60526 Federal Register / Vol. 85, No. 187 / Friday, September 25, 2020 / Proposed Rules

DEPARTMENT OF HOMELAND proposes to amend its regulations by Management and Budget, 725 17th SECURITY changing the admission period of F, J, Street NW, Washington, DC 20503; and I aliens from duration of status to Attention: Desk Officer, U.S. 8 CFR Parts 214, 248, and 274a.12 an admission for a fixed time period. Immigration and Customs Enforcement, [DHS Docket No. ICEB–2019–0006] Admitting individuals in the F, J, and I DHS. categories for a fixed period of time will For additional instructions on sending RIN 1653–AA78 require all F, J, and I nonimmigrants comments, see the ‘‘Public who wish to remain in the United States Participation’’ heading of the Establishing a Fixed Time Period of beyond their specifically authorized SUPPLEMENTARY INFORMATION section of Admission and an Extension of Stay admission period to apply for an this document. Procedure for Nonimmigrant Academic extension of stay directly with USCIS or FOR FURTHER INFORMATION CONTACT: Students, Exchange Visitors, and to depart the country and apply for Sharon Hageman, Acting Regulatory Representatives of Foreign Information admission with CBP at a port of entry Unit Chief, Office of Policy and Media (POE). This change would provide the Planning, U.S. Immigration and AGENCY: U.S. Immigration and Customs Department with additional protections Customs Enforcement, Department of Enforcement, Department of Homeland and mechanisms to exercise the Homeland Security, 500 12th Street SW, Security. oversight necessary to vigorously Washington, DC 20536. Telephone 202– enforce our nation’s immigration laws, 732–6960 (not a toll-free number). ACTION: Notice of proposed rulemaking. protect the integrity of these SUPPLEMENTARY INFORMATION: This SUMMARY: In fiscal year 2018, the nonimmigrant programs, and promptly supplementary information section is Department of Homeland Security (DHS detect national security concerns. organized as follows: DATES: Written comments and related or the Department) admitted over 2 Table of Contents million foreign nationals into the United material must be submitted on or before States in the F academic student, J October 26, 2020. I. Public Participation A. Submitting Comments exchange visitor, and I representatives ADDRESSES: You must submit comments of foreign information media B. Viewing Comments and Documents on the proposed rule identified by DHS C. Privacy Act nonimmigrant categories. This is a Docket No. ICEB–2019–0006, only II. Executive Summary testament to the United States’ through the following method: A. Purpose of the Regulatory Action exceptional academic institutions, • Federal eRulemaking Portal B. Summary of the Proposed Regulatory cutting-edge technology, and (preferred): http://www.regulations.gov. Revisions environment that promotes the Follow the website instructions to C. Legal Authorities exchange of ideas, research, and mutual submit comments. D. Costs and Benefits enrichment. Currently, aliens in the F, III. Background Comments submitted in a manner A. Regulatory History of Duration of Status J, and I categories are admitted into the other than the one listed above, B. Risks to the Integrity of the F, J, and I United States for the period of time that including emails or letters sent to DHS Nonimmigrant Classifications they are complying with the terms and or U.S. Immigration and Customs IV. Discussion of the Proposed Rule conditions of their nonimmigrant Enforcement (ICE) officials, will not be A. General Period of Admission for F and category (‘‘duration of status’’), rather considered comments on the proposed J Nonimmigrants than an admission for a fixed time rule and may not receive a response B. Automatic Extension of Visa Validity at period. This duration of status from DHS. Please note that DHS and ICE Port of Entry C. Extension of Stay (EOS) framework generally lacks cannot accept any comments that are D. Transition Period predetermined points in time for U.S. hand delivered or couriered. In E. Requirements for Admission, Extension, Citizenship and Immigration Services addition, due to COVID–19, ICE cannot and Maintenance of Status of F (USCIS) or U.S. Customs and Border accept mailed comments whether paper Nonimmigrants Protection (CBP) immigration officers to or contained on any form of digital F. Requirements for Admission, Extension, directly evaluate whether F, J, and I media storage devices, such as CDs/ and Maintenance of Status of I nonimmigrants are maintaining their DVDs and USB drives. Nonimmigrants status and poses a challenge to the G. Requirements for Admission, Extension, Collection of information. You must and Maintenance of Status of J Exchange Department’s ability to effectively submit comments on the collection of Visitors monitor and oversee these categories of information discussed in this notice of H. Change of Status nonimmigrants. Specifically, because proposed rulemaking to either DHS’s I. Classes of Aliens Authorized To Accept nonimmigrants admitted in the F, J, and docket or the Office of Management and Employment I classifications generally do not Budget’s (OMB) Office of Information V. Statutory and Regulatory Requirements currently begin to accrue unlawful and Regulatory Affairs (OIRA). OIRA A. Executive Orders 12866, 13563, and presence until the day after there is a will have access to and view the 13771: Regulatory Review formal finding of a status violation by B. Regulatory Flexibility Act comments submitted in the docket. C. Small Business Regulatory Enforcement USCIS or an immigration judge, they are OIRA submissions can also be sent Fairness Act of 1996 often are able to avoid accrual of using any of the following alternative D. Congressional Review Act unlawful presence for purposes of methods: E. Unfunded Mandates Reform Act of 1995 statutory inadmissibility grounds of • Email (alternative): dhsdeskofficer@ F. Paperwork Reduction Act unlawful presence, in part, because they omb.eop.gov (include the docket G. Executive Order 13132: Federalism do not file applications or petitions, number and ‘‘Attention: Desk Officer for H. Executive Order 12988: Civil Justice such as extension of stay, that would U.S. Immigration and Customs Reform result in a formal finding. The I. Executive Order 13211: Actions Enforcement, DHS’’ in the subject line Concerning Regulations That Department accordingly is concerned of the email). Significantly Affect Energy Supply, about the integrity of the programs and • Fax: 202–395–6566. Distribution, or Use a potential for increased risk to national • Mail: Office of Information and J. National Environmental Policy Act security. To address these issues, DHS Regulatory Affairs, Office of (NEPA)

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K. Executive Order 13175: Consultation personal information that you provide the United States also encourages by and Coordination With Indian Tribal in any voluntary public comment allowing foreign news and media Governments submission you make to DHS. DHS may members the same unimpeded access L. Executive Order 12630: Governmental withhold information provided in and opportunity to share in the Actions and Interference With constitutional freedoms of the press as Constitutionally Protected Property comments from public viewing that it Rights determines is offensive. For additional domestic news and media members. M. Executive Order 13045: Protection of information, please read the ‘‘Privacy These benefits have attracted hundreds Children From Environmental Health and Security Notice,’’ via the link in the of thousands of foreign nationals to the Risks and Safety Risks footer of http://www.regulations.gov. United States in the F academic N. National Technology Transfer and DHS will consider all properly student,1 J exchange visitor,2 and I Advancement Act submitted comments and materials representatives of foreign information O. Family Assessment received during the comment period media 3 categories. DHS values the P. Signature and may change this rule based on your benefits these nonimmigrants, in turn, I. Public Participation comments. bring to the United States. Unlike aliens in most nonimmigrant DHS encourages all interested parties B. Viewing Comments and Documents categories who are admitted until a to participate in this rulemaking by Docket: To view comments, as well as specific departure date, F, J, and I submitting written data, views, documents mentioned in this preamble nonimmigrants are admitted into the comments and arguments on all aspects as being available in the docket, go to United States for an unspecified period of this proposed rule. DHS also invites http://www.regulations.gov and insert of time to engage in activities authorized comments that relate to the economic, ‘‘ICEB–2019–0006’’ in the ‘‘Search’’ box. under their respective nonimmigrant environmental, or federalism effects that Click on the ‘‘Open Docket Folder,’’ and classifications. This unspecified period might result from this proposed rule. you can click on ‘‘View Comment’’ or of time is referred to as ‘‘duration of Under the guidelines of the Office of the ‘‘View All’’ under the ‘‘Comments’’ status’’ (D/S). D/S for F academic Federal Register, all properly submitted section of the page. Individuals without students is generally the time during comments will be posted to http:// internet access can make alternate which a student is pursuing a full www.regulations.gov as part of the arrangements for viewing comments and course of study at an educational public record and will include any documents related to this rulemaking by institution approved by DHS, or personal information you have contacting ICE through the FOR FURTHER engaging in authorized practical training provided. See the ADDRESSES section for INFORMATION CONTACT section above. following completion of studies, plus information on how to submit You may also sign up for email alerts on authorized time to depart the country.4 comments. the online docket to be notified when D/S for J exchange visitors is the time A. Submitting Comments comments are posted or a final rule is during which an exchange visitor is published. participating in an authorized program, You must submit your comments in plus authorized time to depart the English or provide an English C. Privacy Act country.5 D/S for I representatives of translation. The most helpful comments As stated in the Submitting foreign information media is the will reference a specific portion of the 6 Comments section above, please be duration of his or her employment. For proposed rule, explain the reason for aware that anyone can search the dependents of principal F, J, or I any recommended change, and include electronic form of comments received in nonimmigrants, D/S generally tracks the data, information, or authority any of our dockets by the name of the principal’s period of admission so long supporting the recommended change. If individual submitting the comment (or as the dependents are also complying you submit comments, please include signing the comment, if submitted on with the requirements for their the docket number for this rulemaking 7 behalf of an association, business, labor particular classifications. Since D/S (ICEB–2019–0006), indicate the specific 8 union, etc.). You may wish to consider was first introduced, the number of F, section of this document to which each limiting the amount of personal comment applies, and provide a reason 1 information that you provide in any INA 101(a)(15)(F), 8 U.S.C. 1101(a)(15)(F). for each suggestion or recommendation. 2 INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J). voluntary public comment submission You may submit your comments and 3 INA 101(a)(15)(I), 8 U.S.C. 1101(a)(15)(I). you make to DHS. The Department may 4 materials online. Due to COVID–19- Statutory and regulatory requirements restrict withhold information from public the duration of study for an alien who is admitted related restrictions, ICE has temporarily viewing that it determines is offensive. in F–1 status to attend a public high school to an suspended its ability to receive public For additional information, please read aggregate of 12 months of study at any public high comments by mail. school(s). See Immigration and Nationality Act the Privacy and Security Notice posted Instructions: To submit your (INA) section 214(m), 8 U.S.C. 1184(m); see also 8 on http://www.regulations.gov. CFR 214.2(f)(5)(i). comments online, go to http:// 5 See 8 CFR 214.2(j)(1)(ii) (explaining the initial www.regulations.gov, and insert ‘‘ICEB– II. Executive Summary admission period) and (j)(1)(iv) (explaining that 2019–0006’’ in the ‘‘Search’’ box. Click extensions of stay can be obtained with a new Form on the ‘‘Comment Now!’’ box and input A. Purpose of the Regulatory Action DS–2019). See also 22 CFR 62.43 (permitting responsible officers to extend J nonimmigrant’s your comment in the text box provided. Studying and participating in program beyond the original DS–2019 end date Click the ‘‘Continue’’ box, and, if you exchange visitor and academic programs according to length permitted for the specific are satisfied with your comment, follow in the United States offers foreign program category). the prompts to submit it. nationals access to world-renowned 6 8 CFR 214.2(i). DHS will post them to the Federal faculty, cutting edge resources, state-of- 7 See 8 CFR 214.2(f)(3), (f)(5)(vi)(D) (discussing F– 2 period of authorized admission); 214.2(j)(1)(ii), eRulemaking Portal at http:// the art courses, and individualized (j)(1)(iv) (discussing J–2 authorized period of www.regulations.gov and will include instructional programs. Similarly, the admission); INA 101(a)(15)(I), 8 U.S.C. any personal information you provide. United States fosters an environment 1101(a)(15)(I); 22 CFR 41.52(c); USCIS Policy Therefore, submitting this information that promotes the exchange of ideas and Manual, 2 USCIS–PM K.2 (Apr. 7, 2020). 8 In 1985, when D/S was introduced for I and J makes it public. You may wish to encourages open discussions when nonimmigrants, there were 16,753 admissions in I consider limiting the amount of there are differences of opinions, which Continued

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J, and I nonimmigrants admitted each without a specified end date, these provide additional protections and year into the United States has nonimmigrants are not required to have oversight of these nonimmigrant significantly increased. In 2019 alone, direct interaction with DHS, except for categories, and would allow DHS to there were over a million admissions in a few limited instances, such as when better evaluate whether these F status, a dramatic rise from the applying for employment authorization nonimmigrants are maintaining status 263,938 admissions in F status when the for optional practical training or for while temporarily in the United States. legacy Immigration and Naturalization reinstatement if they have failed to DHS does not believe such a Service (INS) shifted to D/S admission maintain status. Admission for D/S, in requirement would place an undue in 1978.9 Similar growth in the J general, does not afford immigration burden on F, J, and I nonimmigrants. population has also occurred over the officers enough predetermined Rather, providing F, J, and I past decades. In 2018, there were opportunities to directly verify that nonimmigrants a fixed time period of 611,373 admissions in J status, up over aliens granted such nonimmigrant authorized stay that would require them 300 percent from the 141,213 J statuses are engaging only in those to apply to extend their stay, change admissions into the United States in activities their respective classifications their nonimmigrant status, or otherwise 1985.10 Finally, there were 44,140 authorize while they are in the United obtain authorization to remain in the admissions for foreign media States. In turn, this has undermined United States (e.g., by filing an representatives in the United States in DHS’s ability to effectively enforce application for adjustment of status) at 2018, over 160 percent growth from the compliance with the statutory the end of this specific admission 16,753 admissions into the U.S. in inadmissibility grounds related to period is consistent with requirements 1985.11 DHS appreciates the academic unlawful presence and has created applicable to most other nonimmigrant benefits, cultural value, and economic incentives for fraud and abuse. classifications. contributions these foreign nationals Given these concerns, DHS believes These changes would ensure that the make to academic institutions and local that the admission of F, J, and I Department has an effective mechanism communities throughout the United nonimmigrants for D/S is no longer to periodically and directly assess States.12 appropriate. With this notice of whether these nonimmigrants are However, the significant increase in proposed rulemaking (NPRM), DHS complying with the conditions of their the volume of F academic students, J proposes to replace the D/S framework classifications and U.S. immigration exchange visitors, and I foreign for F, J, and I nonimmigrants with an laws, and to obtain timely and accurate information media representatives poses admission period with a specific date information about the activities they a challenge to the Department’s ability upon which an authorized stay ends. have engaged in and plan to engage in to monitor and oversee these categories Nonimmigrants who would like to stay during their temporary stay in the of nonimmigrants while they are in the in the United States beyond their fixed United States. If immigration officers United States. During the length of their date of admission would need to apply discover a nonimmigrant in one of these stay for D/S, a period of admission directly with DHS for an extension of categories has overstayed or otherwise stay.13 DHS anticipates that many F, J, violated his or her status, the proposed status, 141,213 admissions in J status, and 251,234 and I nonimmigrants would be able to changes may result in the alien admissions in F–1 status. See 1997 Statistical complete their activities within their beginning to accrue unlawful presence Yearbook of the Immigration and Naturalization period of admission. However, those for purposes of unlawful presence- Service at https://www.dhs.gov/sites/default/files/ related statutory grounds of publications/Yearbook_Immigration_Statistics_ who could not generally would be able 1997.pdf (last visited Jan. 7, 2020). to request an extension to their period inadmissibility under the Immigration 9 In fiscal year (FY) 2019, there were 1,122,403 of admission from an immigration and Nationality Act (INA). DHS believes admissions in F–1 status. See DHS Office of officer. In addition, as proposed, certain this greater oversight would deter F, J, Immigration Statistics (OIS) Legal Immigration and categories of aliens would be eligible for or I nonimmigrants from engaging in Adjustment of Status Report Data Tables (FY 2019), fraud and abuse and strengthen the available at https://www.dhs.gov/immigration- shorter periods of admission based on statistics/readingroom/special/LIASR (last visited national security, fraud, or overstay integrity of these nonimmigrant Aug. 27, 2020). In fiscal year 2016, there were concerns but like all aliens with fixed classifications. approximately 1.11 million F and J nonimmigrants The Department believes that the admission periods, would have a residing in the United States. See DHSOIS provisions of each new regulatory Population Estimates, Nonimmigrants Residing in specific date upon which they would be the United States: Fiscal Year 2016 (Mar. 2018), required to depart the United States or States); (e)(19) (periods of admission for most E available at https://www.dhs.gov/sites/default/files/ would need to apply to DHS to have publications/Nonimmigrant_ nonimmigrants); (g)(1) (period of admission for the Population%20Estimates_2016_0.pdf (last visited their continued eligibility for F, J, or I G–5 nonimmigrant classification); (h)(5)(viii) (9)(iii) Jan. 22, 2020). That same year, 48,405 aliens were status reviewed by immigration officers. and (13) (various periods of admission and admitted into the United States in I status. See DHS maximum periods of stay for the H–1B, H–2A, H– DHS believes that this process would 2B, and H–3 nonimmigrant classification); (k)(8) OIS 2018 Yearbook of Immigration Studies (Nov. help to mitigate risks posed by foreign 13, 2019) available at https://www.dhs.gov/ (period of admission for the K–3 and K–4 immigration-statistics/yearbook/2018 (last visited adversaries who seek to exploit these nonimmigrant classification); (l)(11)–(12) (periods Jan. 29, 2020). programs. of admission and maximum periods of stay for the 10 L nonimmigrant classification); (m)(5), (10) (period See DHS OIS Annual Flow Report, Annual Replacing admissions for D/S with of stay for the M nonimmigrant classification); Flow Report, U.S. Nonimmigrant Admissions: 2018 admissions for a fixed period of (n)(3) (period of admission for certain parents and (Oct. 2019) available at https://www.dhs.gov/sites/ children eligible for admission as special default/files/publications/immigration-statistics/ authorized stay is consistent with most _ _ other nonimmigrant categories,14 would immigrants under section 101(a)(27)(I)); (o)(6)(iii) yearbook/2018/nonimmigrant admissions and (10) (period of admission for the O 2018.pdf (last visited Jan. 22, 2020). nonimmigrant classification); (p)(8)(iii) and (12) 11 Id. 13 See generally 8 CFR 214.1(c) (setting forth the (period of admission for the P nonimmigrant 12 NAFSA: Association of International general extension of stay (EOS) requirements classification); (q)(2) (period of admission for the Q Educator’s latest analysis finds that international applicable to most other nonimmigrants). nonimmigrant classification); (r)(6) (period of students studying at U.S. colleges and universities 14 For example, see 8 CFR 214.2(a)(1) (setting admission for the R nonimmigrant classification); contributed $41 billion and supported 458,290 jobs forth a period of admission for the A–3 (s)(1)(ii) (period of admission for the NATO–7 to the U.S. economy during the 2018–2019 nonimmigrant classification); (b)(1) (period of nonimmigrant classification); (t)(5)(ii) (period of academic year. See https://www.nafsa.org/policy- admission for aliens admitted under the B admission for the S nonimmigrant classification); and-advocacy/policy-resources/nafsa-international- nonimmigrant classification); (c)(3) (period of and (w)(13) and (16) (period of admission for the student-economic-value-tool-v2. admission for aliens in transit through the United CW–1 nonimmigrant classification).

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amendment function sensibly Æ Decreasing from 60 to 30 days the applications for employment independent of other provisions. allowed period for F aliens to prepare to authorization based on either an However, to protect the Department’s depart from the United States after internship with an international goals for proposing this rule, DHS completion of a course of study or organization, curricular practical proposes to add regulatory text stating authorized period of post-completion training (CPT), pre-completion Optional that the provisions be severable so that, practical training; Practical Training (OPT), or post- if necessary, the regulations may Æ Proposing to lengthen the completion OPT are pending to engage continue to function even if a provision automatic EOS for individuals covered in such employment until their is rendered inoperable. by the authorized status and applications are approved; employment authorization provided by Æ Replacing D/S for I nonimmigrants B. Summary of the Proposed Regulatory 8 CFR 214.2(f)(5)(vi) (the H–1B cap gap with admission for a fixed time period Revisions provisions); until they complete the activities or DHS proposes the following major Æ Initiating a routine biometrics assignments consistent with the I changes: collection in conjunction with an EOS classification, not to exceed 240 days, • Amend 8 CFR 214.1, Requirements application for F, J, and I with an EOS available for I for admission, extension, and nonimmigrants; nonimmigrants who can meet specified Æ maintenance of status, by: Limiting language training students EOS requirements; Æ Striking all references to D/S for F, to an aggregate 24-month period of stay, Æ Codifying the definition of a foreign J, and I nonimmigrants; including breaks and an annual media organization for I nonimmigrant Æ Describing requirements for F and J vacation; status, consistent with long-standing Æ nonimmigrants seeking admission; Providing that a delay in USCIS and Department of State (DOS) Æ Updating the cross reference and completing one’s program by the practice; clarifying the standards for admission in program end date on Form I–20, due to Æ Updating the evidence an alien the automatic extension visa validity a pattern of behavior demonstrating a must submit to demonstrate eligibility provisions that cover F and J student is repeatedly unable or for the I nonimmigrant category; nonimmigrants applying at a port-of- unwilling to complete his or her course Æ Clarifying that I and J–1 entry after an absence not exceeding 30 of study, such as failing grades, in nonimmigrants, who are employment days solely in a contiguous territory or addition to academic probation or authorized with a specific employer adjacent islands; suspension, is an unacceptable reason incident to status, continue to be Æ Outlining the process for extension for program extensions for F authorized for such employment for up of stay (EOS) applications for F, J, and nonimmigrants; to 240 days under the existing Æ I nonimmigrants; Providing that F nonimmigrants regulatory provision at 8 CFR Æ Specifying the effect of departure who have timely filed an EOS 274a.12(b)(20), if their status expires while an F or J nonimmigrant’s application and whose EOS application while their timely filed EOS application application for an EOS in F or J is still pending after their admission is pending, whereas J–2 spouses, who nonimmigrant status and/or period indicated on Form I–94 has must apply for employment employment authorization (and an expired will receive an automatic authorization as evidenced by an EAD, associated employment authorization extension of their F nonimmigrant do not have the benefit of continued document (EAD)) is pending; status and, as applicable, of their on- work authorization once the EAD Æ Providing procedures specific to campus employment authorization, off- expires; the transition from D/S to admission for campus employment authorization due Æ Striking all references to ‘‘duration a fixed time period of authorized stay to severe economic hardship, or Science of status’’ and/or ‘‘duration of for F, J, and I nonimmigrants; and Technology Engineering and employment’’ for the F, J, and I Æ Replacing references to specific Mathematics Optional Practical nonimmigrant categories; and form names and numbers with general Training (STEM OPT) employment Æ Including a severability clause. In language, to account for future changes authorization, as well as evidence of the event that any provision is not to form names and numbers. employment authorization, for up to 180 implemented for whatever reason, DHS • Amend 8 CFR 214.2, Special days or until the relevant application is proposes that the remaining provisions requirements for admission, extension, adjudicated, whichever is earlier; be implemented in accordance with the Æ maintenance, and change of status, by: Allowing F nonimmigrants whose stated purposes of this rule. Æ Setting the authorized admission timely filed EOS applications remain • Amend 8 CFR 248.1, Eligibility, by: and extension periods for F and J pending after their admission period has Æ Establishing requirements to nonimmigrants (with limited expired to receive an auto-extension of determine the period of stay for F or J exceptions) up to the program length, their current authorization for on- nonimmigrants whose change of status not to exceed a 2- or 4-year period; campus and off-campus employment application was approved before the Æ Listing the circumstances, based on severe economic hardship Final Rule’s effective date and who including factors that relate to national resulting from emergent circumstances depart the United States, then seek security and program integrity concerns, under 8 CFR 214.2(f)(5)(v). The length of readmission after the Final Rule’s when the period of admission for F and the auto-extension of employment effective date; and J nonimmigrants may be limited to a authorization would be up to 180 days Æ Codifying the long-standing policy maximum of 2 years; or the end date of the Federal Register under which DHS deems abandoned an Æ Outlining procedures and notice (FRN) announcing the application to change to another requirements for F–1 nonimmigrants suspension of certain regulatory nonimmigrant status, including F or J who change educational levels while in requirements related to employment, status, if the alien who timely filed the F–1 status; whichever is earlier; application departs the United States Æ Providing limits on the number of Æ Prohibiting F nonimmigrants whose while the application is pending. times that F–1 nonimmigrants can admission period, as indicated on their • Amend 8 CFR 274a.12, Classes of change educational levels while in F–1 Form I–94, has expired while their aliens authorized to accept employment, status; timely filed EOS applications and by:

