Putting the rule into operation creates all sorts of practical problems:
    • If the period of admission varies according to all these factors, CBP’s workload would increase significantly, impairing fast and smooth admission at the border.
    • What if circumstances change? For example, if a school loses accreditation or gains accreditation after the student is admitted, would the student be subject to a new period? The same concern applies to the other factors.
  • Shortening the grace period that F academic students have to depart the U.S. from 60 to 30 days does not adequately consider the special circumstances of students.
    • The proposed rule states that “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”.
    • What DHS fails to consider is that students need time after completing their programs to attend their graduation ceremonies, celebrate their graduation with friends, and show their families coming from overseas around. 60 days is a reasonable period of time to accommodate these specific needs.
  • The methods proposed by DHS in the proposed rule are disproportionate to the issue they purport to tackle.
    • On page 20, DHS states, “In 2019, DHS identified nearly 29,000 F-1 students who, since SEVIS was implemented in 2003, have spent more than 10 years in student status.”
      • In other words, between 2003 and 2019 the total number of students suspected by DHS of fraud, based on the fact that they have been students for more than 10 years, is 29,000.
      • This issue may not be a real issue because bona fide students can easily reach the 10-year mark. For example, if a student comes to the U.S. for undergraduate studies (4 years), engages in OPT (1-3 years), and pursues a Ph.D. (5-6 years), that would already be over 10 years. In another scenario, if a student comes to the U.S. to attend high school (4 years), stays for undergraduate studies (4 years), and engages in OPT (1-3 years), that would easily be 10 years or more as well, not to mention the additional time the student would need if he or she were to go on to pursue an advanced degree.
      • Therefore, out of the 29,000, individuals who actually misused the F-1 are likely much fewer.
    • By comparison, about 1.1 million foreign students attended U.S. higher education institutions in the 2018-19 school year.[2]
      • Universities and colleges alone accept over one million international students a year.
    • DHS’s proposed policy and rule would thus burden millions of international students and potentially jeopardize their status to tackle an issue implicating less than 1% of the population, and most likely in an inefficient way.
  • DHS can easily leverage SEVIS to enforce the rules governing F/J status without requiring the wasteful EOS filing.
  • It is not true that individuals with F/J status with D/S are not required to have direct interaction with DHS. The schools’ DSOs manage student SEVIS records, and SEVIS is overseen by ICE. If a student is not making normal progress, he or she risks being terminated in SEVIS and losing status.
  • If anything can be improved, it is to make SEVIS more transparent to students by granting them direct access instead of limiting the access to DSOs, so that students can be more aware of their current F-1 status, timely report changes, and take accountability. In this way, more direct interaction between students and DHS can be achieved.
  • Currently, DHS has full access to a student’s records, including what schools the student attended and what level program he or she is enrolled in. If DHS is concerned about a certain individual’s pattern of behavior, e.g., enrolling in a language program for too long, DHS can issue a NOIR asking that individual to furnish proof of being a bona fide student, rather than placing an undue burden on all students because of the misuse and violations of a very small proportion of the group.
  • In the proposed rule, DHS acknowledges that GAO has recommended that ICE develop a fraud risk profile and use data analytics to identify potential fraud indicators in schools. In light of the amount of data DHS already possesses in SEVIS, and given the current USCIS budget shortfall and significant delay in EOS adjudication (5-7 months at VSC for Extension of Stay for F or M academic or vocational students), DHS should utilize the data and avoid further burdening students by requiring the filing of additional paperwork and exacerbating the already slow processing times of an overworked USCIS system.

[1] Ilana Kowarski, How Long Does It Take to Get a Ph.D. Degree?, U.S. News & World Report (Aug. 12, 2019), https://www.usnews.com/education/best-graduate-schools/articles/2019-08-12/how-long-does-it-take-to-get-a-phd-degree-and-should-you-get-one#:~:text=degree%2C%20since%20Ph.-,D.,their%20program%20was%205.8%20yea


[2] Heather Timmons & Mimi Dwyer, Explainer: What 1.1 million foreign students contribute to the U.S. economy, Reuters (July 8, 2020), https://www.reuters.com/article/us-usa-immigration-students-economy-expl/explainer-what-1-1-million-foreign-students-contribute-to-the-u-s-economy-idUSKBN2492VS