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Æ Striking references to ‘‘duration of classification for, among others, bona directs the Secretary to review the status,’’ to Form I–539, Application to fide students qualified to pursue a full compliance with recordkeeping and Extend/Change a Nonimmigrant Status, course of study who wish to enter the reporting requirements under 8 U.S.C. and to Form I–765, Application for United States temporarily and solely for 1101(a)(15)(F) and 1372 of all schools Employment Authorization; the purpose of pursuing a full course of approved for attendance by F students Æ Updating the employment study at an academic or language within two years of enactment, and authorization provisions to incorporate training school certified by ICE, Student every two years thereafter. the proposed revisions in 8 CFR 214.2. and Exchange Visitor Program (SEVP), D. Costs and Benefits as well as for the spouse and minor C. Legal Authorities children of such aliens. See also INA Currently, aliens in the F (academic The Secretary of Homeland Security’s 214(m), 8 U.S.C. 1184(m) (limiting the student), J (exchange visitor), and I (the Secretary) authority to propose the admission of nonimmigrants for certain (representatives of foreign information regulatory amendments in this rule can aliens who intend to study at public media) categories are admitted to the be found in various provisions of the elementary and secondary schools). United States under the duration of immigration laws and the changes in Section 101(a)(15)(I) of the INA, 8 status framework. However, admitting a this rule are proposed pursuant to these U.S.C. 1101(a)(15)(I), established, upon nonimmigrant for duration of status statutory authorities. a basis of reciprocity, the I creates a challenge to the Department’s Section 102 of the Homeland Security nonimmigrant classification for bona ability to efficiently monitor and Act of 2002 (HSA) (Pub. L. 107–296, 116 fide representatives of foreign oversee these nonimmigrants, because Stat. 2135), 6 U.S.C. 112, and section information media (such as press, radio, they may remain in the United States for 103(a)(1) and (3) of the Immigration and film, print) seeking to enter the United indefinite periods of time without being Nationality Act (INA), 8 U.S.C. 1103 States to engage in such vocation, as required to have immigration officers (a)(1), (3), charge the Secretary with the well as for the spouses and children of periodically assess whether they are administration and enforcement of the such aliens. complying with the terms and immigration and naturalization laws of Section 101(a)(15)(J) of the INA, 8 conditions of their status. Nor are the United States. Section 214(a) of the U.S.C. 1101(a)(15)(J), established the J immigration officers required to make INA, 8 U.S.C. 1184(a), gives the nonimmigrant classification for aliens periodic assessments of whether these Secretary the authority to prescribe, by who wish to come to the United States nonimmigrants present national security regulation, the time and conditions of temporarily to participate in exchange concerns. Under the D/S framework, admission of any alien as a visitor programs designated by the DOS, these nonimmigrants are required to nonimmigrant, including F, J, and I as well as for the spouses and minor have direct interaction with DHS nonimmigrant aliens. See also 6 U.S.C. children of such aliens. officials only if they file certain 271(a)(3), (b) (describing certain USCIS Within DHS, ICE’s SEVP is authorized applications, such as when applying for functions and authorities, including to administer the program to collect employment authorization for optional USCIS’ authority to establish national information related to nonimmigrant practical training or for reinstatement if immigration services policies and students and exchange visitors under they have failed to maintain status, or if priorities and adjudicate benefits various statutory authorities. Section they are the subject of an enforcement applications) and 6 U.S.C. 252(a)(4) 641 of The Illegal Immigration Reform action. To address these vulnerabilities, (describing ICE’s authority to collect and Immigrant Responsibility Act of DHS proposes to replace D/S with an information relating to foreign students 1996, Public Law 104–208, 110 Stat. admission for a fixed time period. and exchange visitor program 3009–546, 3009–704 (Sep. 30, 1996) Admitting individuals in the F, J, and I participants and to use such information (codified as amended at 8 U.S.C. 1372) categories for a fixed period of time to carry out its enforcement functions). (IIRIRA), authorizes the creation of a would require all F, J, and I Section 248 of the INA, 8 U.S.C. 1258, program to collect current and ongoing nonimmigrants who wish to remain in permits DHS to allow certain information provided by schools and the United States beyond their specific nonimmigrants to change their status exchange visitor programs regarding F authorized admission period to apply from one nonimmigrant status to and J nonimmigrants during the course for authorization to extend their stay another nonimmigrant status, with of their stays in the United States, using with USCIS if in the United States or if certain exceptions, as long as they electronic reporting technology where abroad then to apply for admission at a continue to maintain their current practicable. Consistent with this POE with CBP, thus requiring periodic nonimmigrant status and are not statutory authority, DHS manages these assessments by DHS in order to remain inadmissible under section programs pursuant to Homeland in the United States for a longer period. 212(a)(9)(B)(i) of the Act, 8 U.S.C. Security Presidential Directive-2 This change would impose incremental 1182(a)(9)(B)(i). Like extensions of stay, (HSPD–2), Combating Terrorism costs on F, J, and I nonimmigrants, but change of status adjudications are Through Immigration Policies (Oct. 29, would in turn protect the integrity of the discretionary determinations.15 Also, 2001), as amended, http://www.gpo.gov/ F, J and I programs by having section 274A of the INA, 8 U.S.C. 1324a, fdsys/pkg/CPRT-110HPRT39618/pdf/ immigration officers evaluate and assess governs the employment of aliens who CPRT-110HPRT39618.pdf), and section the appropriate length of stay for these are authorized to be employed in the 502 of the Enhanced Border Security nonimmigrants. United States by statute or in the and Visa Entry Reform Act of 2002, The period of analysis for the rule discretion of the Secretary. Public Law 107–173, 116 Stat. 543, 563 covers 10 years and assumes the Finally, the INA establishes who may (May 14, 2002) (EBSVERA). HSPD–2 proposed rule would go into effect in be admitted as F, J, or I aliens. requires the Secretary of Homeland 2020. Therefore, the analysis period Specifically, section 101(a)(15)(F) of the Security to conduct periodic, ongoing goes from 2020 through 2029. This INA, 8 U.S.C. 1101(a)(15)(F)(i), reviews of institutions certified to analysis estimates the annualized value established the F nonimmigrant accept F nonimmigrants, and to include of future costs using two discount rates: checks for compliance with 3 percent and 7 percent. In Circular A– 15 See INA 248(a), 8 U.S.C. 1258(a); 8 CFR recordkeeping and reporting 4, OMB recommends that a 3 percent 248.1(a). requirements. Section 502 of EBSVERA discount rate be used when a regulation

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affects private consumption, and a 7 students.20 The new rule became 1 students must request an EOS or percent discount rate be used in effective on January 1, 1979.21 reinstatement.29 evaluating a regulation that will mainly Subsequently, the regulations In 1991, the regulations were further displace or alter the use of capital in the addressing the admission periods for revised to implement Section 221(a) of private sector. The discount rate nonimmigrant students were amended the Immigration Act of 1990 (IMMACT accounts for how costs that occur sooner four more times between January 23, 90), Public Law 101–649, 104 Stat. 4978, are more valuable. The NPRM would 1981, and October 29, 1991.22 On which established a three-year off- have an annualized cost ranging from January 23, 1981, the former INS issued campus program for F–1 students.30 In $229.9 million to $237.8 million (with a rule eliminating D/S for F–1 the 1991 Final Rule, legacy INS also 3 and 7 percent discount rates, nonimmigrants and limiting their clarified and simplified the procedures respectively). admission to a fixed period of for F–1 students seeking EOS and admission, i.e., the time necessary to employment authorization. This III. Background complete the course of study, with the included giving DSOs authority to grant opportunity for an EOS on a case-by- a program extension (and therefore an A. Regulatory History of Duration of case basis.23 Legacy INS explained this EOS) for in-status students with a Status was necessary because admitting compelling academic or medical reason i. F Classification nonimmigrants students for D/S for failing to complete their educational resulted in questionable control over program by the program end date on Section 101(a)(15)(F)(i) of the INA, 8 foreign students and contributed to their Form I–20.31 The rule required U.S.C. 1101(a)(15)(F)(i), permits aliens problems in record keeping.24 DSOs to notify legacy INS of the who are bona fide students to On April 5, 1983, legacy INS extension.32 In the rulemaking, legacy temporarily be admitted to the United reinstituted D/S, while addressing areas INS specifically agreed to allow DSOs to States solely for the purpose for of concern identified after the 1978 issue program extensions, explaining pursuing a full course of study at an implementation of D/S for that ‘‘with the DSOs screening out established college, university, nonimmigrant students.25 The ineligible students, the Service is seminary, conservatory, academic high amendments implemented new satisfied that the purposes of the EOS school, elementary school, or other notification procedures for transfers can be effectively met through the academic language training program. between schools and new record- notification procedure.’’ 33 Pursuant to Principal applicants are categorized as keeping and reporting requirements for the 1991 Final Rule, DHS has relied on F–1 nonimmigrant aliens and their Designated School Officials (DSO).26 DSOs to report student status violators, spouses and minor children may These amendments also limited D/S to issue program extensions, and transfer accompany or follow to join them as F– the period when a student was enrolled students between programs and schools. 2 dependents.16 in one educational level and required ii. J Classification nonimmigrant students to apply for an From 1973 to 1979, F students were EOS and, if applicable, a school transfer The J nonimmigrant classification was admitted for 1-year and could be to pursue another educational program created in 1961 by the Mutual granted an EOS in increments of up to at the same level of educational Educational and Cultural Exchange Act 1-year if they established that they were attainment.27 of 1961, also known as the Fulbright- maintaining status.17 However, on July On April 22, 1987, legacy INS refined Hays Act of 1961, Public Law 87–256, 26, 1978, given the large number of the April 5, 1983, regulatory package, 75 Stat. 527 (22 U.S.C. 2451, et seq.), to nonimmigrant students in the United again amending regulations regarding increase mutual understanding between States at the time and the need to F–1 students.28 Additional regulations the people of the United States and the continually process their EOS explained which medical and academic people of other countries by means of applications, legacy INS proposed reasons allowed F–1 students to drop educational and cultural exchanges. It amending the regulations to permit F– below a full-time course of study and authorizes foreign nationals to 1 aliens to be admitted for the duration remain in status and clarified when F– participate in a variety of exchange of their status as students.18 Legacy INS visitor programs in the United States. explained the changes would facilitate 20 See 43 FR 54618 (Nov. 22, 1978) (The period The Exchange Visitor Program the admission of nonimmigrant of admission of a nonimmigrant student shall be for regulations cover the following program the duration of Status in the United States as a categories: Professors and research students, provide dollar and manpower student if the information on his/her form 1–20 scholars, short-term scholars, trainees savings to the Government, and permit indicates that he/she will remain in the United and interns, college and university more efficient use of resources.19 On States as a student for more than 1 year. If the information on form 1–20 indicates the student will students, teachers, secondary school November 22, 1978, the final rule was remain in the United States for 1 year or less, he/ students, specialists, alien physicians, published amending the regulations at 8 she shall be admitted for the time necessary to complete his/her period of study). CFR 214 to allow INS to admit F–1 29 Id. 21 Id. aliens for the duration of their status as 30 See 56 FR 55608 (Oct. 29, 1991). 22 See 46 FR 7267 (Jan. 23, 1981), 48 FR 14575 31 Form I–20, Certificate of Eligibility for (Apr. 5, 1983); 52 FR 13223 (Apr. 22, 1987); 56 FR Nonimmigrant Student Status, is the document 55608 (Oct. 29, 1991). used by DHS that provides supporting information 23 See 46 FR 7267 (Jan. 23, 1981). for the issuance of a student visa. Applicants 24 Id. (including dependents) must have a Form I–20 to 25 See 48 FR 14575 (Apr. 5, 1983). apply for a student visa, to enter the United States, 16 INA 101(a)(15)(F)(i)–(ii), 8 U.S.C. 26 A Designated School Official (DSO) means a and to apply for an employment authorization 1101(a)(15)(F)(i)–(ii); 8 CFR 214.2(f)(3). regularly employed member of the school document to engage in optional practical training. administration whose office is located at the school See SEVP’s web page, Form I–20, ‘‘Certificate of 17 See 38 FR 35425 (Dec. 28, 1973) (The period and whose compensation does not come from Eligibility for Nonimmigrant Student Status’’ at of admission of a non-immigrant student shall not commissions for recruitment of foreign students. https://studyinthestates.dhs.gov/student- exceed one-year.) See 8 CFR 214.3(l). forms?form=Forms_I-20 (last visited Jan. 29, 2020). 18 See 43 FR 32306 (Jul. 26, 1978). 27 See 48 FR 14575, 84 (Apr. 5, 1983). 32 See 56 FR 55608 (Oct. 29, 1991). 19 See 43 FR 32306, 32306–07 (Jul. 26, 1978). 28 See 52 FR 13223 (Apr. 22, 1987). 33 Id.

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international visitors, government Extensions of J exchange visitor regulations to allow nonimmigrant visitors, camp counselors, au pairs, and programs are governed by DOS foreign information media summer work travel.34 regulations.39 If there is authority to representatives to be admitted for the Prior to 1985, J exchange visitors were extend a program, the exchange visitor duration of their employment.44 This granted an initial admission for the program sponsor’s Responsible Officer change from a set time period of period of their program up to one year.35 (RO),40 similar to the DSO in the F–1 admission to admission for duration of In 1985, the regulations were amended student context, is authorized to extend employment for I nonimmigrants was to allow J exchange visitors to be a J exchange visitor’s program by issuing implemented as part of a continuing admitted for the duration of their a duly executed Form DS–2019.41 effort to reduce reporting requirements program plus 30 days.36 This change Requests for extensions beyond the for the public, as well as the paperwork from being admitted for a fixed period maximum program duration provided in burden associated with processing to D/S was implemented as part of a the regulations must be approved by extension requests on the agency.45 continuing effort to reduce reporting DOS, which adjudicates these Through its administration of the requirements for the public as well as extensions. USCIS does not adjudicate regulations authorizing I nonimmigrants the paperwork burden associated with these program extensions. admission for duration of employment, processing extension requests on the DHS currently admits all I iii. I Classification agency.37 nonimmigrants for D/S with the A prospective exchange visitor must Section 101(a)(15)(I) of the INA exception of those presenting a passport be sponsored by a DOS-designated defines the I classification as, upon a issued by the People’s Republic of program sponsor to be admitted to the basis of reciprocity, an alien who is a China.46 United States in the J nonimmigrant bona fide representative of foreign press, category and participate in an exchange radio, film, or other foreign information B. Risks to the Integrity of the F, J, and visitor program. The DOS designated media who seeks to enter the United I Nonimmigrant Classifications sponsor will issue a prospective J States solely to engage in such vocation, i. General Risks and the spouse and children of such a exchange visitor a Form DS–2019, DHS welcomes F academic students, representative, if accompanying or Certificate of Eligibility for Exchange J exchange visitors, and I representatives following to join him. Nonimmigrant Visitor (J–1) Status. The DS–2019 of foreign information media, but it also foreign information media permits a prospective exchange visitor acknowledges that the sheer size of the representatives are currently admitted to apply for a J–1 nonimmigrant visa at population complicates its oversight for the duration of their employment. a U.S. embassy or consulate abroad or and vetting functions. Since legacy INS They are not permitted to change their seek admission as a J–1 nonimmigrant at introduced D/S in 1979, the number of information medium or employer until a port of entry. A J–1 exchange visitor F nonimmigrant students admitted into is admitted into the United States for D/ they obtain permission from USCIS.42 From 1973 to 1985, aliens admitted to the United States has more than S, which is the length of his or her quadrupled. Similarly, since D/S was exchange visitor program.38 the United States in I nonimmigrant status were admitted for a period of 1 introduced for J and I nonimmigrants in 43 1985, the number of exchange visitors 34 year with the possibility of extensions. See INA 101(a)(15)(J), 8 U.S.C. 1101(a)(15)(J), admitted into the United States has and 22 CFR 62.20–62.32. In 1985, legacy INS amended the 35 See 8 CFR 214.2(j)(1)(ii) (1985). more than quadrupled while the 36 See 50 FR 42006 (Oct. 17, 1985). no corrections to the record can be made until that number of representatives of foreign 37 Id. time. In addition, in the event a visa is needed for information media has more than 38 Form DS–2019, Certificate of Eligibility for a dependent spouse or child, the system will not doubled.47 Exchange Visitor (J–1) Status, is the document permit a new Form DS–2019 to be created until The Department uses the Student and required to support an application for an exchange after the primary’s SEVIS record is validated. See Exchange Visitor Information System visitor visa (J–1). It is a 2-page document that can 9 FAM 402.5–6(D)(1) (U) The Basic Form available only be produced through the Student and at https://fam.state.gov/fam/09FAM/ (SEVIS), a web-based system, to _ _ _ Exchange Visitor Information System (SEVIS). 09FAM040205.html#M402 5 6 D (last visited Jan. maintain information regarding: SEVP- SEVIS is the DHS database developed to collect 29, 2020). While applicants must still present a certified schools; F–1 students studying information on F, M, and J nonimmigrants (see 8 paper Form DS–2019 to DOS in order to qualify for in the United States (and their F–2 U.S.C. 1372 and 6 U.S.C. 252(a)(4)). The potential a visa, the SEVIS record is the definitive record of exchange visitor’s signature on page one of the form student or exchange visitor status and visa 44 is required. Page 2 of the current Form DS–2019 eligibility. See 9 FAM 402.5–4(B) (U), Student and See 8 CFR 214.2(i); 50 FR 42006 (Oct. 17, 1985). consists of instructions and certification language Exchange Visitor Information System (SEVIS) 45 Id. relating to participation. No blank Forms DS–2019 Record is Definitive Record, available at https:// 46 85 FR 27645 (May 11, 2020). Note that the exist. Each Form DS–2019 is printed with a unique fam.state.gov/FAM/09FAM/09FAM040205.html requirements in the May 11, 2020 Final Rule do not identifier known as a ‘‘SEVIS ID number’’ in the top (last visited Jan. 29, 2020). apply to Hong Kong Special Administrative Region right-hand corner, which consists of an ‘‘alpha’’ 39 See 22 CFR part 62. These programs vary in (SAR) or Macau SAR passport holders. This character (N) and 10 numerical characters (e.g., length. For example, professors and research proposed rule updates the requirements to remove N0002123457). The Department of State’s Office of scholars are generally authorized to participate in the exception for Hong Kong passport holders, who Private Sector Exchange Designation in the Bureau the Exchange Visitor Program for the length of time will be admitted in the same manner as those of Education and Cultural Affairs (ECA/EC/D) necessary to complete the program, provided such presenting a passport issued by the People’s designates U.S. organizations to conduct exchange time does not exceed five years. See 22 CFR Republic of China. visitor programs. These organizations are known as 62.20(i)(1). And alien physicians, are generally 47 As noted above, in fiscal year (FY) 2016, there program sponsors. When designated, the limited to seven years. See 22 CFR 62.27(e)(2). were approximately 1.11 million F and J organization is authorized access to SEVIS and is 40 A Responsible Officer (RO) is an employee or nonimmigrants residing in the United States. See then able to produce Form DS–2019 from SEVIS. officer of a sponsor who has been nominated by the DHS Office of Immigration Statistics (OIS) The program sponsor signs the completed Forms sponsor, and approved by the Department of State, Population Estimates, Nonimmigrants Residing in DS–2019 in blue ink and transmits them to the to carry out the duties outlined in 22 CFR 62.11. the United States: Fiscal Year 2016 (March 2018), potential exchange visitor and his or her spouse and 41 See 22 CFR 62.43. A RO must be a citizen of [USCIS: see edits] available at https://www.dhs.gov/ minor children. J visa applicants must present a the United States or a lawful permanent resident of sites/default/files/publications/Nonimmigrant_ signed Form DS–2019 at the time of their visa the United States. See 22 CFR 62.2. Population%20Estimates_2016_0.pdf (last visited interview. Once the visa is issued, however, the 42 See 8 CFR 214.2(i). Jan. 22, 2020). In 2018, 48,405 aliens were admitted SEVIS record cannot be updated until the 43 See 38 FR 35425 (Dec. 28, 1973). See also 50 into the United States in I status. See DHS OIS 2018 participant’s program is validated (‘‘Active’’ in FR 42006 (Oct. 17, 1985), stating that prior to the Yearbook of Immigration Studies (Nov. 13, 2019) SEVIS). The sponsor is required to update the publication of this rule, I nonimmigrants were available at https://www.dhs.gov/immigration- SEVIS record upon the exchange visitor’s entry and admitted for one year. statistics/yearbook/2018 (last visited Jan. 29, 2020).

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dependents); M–1 students enrolled in institutions and local communities, the program extensions to students who did vocational programs in the United Department is aware that the F–1 not have compelling medical or States (and their M–2 dependents); program is subject to fraud, exploitation, academic reasons for failing to complete DOS-designated Exchange Visitor and abuse. Since 2008, multiple school their program by its end date,52 and Program sponsors; and J–1 Exchange owners and others have been criminally some DSOs permitted students who Visitor Program participants (and their prosecuted for ‘‘pay-to-stay’’ fraud, in failed to maintain status to transfer to J–2 spouses and dependents). which school officials, in return for cash another school rather than apply for Employees of educational institutions payments, falsely report that F–1 reinstatement.53 Beyond cases publicly and program sponsors, specifically students who do not attend school are identified by DHS and the Department DSOs and ROs, play a large role in maintaining their student status.49 In of Justice (DOJ), DHS is concerned about SEVIS. They are responsible for some cases, convicted school owners cases where DSOs were not aware of monitoring students and exchange operated multiple schools and status violations by students. visitors, accurately entering information transferred students among them to Apart from concerns about DSOs and about the students’ and exchange conceal the fraud.50 DHS is also school owners involved in fraudulent visitors’ activities into SEVIS, and concerned that DSOs at these schools schemes, DHS also has concerns about properly determining whether the were complicit in these abuses; some the actions of the aliens themselves. student or exchange visitor’s SEVIS DSOs intentionally recorded a student’s Some aliens have used the F record should remain in active status or status inaccurately,51 some issued classification to reside in the United change to reflect a change in States for decades by continuously circumstances.48 Under this framework, 49 DOJ Press Release, ‘‘Operator of English enrolling in or transferring between language schools charged in massive student visa an academic student or exchange visitor fraud scheme,’’ April 9, 2008, available at https:// schools, a practice facilitated by the D/ generally maintains lawful status by www.justice.gov/archive/usao/cac/Pressroom/ S framework.54 DHS has identified complying with the conditions of the pr2008/038.html (last visited Jan. 27, 2020); DOJ aliens who have been in the United program, as certified by the DSO or RO. Press Release, ‘‘Owner/Operator and employee of States in F–1 status since the 1990s and Miami-based school sentenced for immigration- However, a program extension and an related fraud,’’ Aug. 30, 2010, available at https:// early 2000s, some of whom are in active extension of an alien’s nonimmigrant www.justice.gov/archive/usao/fls/PressReleases/ F–1 status today. To extend their stay, stay are different. The Department 2010/100830-02.html (last visited Jan. 27, 2020); believes it is appropriate for the DSO to ICE Press Release, ‘‘Pastor sentenced to 1 year for English language school sentenced for immigration visa fraud, ordered to forfeit building housing recommend an extension of an fraud,’’ May 7, 2014, see https://www.ice.gov/news/ former religious school,’’ June 13, 2011, available at releases/owner-georgia-english-language-school- academic program and an RO to https://www.ice.gov/news/releases/pastor- sentenced-immigration-fraud; ICE Press Release, ‘‘3 recommend an extension of an exchange sentenced-1-year-visa-fraud-ordered-forfeit- senior executives of for-profit schools plead guilty visitor program; however, an EOS building-housing-former-religious (last visited Jan. to student visa, financial aid fraud,’’ Apr. 30, 2015, 27, 2020); DOJ Press Release, ‘‘School Official involves an adjudication of whether an see https://www.ice.gov/news/releases/3-senior- Admits Visa Fraud,’’ Mar. 12, 2012, available at executives-profit-schools-plead-guilty-student-visa- alien is legally eligible to extend his or https://www.justice.gov/archive/usao/pae/News/ _ financial-aid-fraud; ICE Press Release ‘‘Owner of her stay in the United States in a given 2012/Mar/tkhir release.htm (last visited Jan. 27, schools that illegally allowed foreign nationals to 2020); ICE Press Release, ‘‘Owner of Georgia English remain in US as ‘students’ sentenced to 15 months immigration status and has been language school sentenced for immigration fraud,’’ complying with the terms and in federal prison,’’ Apr. 19, 2018, see https:// May 7, 2014, available at https://www.ice.gov/news/ www.ice.gov/news/releases/owner-schools-illegally- conditions of his or her admission. The releases/owner-georgia-english-language-school- allowed-foreign-nationals-remain-us-students- sentenced-immigration-fraud (last visited Jan. 27, Department believes that the sentenced-15. 2020); ICE Press Release, ‘‘3 senior executives of 52 determinations of program extension for-profit schools plead guilty to student visa, For example, DHS identified a nonimmigrant and extension of stay should be financial aid fraud,’’ (last visited Jan. 27, 2020); who has been an F–1 student at a dance school Apr. 30, 2015, available at https://www.ice.gov/ since 1991 and who has been issued 16 program separated, with the DSO’s and RO’s extensions since 2003, when the use of SEVIS was recommendation being one factor an news/releases/3-senior-executives-profit-schools- plead-guilty-student-visa-financial-aid-fraud (Jan. first mandated. Although the reported normal immigration officer reviews while 27, 2020); ICE Press Release ‘‘Owner of schools that length of the program is 5 years, the school has adjudicating an application for EOS. illegally allowed foreign nationals to remain in US issued multiple program extensions by claiming as ‘students’ sentenced to 15 months in federal that ‘‘[t]he student needs more time’’ despite 28 Changing to a fixed period of admission years of enrollment. In another concerning would give immigration officers a prison,’’ Apr. 19, 2018, available at https:// www.ice.gov/news/releases/owner-schools-illegally- extension of an academic program, an F–1 student mechanism to make this evaluation at allowed-foreign-nationals-remain-us-students- was enrolled at an accredited language training reasonably frequent intervals. sentenced-15 (last visited Jan. 27, 2020). school from 2007 to 2020, requiring 15 program 50 ICE Press Release, ‘‘3 senior executives of for- extensions. Another student who was enrolled at Additionally, DHS expects this the same school from 2009 to 2020 and has been change would deter and prevent fraud, profit schools plead guilty to student visa, financial aid fraud,’’ April 30, 2015, available at https:// an F–1 student since 2005, was granted 14 program as a requirement to check-in directly www.ice.gov/news/releases/3-senior-executives- extensions. The school, which has had its SEVP- with an immigration officer inherently profit-schools-plead-guilty-student-visa-financial- certification withdrawn, issued multiple program aid-fraud (last visited Jan. 27, 2020). extensions for each student with the justification of is likely to deter some bad actors from ‘‘[e]xtended studies.’’ F–1 students in doctoral exploiting perceived vulnerabilities in 51 DOJ Press Release, ‘‘Operator of English language schools charged in massive student visa programs have taken over 20 years to complete their the F and J nonimmigrant categories. fraud scheme,’’ April 9, 2008, see https:// programs. F–1 students at community colleges have The same benefits of direct evaluation, www.justice.gov/archive/usao/cac/Pressroom/ been enrolled in associate degree programs for pr2008/038.html; DOJ Press Release, ‘‘Owner/ periods in excess of 5 years—some for as long as better recordkeeping, and fraud a decade. prevention also would apply to the I Operator and employee of Miami-based school sentenced for immigration-related fraud,’’ Aug. 30, 53 ICE Press Release, ‘‘3 senior executives of for- population. 2010, see https://www.justice.gov/archive/usao/fls/ profit schools plead guilty to student visa, financial PressReleases/2010/100830-02.html; ICE Press aid fraud,’’ April 30, 2015, see https://www.ice.gov/ ii. Risks to the F Classification Release, ‘‘Pastor sentenced to 1 year for visa fraud, news/releases/3-senior-executives-profit-schools- While the F program provides ordered to forfeit building housing former religious plead-guilty-student-visa-financial-aid-fraud. school,’’ June 13, 2011, see https://www.ice.gov/ 54 Monitoring F–1 students on post-completion enormous benefits to academic news/releases/pastor-sentenced-1-year-visa-fraud- OPT can be even more complicated because the ordered-forfeit-building-housing-former-religious; students are no longer attending classes. See GAO, 48 8 CFR 214.3(g)(1), (g)(2) (detailing a DSO’s DOJ Press Release, ‘‘School Official Admits Visa Student and Exchange Visitor Program, DHS Needs reporting requirements); 214.4(a)(2) (stating that Fraud,’’ Mar. 12, 2012, see https://www.justice.gov/ to Assess Risks and Strengthen Oversight of Foreign failure to comply with reporting requirements may archive/usao/pae/News/2012/Mar/tkhir_ Students with Employment Authorization, GAO– result in loss of SEVP certification). release.htm; ICE Press Release, ‘‘Owner of Georgia 14–356 (Washington, DC, Feb. 27, 2014).

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these aliens enrolled in consecutive risks to SEVP related to managing nonimmigrant’s specific program, not to educational programs, transferred to school recertification and program exceed a 2- or 4-year period. It would new schools, or repeatedly requested training. The report included establish a mechanism for immigration DSOs to extend their program end dates. vulnerabilities associated with officers to assess these nonimmigrants at This practice is not limited to any one involving school owners and DSOs in defined periods (such as when applying particular type of school; students at overseeing the maintenance of status of for an extension of stay in the United community or junior colleges, F–1 students.57 In the report, GAO States beyond a 2- or 4-year admission universities, and language training identified fraud vulnerabilities on the period) and determine whether they are schools have maintained F–1 status for part of both students and schools. complying with the conditions of their lengthy periods. While these instances Examples include students claiming to classification. Immigration officers of extended stay may not always result maintain status when they are not, such receive background checks, clearances, in technical violations of the law, DHS as failing to attend class or working and training before DHS authorizes is concerned that such stays violate the without appropriate authorization, or them to implement the nation’s spirit of the law, given that student school owners not requiring enrolled immigration laws, which includes as status is meant to be temporary and for students to attend classes or creating part of adjudicating the application, the primary purpose of studying, not as fraudulent documentation for students whether nonimmigrants meet the a way to remain in the United States who are ineligible for the academic requirements to extend their stay, indefinitely. program. GAO recommended that ICE whether a student has violated his or The use of the F classification to develop a fraud risk profile and use data her nonimmigrant status without the remain in the United States for decades analytics to identify potential fraud DSO’s awareness or whether DSOs are raises doubts that the alien’s intention indicators in schools petitioning for engaging in fraud by not requiring was to stay in the United States certification, develop and implement students to attend classes or by temporarily, as required by the INA.55 It fraud training for DSOs, and strengthen falsifying documents. Immigration also raises concerns as to whether those background checks for DSOs. ICE is officers are further trained to assess aliens are bona fide nonimmigrant making a concerted effort to comply applications for fraud indicators, and students who are maintaining valid with GAO’s recommendations, and has conduct reviews and vetting that may lawful status by complying with the implemented controls to address the assist in the detection of fraud or abuse. terms of their admission, which include fraud risks identified in the GAO report This would allow DHS to identify and solely pursuing a full course of study through stricter scrutiny during the hold accountable aliens who violate and progressing to completing a course SEVP school certification, recertification their F–1 status and their educational of study. Likewise, it raises concerns as and compliance process.58 institutions. Under the current D/S to whether these aliens have the DHS believes it can mitigate these framework, DHS might not detect an financial resources to cover tuition and fraud risks in part through, as this rule individual F–1 status violation for an living expenses without engaging in proposes, setting the authorized extended period if the student stays unauthorized employment. admission and extension periods for F enrolled in a school, does not seek Further, while some school owners nonimmigrants as the length of the F readmission to the United States, and and school executives have faced legal does not apply for additional consequences for their violation of the 57 In a 2019 report, GAO was asked to review immigration benefits. If DHS makes law, nonimmigrants admitted for D/S potential vulnerabilities to fraud in the Student and periodic assessments to verify that F–1 generally do not accrue unlawful Exchange Visitor Program. GAO examined, among students are maintaining their student presence for purposes of the 3- and 10- other things, the extent to which ICE (1) implemented controls to address fraud risks in the status, DHS could better detect and year bars described in INA 212(a)(9)(B) school certification and recertification processes mitigate against these violations as well and (C), 8 U.S.C. 1182(a)(9)(B) and (C) and (2) implemented fraud risk controls related to as violations by their school.59 The unless an immigration officer finds they DSO training. See DHS Can Take Additional Steps proposed rule creates opportunities for have violated their status in the context to Manage Fraud Risks Related to School Recertification and Program Oversight, GAO–19– this scrutiny if these nonimmigrants of adjudicating an immigration benefit 297: Published: Mar 18, 2019 available at https:// wish to remain beyond their fixed request, or an immigration judge orders www.gao.gov/assets/700/697630.pdf; Overstay period of admission. This may also have them excluded, deported, or removed.56 Enforcement: Additional Mechanisms for the effect of deterring actors who would Because F–1 nonimmigrant students are Collecting, Assessing, and Sharing Data Could Strengthen DHS’s Efforts but Would Have Costs, otherwise seek to come to the United admitted for D/S, they generally do not GAO–11–411: Published Apr. 15, 2011. Available at States and engage in some of the file applications or petitions, such as https://www.gao.gov/assets/320/317762.pdf; and behaviors discussed above, believing extension of stay, with USCIS, and Student and Exchange Visitor Program: DHS Needs they would be able to do so undetected therefore, immigration officers do not to Assess Risks and Strengthen Oversight for long periods of time. DHS believes Functions, GAO–12–572: Published June 18, 2012 generally have an opportunity to available at https://www.gao.gov/assets/600/ this is a more appropriate way to determine whether they are engaging in 591668.pdf. maintain the integrity of the U.S. F–1 nonimmigrant activities in the 58 Since publishing its 2019 report, GAO has immigration system. Additionally, the United States and maintaining their F– updated its website to include comments to the Department believes that the proposed 1 nonimmigrant status. Recommendations for Executive Action included therein. The comments indicate that ICE is in the changes would allow immigration The U.S. Government Accountability process of addressing GAO’s concerns and has officers to directly verify, among other Office (GAO) has reported on DHS’s taken steps to implement the report’s things, that students applying for an concerns about DSOs and nonimmigrant recommendations, including making a public EOS: Have the funds needed to live and students. In 2019, GAO and ICE announcement regarding changing the timeline for study in the United States without published a report identifying fraud the recertification notification process for schools. See U.S. Government Accountability Office, Student and Exchange Visitor Program: DHS Can 59 For example, SEVP may withdraw a school’s 55 See INA section 101(a)(15)(F)(i), 8 U.S.C. Take Additional Steps to Manage Fraud Risks certification or deny a school’s recertification if a 1101(a)(15)(F)(i). Related to School Recertification and Program DSO issues a false statement, including wrongful 56 See USCIS Interoffice Memorandum, Oversight, RECOMMENDATIONS, GAO.gov, certification of a statement by signature, in ‘‘Consolidation of Guidance Concerning Unlawful https://www.gao.gov/products/GAO-19- connection with a student’s school transfer or Presence for Purposes of Sections 212(a)(9)(B)(i) 297?mobile_opt_out=1#summary_recommend (last application for employment or practical training. and 212(a)(9)(C)(i)(I) of the Act’’ (May 6, 2009). visited April 7, 2020). See 8 CFR 214.4(a)(2)(v).

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engaging in unauthorized work; are D/S for F–1 students with admission for are multiple examples of these ongoing maintaining a residence abroad to a fixed time period would help mitigate national security threats. For example, which they intend to return; have these national security risks by ensuring in September 2019, a stark illustration pursued and are pursuing a full course an immigration official directly and of state-sponsored efforts to illegally of study; and are completing their periodically vets applicants for obtain U.S. technology emerged when studies within the 4 year generally extensions of stay and, in so doing, the FBI charged Chinese government applicable timeframe relating to their confirms they are engaged only in official Liu Zhongsan with conspiracy to post-secondary education programs in activities consistent with their student fraudulently procure U.S. research the United States or are able to provide status. F–1 nonimmigrants applying for scholar visas for Chinese officials whose a permissible explanation for taking a EOS will also be required to establish actual purpose was to recruit U.S. longer period of time to complete the they are admissible, and failure to do so scientists for high technology program. will result in denial of the EOS. development programs within China.64 Finally, the D/S framework, because it Admissibility grounds are complex and Additionally, in December 2019, a 29- reduces opportunities for direct vetting are properly assessed by a trained DHS year-old graduate student in J–1 status of foreign academic students by officer. Such an assessment is not participating in an exchange visitor immigration officers, creates currently made when F–1 program at Harvard University was opportunities for foreign adversaries to nonimmigrants apply for an extension stopped at Boston Logan International exploit the F–1 program and undermine of their program with their institution.61 Airport. Federal agents determined he U.S. national security. An open Significantly, under the proposed was a ‘‘high risk for possibly exporting education environment in the United changes to the period of admission of F undeclared biological material’’ after States offers enormous benefits, but it nonimmigrants and the applicable EOS finding 21 vials of brown liquid also places research universities and the process, DHS would collect biometrics wrapped in a plastic bag inside a sock nation at risk for economic, academic, and other information (such as evidence in his checked luggage; typed and or military espionage by foreign of financial resources to cover expenses handwritten notes indicated ‘‘that [the students. Foreign adversaries are using and evidence of criminal activity) from exchange visitor] . . . was knowingly progressively sophisticated and F nonimmigrant students more gathering and collecting intellectual resourceful methods to exploit the U.S. frequently, thereby enhancing the property . . . possibly on behalf of the educational environment, including Government’s oversight and monitoring Chinese government.’’ 65 Recently, in well-documented cases of espionage of these aliens. June 2020, a Chinese national who through the student program.60 entered the United States on a J–1 visa Detecting and deterring emerging threats iii. Risks to the J Classification to conduct research at the University of to U.S. national security posed by DHS believes that the national California, San Francisco (UCSF) was adversaries exploiting the F–1 program security risks posed by D/S admissions arrested at Los Angeles International requires additional oversight. DHS for individuals admitted under the J Airport while attempting to return to believes that replacing admissions for classification are similar to those posed China, and charged with visa fraud. According to court documents, he by the F classification.62 According to a 60 In Dec. 2019, Weiyn Huang, the owner of allegedly is an officer with the People’s December 2018 report by a panel of Findream and Sinocontech pleaded guilty to Republic of China’s (PRC) People’s conspiracy to commit visa fraud in the U.S. District experts commissioned by the National Liberation Army and provided Court in Chicago. In return for payments, Findream Institutes of Health (NIH) to study fraudulent information about his listed aliens as OPT workers, providing them with foreign influence on federally-funded what appeared to be legal status. The FBI has military service in his visa application. scientific research, ‘‘Small numbers of charged one of those aliens with spying. See https:// He allegedly was instructed by his media.nbcbayarea.com/2019/09/KellyHuang scientists have committed serious military lab supervisor to bring back to CriminalComplaint.pdf. This vulnerability violations of NIH’s policies and systems presented in the nonimmigrant student category has China information about the lab at by not disclosing foreign support been highlighted by the FBI. In a 2018 hearing UCSF.66 (grants), laboratories, or funded faculty before the Senate Intelligence Committee, the FBI Exchange visitor program categories Director testified about the threat from China positions in other countries.’’ 63 There noting, ‘‘that the use of nontraditional collectors, include college and university students, especially in the academic setting, whether it’s which share similarities with the F–1 61 In addition, DSOs may not be aware of a professors, scientists, students, we see in almost student’s failure to maintain status, including nonimmigrant classification. Students every field office that the FBI has around the engaging in criminal activity, nor do they have the enrolled in such programs are pursuing country. It’s not just in major cities. It’s in small authority or ability to acquire such information. ones as well. It’s across basically every discipline. post-secondary studies alongside F–1 Admitting F–1s for a fixed period of admission I think the level of naivete´ on the part of the nonimmigrants. J–1 college and academic sector about this creates its own issues. would provide trained immigration officers with They’re exploiting the very open research and the opportunity to vet these individuals. 62 students and post-doctoral fellows, as well as development environment that we have, which we In its 2019 Report to Congress, the U.S.-China foreign employees. all revere, but they’re taking advantage of it. So, one Economic and Security Review Commission, the 64 of the things we’re trying to do is view the China Commission described the U.S. Government’s U.S. Department of Justice, Chinese threat as not just a whole of government threat, but efforts to curb China’s extensive influence and Government Employee Charged in Manhattan a whole of society threat on their end. I think it’s espionage activities in academic and commercial Federal Court with Participating in Conspiracy to going to take a whole of society response by us. So, settings. The Commission noted that these efforts Fraudulently Obtain U.S. Visas, Sept. 16, 2019. it’s not just the intelligence community, but it’s took the form of visa restrictions for Chinese 65 See https://www.bostonherald.com/2019/12/ raising awareness within our academic sector, nationals, greater scrutiny of federal funding 30/peoples-republic-of-china-may-be-behind-theft- within our private sector, as part of the defense.’’ awarded to universities, legal action against those of-bio-samples-by-harvard-sponsored-chinese- See Senate Select Committee on Intelligence suspected of theft or espionage, and new legislation. student-feds-say/. See also https:// Hearing (Feb. 13, 2018), transcript available at See U.S.-China Economic And Security Review www.thedailybeast.com/china-might-be-behind- https://www.intelligence.senate.gov/hearings/open- Commission, 2019 Annual Report to Congress (Nov. harvard-student-zaosong-zhengs-theft-of-cancer- hearing-worldwide-threats-0#. See also Foreign 2019) available at https://www.uscc.gov/annual- research-feds-claim. Threats to Taxpayer—Funded Research: Oversight report/2019-annual-report. 66 U.S. Department of Justice, Officer of China’s Opportunities and Policy Solutions: Hearing before 63 U.S. National Institutes of Health Advisory People’s Liberation Army Arrested At Los Angeles the Senate Finance Committee (2019) (Statement of Committee to the Director (ACD), ACD Working International Airport, June 11, 2020, https:// Louis A. Rodi III). DSOs are not trained immigration Group for Foreign Influences on Research Integrity, www.justice.gov/usao-ndca/pr/officer-china-s- officers nor are they in a position to make such Dec. 2018, discussing measures to address concerns people-s-liberation-army-arrested-los-angeles- determinations. about foreign influences related to graduate international-airport, (last accessed June 20, 2020).

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university students in a degree program the period of admission of J exchange past that date generally must apply for may be authorized to participate in the visitors and the applicable EOS process, an EOS with USCIS. exchange visitor program so long as they DHS would more frequently collect However, as described above, certain meet the requirements for duration of biometrics and other information from J nonimmigrant categories, including F participation, including pursuing a full exchange visitors, enhancing the academic students, J exchange visitors, course of study, echoing the full course Government’s oversight and monitoring and I representatives of foreign of study requirements for F–1 of these aliens. information media, and their nonimmigrants. Their programs may dependents, may be admitted into the also be extended by the ROs, subject to iv. Risks to the I Classification United States for D/S instead of a period regulation and/or approval by DOS, of time with a specific departure date. Admitting I nonimmigrants for without an application to DHS. These DHS is proposing changes to the duration of status affords them different similarities give rise to the same admission provisions for these treatment from most other concerns related to F–1s about national particular nonimmigrant classifications, nonimmigrants, who are admitted for a security, as described above, and about including replacing admissions for specified period of time. The fraud and abuse by J–1s and their ROs. ‘‘duration of status’’ with a fixed By requiring the same fixed period of Department believes admitting aliens admission period. This would enable admission for F–1s and J–1s, J–1 college temporarily in the United States for a immigration officers to independently and university students in exchange fixed period would strengthen vetting and directly verify the continued visitor programs would be unable to and information collection and help eligibility of foreign visitors in F, J, or circumvent the intent of this proposed immigration officers ensure that the I I nonimmigrant status. It would also rule, which is to protect the integrity of nonimmigrants are, and will be, engaged require aliens who fall under certain these programs and provide additional in activities that are permissible under criteria to apply more frequently for protections and mechanisms for INA 101(a)(15)(I). In addition, this additional admission periods. rulemaking proposes to require oversight. Because J exchange visitors A. General Period of Admission for F are also tracked in SEVIS, DHS believes individuals who wish to remain in I and J Nonimmigrants it would be more effective for an nonimmigrant status beyond the end As a foundational matter, DHS immigration officer to periodically date for their authorized stay to apply proposes to add a new paragraph confirm that an alien has properly for an EOS with USCIS, at which point explaining the period of admission for maintained status, rather than relying immigration officers can review their nonimmigrants described in section on the checks of an RO that the J–1 is activities in the United States. It also 101(a)(15)(F) and (J) who are seeking pursuing the activities permitted by the clarifies what DHS would require these individuals to present as evidence admission after [effective date of the exchange visitor program. As noted final rule]. In formulating this proposed supporting their EOS request.69 above, DHS believes it is more rule, DHS considered and addressed appropriate for immigration officers, IV. Discussion of the Proposed Rule various circumstances that might apply with their background checks, when F and J nonimmigrants apply for clearances, and training from the U.S. All persons arriving at a port-of-entry admission at a POE. government, to adjudicate maintenance to the United States must be inspected of nonimmigrant status and whether an by a CBP officer and must apply for i. Application for Admission in F or J alien is eligible for an additional admission into the United States with Nonimmigrant Status admission period. Switching from D/S CBP.70 In the case of an alien, a CBP Aliens applying for an admission in to a fixed period of admission would officer determines whether an alien is either F or J status who, under this permit immigration officers the eligible for admission and, if they are, proposal, would be eligible to be opportunity to determine whether an issues the Form I–94, Arrival/Departure admitted for the length of time indicated alien is eligible for an additional period Record with the nonimmigrant category by the program end date noted in their of time. If an officer finds a violation of and period of admission.71 For the vast Form I–20 or DS–2019, not to exceed 4 status while adjudicating the alien’s majority of aliens, their Form I–94 years, unless they are subject to a 2-year request, the consequences could be includes a specific date through which admission proposed in 8 CFR immediate. Applicants for EOS must their status is valid; they must depart 214.2(f)(20) or (j)(6), plus a period of 30 also establish that they are admissible, the United States on or before that date. days following their program end date, and failure to do so will result in denial An alien who wishes to lawfully remain to prepare for departure or to otherwise of the EOS.67 Admissibility grounds are in the United States in the same status seek to obtain lawful authorization to complex and are properly assessed by a remain in the United States. See trained DHS officer. Such an assessment proposed 8 CFR 214.1(a)(4)(i)(A) and 69 These proposed changes, including additional is not currently made when J exchange evidence relating to foreign media organizations (ii)(A). visitors apply for an extension of their and activities the alien intends to engage in while ii. Application for Admission in the program with their RO.68 Thus, in I status, would also apply to a nonimmigrant in Same Status Following Departure From admitting J exchange visitors for a fixed the United States who requests to change his/her nonimmigrant status to that of an I nonimmigrant. the United States time period, instead of for D/S, would 70 8 CFR 235. a. Aliens With Pending Extension of give DHS more frequent opportunities to 71 The Form I–94 is used by the U.S. Government directly vet these foreign visitors and to track arrivals and departures of nonimmigrants. Stay Applications at Time of ensure they are bona fide exchange Originally the form was designed in two parts—one Application for Admission Whose visitors. Under the proposed changes to for the Government and one for the nonimmigrant. Previous Period of Authorized Stay Has The second part would be stapled into the Expired nonimmigrant’s passport and then removed upon 67 See 8 CFR 214.1(a)(3). departure. The form is now maintained Aliens who departed the United 68 ROs may not be aware of a student’s failure to electronically and can be accessed by States and are applying for admission maintain status, including engaging in criminal nonimmigrants by downloading it from the CBP activity. Admitting J–1s for a fixed period of website. See I–94 website, U.S. Customs and Border before their timely filed EOS application admission would provide trained DHS officers with Protection, https://i94.cbp.dhs.gov/I94/#/recent- has been adjudicated, but after their the opportunity to vet these individuals. search (last visited Dec. 9, 2019). previously authorized period of stay has

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expired, could be eligible to be admitted abandoned and USCIS will grant a new because his or her EAD expires before for the length of time required to reach period of stay upon subsequent the alien’s fixed date of admission as the program end date noted in their adjudication of the EOS. See proposed noted on their I–94, the alien generally most recent Form I–20 or DS–2019, not 8 CFR 214.1(a)(4)(i)(B) and (a)(4)(ii)(B). will be considered to be in the United to exceed 4 years, unless they are States in a period of authorized stay c. Aliens Applying for Admission subject to the 2-year admission from the date of the expiration noted on Without a Pending Application of proposed in 8 CFR 214.2(f)(20) or (j)(6), their EAD until the fixed date of Extension of Stay plus a period of 30 days to prepare for admission as noted on their I–94. departure or to otherwise seek to obtain Aliens who departed the United When applying for admission at a lawful authorization to remain in the States and are applying for admission in POE while their application for United States, similar to an initial F or J status would be eligible to be employment authorization is pending, period of admission. See proposed 8 admitted up to the length of their they should have a notice issued by CFR 214.1(a)(4)(i)(A) and (ii)(A). USCIS program listed on the Form I–20 or USCIS indicating receipt of the would consider the alien’s EOS Form DS–2019, not to exceed a period employment authorization application application abandoned because the of 4 years, plus an additional 30 days at necessary for post-completion or STEM alien’s new fixed date of admission the end of the program, as specified in OPT (currently Form I–797). based on the most recent I–20 or DS– 8 CFR 214.2(f)(5) and (j)(1)(ii)(A), Finally, under this proposal, aliens 2019 had already been determined by respectively, if the alien seeks applying for admission pursuant to the CBP upon the most recent admission to admission with a Form I–20 or DS–2019 provisions relating to automatic the United States, and thus the pending for a program end date beyond their extension of visa validity could be EOS application is extraneous. See previously authorized period of admitted for the unexpired period of proposed 8 CFR 214.1(c)(6). admission, or for a period up to the stay authorized prior to their departure. unexpired period of stay authorized See proposed 8 CFR 214.1(b)(1). b. Aliens With Pending Extension of prior to departure. See proposed 8 CFR All of these cases assume, consistent Stay Applications at Time of 214.1(a)(4)(i)(A) and (a)(4)(ii)(A). with this proposed rule, that the Application for Admission Whose admission period any F or J Previous Period of Authorized Stay Has d. Aliens Applying for Admission After nonimmigrant previously admitted for Not Expired EOS is Granted D/S would be transitioned to a fixed Aliens who departed the United For aliens who departed the United date of admission. To provide adequate States and are applying for admission States after timely filing an EOS notice to aliens previously admitted for before their timely filed EOS application application and are applying for D/S regarding the date when their has been adjudicated, but before their admission in F or J status after their EOS admission period ends pursuant to the previously authorized period of stay has application is granted, DHS proposes proposed transition, DHS proposes that expired, could be eligible to be admitted that CBP could admit them for a period an alien’s period of admission would either for: of time not to exceed the time expire on the program end date on the i. The length of time as indicated by authorized by their approved EOS, plus alien’s Form I–20 or DS–2019 that is the program end date noted in their a period of 30 days to prepare for valid on the final rule’s effective date, most recent Form I–20 or DS–2019, not departure or to otherwise seek to obtain not to exceed a period of 4 years from to exceed 4 years, unless they are lawful authorization to remain in the the final rule’s effective date, plus an subject to the 2-year admission United States. See proposed 8 CFR additional period of 60 days for F proposed in 8 CFR 214.2(f)(20) or (j)(6), 214.1(a)(4)(i)(C) and (a)(4)(ii)(C). nonimmigrants and 30 days for J plus a period of 30 days to prepare for e. Aliens Applying for Admission To nonimmigrants. See proposed 8 CFR departure or to otherwise seek to obtain Engage in Post-Completion or STEM 214.2(f)(5) and (j)(1). DHS believes that lawful authorization to remain in the OPT this proposal would provide adequate United States, similar to an initial notice because all students and F nonimmigrants who departed the period of admission. If the alien is exchange visitors in F or J U.S. and are applying for admission to admitted for the program length (not to nonimmigrant status who want to engage in post-completion or STEM exceed 2 or 4 years, as applicable), extend their program currently need to OPT. See proposed 8 CFR USCIS would consider the alien’s EOS apply for permission with their DSO or 214.1(a)(4)(i)(D). These aliens may, application abandoned because the RO. At that time, the DSO or RO could generally, be admitted either up to the alien’s new fixed date of admission explain that they are approving a end date of the approved employment based on the most recent I–20 or DS– program extension, but the authorization or up to the DSO’s 2019 had already been determined by nonimmigrant must apply for an EOS recommended employment end date for CBP upon the most recent admission to directly with DHS and such EOS must post-completion or STEM OPT specified the United States, and thus the pending be granted to remain lawfully in the on their Form I–20, whichever is later, EOS application is extraneous; or United States. Under current policy, F ii. The period of time remaining on plus a 30-day period to prepare for and J nonimmigrants do not accrue their previously authorized period of departure or to otherwise seek to obtain unlawful presence until the day after admission. As proposed, CBP could lawful authorization to remain in the USCIS formally finds a nonimmigrant admit the alien for a period of time not United States. In instances where the status violation while adjudicating a to exceed the unexpired period of stay EAD has not been approved and the request for another immigration benefit that was authorized before the alien’s alien is admitted based on the DSO’s or on the day after an immigration judge departure, plus a period of 30 days to recommended employment end date on orders the alien excluded, deported, or prepare for departure or to otherwise the Form I–20, USCIS’s subsequent removed (whether or not the decision is seek to obtain lawful authorization to approval of the alien’s EAD may result appealed), whichever comes first.72 In remain in the United States. In this in less time for the EAD than the time scenario, in accordance with proposed 8 for which the alien was admitted. 72 See ‘‘Consolidation of Guidance Concerning CFR 214.1(c)(6), an alien’s EOS Therefore, in the limited circumstance Unlawful Presence for Purposes of Sections application is not considered where the alien ceases employment Continued

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reliance on this policy, some F and J percentage of students are engaged in in points with nonimmigrants than a 4- nonimmigrants admitted for D/S may programs which may last longer than 4 year maximum period of admission not have taken the appropriate steps to years, DHS considered that the would. However, DHS was concerned it maintain status, otherwise change proposed framework would would unduly burden many F and J status, or depart the United States. This accommodate many students, creating a nonimmigrants. As discussed above, 4 proposed rule is concerned with less burdensome process. years best accounts for the normal providing adequate notice to allow F The proposed 4-year period of progress for most programs. Even and J nonimmigrants who are admission would not apply to all F and considering those F or J nonimmigrants maintaining status to transition to a new J nonimmigrants. DHS believes a shorter who are admitted into the U.S. after date-certain admission. admission period, up to 2 years, would having already completed a portion of Although some F and J be appropriate for a subset of the F and their program outside of the U.S., nonimmigrants may have program end J population due to heightened concerns instituting a 3-year maximum period of dates longer than 4 years, DHS believes related to fraud, abuse, and national stay would have required each that using the program end date on the security, as discussed below. See nonimmigrant pursuing a 4 year Form I–20 or DS–2019, up to 4 years proposed 8 CFR 214.2(f)(20) and (j)(6). program to extend, while 4 years allows from the effective date of the final rule, For this subset of the F and J additional time to complete a 4-year as the fixed date of admission best population, DHS believes that a 2-year degree. This alternative also would aligns with the normal progress these maximum period of admission would be place greater administrative burdens on nonimmigrants should be making. This appropriate. This would give the USCIS and CBP compared to the alignment is based on the general Department an opportunity to verify proposed 4-year maximum period of structure of post-secondary education in that they are complying with the terms admission. USCIS would have to the United States. According to the and conditions of their status more adjudicate EOS applications more Department of Education (ED), students frequently and thereby better address frequently, and CBP’s workload would can normally earn a bachelor’s degree in any national security concerns. Using increase as individuals would travel to 4 years.73 The total number of F–1 this risk-based approach, which focuses request admission at the POE, with a 3- students pursuing a bachelor’s degree in on certain factors predetermined by year maximum period of stay than a 4- 2018 was 522,155, constituting almost DHS and presented by some aliens, DHS year one. Therefore, DHS believes an 40 percent of the 2018 nonimmigrant anticipates that most F and J admission for the program end date, not student population. The total number of nonimmigrants would not need to file to exceed 4 years (except for limited F–1 students pursuing a master’s degree, an EOS application at some point exceptions that would limit admissions generally 2-year programs, in 2018 was during their stay, and DHS consequently to 2 years) is the best option. DHS 498,625, representing almost 38 percent could allocate its resources more welcomes comments on this proposal. of the nonimmigrant student efficiently. population. Taken together, this Before arriving at the 2- and 4-year B. Automatic Extension of Visa Validity population represents almost 80 percent admission periods, DHS considered at Port of Entry of the nonimmigrant students in the various options. DHS considered a DHS proposes to change the United States. Therefore, DHS believes standard 1-year admission for all F and admission language in the provision that a 4-year period of admission would J nonimmigrants. This option would relating to extension of visa validity not pose an undue burden on them, treat all nonimmigrants with F and J from ‘‘shall’’ to ‘‘may’’ clarifying that because many F and J nonimmigrants status equally and would likely allow CBP always maintains the discretion to would complete their studies within a for easier implementation by CBP at the determine whether to admit an alien 4-year period, and not have to request POEs. Nevertheless, it could result in and for the period of admission. This additional time from DHS.74 The significant costs to nonimmigrants and change removes any ambiguity about smaller proportion of students not the Department. There are more than 1 whether CBP has an absolute duty to pursuing a bachelor’s or master’s degree million F students enrolled in programs admit an alien to clarify that CBP has are enrolled in different programs, of study that last longer than 1 year.76 the discretion to admit an alien for a which may last more or less than 4 With a 1-year admission period, certain period of time. See proposed 8 years.75 As a significantly smaller students and exchange visitors CFR 214.1(b)(1). participating in programs of greater DHS proposes technical revisions to 212(a)(9)(b)(i) and 212(a)(9)(c)(i)(I) of the Act’’, May duration would need to apply for the visa revalidation provisions that 6, 2009, available at https://www.uscis.gov/sites/ additional time. This would be a allow certain F, J, and M nonimmigrants default/files/USCIS/Laws/Memoranda/Static_Files_ to apply for readmission if eligible for _ _ significant cost to students and Memoranda/2009/revision redesign AFM.PDF (last admission as an F, J, or M nonimmigrant accessed June 20, 2020). The policy reflected by this exchange visitors, and DHS is memorandum currently applies to F, J, and I particularly mindful of those who and if they are applying for readmission nonimmigrants in relation to duration of status but comply with the terms and conditions after an absence from the United States will change accordingly when duration of status no of their admission and participate in not exceeding thirty days solely in longer applies to them.) ICE does not make findings contiguous territory or adjacent islands. of status violations that result in the accrual of programs, such as undergraduate unlawful presence. programs, that typically require several See 8 CFR 214.1(b). Such technical 73 See the Mobile Digest of Education Statistics, years to complete. revisions include updating language to 2017, ‘‘The Structure of American Education,’’ Another alternative DHS considered clarify that ‘‘visa revalidation’’ refers to available at https://nces.ed.gov/programs/digest/ was to admit all F and J nonimmigrants automatic extension of visa validity at _ _ _ _ mobile/The Structure of American to their program end date, not to exceed Education.aspx (last visited Feb. 4, 2020). the port of entry. These provisions 74 See the Student and Exchange Visitor Program 3 years. This option would give the apply when, for example, a (SEVP), ‘‘2018 SEVIS by the Numbers Report’’ Department more frequent direct check- nonimmigrant finds himself or herself available at https://www.ice.gov/doclib/sevis/pdf/ applying for reentry after going to sevisByTheNumbers2018.pdf (last visited Feb. 4, 76 See the Student and Exchange Visitor Program Mexico on spring break without 2020). (SEVP), ‘‘2018 SEVIS by the Numbers Report’’ realizing that his or her visa had 75 Other programs include Associate’s degrees, available at https://www.ice.gov/doclib/sevis/pdf/ language training programs, and Ph.D.s., among sevisByTheNumbers2018.pdf (last visited Feb. 4, expired. Instead of having to get a new others. Id. 2020). visa, CBP can readmit the nonimmigrant

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whose visa validity is automatically date of admission. See proposed 8 CFR leaves the United States,78 DHS extended by operation of Department of 214.1(c)(2). recognizes the potential for conflict if a State regulations. See 22 CFR 41.112(d). Like the technical updates to strike nonimmigrant receives authorization DHS does not believe it is necessary to the specific form name from 8 CFR from both CBP and USCIS for what make a nonimmigrant get a new visa 214.1(c)(2), DHS is proposing to strike amounts to the same request (a specific under these circumstances. the references to forms ‘‘I–129’’ and ‘‘I– period of time to pursue authorized DHS proposes minor technical 539’’ in 8 CFR 214.1(c)(5), replacing activities). updates to account for inaccurate or no those specific form numbers with the Where an alien in F, J, or I status longer applicable terms and cites: First, aforementioned general language. See timely files an application for EOS, DHS proposes to strike the reference to proposed 8 CFR 214.1(c)(5). The leaves the United States before USCIS INA 101(a)(15)(Q)(ii) and reserve it, as substance of that provision, including approves that EOS application, and applies for admission to continue his or that program no longer exists and is no the language that does not allow an 77 her activities for the balance of the longer in the INA. See proposed 8 CFR alien to appeal an EOS denial would previously authorized admission period, 214.1(b)(1)–(3). Second, DHS proposes remain the same. to update the cross reference to 22 CFR, USCIS would not consider the EOS from 22 CFR 41.125(f) to 22 CFR Additionally, DHS proposes to strike application abandoned. See proposed 8 41.112(d), which is the current ‘‘other than as provided in 214.2(f)(7)’’ CFR 214.1(c)(6)(i). In such provision describing automatic from 8 CFR 214.1(c)(3)(v) to make it circumstances, the pending EOS would extension of visa validity at ports of clear students must apply for an EOS. remain relevant and ultimately entry. Third, DHS proposes to strike the This requirement would not apply to determine the alien’s fixed date of reference to ‘‘duration of status’’ in 8 other nonimmigrants admitted for D/S, admission. CFR 214.1(b)(1). such as A–1 or A–2 representatives of However, where the alien leaves the foreign governments and their United States and applies for admission C. Extension of Stay (EOS) immediate family members; they would while his or her EOS application is This proposed rule would not create remain ineligible to file an EOS. pending and is admitted with a Form I– a new form for an EOS application; As part of the EOS application, USCIS 20 or DS–2019 for a program end date however, USCIS is in the process of requires biometric collection and will beyond their previously authorized transitioning from paper-based to require such collection from F, J, and I period of admission, the pending EOS is electronic form processing and some nonimmigrants under the proposed rule. deemed abandoned, and the admit until form names and numbers may change. USCIS has the general authority to date provided by CBP on the alien’s While DHS plans to update existing require and collect biometrics (such as Form I–94 governs. See proposed 8 CFR forms allowing F, J, and I fingerprints, photograph, and or a 214.1(c)(6)(ii). This is because, in these nonimmigrants to apply for an EOS with digital signature) from applicants, cases, CBP’s grant of a new period of USCIS, DHS believes it would be more petitioners, sponsors, beneficiaries, or authorized stay would supersede the efficient to replace references to specific other individuals residing in the United pending EOS application seeking a form names and numbers throughout States for any immigration and period of authorized stay, rendering it the current regulations with generally naturalization benefit. See 8 CFR superfluous. applicable language, specifically, 103.16, and 103.2(b)(9). Biometric The Department considered a policy ‘‘extension request in the manner and collection helps USCIS confirm an whereby an F, J, or I nonimmigrant on the form prescribed by USCIS, individual’s identity and conduct would automatically abandon an EOS together with the required fees and all background and security checks. application upon departing the United initial evidence specified in the Further, USCIS may also require any States. However, the Department believes such a strict requirement would applicable provisions of 8 CFR 214.2, applicant, petitioner, sponsor, not be practical, because people cannot and in the form instructions, including beneficiary or individual filing a benefit any biometrics required by 8 CFR always predict when they will have to request, or any group or class of such 103.16.’’ travel. persons submitting requests to appear Using general language in the Regarding applications for for an interview. See 8 CFR 103.2(b)(9). regulatory text instead of referring to employment authorization for F–1s and USCIS may require such an interview as specific form names and numbers helps J–2s, CBP does not adjudicate part of USCIS’ screening and both the Department and stakeholders. applications for employment adjudication process that helps confirm It allows for technical changes without authorization. USCIS would continue an individual’s identity, elicit requiring an entirely new rulemaking to processing any such applications, information to assess the eligibility for update form names. Stakeholders would notwithstanding a departure, and, if the an immigration benefit, and screen for receive notice and specific guidance on application is approved, USCIS will not any national security or fraud concerns. USCIS’ website and in the appropriate issue an EAD with a validity date that form instructions, as they already do for Finally, DHS considered how to exceeds the fixed date of admission various other benefits. Therefore, DHS address the admission of F, J, and I provided to the alien at the POE. For proposes to use this language in 8 CFR nonimmigrants who timely filed an EOS example, an F–1 student wishing to 214.1(c)(2) and to strike the current and any corresponding applications for engage in post-completion or a STEM phrase exempting F and J employment authorization but left the OPT extension would need to file both nonimmigrants from the requirement to United States before receiving a an EOS application and an application file an EOS, as they would be required decision from USCIS. DHS anticipates for employment authorization. Where to file an EOS if they wish to remain in this scenario would apply mostly to F– the alien had departed the United States the United States beyond their specified 1 students applying for post-completion before his or her application are OPT and STEM OPT extensions. 77 See Irish Peace Process Cultural and Training While USCIS generally does not 78 See Memo, Cook, Acting Asst. Comm. Program Act of 1998, Public Law 105–319, 112 Stat. consider an application for EOS Programs, HQ 70/6.2.9 (June 18, 2001), reprinted in 3013 (Oct. 30, 1998), as amended by Public Law 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 6, 108–449, 114 Stat. 1526 (Dec. 10, 2004). abandoned when the nonimmigrant 1993).

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adjudicated, USCIS would not consider provided for in proposed 8 CFR burdensome on F and J nonimmigrants. the employment authorization 214.1(a)(4). Aliens whose admission Many would be able to complete their application abandoned. period is converted from D/S to a fixed programs per the terms of their initial In all events, when an F–1 or a J–2 period who would like to seek admission (D/S) using the original nonimmigrant travels while the additional time to complete their program end date as an expiration of employment authorization or EOS studies, including those requesting post- their authorized period of stay. DHS application is pending, he or she is still completion OPT or STEM OPT would grant such periods, which expected to respond to any Request for extensions or starting a new course of include an additional 60 days for Fs and Evidence (RFE) and to timely submit the study or exchange visitor program, 30 days for Js as provided in their requested documents. Because USCIS would need to file an EOS application previous admission, automatically only sends RFEs to U.S. addresses, with USCIS for an admission period up without an application or fee. With this aliens traveling outside the United to the new program end date listed on option, DHS believes that the majority States while applications are pending the Form I–20 or DS–2019, or successor of F and J nonimmigrants will be shifted are advised to make necessary form, reflecting such an extension or to a fixed period of admission of 4 years arrangements to determine whether they transfer, up to a maximum of 4-years, or or less, except for some F–1 students have received an RFE relating to their 2 years, as appropriate. See proposed 8 and J–1 exchange visitors. For example, application and to timely respond to CFR 214.1(m)(1) and 8 CFR 214.2(f)(20). J–1 research scholars and alien any RFE.79 Failure to do so could result Regarding pending applications for physicians who have program end dates in USCIS denying an employment employment authorization during the for up to 5 or 7 years respectively, authorization or EOS application for transition period, aliens in F status who would need to apply for an EOS before abandonment. are subject to the transition and who are the 4-year maximum period of stay seeking post-completion OPT and expires, i.e., the date that falls four years D. Transition Period STEM–OPT employment authorization after the rule becomes effective. i. F and J Nonimmigrants would be authorized to remain in the Another benefit of this option is that DHS proposes to generally allow all F United States while the application is it would enable DHS to transition F and pending with USCIS if: (1) They are in J nonimmigrants to an admission for a and J nonimmigrants present in the the United States on the effective date fixed time period without unduly United States on [the Final Rule’s of the final rule with admission for D/ burdening them, USCIS or CBP. This effective date], who are validly S; (2) they properly filed an application option would ensure that no F and J maintaining that status and who were for employment authorization; and (3) nonimmigrants remain in the United admitted for D/S, to remain in the their application is pending on the final States indefinitely by requiring all F and United States in F or J status, without rule’s effective date. Unless otherwise J nonimmigrants admitted for D/S who filing an EOS request, up to the program advised by USCIS, they would not have wish to extend their stay beyond their end date reflected on their Form I–20 or to file for an EOS or re-file an program end date or the four year DS–2019 that is valid on the Final application for employment maximum, whichever is applicable, to Rule’s effective date, not to exceed 4 authorization. See proposed 8 CFR either file an EOS request or depart the years from the effective date of the Final 214.1(m)(2). If the application for United States and apply for admission Rule, plus an additional 60 days for F employment authorization is approved, at a POE by their program end date or nonimmigrants and 30 days for J the F–1 will be authorized to remain in the four year maximum period of stay nonimmigrants. An alien who departs the United States in F status until the from the final rule’s effective date, plus the United States and seeks admission expiration date of the employment an additional 60 days for Fs, and 30 after the Final Rule’s effective date authorization document, plus 60 days as days for Js. becomes subject to the fixed date provided in their previous admission. If In proposing these transition framework imposed by this rule. See the employment application is denied, procedures, DHS took into proposed 8 CFR 214.1(m)(1). the F–1 would continue to be consideration the effect of transitioning F and J nonimmigrants who depart authorized to remain in the United to a fixed period of admission will have the United States after the rule’s States until the program end date listed on F and J nonimmigrants originally effective date and before the end date on their Form I–20, plus 60 days as admitted for D/S who chose to reflected on their Form I–20 or DS–2019 provided in their previous admission, as temporarily come to the United States to would be readmitted with a new fixed long as he or she continues to pursue a pursue a program of study or an admission period, like any other newly full course of study and otherwise meets exchange visitor program. DHS believes admitted F or J nonimmigrant, as the requirements for F–1 status. the proposed changes would not Aliens in F–1 status with pending significantly affect the reliance interests 79 See SEVP’s Study in the States web page, employment authorization applications, of these nonimmigrants admitted for D/ ‘‘Traveling as an International Student’’ available at https://studyinthestates.dhs.gov/traveling-as-an- other than post-completion OPT and S. DHS is not proposing to change the international-student (last visited Jan. 9, 2020). See STEM OPT, also do not need to file for fundamental requirements to qualify for also ICE’s Re-entry for F–1 Non-immigrants an extension or refile an employment these nonimmigrant statuses, rather the Travelling Outside the United States for Five authorization application. As long as proposal is only to change the length of Months or Fewer web page, which notes, ‘‘Can I reenter if my request for OPT is pending? Yes, but these F–1s continue to pursue a full time that an individual may lawfully traveling during this time should be undertaken course of study and otherwise meet the remain in the United States in F or J with caution. USCIS may send you a request for requirements for F–1 status, they status without filing an extension of evidence while you are away, however, so you continue to be authorized to remain in stay. Admitting these categories of would want to make sure you have provided a correct U.S. address both to your DSO and on the the United States until the program end nonimmigrants for a fixed period of application and would be able to send in requested date listed on the Form I–20, plus 60 admission simply confirms that the documents. Also, if USCIS approves your OPT days, regardless of whether the admission is temporary and clearly application, you will be expected to have your EAD employment authorization is approved communicates when that temporary in hand to re-enter the United States. Like a request for further information, USCIS can only send the or denied. admission period ends. Further, as is EAD to your U.S. address,’’ available at https:// DHS believes that this transition the case for the fixed period of www.ice.gov/sevis/travel (last visited Jan. 9, 2020). proposal would not be unreasonably admission policy more generally, a fixed

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date of admission simply places these not align with the expected length of DHS to effectuate the transition of the F nonimmigrants in the same position as stay presents the best way to transition and J population without requiring the most other nonimmigrants who are from D/S to admission for a fixed time expense and workload associated with temporarily in the United States. They period. The proposed transition period large numbers of simultaneous filings, it would still be able to continue to pursue is consistent with the generally would not capture those who have their full course of study or exchange applicable policy and allows for the program end dates beyond 4 years from visitor program; however, if they need normal progress for most programs that the effective date of the proposed rule. additional time in F or J status, the nonimmigrants should be making. Fourth, DHS weighed whether burden would now be upon them to Further, it ensures that these requiring various categories of F or J request authorization directly from DHS nonimmigrants are complying with the nonimmigrants to apply for an EOS and establish eligibility to extend their terms and conditions of their status by within 60 days after the final rule’s period of stay in such status, whereas requiring them to apply to extend their effective date would better address previously they obtained an extension status by the end date on the I–20 or national security and fraud issues rather of lawful status in conjunction with a DS–2019, not to exceed four years. than transitioning all nonimmigrants program extension through a DSO or A second option that DHS considered from D/S to an admission for a fixed RO. was to allow F and J nonimmigrants to time period by using the program end At the same time, this proposed keep their D/S period of admission until date up to a maximum period of four process would provide immigration they depart the United States. The years. To identify the categories that officials an opportunity to directly Department rejected this alternative, would be required to file an EOS soon review and determine whether F and J however, because one of the main after the final rule’s effective date, DHS nonimmigrants who wish to remain in reasons for proposing this rule is to considered adopting the limiting factors the United States beyond their fixed address current abuse tied to the D/S listed at proposed 8 CFR 214.2(f)(20) period of admission are complying with period of authorized admission. and (j)(6) (including certain countries U.S. immigration law and are indeed Adopting this alternative would allow and U.S. national interests, eligible to retain their nonimmigrant aliens currently violating their unaccredited institutions, E-Verify status. If there are F or J nonimmigrants nonimmigrant status to largely avoid the participation, and language training relying on a D/S admission in an consequences of non-compliance with programs). While such an approach attempt to permanently remain in the U.S. immigration laws by simply could prioritize certain aliens for United States, or otherwise circumvent remaining in the United States, as prompt, direct vetting and oversight, their authorized status, this proposed otherwise described in this rule. applying it to hundreds of thousands of process would allow DHS to detect and Third, DHS evaluated an option to nonimmigrants who had been admitted deny an extension of stay request. allow F and J nonimmigrants to retain into the United States under D/S could DHS considered several alternatives their D/S admission up to their program have a significant impact. DHS believes before determining the above proposal end date, with the transfer to a fixed that this approach could result in was the best option. First, DHS admission date implemented through lengthy processing timeframes as the considered whether to impose a any of the following actions of the affected population would be required consistent length for the fixed nonimmigrant: (i) Departure from the to file an EOS at the same time. Given admission for all F and J nonimmigrants United States; (ii) transfer to a different USCIS’ processing times, DHS does not transitioning from a D/S admission, institution or sponsor; (iii) failure to believe there would be significant such as 1 or 3 years from the final rule’s maintain a full course of study; (iv) efficiency to excepting certain F or J effective date. While this proposal approval for reinstatement; 80 (v) having categories from applying for EOS later would provide a standard end date, a DSO or RO extend the program end than other F or J categories. In addition, DHS was concerned about the expense date; (vi) approval for a post-completion this short timeframe to file EOS may be and workload implications of this OPT or a STEM OPT extension; or (viii) burdensome on F, Js, and the option on all stakeholders and DHS. As engaging in any action that requires the institutions and sponsors as they adapt noted, DHS expects most F and J issuance of a new Form I–20 or DS– to a new process, as compared with the nonimmigrants to complete their 2019. However, DHS felt that this proposed transition period within the 4- program of study or exchange visitor alternative may fail to provide adequate year period. program within a 4-year period. A date notice to all affected nonimmigrants In sum, DHS’s proposal is to that does not align with this expectation given the several scenarios under which transition all F and J nonimmigrants to could place a significant burden on the the transfer to a fixed period of a fixed admission date by using the affected F and J nonimmigrants and on admission could occur, and could lead program end date noted on their Form their academic institutions or exchange to some fraud by DSOs intentionally I–20 or DS–2019 (with the exception of visitor programs’ sponsors and providing an unnecessarily long F students engaging in post-completion employers, as applicable. USCIS would program end date on the Form I–20 or a STEM OPT extension who would be especially affected if a significant prior to the final rule’s effective date. use their EAD’s expiration date), not to percentage of these nonimmigrants Although this option is relatively exceed 4 years, plus an additional 60 chose to remain in the United States and similar to the proposed transition days for Fs and 30 days for Js as file for an EOS in order to complete the process, to make the transition easier for provided in their previous admission. balance of their program, study, or work Fs, Js, ROs, and DSOs, triggering events DHS believes this is a natural way to activity. While USCIS could try to were limited to those that result in a transition the majority of these anticipate the volume, the sheer number change to the program end date, as well nonimmigrants to a fixed admission of simultaneous nonimmigrants filing as re-entry to the United States. In date without creating any loopholes, for EOS could significantly lengthen addition, while this option would allow such as those that could be created by processing times. Because the proposed allowing Fs and Js to retain their option is less burdensome on F and J 80 See 8 CFR 214.2(f)(16), allowing an F–1 duration of status, potentially nonimmigrants and on DHS, DHS does student, under certain circumstances, to apply for permitting those who are abusing their reinstatement with USCIS after receiving not believe that ending D/S for all F and recommendation from the DSO, following a failure status to continue to do so without the J nonimmigrants at timeframes that do to maintain status. oversight and vetting conducted through

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EOS. It would also provide all affected E. Requirements for Admission, a lifetime aggregate of 24 months of nonimmigrants adequate notice of the Extension, and Maintenance of Status of language study, which would include events that would trigger the transition F Nonimmigrants breaks and an annual vacation. See to a fixed admission date to a fixed DHS is proposing various changes proposed 8 CFR 214.2(f)(5)(i)(B). DHS is admission date and their under the regulations that provide the proposing this limitation as a way to responsibilities resulting from such framework for admission, extension, prevent abuse of the F–1 program. change. and maintenance of status for F Public Law 111–306, enacted on December 14, 2010, and effective since nonimmigrants. These changes would ii. I Nonimmigrants 2011, requires language training schools eliminate D/S, require students to file an enrolling F–1 students to be accredited EOS if requesting to remain in the Turning to I nonimmigrants, DHS by an accrediting agency recognized by United States beyond the period of their proposes an automatic extension of the the Secretary of Education. DHS admission, and clarify terms to ensure length of time it takes the alien to consistently sees students enrolled in that the activities an F nonimmigrant complete his or her activity, for a period language training schools for very has engaged in are consistent with those of up to 240 days. See proposed 8 CFR lengthy periods of time, including of a bona fide student. 214.1(m)(3). DHS based this proposed instances of enrollment for over a timeframe on the period of stay i. Admission for a Fixed Time Period decade, either by extending a program at authorized in 8 CFR 274a.12(b)(20), one school or transferring between As a preliminary matter, DHS is 83 which generally provides an automatic proposing to strike the current language schools. DHS has also found students enrolling in lengthy periods of extension of employment authorization regulation that allows F nonimmigrants language training despite previously of 240 days to continue employment to be admitted for D/S. DHS would enrolling in or completing with the same employer, including for replace it with a provision allowing F undergraduate and graduate programs I nonimmigrants who have timely filed nonimmigrants to be granted status for requiring English language a Form I–539, Application to Extend/ the length of their program, not to proficiency.84 Unlike degree programs Change Nonimmigrant Status, see 8 CFR exceed 4 years and subject to eligibility that typically have prescribed course 214.2(i), which currently is required limitations, as well as national security completion requirements, there are no when an I nonimmigrant changes and fraud concerns. nationally-recognized, standard information mediums.81 DHS believes Second, DHS proposes to retain in the completion requirements for language regulations the statutory limitation that that adopting an already established training programs and students are able restricts public high school students to timeframe, to which I nonimmigrants to enroll in language training programs are already accustomed, is reasonable. I an aggregate of 12 months of study at for lengthy periods of time. The lengthy nonimmigrants who seek to remain in any public high school(s). See 8 CFR enrollment in a language program, the United States longer than the 214.2(f)(5)(i). However, this proposed including enrollment in language automatic extension period provided rule moves this provision to a new courses for long periods subsequent to would be required to file an extension section and further clarifies that the 12- completion of a program of study that of stay request with USCIS.82 In month aggregate period includes any requires proficiency in English, raises addition to I nonimmigrants being school breaks and annual vacations. See concerns about whether the F–1s meet familiar with the timeframe under 8 proposed 8 CFR 214.2(f)(5)(i)(D). the statutory definition of a bona fide CFR 274a.12(b)(20), DHS anticipates Current requirements, including paying student with the intent of entering the the full cost of education, would also that this provision would reduce any U.S. for temporary study.85 Therefore, remain in place. gaps in employment due to USCIS’ DHS proposes a 24-month aggregate Third, F–1 students who are applying processing timeframes between the I limit for F–1 students to participate in to attend an approved private a language training program, as it would nonimmigrant’s application for elementary or middle school or private extension and USCIS approval of the provide a reasonable period of time for academic high school would continue to students to attain proficiency while application. It would also facilitate an I be covered by the provisions of nonimmigrant’s ability to complete his mitigating the Department’s concerns paragraph (f)(6)(i)(E). These provisions about the integrity of the program. This or her assignment while temporarily in require the DSO to certify a minimum the United States on behalf of a foreign timeframe generally comports with the number of class hours per week length of language training classes media organization, in that it would prescribed by the school for normal offered by schools that are accredited by give ample time to any I nonimmigrant progress toward graduation. See 8 CFR ED-recognized agencies.86 DHS seeks to either complete that assignment or 214.2(f)(6)(i)(E). However, like all other ask for an extension, as needed. F–1 students, they would be subject to 83 For example, at one accredited English Finally, the transition procedures the 4-year or 2-year maximum period of language training school, five students have been would not apply to F, J, or I aliens who admission and they would need to enrolled in language training since 2010; eight since apply for an extension of stay with DHS 2011; three since 2012; two since 2013; two since are outside the United States when the 2014; and two since 2015. if staying beyond this period. See final rule takes effect, or to any aliens 84 For example, one student has been enrolled in present in the United States in violation proposed 8 CFR 214.2(f)(7)(vi). English language training programs at four different Fourth, DHS is proposing to exempt schools since 2015 despite being an F–1 student of their status. See proposed 8 CFR border commuter students from the since at least 2002. She was enrolled in an English 214.1(m)(1)–(m)(3). language training program from 2002–2004 and general length of admission provisions. subsequently enrolled in an associate’s program See proposed 8 CFR 214.2(f)(5)(i)(C). that required English language proficiency from 81 See Instructions for Application to Extend/ The regulations at 8 CFR 214.2(f)(18) 2004–2008. Her Form I–20 noted that she had the Change Nonimmigrant Status, available at https:// required English language proficiency for that www.uscis.gov/i-539 (last visited April 13, 2020). would continue to govern these border commuter students, including that DHS program. 82 Typically, fewer than 50,000 aliens enter the 85 See INA (101)(a)(15)(F). U.S. in I classification annually. See 2017 Yearbook to admit them for a fixed time period. 86 Courses listed by language training schools of Immigration Statistics, Published by the DHS Fifth, F–1 students in a language accredited by the Accrediting Council For Office of Immigration Statistics, July 2019, page 63. training program would be restricted to Continuing Education & Training reflect that most

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comments on whether 24 months is DHS Entry/Exit Overstay report.87 The on the extent of unlawful presence sufficient for a language training DHS Entry/Exit Overstay report accrual, an alien may become program. compiles overstay rates for different inadmissible upon departing the United Sixth, DHS proposes a maximum classifications. It provides overstay rates States and will be ineligible for benefits admission period of up to 2 years for per country for F, M, and J for which admissibility is required, such certain students. See proposed 8 CFR nonimmigrants together, rather than a as adjustment of status to that of a 214.2(f)(5)(i)(A) and (f)(20). This period separate overstay rate by classification, lawful permanent resident. See INA is based on factors that DHS identified per country. Given the overlap between 212(a)(9)(B), (C), 8 U.S.C. 1189(a)(9)(B), as involving national security and the F and J classifications, utilizing the (C); INA 245(a), 8 U.S.C. 1255(a). public safety concerns, with the goal of data for both exchange visitors and Placing restrictions on citizens of encouraging compliance with students to establish overstay rates is countries with high overstay rates immigration laws. They are: useful in that it may deter aliens who incentivizes timely departure. The aggregate effect of the policy may help • Aliens who were born in or are may attempt to seek admission in one reduce a country’s overstay rate on the citizens of countries on the State status rather than the other in order to DHS Entry/Exit report below 10 percent, Sponsor of Terrorism List. The State obtain a lengthier period of admission. in which case nationals of the country Sponsor of Terrorism List are countries, A key goal of shifting aliens in F status would become eligible for a longer as determined by the Secretary of State, from D/S to an admission for a fixed period of admission under the F to have repeatedly provided support for time period is to provide pre-defined nonimmigrant classification. acts of international terrorism pursuant time periods for immigration officers to evaluate whether a nonimmigrant has Finally, the ‘‘greater than 10%’’ to three laws: Section 6(j) of the Export student and exchange visitor overstay Administration Act, section 40 of the maintained his or her status. If an immigration officer finds that an alien rate threshold aligns with the Arms Export Control Act, and section percentage described by the 620A of the Foreign Assistance Act. violated his or her status prior to or during the course of an EOS Administration as a ‘high’ overstay rate Designation as a ‘‘State Sponsor of for the purpose of enabling DHS and Terrorism’’ under these authorities also adjudication and denies the EOS request, the alien generally would begin DOS to ‘‘immediately begin taking all implicates other sanctions laws that appropriate actions that are within the penalize persons and countries engaging accruing unlawful presence the day 88 scope of their respective authorities to in certain trade with state sponsors. after issuance of the denial. The Department finds it appropriate to apply reduce overstay rates for all classes of There are currently four countries 89 additional oversight to nonimmigrants nonimmigrant visas.’’ The ‘‘greater designated as a state sponsor of than 10%’’ overstay rate threshold is terrorism under these authorities: The from countries with consistently high student and exchange visitor overstay more than double the general overstay Democratic People’s Republic of Korea rate for nonimmigrant student and (North Korea), Iran, Sudan, and Syria. rates, by requiring these aliens to more frequently request extensions of stay. exchange visitors as noted in the 2018 Under this proposal, DHS anticipates 90 Because there is an increased risk of DHS Entry/Exit Overstay report, admitting those who were born in or are meaning that countries with such citizens of those countries for a overstay by nonimmigrants from these countries as reflected by the DHS Entry/ overstay rates are well outside the norm. maximum period of up to 2 years. The DHS believes that it is appropriate to Department believes it is appropriate to Exit Overstay reports, DHS would be able to identify such violations sooner. require more frequent check-ins on apply additional scrutiny on those born citizens of those countries to ensure that Further, DHS believes this more in these countries and citizens of these they are in compliance with the terms frequent oversight could deter aliens countries who are temporarily studying and conditions of their admission. in the United States to ensure that these from engaging in activities that would To ensure affected stakeholders have aliens do not pose risks to the national violate their status, as the consequences notice of which countries have an security of the United States. For easier of doing so would arise more quickly. overstay rate exceeding that threshold, reference and to ensure affected A primary aim of this proposed rule DHS proposes to issue FRNs listing stakeholders have advanced notice of is to institute policies that would countries with overstay rates triggering the countries on the State Sponsors of encourage aliens to maintain lawful the 2-year admission period. The first Terrorism List prior to choosing a status and reduce instances in which F, such FRN would also list countries that country and institution to study in, DHS J, and I nonimmigrants unlawfully have been designated as State Sponsors proposes to publish a Federal Register remain in the United States after their of Terrorism, and provide a link where notice (FRN) with the DOS list. If DOS program or practical training ends. makes changes to the list, DHS proposes Under this proposed rule, aliens who 89 See Presidential Memorandum on Combating to publish an FRN with the updated list. remain in the United States beyond a High Nonimmigrant Overstay Rates (April 22, 2019) Any future FRN will also announce the fixed time period generally would begin available at https://www.whitehouse.gov/ accruing unlawful presence. Depending presidential-actions/presidential-memorandum- date that the new maximum 2-year combating-high-nonimmigrant-overstay-rates/(last period of admission would apply. visited April 13, 2020). The Presidential • 87 The overstay report for 2019 can be found at Memorandum identified countries with a total Aliens who are citizens of countries https://www.dhs.gov/sites/default/files/ overstay rate greater than 10 percent in the with a student and exchange visitor publications/20_0513_fy19-entry-and-exit-overstay- combined B–1 and B–2 nonimmigrant visa category total overstay rate of greater than 10 report.pdf. See Table 4, Column 6. as appropriate for additional engagement by the percent according to the most recent 88 See USCIS Policy Memo, Consolidation of DOS, which ‘‘should identify conditions Guidance Concerning Unlawful Presence for contributing to high overstay rates among nationals Purposes of Sections 212(a)(9)(b)(i) and of those countries . . .’’ Intensive English Programs can be completed 212(a)(9)(c)(i)(I) of the Act, May 6, 2009, available 90 According to the FY 2018 DHS Entry/Exit within 24 months, website available at https:// at https://www.uscis.gov/sites/default/files/USCIS/ Overstay Report, for nonimmigrants who entered on accet.org/ (last visited Feb. 7, 2020). For example, Laws/Memoranda/Static_Files_Memoranda/2009/ a student or exchange visitor visa (F, M, or J visa) ELS Language Center’s longest English as a Second revision_redesign_AFM.PDF (last accessed June 20, there were 1,840,482 students and exchange visitors Language (ESL) program is 1440 hours. Attending 2020). This policy currently applies to F, J, and I scheduled to complete their program in the United 18 clock hours per week, the minimum for a full nonimmigrants in relation to duration of status but States, of which 3.73 percent (68,593) stayed course of study, for that period of time would result will change accordingly when duration of status no beyond the authorized window for departure at the in 18.4 months. longer applies to them). end of their program.

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stakeholders could access information Accreditation may be institutional, the United States, the women were put about schools that have been accredited meaning it applies to the school as a to work in bars operated by associates by an ED-recognized accrediting whole and covers any educational of the school’s owner, with no agency.91 programs the school offers, or expectation that they would ever attend DHS proposes to publish this FRN specialized/programmatic, meaning it classes at the school.99 contemporaneously with the final rule. covers specific programs only.93 ED More recently, in 2018, the owner of Any changes to the list would be made classifies each recognized accrediting four unaccredited schools in and around by a new FRN. agency as institutional or programmatic Los Angeles was sentenced to over 1 • U.S. national interest. Other factors to help schools identify which agencies year in prison for his role in conducting that would be incorporated into a FRN might be appropriate for their needs.94 a ‘‘sophisticated, extensive, and would be a limitation of a student’s DHS believes the independent, third- lucrative’’ immigration document fraud period of stay to a maximum of a 2-year party checks offered through scheme that lasted for at least 5 years.100 period based on factors determined to accreditation minimize the risk of fraud The owner and his co-conspirators be in the U.S. national interest, which and abuse by schools and DSOs. falsified student records and transcripts may include but not be limited to The history of problems encountered for thousands of foreign nationals as circumstances where they may be at unaccredited schools approved for part of a ‘‘pay-to-stay’’ scheme. They national security concerns or risks of the attendance of F–1 students enabled the nonimmigrants to remain in fraud and abuse. For example, the demonstrates the value of promoting the United States illegally, despite Secretary of Homeland Security could attendance at accredited schools. For rarely or ever attending the classes for determine that it is appropriate to limit example, in 2014, the founder of Tri- which they were allegedly enrolled.101 the length of admission of students who Valley University, an unaccredited DHS believes that the accreditation are enrolled in specific courses of study, institution in Pleasanton, California, limitation will curtail the potential for such as nuclear science. DHS believes Susan Xiao-Ping Su, was sentenced to fraudulent use of F–1 student status. It collecting information more often and more than 16 years in prison for her role will provide a direct check-in point applying additional vetting helps in a massive, highly profitable visa with the Department if a nonimmigrant 95 mitigate national security risks. If the fraud scheme that lasted 2 years. To enrolled in an unaccredited school DHS Secretary determines that U.S. execute the fraud, Su submitted wishes to remain in the U.S. beyond 2 national interests warrant limiting fabricated paperwork to DHS to obtain years. While DHS is not imposing an admission to a 2-year maximum period certification to enroll nonimmigrant ED-accreditation requirement on post- in certain circumstances, then it would students. Once certified, Su issued F–1 secondary institutions in order to be publish an FRN to give the public visa-related documents to students on certified by SEVP to accept foreign advance notice of such circumstance. false premises, with no criteria for students, the Department is proposing to • Aliens who are not attending admission or graduation, and no rely on the accreditation process as a institutions accredited by an accrediting requirement that students maintain the means to promote the integrity of the agency recognized by the Secretary of 96 course loads required for F–1 status. immigration system. DHS hopes that Education. The goal of accreditation is While it was operating, the school to ensure that by post-secondary post-secondary institutions enrolling helped approximately 1,500 foreign foreign students thereby would be institution provides an education that nationals enter the country for work or meets acceptable levels of quality. incentivized to pursue accreditation by other purposes by helping them illegally an ED-recognized agency, including Specifically, the accreditation process obtain F–1 visas.97 meeting all requirements, rather than involves the periodic review of Also in 2014, the former head of potentially lose future international institutions and programs to determine College Prep Academy in Duluth, whether they meet established Georgia, another unaccredited students and associated revenue to standards. and are achieving their stated institution, was sentenced to nearly 2 those schools that do. educational objectives. Schools meeting years in prison for overseeing an Because ED only has the authority to the accreditation requirement are immigration fraud scheme that brought recognize post-secondary accreditors, subjected to significant oversight by the women into the country through aliens attending elementary, middle or accrediting body, including recurring illegally obtained F–1 visas.98 Once in high school would not be subject to this assessment of the institutions’ programs limitation and may be eligible for the to ascertain their effectiveness in 93 Id. maximum 4-year period of admission. A helping students attain both academic 94 List of ED’s Database of Accredited link to information about ED-accredited knowledge and professional skills. The Postsecondary Institutions and Programs, https:// agencies would be included in a FRN intervals at which schools must submit ope.ed.gov/dapip/#/agency-list (last visited Feb. 4, that would be published concurrently 2020). with the final rule and updated as to accreditation review vary across 95 See U.S. Department of Justice (DOJ), U.S. accrediting agencies, but review Attorney’s Office Northern District of California needed (including if ED changes the typically occurs at least every 10 years, News Release, ‘‘CEO and President of East Bay web page where it publishes accredited with the accrediting agencies University Sentenced to 198 Months for Fraud agencies). Scheme,’’ (Nov. 3, 2014) available at https:// • E-Verify Participation. USCIS themselves subject to review by ED, to www.justice.gov/usao-ndca/pr/ceo-and-president- determine whether to grant or renew east-bay-university-sentenced-198-months-fraud- administers E-Verify, a web-based recognition, at least every 5 years.92 scheme (last visited Feb. 7, 2020). 96 Id. sentenced-immigration-fraud (last visited Feb. 7, 97 2020). 91 The Department of Education (ED) provides See The Chronicle of Higher Education, ‘‘Little- 99 this information on its Database of Accredited Known Colleges Exploit Visa Loopholes to Make Id. Postsecondary Institutions and Programs web page Millions Off Foreign Students’’ (March 20, 2011) 100 See DOJ News Release, Owner of Schools that at https://ope.ed.gov/dapip/#/home (last visited available at https://www.chronicle.com/article/ Illegally Allowed Foreign Nationals to Remain in Feb. 1, 2020). Little-Known-Colleges-Make/126822 (last visited U.S. as ‘Students’ Sentenced to 15 Months in 92 Report from U.S. Department of Education Feb. 7, 2020). Federal Prison, https://www.justice.gov/usao-cdca/ Office of the Inspector General, U.S. Department of 98 See DOJ News Release, ‘‘English Language pr/owner-schools-illegally-allowed-foreign- Education’s Recognition and Oversight of School Owner Sentenced for Immigration Fraud,’’ nationals-remain-us-students-sentenced-15 (last Accrediting Agencies, ED–OIG/A09R 0003, June 27, (May 7, 2014) available at https://www.justice.gov/ visited April 13, 2020). 2018. usao-ndga/pr/english-language-school-owner- 101 Id.

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system that electronically compares E-Verify could also provide DHS to file an EOS application in the midst information from an employee’s another data point to assess and of his or her 4-year admission period Employment Eligibility Verification independently verify whether an (for example, a student decides to (Form I–9) with records available to educational institution has teachers, request pre-completion OPT and DHS. E-Verify accesses millions of employees, and/or offices proportionate receives a Form I–20 reflecting the new government records available to DHS to the number of students that are program end date), and their EOS and the Social Security Administration. enrolled and in attendance. When application is filed on or after the It is the best means for employers to enrolling in E-Verify, employers student is subject to a 2-year maximum confirm the identity and employment indicate the size of the organization period of stay, that would trigger the eligibility of their new hires. E-Verify which can provide DHS with additional new 2-year maximum period of stay. has over 850,000 enrolled employers information about whether the school Similarly, if a student needs to file an and other participants of all sizes, has necessary personnel as required by EOS or departs and applies for encompassing more than 2.5 million 8 CFR 213.3(a)(3). A school that uses E- readmission, and the student files or hiring sites. It is one of the Federal Verify when they hire such employees applies after he or she is no longer Government’s highest-rated services for is doing as much as it can to ensure they subject to the 2-year limitation, that user satisfaction. Twenty-two states have a stable workforce to operate as a would trigger the 4-year maximum currently have various forms of statutes school. While the school’s certification period of stay. or other legal requirements making requirements would not be assessed DHS invites comments on all these participation in E-Verify a condition of when a student applies for EOS, the fact proposals, and specifically the business licensing or state contracting that a school participates in E-Verify limitations on the language training laws. should give DHS a greater level of schools, the U.S. national interest factor, DHS believes that schools that are assurance that the school is likely to E-Verify, whether additional limitations willing to go above and beyond to comply with all other federal should be added, and whether ensure compliance with immigration requirements and operates in exemptions to the limitations on law in one respect (verifying identity accordance with the certification admission should be possible. standards for which it is responsible. and employment eligibility as required ii. Changes in Educational Levels under section 274A of the INA and When determining how to apply the taking the additional step to confirm 2-year admission limitation, DHS Under current regulations, F–1 considered how to address situations Form I–9 information using E-Verify) students who continue from one when an alien admitted in F status for are more likely to comply with educational level to another are a 4-year period subsequently would immigration law in other respects (SEVP considered to be maintaining status. See become subject to a 2-year period if purposes) by successfully monitoring 8 CFR 214.2(f)(5)(ii). However, DHS has seeking admission. For example, a their F students. DHS therefore proposes observed that some students student may have a 4-year period of that E-Verify participation warrants a 4- continuously enroll in different admission, but in the midst of this year admission period for students of programs at the same degree level, such period, an FRN may be published those schools, subject to other as by pursuing multiple associate, indicating that his or her home country limitations on admission that may master’s, undergraduate, or certificate now has a student and exchange visitor apply. Conversely, there is less programs. Alternatively, some students total overstay rate of greater than 10 change to a lower educational level, confidence in schools that are unwilling percent, as stated in the DHS Entry/Exit to do all they can to ensure they have such as by completing a master’s degree Overstay Report. Notwithstanding such and then changing to an associate’s a legal workforce to support students’ intervening events, aliens will remain academic programs by participating in program. This has enabled some aliens subject to the period of admission to remain in the United States for E-Verify. Accordingly, DHS proposes approved upon his or her application that it would monitor whether students lengthy periods of time in F–1 student for admission, extension of stay, or status, raising concerns about the of such schools maintain status more change of status. Further, changing the frequently by limiting their admission temporary nature of their stay. In 2019, terms of admission at irregular intervals DHS identified nearly 29,000 F–1 period to 2 years. for particular classes of F DHS believes that the E-Verify students who, since SEVIS was nonimmigrants would introduce implemented in 2003, have spent more proposal would incentivize more significant confusion, make their stay than 10 years in student status.102 This schools to enroll in E-Verify. Should unpredictable, and so potentially includes individuals who enrolled in more schools enroll in E-Verify, DHS discourage some students from pursuing programs at the same educational level would be better assured that schools their studies in the United States. as many as 12 times, as well as students were meeting the certification standards Therefore, DHS is proposing to allow who have completed graduate programs at 8 CFR 214.3(a)(3). This provision is such aliens to remain in the United followed by enrolling in undergraduate associated with evaluating whether an States for the remainder of whatever programs, including associate’s degrees. educational institution is a bona fide period of admission is afforded them While there are legitimate cases of school possessing the necessary when they are admitted in, extend their facilities, personnel, and finances. It stay in, or change status to F–1 status. students wishing to gain knowledge at helps ensure that F nonimmigrants are However, if such aliens depart the a lower or the same educational level, choosing educational institutions that United States, the departure and the traditional path of study progresses have demonstrated a willingness to best subsequent application for admission from a lower educational program to a ensure compliance with immigration would trigger a new review and these higher one. The regulations contemplate laws in one respect (i.e., hiring), and aliens would be treated the same as any a model consistent with the vast which DHS believes therefore would be other aliens applying for admission. At majority of bona fide students following more likely to comply with that point they would become subject to 102 DHS compiled this information while requirements pertaining to school applicable terms and conditions of conducting an internal case analysis; however, the certification and enrollment of F admission, including the 2-year Department is withholding this information to nonimmigrants. limitation. Similarly if a student needs prevent the disclosure of PII.

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this upward trajectory. The term ‘‘full or a new degree at the same educational DHS considered a complete ban on course of study’’ as defined in the level more than twice (for a total of changes to a lower or same educational regulations requires that the program three programs), concerns are raised level, supported by the assumption that ‘‘lead to the attainment of a specific regarding whether the F–1 alien is a these F–1 aliens are not reliably educational or professional bona fide student who intends to continuing to make normal progress objective.’’ 103 Frequent or repeated temporarily and solely pursue a full towards the completion of their changes within an educational level or course of study rather than pursuing educational objectives. However, the to a lower level are not consistent with different degrees as a de facto way to Department believes such an option to attainment of such an objective. This permanently stay in the United States. be overbroad—there may be exceptions understanding was reflected in the Aliens in F–1 status seeking to change to the general upward progression in preamble to a 1986 rulemaking to a new program following completion educational levels. For example, a proposing changes to the F regulations, of a program at the same educational student might wish to pursue an MBA which stated: ‘‘The proposed regulation level (up to two additional times after following the completion of his or her . . . places limitations on the length of completion of the initial program) or Ph.D. time a student may remain in any one seeking to change to a lower educational Additionally, DHS proposes to retain level of study. Thus, the Service has level (no more than one additional time the term ‘‘educational’’ with respect to eliminated applications for extension of after completion of the initial program) the change in level as the Department stay for students who are progressing would need to obtain a new Form I–20 believes it more accurately reflects from one educational level to another from their DSO reflecting the new current academic models. Specifically, but has placed a control over students program. If the new program completion ‘‘educational’’ captures programs for who, for an inordinate length of time, date exceeds the authorized period of non-degree students, whereas using a remain in one level of study.’’ 104 admission, the alien would then apply term such as ‘‘degree’’ may not. For DHS thus proposes to limit the for EOS on the form designated by example, currently, an F–1 student number of times a student can change USCIS, with the required fee and in would not qualify for additional post- to another program within an accordance with form instructions, completion OPT if he or she changes to educational level, such as to pursue including any biometrics required by 8 a certificate program, given that the another bachelor’s or master’s degree. CFR 103.16. See proposed 8 CFR certificate program is not a ‘‘higher Specifically, any student who has 214.2(f)(5)(ii)(D). educational level.’’ Similarly, certificate programs for professional advancement completed a program at one educational DHS, of course, determines in all are typically not considered to be a level would be allowed to change to instances on a case-by-case basis ‘‘higher educational level’’ allowing another program at the same whether an alien who has completed his students to qualify for additional post- educational level no more than two or her initial program and seeks to additional times while in F–1 status, for completion OPT. change programs within the same level DHS believes these proposals will a total of three programs for the lifetime or to a lower educational level, has the of the student. See proposed 8 CFR encourage foreign students to pursue a requisite nonimmigrant intent, is a bona general upward progression in degree 214.2(f)(5)(ii)(B). DHS believes this fide student, and has adequate financial would accommodate the legitimate levels, which is expected from a resources to continue their studies, or is qualified bona fide student who is academic activities of bona fide students misusing the F–1 program as a pretext that are not following the typical coming to the United States temporarily to unlawfully extend their stay in the and solely to pursue a course of study. upward progression, such as a desire to United States. pursue a different field of study, or to While this change could dissuade some DHS recognizes that this proposal will foreign nationals from choosing to study pursue more specialized studies in their require updates to SEVIS and other field. In addition, an F–1 student who in the United States, the Department systems. Because the timeframe for believes that this restriction would not has completed a program at one those updates is not fixed and there educational level would be allowed to significantly impact the choice of bona could be technical issues regarding fide students who come to the United change to a lower educational level one implementation, DHS is proposing to time while in F–1 status. See proposed States temporarily to complete a full include a provision whereby the course of study. The F–1 program, with 8 CFR 214.2(f)(5)(ii)(C). These Department may delay or suspend restrictions limiting the number of times its statutory requirement that an alien be implementation, in its discretion, if it a bona fide student who seeks to enter a student can complete additional determines that the change in programs in one educational level or the United States temporarily and solely educational level limitation is for the purpose of pursuing a full course begin a new program at a lower inoperable for any reason. See proposed educational level are lifetime of study, should not be used by aliens 8 CFR 214.2(f)(5)(ii)(E). If DHS delays or wishing to remain in the United States restrictions; they do not reset, for suspends the provisions in this section instance, with a new admission as an F– permanently or indefinitely. These governing the change in degree level, proposals would better ensure that this 1 student. DHS would make an announcement of DHS believes that it is reasonable in statutory intent is fulfilled without the delay or suspension to the academic hindering the options presented to bona most cases for a student to progress to community through SEVP’s various a higher educational level rather than fide students seeking higher educational communication channels, including levels and thus create a balanced continue at the same level or pursue a ICE.gov/SEVP, Study in the States lower level of education. When, after solution to this issue. DHS welcomes (https://studyinthestates.dhs.gov) and comments on this proposal. completion of one program, an F–1 SEVIS Broadcast Message. DHS would wishes to pursue a new program at a also announce the implementation dates iii. Preparation for Departure lower educational level more than once of the change in degree level provision DHS believes that the time allotted for through SEVP’s communication F students to prepare for departure 103 8 CFR 214.2(f)(6)(i). channels (ICE.gov/SEVP, Study in the should be revised. Under current 104 Nonimmigrant Classes, Change of Nonimmigrant Classification, 51 FR 27867 States, and SEVIS Broadcast Message) at regulations, F–1 students are provided (proposed Aug. 4, 1986). least 30 calendar days in advance. Id. 60 days following the completion of

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their studies and any practical training extend, change, or otherwise maintain obtain lawful status. See proposed 8 to prepare for departure from the United lawful status. DHS thinks that 30 days CFR 214.2(f)(5)(iv). States. See 8 CFR 214.2(f)(5)(iv). is an adequate period for F–1 students Finally, DHS proposes to retain the However, this is twice as long as other to prepare for departure and is in line current regulatory language that allows student and exchange visitor with similar categories (the M and J a 15-day period for departure from the categories—J exchange visitors and M departure periods) but welcomes United States if an alien is authorized vocational students are only allowed 30 comments on whether a different period by the DSO to withdraw from classes, days. See 8 CFR 214.2(j)(1)(ii) and for departure would be more but no additional time for departure if (m)(10)(i). appropriate for the F nonimmigrant the alien fails to maintain a full course This 60-day period is also six times classification, including whether there of study without the approval of the longer than certain nonimmigrants who are meaningful distinctions between F DSO or otherwise fails to maintain are authorized to remain in the United nonimmigrant students and both J status. See 8 CFR 214.2(f)(5)(iv). States for years, but are only provided exchange visitors and M vocational Because DSOs generally authorize with a 10-day period to depart the students that should be considered. withdrawal based on compelling United States. For example, DHS DHS also welcomes comments regarding academic or medical circumstances provides a 10-day period following the whether the 30-day departure period when a student proactively requests end of the alien’s admission period as should be reflected in the Form I–94. permission, DHS believes retaining the stated on his or her Form I–94 for See proposed 8 CFR 214.2(f)(5)(v) and 15-day period is appropriate. However, individuals in the E–1, E–2, E–3, H–1B, (f)(10)(ii)(D). aliens who fail to maintain their full L–1, and TN classifications in a 2016 course of study or otherwise rulemaking.105 In the rulemaking Additionally, in the 2016 rulemaking impermissibly violate their status are discussing this 10-day period for establishing a 10-day grace period for required to immediately depart the departure, DHS noted that a grace certain nonimmigrant classifications, United States, as is consistent with period of up to 10 days after the end of DHS chose to remove the phrase ‘‘to other nonimmigrant categories. DHS an authorized validity period provides a prepare for departure from the United considered allowing a short ‘‘grace reasonable amount of time for such States or to seek an extension or change period’’ for departure after an EOS nonimmigrants to depart the United of status based on a subsequent offer of denial, but does not see a compelling States or take other actions to extend, employment’’ from the proposed reason to treat F nonimmigrants who change, or otherwise maintain lawful regulatory text relating to the purpose of have received a denial more favorably status.106 It is thus unclear to DHS why the grace period, with the justification than other nonimmigrant categories. As F students would need a significantly that it was unnecessarily limiting and in other nonimmigrant categories, longer period of time—60 days—to did not fully comport with how the failure to immediately depart under prepare for departure when other existing 10-day grace period may be these circumstances could result in nonimmigrants have less time to used by individuals in the H, O and P 108 accrual of unlawful presence and prepare for departure.107 nonimmigrant [visa] classifications. subject an individual to removal. DHS believes that 30 days for the F DHS clarified that the 10-day grace nonimmigrant population is the period may be granted to these iv. Automatic Extension of Status appropriate balance between a 60-day nonimmigrants at time of admission or 1. Authorized Status and Employment and a 10-day period of departure. DHS upon approval of an extension of stay or Authorization Under 8 CFR believes that the F category, albeit change of status and may be used for 214.2(f)(5)(vi) other permissible non-employment distinct from M or J, shares a core Each year, a number of U.S. similarity in that many aliens in these activities such as seeking to change one’s status to that of a dependent of employers seek to employ F–1 students categories are seeking admission to the and file a Form I–129, Petition for a United States to study at United States another nonimmigrant or vacationing prior to departure.109 DHS notes that Nonimmigrant Worker, with USCIS, educational institutions. Thus, DHS along with a change of status request, to thinks that these categories should have seeking an extension of stay or change of status is an allowable activity for F obtain classification of the F–1 student a standard period of time to prepare for as an H–1B nonimmigrant worker. The departure, or take other actions to aliens during the 30 day departure period following the completion of their H–1B nonimmigrant visa program allows U.S. employers to temporarily 105 See 8 CFR 214.1(l)(1) (providing for 10-day program and believes this same grace periods for certain nonimmigrants). clarification should be incorporated into employ foreign workers in specialty 106 See Retention of EB–1, EB–2, and EB–3 this proposed rulemaking. See proposed occupations, defined by statute as Immigrant Workers and Program Improvements 8 CFR 214.2(f)(5)(iv). occupations that require the theoretical Affecting High-Skilled Nonimmigrant Workers, 81 and practical application of a body of FR 82,398, 82,401 (Nov. 18, 2016). DHS also proposes to clarify that the highly specialized knowledge and a 107 Rulemakings in the mid-1980s mention this proposed period to prepare for 60-day period for departure but did not provide any bachelor’s or higher degree in the explanation as to why this period of time to depart departure or otherwise maintain status specific specialty, or its equivalent. See was given to students. See e.g., Nonimmigrant is 30 days from the Form I–94 (or INA sections 101(a)(15)(H)(i)(b) and Classes; F–1 Students, 52 FR 13,223 (Apr. 22, 1987) successor form) end date or the 214(i); 8 U.S.C. 1101(a)(15)(H)(i)(b) and (referencing the proposed rule, and stating that in expiration date noted on the the ‘‘proposed regulations, duration of status was 1184(i). The H–1B classification, defined to mean the period during which a student Employment Authorization Document however, is subject to annual numerical is pursuing a full course of studies in any (Form I–766 or successor form), as allocations. See INA sections educational program, and any period or periods of applicable, to prepare for departure 214(g)(1)(A) and (g)(5)(C); 8 U.S.C. authorized practical training, plus sixty days,’’ but from the United States, or otherwise 110 not indicating the reason for the 60-day period). 1184(g)(1)(A) and (g)(5)(C). For Nonimmigrant Classes; Change of nonimmigrant Classification, 51 FR 27,867 (Aug. 4, 1986) 108 Retention of EB–1, EB–2, and EB–3 Immigrant 110 Under INA 214(g)(1)(A), 8 U.S.C. (proposing that duration of status would consist of Workers and Program Improvements Affecting 1184(g)(1)(A), 65,000 aliens may be issued H–1B an additional ‘‘sixty days within which to depart High-Skilled Nonimmigrant Workers, 81 FR 82,398, visas or otherwise provided H–1B nonimmigrant from the United States,’’ but silent on the reason for 82402, 82437 (Nov. 18, 2016). status in a fiscal year. This limitation does not the 60-day period of departure). 109 Id at 82437. Continued

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purposes of the H–1B numerical individuals may remain in the United who seek to change status from F–2 allocations, each fiscal year begins on States while the H–1B change of status status to H–1B or H–4 (spouse or child October 1. Petitioners may not file H–1B application is pending.112 of H nonimmigrant) status. See petitions more than six months before To account for this operational issue, proposed 8 CFR 214.2(f)(5)(vi)(D). the date of actual need for the DHS is proposing to revise 8 CFR Dependents may not accept employee.111 Thus, the earliest date an 214.2(f)(5)(vi) to provide an automatic employment as an F–2 nonimmigrant. H–1B cap-subject petition may be filed extension of F–1 status and post- Thus, there is no work that would be for an allocation for a given fiscal year completion OPT, as applicable, until disrupted by a loss of employment is April 1, six months prior to the start April 1 of the fiscal year for which the authorization while the F–2 dependent’s of the applicable fiscal year for which H–1B petition is filed. The F–1 student COS application remains pending with initial H–1B classification is sought. would not need to file a separate EOS USCIS for adjudication. As is the case Many F–1 students complete a program if their fixed date of admission passed under the current regulation, an F–1 of study or post-completion OPT in during the period before April 1, as this nonimmigrant’s automatic extension of mid-spring or early summer. Per current provision would extend the applicant’s status under the cap-gap provision also regulations, after completing their F–1 status automatically if an H–1B applies to his or her F–2 dependents program or post-completion OPT, F–1 petition requesting a change of status is who timely file a change of status students have 60 days (which DHS is timely filed on behalf of the F–1 application to H–4.113 proposing to change to 30 days) to take student. See proposed 8 CFR DHS believes that these changes the steps necessary to maintain legal 214.2(f)(5)(vi)(A). However, if the F–1 would result in more flexibility for both status or depart the United States. See student’s COS is still pending at the end students and the Department and would 8 CFR 214.2(f)(5)(iv). However, because of the cap-gap period, then his or her help to avoid disruption to U.S. the change to H–1B status cannot occur employment authorization would employers who are lawfully employing until October 1, an F–1 student whose terminate on March 31, and the F–1 students while a qualifying H–1B program or post-completion OPT applicant would no longer be petition is pending. However, DHS is expires in mid-spring has two or more employment authorized on this basis as concerned with the impacts of this months following the 60-day period of April 1. If the H–1B petition provision on U.S. workers and students, before the authorized period of H–1B underlying the cap-gap extension is especially if it would result in increased status can commence. To address this denied, then, consistent with existing competition for certain jobs, and invites situation, commonly known as the ‘‘cap- USCIS practice, the F–1 beneficiary of comments from the public on this issue. gap,’’ DHS established regulations that the petition, as well as any F–2 automatically extended F–1 D/S and, if dependents, will receive the standard 2. F–1 Status and Employment applicable, post-completion OPT F–1 grace period (which this rule Authorization While EOS and employment authorization for certain F– proposes to change to 30 days) to depart Employment Authorization 1 nonimmigrants to October 1 for the United States. Applications Are Pending eligible F–1 students. See 8 CFR DHS believes that proposing to DHS proposes to strike ‘‘duration of 214.2(f)(5)(vi). The extension of F–1 D/ change the automatic extension end status’’ from 8 CFR 214.2(f)(5)(vi) and S and OPT employment authorization is date from October 1 to April 1 would clarify that an alien with F–1 status commonly known as the ‘‘cap-gap avoid disruptions in employment whose admission period as indicated on extension.’’ authorization that some F his or her Form I–94 has expired, but DHS proposes to retain the cap-gap nonimmigrants seeking cap gap who has timely filed an EOS provisions automatically granting, for a extensions have been experiencing over application, would be authorized to certain period of time, the extension of the past several years. DHS fully expects continue pursuing a full course of study F–1 students’ stay and grant of USCIS would be able to adjudicate all after the end date of his or her employment authorization for aliens H–1B cap-subject petitions requesting a admission until USCIS adjudicates the who are the beneficiaries of timely filed change of status from F–1 to H–1B by EOS application. See proposed 8 CFR H–1B cap-subject petitions with an that April 1 deadline. In addition to 214.2(f)(5)(vii). This change would employment start date of October 1, and avoiding employment disruptions, the provide ongoing authorization to requesting a change of status. Under lengthier extension of F status and continue studies as long as the student current regulations, the automatic cap- employment authorization for aliens has timely filed his or her EOS and will gap extension is valid only until with pending H–1B petitions until April not penalize students if USCIS is unable October 1 of the fiscal year for which H– 1, up to one year, depending on when to adjudicate an EOS application before 1B status is being requested. See 8 CFR the H–1B petition was filed, accounts a student’s new term or course of study 214.2(f)(5)(vi). With the consistently for USCIS’ competing operational is underway. In such cases, students high volume of H–1B petitions each considerations and would enable the would be able to continue pursuing year, however, USCIS has been unable agency to more appropriately balance their full course of study. to complete adjudication of H–1B cap- workloads across petition types. The shift to a fixed date of admission subject petitions by October 1, resulting DHS is also proposing to clarify that has implications for employment in situations where some individuals the cap-gap provision does not authorization. Currently, DSOs may must stop working on October 1 because authorize employment for dependents authorize certain types of employment the employment authorization provided authorization, including on campus under 8 CFR 214.2(f)(5)(vi) terminates 112 In 2018, USCIS issued a web alert notifying employment and CPT,114 and students on that date, although generally these the public that significant numbers of beneficiaries would lose their employment authorization and generally do not need to be concerned stating that individuals can generally remain in the about a specific expiration date for their apply to aliens who have earned a master’s or United States without accruing unlawful presence student status, and thus their higher degree from a U.S. institution of higher while their application is pending, provided they employment authorization, because they education, as defined in 20 U.S.C. 1001(a), until the do not work without authorization, available at number of aliens who are exempted from such https://www.uscis.gov/news/alerts/f-1-cap-gap- numerical limitation during such year exceeds status-and-work-authorization-extension-only- 113 8 CFR 214.2(f)(5)(vi)(D). 20,000. INA 214(g)(5)(C), 8 U.S.C. 1184(g)(5)(C). valid-through-sept-30-2018 (last visited Jan. 12, 114 See 8 CFR 214.2(f)(10)–(12), 8 CFR 111 See 8 CFR 214.2(h)(2)(i)(I). 2020). 274a.12(b)(6)(iv).

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are admitted for duration of status. This employment authorization.117 generally do not have to be concerned rule would change that framework with Additionally, given that USCIS’ average about their F–1 period of authorized different implications for various types EAD processing time is typically 90–120 stay. However, with the shift to a fixed of employment authorization. days, a 180-day timeframe provides admission period, these aliens would For on-campus employment where no sufficient flexibility in case of have to be cognizant of that date in EAD is needed, DHS proposes to allow unexpected delays.118 A longer auto- order for the EOS to be approved. DHS aliens in F–1 status to continue to be extension period for automatic believes it is appropriate to provide an authorized for on-campus employment extension of employment authorization automatic extension of SSR-based while their EOS applications with is unnecessary. employment so aliens’ ability to benefit USCIS are pending, not to exceed a For F–1 aliens granted off-campus from this long-standing regulatory relief period of 180 days.115 See proposed 8 employment authorization on the basis is not interrupted by USCIS processing CFR 214.2(f)(5)(vii). If the EOS of severe economic hardship resulting times. Consistent with existing practice application is still pending after 180 from emergent circumstances pursuant for certain nonimmigrants who require days have passed, the F–1 student to 8 CFR 214.2(f)(5)(v), DHS is an EAD,119 DHS proposes to would no longer be authorized for proposing an automatic extension of automatically extend SSR authorization employment and would need to stop such employment authorization with a if an F–1 alien has a timely-filed EOS engaging in on-campus employment. different validity period than the pending for up to the end date stated in DHS is proposing a 180-day automatic general 8 CFR 214.2(f)(9)(ii)(C) severe the Federal Register notice announcing extension period in order to minimize economic hardship employment the suspension of certain requirements, disruptions to on-campus employment authorization extension described above or 180 days, whichever is earlier. by teaching assistants, post-graduates while their EOS applications are As evidence of these automatic working on research projects, and other pending. As first promulgated in 1998, extensions of employment positions that are integral to an F–1 the regulations provide necessary authorization, DHS is proposing that the student’s educational program. A 180- flexibility to address unforeseeable F–1 aliens’ Form I–94 (or successor day period would be consistent with the emergencies by allowing DHS, by notice form) or Employment Authorization other automatic extension for F–1 STEM in the Federal Register, to suspend the Document (EAD, Form I–766, or OPT students.116 That timeframe has applicability of some or all of the successor form), for F–1s requiring an been in existence since 2008 and DHS requirements for on- and off-campus EAD, when combined with a notice expects the F–1 population of students employment authorization for specified issued by USCIS indicating receipt of a F–1 students where an emergency timely filed extension of stay and employers to be familiar with it. situation has arisen calling for this application (such as the Form I–797), DHS welcomes comments on whether action. These F–1 students must would be considered unexpired until the 180 day period of automatic continue to attend classes, but are USCIS issues a decision on the EOS extension for employment is an allowed to take a reduced course load. application, not to exceed 180 days. See appropriate time period. By regulation, aliens must take at least proposed 8 CFR 214.2(f)(5)(vii). SSR- Likewise, DHS is proposing an 6 semester or quarter hours of based employment authorization that automatic extension of off-campus instruction at the undergraduate level or has been automatically extended can be employment authorization for up to 3 semester or quarter hours of evidenced by the F–1 alien’s EAD and 180-days during the pendency of the instruction at the graduate level. See 8 receipt notice issued by USCIS (the EOS application, for F–1 aliens who CFR 214.2(f)(5)(v). Failure to take the Form I–797), not to exceed the lesser of have demonstrated severe economic required credits could be considered a 180 days or the end date stated in the hardship pursuant to 8 CFR failure to maintain F–1 status. The Federal Register notice announcing the 214.2(f)(9)(ii)(C). These circumstances special student relief (SSR) regulations suspension of certain requirements. may include loss of financial aid or on- are announced by notice in the Federal DHS believes that continued campus employment without fault on Register and that employment may only employment authorization for aliens the part of the student, substantial be undertaken during the validity wishing to work as an intern for an fluctuations in the value of currency or period of the SSR notice. Currently, any international organization, engage in exchange rate, inordinate increases in extension of SSR-based employment CPT, or in pre- or post-completion OPT tuition and/or living costs, unexpected would have to be granted before the present materially different changes in the financial condition of the expiration of the prior grant of SSR circumstances from those pertaining to student’s source of support, medical employment-based employment aliens who are experiencing emergent bills, or other substantial and authorization, if it is not granted before circumstances, severe economic unexpected expenses. Id. In such cases, the expiration of the prior authorization, hardship, or engaging in on campus DHS believes a 180-day automatic the student must stop working under employment, and that the same extension of employment authorization that SSR-based employment automatic extension policies therefore would help alleviate the severe authorization benefit, until the renewal should not apply to them. economic hardship and avoid a is reauthorized. Because students are First, related to the employment disruption in their employment, currently admitted for D/S, these aliens authorization requests to engage in an especially given the fact that an internship with an international Employment Authorization Document is 117 See 8 CFR 274a.12(c)(3). 8 CFR organization, such requests arise when a required and frequency at which these 214.2(f)(9)(ii)(F)(2) provides that employment student has an opportunity for an students must submit an application for authorization based upon severe economic hardship internship with certain organizations may be granted in one-year intervals up to the expected date of completion of the student’s current and these make up a smaller proportion 115 See 8 CFR 214.2(f)(9)(i) for a description of on- course of study. of employment authorization campus employment. For on-campus employment 118 See Check Case Processing Time, available at applications. These requests are not tied that is based on severe economic hardship resulting https://egov.uscis.gov/processing-times/ (last visited to economic necessity or emergent from emergent circumstances pursuant to 8 CFR June 19, 2020). The Potomac Service Center, which 214.2(f)(5)(v), see later discussion for additional adjudicates all applications for Employment circumstances. Therefore, DHS is not restrictions. Authorization for Optional Practical Training, lists 116 8 CFR 274a.12(b)(6)(iv). processing times from 3.5 to 5.5 months. 119 See 8 CFR 274a.13(d).

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recommending an automatic extension 214.2(f)(10)(ii)(C)(7). DHS also has Therefore, DHS proposes not to use a of employment authorization while oversight into this program through site ‘‘normal progress’’ standard with these aliens have a timely filed EOS visits to employer locations in which respect to seeking an extension of an pending. STEM OPT students are employed. authorized period of stay. In addition to Second, students engaging in CPT or Thus, DHS does not think changes to the requirement that the applicant pre-completion OPT are still enrolled in the automatic extension provision are obtain an I–20 from the DSO school and pursuing a curriculum. DHS needed. recommending extension of the expects that DSOs would not authorize Finally, DHS is proposing some program, the applicant will be required any practical training for a length of technical amendments. In 8 CFR to file an EOS application to request time beyond their fixed date of 214.2(f)(9)(i), the word ‘‘Commissioner’’ additional time to complete their admission on the I–94, so an automatic would be replaced by ‘‘Secretary’’; the current course of study beyond their extension of employment authorization term ‘‘residents’’ following ‘‘United authorized period of admission. See would be inappropriate. DHS proposes States’’ would be replaced by ‘‘workers’’ proposed 8 CFR 214.2(f)(7)(i). to add a sentence at the end of 8 CFR for better accuracy; the term ‘‘Form I–20 Apart from pursuing a new course of 214.2(f)(10)(i) stating that curricular A–B’’ would be replaced by the study, DHS appreciates that the time for practical training may not be granted for currently used form, ‘‘Form I–20’’; and study can legitimately fluctuate given a period exceeding the alien’s fixed date the end of the paragraph would be the changing goals and actions of the of admission as noted on his or her revised to clarify that an alien who has student. For example, a student may Form I–94, and that such alien must not a timely filed application for an EOS experience compelling academic or engage in curricular practical training may engage in on-campus employment medical reasons, or circumstances until USCIS approves his or her timely- for a period not to exceed 180 days, or beyond their control that cause them to filed EOS request. See proposed 8 CFR until USCIS approves his or her need additional time in the United 214.2(f)(10)(i). application, whichever is earlier. See States beyond the predetermined end Third, where a student timely files an proposed 8 CFR 214.2(f)(9)(i). DHS also date of the program in which they were EOS and an application to engage in proposes to strike and reserve 8 CFR initially enrolled. DHS understands post-completion OPT employment, DHS 214.2(f)(10)(i)(A), which refers to a non- these circumstances arise and believes believes the current and longstanding SEVIS process for requesting curricular these scenarios present an appropriate policy of obtaining authorization from practical training authorization. Because situation for the Department to directly USCIS, in the form of an EAD, before an all schools enrolling F students must be evaluate the nonimmigrant’s eligibility alien may work in the United States is SEVP-certified and use SEVIS to for additional time in the United States. appropriate. Applications must be indicate CPT authorization, the However, instead of effectively reviewed and adjudicated to determine provision is outdated. See proposed 8 extending their stay through a DSO’s that students are eligible for OPT. CFR 214.2(f)(10)(i)(A). program extension recommendation in Students engaging in post-completion SEVIS, students would have to obtain v. New Process for EOS Applications OPT often have less contact with their an I–20 from the DSO recommending a schools and DSOs, and this underscores Under current regulations, F–1 program extension and apply to USCIS the importance for DHS to directly students are able to obtain a program for an extension of stay. Immigration examine these applicants, ensuring that extension from a DSO as long as they officers thereby would be able to their contact information is accurate, as are maintaining status and making conduct appropriate background and well as checking that they have not normal progress toward the completion security checks on the applicant at the engaged in any unauthorized activities. of their educational objectives. See 8 time of the extension of stay application DHS does not propose any changes to CFR 214.2(f)(7)(i) and (iii). The problem and directly review the proffered the STEM OPT extension provision at 8 with the ‘‘normal progress’’ standard is evidence to ensure that the alien is CFR 274a.12(b)(6)(iv) under which an that it is undefined, and DHS believes eligible for the requested extension of Employment Authorization Document that retaining it could lead to stay, including through assessing issued for OPT is automatically inconsistent adjudications. Even now, whether the alien remains admissible. extended for a period of up to 180 days the lack of a standard definition for See 8 CFR 214.1(a)(3)(i). while a timely filed application for normal progress leads DSOs to In these circumstances, the employment authorization (Form I–765) inconsistently extend F–1 students’ Department would only extend the stay for STEM OPT extension is pending. program end dates and thus their stay in beyond the prior admission date Students who are eligible for the STEM the United States. Some DSOs use a (typically the program end date for OPT extension have previously applied strict standard, evaluating, for example, which the student was admitted to the for OPT and received an EAD. Their documentation to support a student’s United States as a F–1 nonimmigrant or applications were adjudicated by USCIS claim of a compelling medical illness was granted based on a change of status to determine that they were eligible for that serve as the basis for the student’s or extension of stay) of an otherwise OPT. In addition, the STEM OPT request for extension of the student’s eligible F–1 student requesting program has requirements and current program. However, other DSOs additional time to complete their safeguards for both students and claim that the student is making program if the additional time needed is employers that other practical training ‘‘normal progress’’ whenever a student due to a compelling academic reason, programs do not. For example, the simply needs more time to complete the documented medical illness or medical student’s STEM OPT employer is program. This inconsistency results in condition, or circumstance that was required to be enrolled in E-Verify, and some students being able to remain in beyond the student’s control. As with the terms and conditions of a STEM F–1 status for years simply by having all nonimmigrant extensions of stay, an practical training opportunity, including the DSO update the Form I–20 without alien seeking an extension of stay duties, hours, and compensation, must providing a justification as to how the generally must have continually be commensurate with the terms and student is making ‘‘normal progress’’ maintained status.120 And if a student conditions applicable to the employer’s and what academic or medical similarly situated U.S. workers in the circumstances necessitate the extension 120 Failure to file before the expiration of the area of employment. See 8 CFR of the program. previously accorded status or failure to maintain

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dropped below a full course of study, documented illness or medical academic reason in order for the DSO to that drop must have been properly condition; and (3) exceptional recommend program extension and then authorized. Students seeking extensions circumstances beyond the control of the the student may apply for extension of of stay must primarily be seeking to alien. See proposed 8 CFR stay. While a letter from the student temporarily stay in the United States 214.2(f)(7)(iii).121 The first two factors may be sufficient to meet his or her solely to pursue a full course of study, are based on the current regulatory burden of proof, an immigration officer INA section 101(a)(15)(F)(i), 8 U.S.C. provisions for program extension, 8 CFR will evaluate the individual case and 1101(a)(15)(F)(i), not for other reasons 214.2(f)(7)(iii), from current text (i.e., make the determination if additional separate from, or in addition to, changes of major or research topics, and evidence (such as a letter from a pursuing a full course of study. unexpected research problems). DHS member of the school administration or By way of illustration, a student with proposes to clarify that, in addition to faculty) is needed to adjudicate the case. a fixed date of admission may request academic probation and suspension, a Next, DHS is proposing to clarify that an additional 4 months to complete his pattern of behavior which demonstrates a student can qualify for a program program because he was authorized to a student’s repeated inability or extension and corresponding extension drop below a full course of study for one unwillingness to complete his or her of stay based on a medical reason, but semester due to illness. The student course of study, such as failing classes, it must be a documented illness or would need to request an updated I–20 is not an acceptable reason for an medical condition. To provide an from the DSO recommending a program extension of stay for additional time to objective standard, DHS proposes to extension. In such an instance, an complete a program. See proposed 8 codify standards already included in 8 immigration officer could review the CFR 214.2(f)(7)(iii)(B)(1). Current CFR 214.2(f)(6)(iii)(B), which requires a proffered evidence and ensure that the program extension requirements do not student to provide medical claim is supported by documentation address students who have failed to documentation from a licensed medical from a medical doctor. Conversely, a carry a full course of study due to failed doctor, doctor of osteopathy, or licensed student may request an EOS for classes in an academic term or students clinical psychologist to substantiate the additional time to complete an associate who have a pattern of failing grades illness or medical condition if seeking a program, but fail to submit evidence during their studies. DHS expects bona reduced course load. See proposed 8 they were properly authorized to drop fide students to be committed to their CFR 214.2(f)(7)(iii)(B)(2). As this is below a full course of study. Under the studies, attending classes as required, already a long-standing requirement for proposed regulation, the immigration carrying a full course of study, and DSOs and students in a similar context, officer would have discretion to request making reasonable efforts toward DHS believes that it would be transcripts from the student. If a program completion. Passing a class, or appropriate and easy to implement in student’s transcripts reflect the student not, is something that is within the the program extension and failed multiple classes one semester, an student’s control. Therefore, a student corresponding extension of stay process. immigration officer could determine the who has a pattern of failing grades or Further, requiring applicants to provide student has failed to maintain status due has failed to carry a full course of study documentation of their medical illness to a failure to carry a full course of study due to failing grades would not be or medical condition that caused their as required. In another example, a qualified for an extension of stay. This program delay is a reasonable request, student could submit an EOS request to prohibition would not include students, because they are asking DHS to provide them additional time in the United continue in the same program because such as those university students who, States. he or she was unable to take all the pursuant to DHS regulations, are required classes for his or her major due DHS is also proposing a new factor in permitted to take 12 semester hours of the extension of stay provisions— to over-enrollment at the school. Again, coursework and, therefore, necessarily an officer could request additional circumstances beyond the student’s would not complete their programs control, including a natural disaster, a information, if needed, to determine within 4 years. Absent academic that the student was maintaining a full national health crisis, or the closure of probation or suspension, or negative an institution. See proposed 8 CFR course of study (or, if not, was properly factors such as repeatedly failing authorized to reduce his or her course 214.2(f)(7)(iii)(B)(3). As in the classes, these students would be eligible reinstatement context, DHS believes that load), but due to the school’s high for extension based upon compelling enrollment, the student may validly there might be additional reasons academic reasons. This prohibition beyond compelling academic or require an additional semester to would also not include cases where the complete the degree requirements in documented medical reasons that result student was properly authorized to drop in a student’s inability to meet the order to graduate. below a full course of study due to Therefore, DHS is proposing to program end date listed on the Form I– academic difficulties or medical 20. eliminate a reference to ‘‘normal conditions or has been reinstated to progress’’ with respect to seeking a Therefore, DHS is proposing a third student status based on a reduction in prong that would encompass scenarios program extension, and incorporate a course load that would have been new standard that makes it clear that that are not envisioned in the current within a DSO’s power to authorize. The provisions governing the extension of a acceptable reasons for requesting an student would be expected to provide extension of a stay for additional time program end date, such as those noted evidence demonstrating the compelling above. Some of these examples are to complete a program are: (1) currently in the reinstatement Compelling academic reasons; (2) a 121 DHS does not propose to update the term provisions, 8 CFR 214.2(f)(16)(i)(F), and ‘‘normal progress’’ as defined in 8 CFR such status may be excused at the discretion of 214.2(f)(6)(i)(E) because the Department does not DHS believes that they merit favorable USCIS if the alien demonstrates that at the time of feel it addresses the same concerns as it does at 8 consideration in extension requests. filing: The delay was due to extraordinary CFR 214.2(f)(5). The provision at 8 CFR However, the circumstances circumstances beyond the control of the applicant, 214.2(f)(6)(i)(E) relates to study at an approved surrounding the closure of a school, if and USCIS finds the delay commensurate with the private elementary or middle school or public or circumstances, the alien has not otherwise violated private academic high school. In that context, it is relevant, may be considered in his or her status, and is not subject to deportation. clear that ‘‘normal progress’’ is the completion of determining whether the student 8 CFR 214.1(c)(3)(viii). the academic year (for example, 6th grade). qualifies for an extension of stay. For

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example, if a school closes as a result of the end date noted on the most recent and M nonimmigrant student visas, 22 a criminal conviction of its owners for Form I–20 or successor form, would CFR 41.61(b)(1)(ii), and Department of engaging in student visa fraud by not require the alien to file for a State policy requires an applicant to requiring students to attend, and the reinstatement of F–1 status, because the provide documentary evidence that student is unable to demonstrate that he alien would have failed to maintain sufficient funds are, or will be, available or she was attending classes prior to status and would be ineligible for an to defray all expenses during the entire closure as required to fulfill a full EOS. See proposed 8 CFR period of anticipated study.122 While course of study, the closure of the 214.2(f)(7)(iii)(D). A request for this does not mean that the applicant institution might not qualify the student reinstatement must be filed in the must have cash immediately available to for a program extension. manner and on the form designated by cover the entire period of intended The requirements to timely request an USCIS, with the required fee, including study, which may last several years, the extension of the program end date any biometrics required by 8 CFR applicant must demonstrate enough would remain largely unchanged; 103.16. DHS is also requiring F–2 readily available funds to meet all however, DHS proposes a technical dependents seeking to accompany the expenses for the first year of study.123 change to replace all references to the F–1 principal student to file DHS believes requiring evidence of DSO ‘‘granting’’ an extension of the applications for an EOS or financial resources to cover expenses for program with the term ‘‘recommend’’ an reinstatement, as applicable. These one year of study is reasonable given extension of the program in order for the requirements are consistent with current that F students are familiar with this student to file for EOS because USCIS, provisions. requirement because this is the standard not the DSO, would ‘‘grant’’ the With the transition from D/S to used by the Department of State in the extension of stay. See proposed 8 CFR admission for a fixed time period, F–1 issuance of F nonimmigrant visas. DHS 214.2(f)(7)(iii)(C). For example, a students would need to apply for an also considers that this standard is student may not necessarily be granted EOS directly with USCIS, by submitting appropriate because it establishes an extension of stay by USCIS if an the appropriate form and following the concrete resources for one full academic adjudicator determines the student has requirements outlined in the form year of the program. Further, applicants not actually maintained status or does instructions. USCIS anticipates must demonstrate that, barring not actually have compelling academic accepting the Form I–539, Application unforeseen circumstances, adequate or documented medical reasons for the to Change/Extend Nonimmigrant Status, funds will be available for each delay, despite the DSO’s for this population but would like the subsequent year of study from the same recommendation for program extension. flexibility to use a new form if more source or from one or more other Where the alien requests a efficient or responsive to workload specifically identified and reliable recommendation to extend the program needs. Thus, DHS is proposing to use financial sources. Such evidence for one end date, the DSO could only make a general language to account for a year and subsequent years could recommendation to extend the program possible change in form in the future. If include, but is not limited to: Complete if the alien requested the extension the form ever changes, USCIS would copies of detailed financial account before the program end date noted on provide stakeholder’s advanced notice statements for each account intended to the most recent Form I–20, or successor on its web page and comply with be used to fund the student’s education; form. Id. Additionally, consistent with Paperwork Reduction Act requirements. other immediately available cash assets; changes throughout this NPRM, once Like all other aliens who file a Form receipts and/or a letter from the school the DSO recommends the extension of I–539, F–1 applicants would be required accounts office indicating tuition the program, the alien would need to to submit biometrics and may be payments already made and any timely file for an EOS on the form and required to appear for an interview outstanding account balance; affidavits in the manner designated by USCIS, pursuant to 8 CFR 103.2(b)(9). In of support from a sponsor; proof of with the required fees and in addition, applicants would need to authorized private student loans; 124 accordance with the filing instructions, demonstrate that they are eligible for the and/or other financial documentation. including any biometrics required by 8 nonimmigrant classification sought. F–1 applicants would need to timely CFR 103.16 and a valid, properly Accordingly, applicants must submit file their EOS application—meaning endorsed Form I–20 or successor form, evidence of sufficient funds to cover that USCIS would need to receive the showing the new program end date, id., expenses. A failure to provide such application on or before the date the barring extraordinary circumstances, see evidence would render the applicant authorized admission period expires. 8 CFR 214.1(c)(4). ineligible for the extension of stay. See See proposed 8 CFR 214.2(f)(7)(v). This If seeking an EOS to engage in any proposed 8 CFR 214.2(f)(7)(iv). timeframe would include the 30-day type of practical training, the alien in F– While the sponsoring school is period of preparation for departure 1 status would also need to have a valid required to verify the availability of allowed after the completion of studies Form I–20, properly endorsed for financial support before issuing the or any authorized practical training. practical training, and be eligible to Form I–20, they may not be well-versed However, if the extension application is receive the specific type of practical in foreign documentation submitted by received during the 30-day period of training requested. Finally, as with all applicants and circumstances may preparation for departure provided in immigration benefit requests, an change between issuance of a Form I– proposed 8 CFR 214.2(f)(5)(iv) following 20 and a request for an extension of stay immigration officer would generally not the completion of studies, the alien in Further, it is incumbent upon DHS to grant an EOS where an alien in F–1 F–1 status may continue studying but determine the veracity of the evidence status failed to maintain his or her may not continue or begin engaging in submitted, and officers must ensure that status. Id. practical training or other employment the student has sufficient funds to study Finally, a student’s failure to timely until the extension request is approved request from the DSO a in the United States without resorting to recommendation for extension of the unauthorized employment. The phrase 122 See 9 FAM 402.5–5(G). program end date, which would result ‘‘sufficient funds to cover expenses’’ is 123 Id. in the DSO recommending an extension referred to in Department of State 124 Federal student loans are only available to of the program end date in SEVIS after regulations concerning issuance of F U.S. citizens and permanent residents.

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and, as applicable, an employment United States. As with other reside permanently in the United States. authorization document is issued. See nonimmigrant categories, they would See proposed 8 CFR 214.2(f)(8)(i)(B). proposed 8 CFR 214.2(f)(7)(v). not be given any period of time to In addition to proposing new The length of the extension granted prepare for departure from the United restrictions for the number of programs could be up to the period of time States after the denial, and there may be an F–1 nonimmigrant can complete at needed to complete the program or significant immigration consequences the same or a lower educational level, requested practical training, not to for failing to depart the country DHS proposes to retain some of the exceed 4 years, unless the alien is a immediately. For example, such aliens current school transfer and change of border commuter, enrolled in language generally would begin to accrue educational level conditions. First, as is training, attending a public high school, unlawful presence the day after the the case currently, aliens would need to or the two-year limits on admission at begin classes at the transfer school or issuance of the denial. DHS believes this paragraph (f)(20) apply in which case program within 5 months of transferring standard provides parity across further restrictions apply, as described out of the current school or within 5 nonimmigrant categories and invites the above. By permitting admission only months of the program completion date ‘‘up to’’ the prescribed period, USCIS public to submit comments on this issue on his or her current Form I–20; and and CBP are afforded discretion as to as well as the proposed EOS application second, if the alien is authorized to the ultimate length of time to grant the process. engage in post-completion OPT, he or applicant, and consider factors such as vi. School Transfers and Changes in she must be able to resume classes program length. Additionally, this Educational Levels within 5 months of changing programs proposal would replace the current or transferring out of the school that provision at 8 CFR 214.2(f)(7)(iv), which As discussed above, a significant recommended OPT or the date the OPT references SEVIS and non-SEVIS concern with the current D/S framework authorization ends, whichever is earlier. schools and is outdated. is that it has enabled ‘‘pay-to-stay’’ fraud See proposed 8 CFR 214.2(f)(8)(i)(A) and F–2 dependents seeking to in which school owners falsely report to (B). accompany the F–1 principal student DHS that a student is maintaining status Another indication of a violation of would need to file applications for an in return for cash payments even though F–1 status is failing to pursue a full EOS or reinstatement, as applicable. See the student is not attending or is course of study at the school that the proposed 8 CFR 214.2(f)(7)(vii). otherwise violating his or her status. In alien is authorized to attend. See Dependent F–2 spouses and children some cases, school owners have proposed 8 CFR 214.2(f)(8)(ii). DHS is seeking to accompany the principal F– operated multiple schools and proposing to retain the current 1 student during the additional period transferred students between these provisions, rendering aliens who do not of admission would need to either be schools to conceal this fraud. For pursue a full course of study ineligible included on the primary applicant’s example, in 2018, a defendant was to change programs or transfer schools, request for extension or properly file sentenced by a federal judge in the and is clarifying that failure to pursue their own EOS applications on the form a full course of study includes, but is Central District of California to 15 designated by USCIS. If the dependent not limited to, a student whose pattern months in prison and ordered to forfeit files a separate Form I–539, he or she of behavior demonstrates a repeated more than $450,000 for running such a would need to pay a separate Form I– inability or unwillingness to complete scheme involving three schools that he his or her course of study, such as 539 filing fee. However, if the 125 dependent files a Form I–539A as part owned. Furthermore, as discussed failing grades, resulted in the student of the primary applicant’s EOS request more thoroughly in Section 4.L.ii above, not carrying a full course of study on a Form I–539, only one fee would be the D/S framework has enabled some unless the student was previously required. aliens to become ‘‘professional authorized for a reduced course load. USCIS would need to receive the students’’ who spend years enrolled in Just as delays caused by unacceptable extension applications before the programs at the same educational level patterns of behavior, academic expiration of the previously authorized (for example, multiple associate probation or suspension would not be period of admission, including the 30- programs) or complete programs at one acceptable reasons for program day period following the completion of educational level and enroll in lower extensions and corresponding EOS of a the course of study, as indicated on the educational levels (such as completing a student’s current program, neither F–2 dependent’s Form I–94. To qualify master’s degree then enrolling in an would they be an acceptable reason for for an EOS, the F–2 dependent would associate program). DHS believes the failing to carry a full course load. Such need to demonstrate the qualifying proposed changes previously discussed aliens would have failed to maintain F relationship with the principal F–1 regarding admission for a fixed time status, are ineligible for a change of student who is maintaining status, also period and limitations on program program and school transfers, and be maintaining his or her own status, changes within and between would be required to file for a and not have engaged in any educational levels will help to address reinstatement of status, if eligible. See unauthorized employment. See these concerns and serve to further proposed 8 CFR 214.2(f)(8)(ii). proposed 8 CFR 214.2(f)(7)(vii). strengthen the integrity of the F Finally, DHS proposes some technical Extensions of stay for F–2 dependents nonimmigrant visa category by better updates. First, the Department would would not be able to exceed the ensuring that aliens are in the United strike outdated provisions in 8 CFR authorized admission period of the States primarily to study, rather than to 214.2(f)(8)(ii) to account for the fact that principal F–1 student. Id. all schools must now be SEVP-certified Under proposed 8 CFR 125 DOJ Press Release, Owner of Schools that and to clarify that the transfer provision 214.2(f)(7)(viii), if USCIS denies the Illegally Allowed Foreign Nationals to Remain in applies only to transfers from a SEVIS request for an extension, and the period U.S. as ‘Students’ Sentenced to 15 Months in school to a SEVIS school. See proposed of admission for the student and his or Federal Prison, (Apr. 19, 2018), available at https:// 8 CFR 214.2(f)(8)(iii). Second, DHS www.justice.gov/usao-cdca/pr/owner-schools- her dependents has expired, then the illegally-allowed-foreign-nationals-remain-us- proposes to update the current process student and his or her dependents students-sentenced-15 (last accessed April 11, by which DSOs notify USCIS of certain would need to immediately depart the 2020). events, such as failure to maintain a full

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course load, to reflect the fact that not working prior to this application for program end date from 60 days to 30 SEVIS is used for this purpose and that post-completion OPT. days. See proposed 8 CFR a paper Form I–20 is no longer used for Where the application for EOS and 214.2(f)(11)(i)(B)(2). Likewise, DHS this purpose. See proposed 8 CFR post-completion OPT are granted, the proposes to strike the requirement in 8 214.2(f)(8)(iv). Third, if the new alien would receive an additional 30- CFR 214.2(f)(11)(i)(B)(2) and (C) which program to which the student changes day period [from the program end date require students file their Form I–765 or transfers will not be completed or EAD end date, as applicable to with USCIS within 30 days and 60 days, within the authorized admission period prepare for departure from or otherwise respectively, of the date that the DSO established in paragraphs (f)(5)(i) or maintain status in the United States enters the recommendation into SEVIS. (f)(20) of this section, then, consistent following the expiration of the status DHS believes that such a timeframe for with the other provisions throughout approved to complete post-completion obtaining the DSO recommendation this proposed rule the F–1 student OPT. See proposed 8 CFR 214.2(f)(5)(iv). seems unnecessary given that students would need to apply for EOS in the 2. Proposed Changes to Form Name and would always be required to first get manner and on the form designated by Filing Timeframes their DSO’s recommendation before USCIS, with the required fee and in filing their Form I–765 requesting OPT accordance with form instructions, DHS proposes to remove references in employment authorization and a together with a valid, properly endorsed paragraphs 8 CFR 214.2(f)(11)(i)(A) and regulatory timeframe for submitting the Form I–20 indicating the new program (C) to the Form I–765 currently used by I–765 is already in place. Once they get end date, and would need to provide nonimmigrants to request employment their DSO’s recommendation, they biometrics as authorized by 8 CFR authorization and replace them with would then be eligible to file their Form 103.16. See proposed 8 CFR language used throughout the proposed I–765 within 30 days after their program 214.2(f)(8)(v). rule: ‘‘by filing the form designated by end date or up to 120 days before the USCIS with the required fee and in expiration of their current EAD. vii. OPT Employment Authorization accordance with form instructions.’’ The While USCIS anticipates timely 1. Pending Employment Authorization Department believes that such language processing these cases, there would be Requests gives USCIS the flexibility to change the an increase in volume of EOS form number or name without having to applications following the effective date Currently, 8 CFR 214.2(f)(10)(ii)(D) engage in a full rulemaking. In all cases, of the final rule as those nonimmigrants provides for ‘‘duration of status’’ to DHS would provide applicants with who are required to file EOS begin to do include periods students spend in the advanced notice of which form to use so, and the Department believes that United States on post-completion OPT. and the accompanying instructions. allowing applicants more time to file an As D/S admissions would be replaced Additionally, DHS proposes technical EOS application would stagger the with admission for a fixed time period changes in 8 CFR 214.2(f)(11), such as applications, helping to maintain a throughout this rulemaking, DHS is replacing the term ‘student’ with ‘alien consistent volume. This, in turn, could proposing to clarify that an alien in F– in F–1 status’ and other edits enable USCIS to more efficiently 1 status recommended for post- reorganizing and rewording some manage this OPT-related workload, so completion OPT must apply for paragraphs to improve readability. the agency may be better equipped to employment authorization and an EOS, The other change that DHS proposes adjudicate these requests in a timely and may not engage in post-completion regarding filing applications for OPT- manner and diminish the likelihood of OPT unless such employment based employment authorization is to gaps in employment. Additionally, DHS authorization is granted.126 See proposed provide more time for aliens to submit believes that shortening the filing 8 CFR 214.2(f)(10)(ii)(D). their applications. Currently, the window after the program end date Like several other types of following filing deadlines are in place: would better align with the proposed • employment, a student would need to Pre-completion OPT: Aliens may period to prepare for departure. And, stop working if USCIS does not file the application for employment finally, DHS recommends technical adjudicate the employment authorization up to 90 days before being changes such as replacing ‘‘shall’’ with authorization application before the enrolled for one full academic year, ‘‘will’’ and clarifying edits throughout specific end date for the period of provided that the employment will not proposed 8 CFR 214.2(f)(11) for authorized stay is reached. While DHS begin prior to the completion of the full readability. academic year. 8 CFR recognizes the challenge presented by viii. Temporary Absence From the the transition from a D/S regime to a 214.2(f)(11)(i)(B)(1). • Post-completion OPT: File the United States of F–1 Student Granted fixed time period, the proposition that Employment Authorization employment must cease until the EAD application for employment DHS proposes to strike and reserve 8 grant or renewal is approved is not authorization up to 90 days before CFR 214.2(f)(13), which specifies how unique to this scenario. 8 CFR program end date and no later than 60 an F–1 student who has been granted 274a.13(d) automatically extends EADs days after program end date. 8 CFR employment authorization may apply upon the filing of a renewal request for 214.2(f)(11)(i)(B)(2). • for admission and resume employment, 180 days, after which the alien must STEM OPT: File the application for if readmitted to attend the same school cease employment if the renewal is still employment authorization up to 90 days which granted the employment pending. This policy is thus consistent before the expiration of current EAD authorization, when he or she returns to with the treatment of several other and within 60 days of the DSO’s the U.S. from a temporary absence nonimmigrant categories and DHS does recommendation. 8 CFR abroad. See 8 CFR 214.2(f)(13)(i) . The not believe it would cause significant 214.2(f)(11)(i)(C). DHS proposes to increase the number regulatory provision at 8 CFR disruption to F–1 students as most are of days applicants have to file prior to 214.2(f)(13)(ii) states that an F–1 student the program end date from 90 days to who has an unexpired EAD, issued for 126 The regulations set out the requirement that post-completion practical training, and F–1 nonimmigrants seeking OPT and STEM OPT 120 days and shorten the number of are required to apply for work authorization at 8 days students have to file an application who is otherwise admissible, may return CFR 274a.12(c) and (c)(3). for post-completion OPT after the to the United States to resume

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employment after a period of temporary proposed 8 CFR 214.2(i)(2). Further, to Consistent with DOS guidance and absence. As DHS sets forth admission conform to the statutory intent of the I current USCIS practice, whether content procedures to pursue off campus classification, DHS is proposing to is journalistic information would employment, post-completion training, clarify and codify the DOS and USCIS depend on the nature of the content and STEM OPT in proposed 8 CFR long-standing practice interpreting featured on the new media outlet. For 214.1(a)(4)(i)(D), the reference in 8 CFR ‘‘foreign information media’’ under INA example, a political blogger traveling to 214.2(f)(13) is redundant and could lead 101(a)(15)(I) as ‘‘journalistic the United States to cover an election to confusion. information.’’ This standard is in place could qualify for I status, as election when aliens apply for an I visa abroad coverage would generally be considered ix. Border Commuter Students or seek to change to I nonimmigrant journalistic information. In this DHS proposes to replace status in the United States and aligns example, the applicant would still need ‘‘nonimmigrant student’’ with ‘‘alien with statutory intent, which is to to demonstrate that he or she satisfies with F–1 status’’ consistent with facilitate foreign press and journalism, the other qualifications of an proposed revisions throughout the rather than for entertainment or information media representative, NPRM, and to strike the sentence promotional purposes, such as including that he or she represents an referencing how ‘‘duration of status’’ is performing or appearing on reality organization involved in the regular inapplicable to border commuter television programs. There are other gathering, production, or dissemination students because DHS is proposing to options for those aliens, such as the P of journalistic information that has a eliminate duration of status for all F nonimmigrant classifications.128 home office in another country.131 nonimmigrants. See proposed 8 CFR DOS is the entity that determines Similarly, a professional travel 214.2(f)(18)(iii). whether an alien qualifies for an I visa, blogger traveling to the United States to while USCIS is the entity that obtain and produce materials on F. Requirements for Admission, determines whether an alien who is in national parks in the United States Extension, and Maintenance of Status of the United States in another could also qualify for I classification if I Nonimmigrants nonimmigrant status can change to I all aspects of the definition of an i. Definition of Foreign Media status or whether an I alien who is information media representative are Organization already in the United States and seeks established, including the requirement Changes in technology and in the way to change his or her employer or that the media content generated will be that the public consumes media information medium continues to journalistic information and that he or information have raised novel questions qualify for an I status. USCIS and DOS she represents an organization having as to whether certain individuals fit guidance discuss the distinction an office in a foreign country and that within the statutory and regulatory between journalistic content and is involved in the regular gathering, provisions that are applicable to content that is primarily for production, or dissemination of representatives of foreign information entertainment. DOS considers journalistic information. However, a journalistic information as ‘‘content that media. To address these questions, DHS blogger traveling to the United States to is primarily informational in nature, proposes to define a foreign media report on his or her own activities at a such as the reporting on recent or organization as ‘‘an organization national park may not qualify for I important events, investigative engaged in the regular gathering, status if the applicant does not represent reporting, or producing educational production, or dissemination via print, an organization involved in the regular materials, such as documentaries. It radio, television, internet distribution, gathering, production, or dissemination does not include content that is or other media, of journalistic of journalistic information and the primarily designed to provide information and has a home office in a media content is not primarily entertainment rather than information, foreign country.’’ See proposed 8 CFR journalistic information. Individuals including scripted or contrived who are not professional bloggers, but 214.2(i)(1). This proposal clarifies long- situations, such as most ‘‘reality standing practice that the alien be a maintain a personal blog and will television’’ shows. It also does not produce content on their blog based on representative of a media organization include most personal content, such as with a home office in a foreign country their personal experiences in the United discussions of personal experiences in States, such as providing information by codifying what is considered a the United States or materials aimed at foreign media organization when and reviews of their personal vacation, fan engagement, or works produced for generally would not qualify for I seeking qualification as an I promotional or marketing purposes.’’ 129 nonimmigrant.127 By requiring evidence classification, but may qualify for a B DOS’ definition aligns with current classification, depending on the that shows that the foreign organization USCIS practice where the ‘‘officer that employs or contracts the I circumstances. Likewise, a blogger should consider whether the intended promoting a line of products would not nonimmigrant has a home office in a use is journalistic, informational, or foreign country, and that the office in a qualify for I status. educational, as opposed to These standards facilitate the travel of foreign country continues to operate entertainment. The officer should also representatives of foreign information while the I nonimmigrant is in the consider the foreign distribution of the United States, DHS would help ensure film or video footage in addition to manual/volume-2-part-k-chapter-3 (last visited 4/ that the I nonimmigrant, at the time of other factors, including the timeliness of 13/2020) (stating that ‘‘[i]ncreasingly, because of the application for admission, change of the project relative to the subject growing popularity of documentary-type status, or application for extension of event.’’ 130 biographies and similar nonfiction film stay, is a bona fide representative of productions, the distinction between commercial filmmaking for entertainment and genuine news foreign media organization. See 128 INA section 101(a)(15)(P), 8 U.S.C. gathering is less clear. For example, filmed 1101(a)(15)(P). biographies may be regarded as documentary 127 See generally USCIS Policy Manual, Vol. 2, 129 See DOS guidance for consular officers filmmaking or as news gathering). Part K, Chap. 2. Available at https://www.uscis.gov/ adjudicating I visa applications at 9 FAM 402.11– 131 See 9 FAM 402.11–10, New Media—Blogging policy-manual/volume-2-part-k-chapter-2 (last 3. And Other Electronic Media Platforms, available at visited 6/18/2020); 22 CFR 41.52; 9 FAM 402.11– 130 See USCIS Policy Manual, Vol. 2, Part K, https://fam.state.gov/FAM/09FAM/ 3(a)(1). Chap. 3. Available at https://www.uscis.gov/policy- 09FAM040211.html (last visited Jan. 16, 2020).

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media. These proposed standards codify establishes that he or she is a changes to the filing procedure would and clarify existing U.S. government representative of a qualifying foreign be provided in the form instructions, practice and thus would not media organization that meets the which USCIS would post on its website, significantly alter the current guidance foreign home office requirement, and making it easily accessible to applicants. used by DHS officers adjudicating these describes the remuneration and work to iv. Change in Information Medium or cases or by DOS when determining be performed. In order to maintain the Employer whether an I visa should be issued. home office in another country, a self- Rather, codifying these standards in the employed applicant would need to DHS proposes to retain the regulation would clarify how demonstrate that he or she intends to requirement that aliens in I status may representatives of foreign press, radio, depart the United States within a not change the information medium or film or other journalistic information reasonable time frame consistent with the employer they will be working with media qualify for the I classification. the intended purpose of travel. Like the until they receive permission from DHS does not anticipate that the letter from the employing foreign media USCIS. See proposed 8 CFR 214.2(i)(4). changes proposed in this rule would organization, the attestation from the This is the current requirement and represent a significant departure from alien would help to ensure that the DHS believes it is appropriate to current processing. individual is engaging in qualifying continue ensuring DHS has an activities, not activities primarily opportunity to review the requested ii. Evidence intended for personal fan engagement, changes and ensure the changes would In order to be granted I classification, or promotional or marketing purposes, constitute as qualifying activities under an alien would need to meet his or her which are unrelated to the regular the I program. Aliens would request burden of proof to establish eligibility gathering, production, or dissemination such permission by submitting the form for admission in that nonimmigrant of journalistic information. See designated by USCIS, in accordance category. DHS believes that evidence proposed 8 CFR 214.2(i)(2). with that form’s instructions, and with presented by such individuals to the required fee, including any establish employment as a bona fide iii. Admission Period and EOS biometrics required by 8 CFR 103.16, as representative of foreign press, radio, DHS is proposing an admission appropriate. Aliens currently submit film or other journalistic information period for I nonimmigrants of up to 240 Form I–539, Application to Extend/ media should be provided in a letter days and another period of up to 240 Change Nonimmigrant Status, for this from the employing foreign media days for an extension, based on the purpose. As in other parts of the rule, organization verifying the employment, length of the activity. See proposed 8 the proposed regulation does not the work to be performed, and the CFR 214.2(i)(3) and (5). As I reference specific form names and remuneration involved. This evidence nonimmigrants who file a Form I–539 numbers in the regulatory text to would provide a standard basis for DHS request with USCIS to request a change provide flexibility for the future in the to evaluate whether the applicant in information medium are currently event the form name or number intends to comply with the I category allowed an automatic extension of changes. In all cases, applicants would and only engage in the regular employment authorization with the be provided sufficient notice of the gathering, production or dissemination same employer while a Form I–539 appropriate form on USCIS’ web page via print, radio, television, internet application is pending for a period not and in the form instructions. distribution or other media of to exceed 240 days, 8 CFR v. Proposed Changes to Treatment of I journalistic information and represents, 274a.12(b)(20), DHS believes that it is Nonimmigrants Travelling or Presenting as an employee or under contract, an appropriate to extend such period of a Passport From the Hong Kong Special organization with an office in a foreign time to other I nonimmigrant contexts. Administrative Region (SAR) country. For example, such a letter DHS seeks comments on whether this is would be able to describe the content an appropriate period of time and Earlier this year, DHS published a that the foreign information media whether exceptions for I nonimmigrants final rule (85 FR 27645, May 11, 2020) representative is covering in the United covered by certain international amending the I nonimmigrant provision States, which must be primarily agreements, including Section 11 of the in 8 CFR 214.2(i). The rule amended the journalistic information in nature, such United Nations Headquarters regulations to achieve greater as the reporting on recent or important Agreement, should be added to the final reciprocity in the treatment of certain events, investigative reporting, or rule. foreign nationals admitted to the United producing educational materials, such Aliens applying for an EOS currently States in I nonimmigrant status as bona as documentaries. Foreign media file a Form I–539 with USCIS, with fide representatives of foreign organizations would be able to describe required fee and in accordance with information media who are foreign how the content is primarily designed to form instructions, but DHS is using nationals travelling on a passport issued provide information rather than general terms in the proposed regulatory by the PRC, with the exception of Hong entertainment, such as scripted or text when referencing the EOS Kong Special Administrative Region contrived situations, such as most application. DHS is using general terms, (SAR) and Macau SAR passport holders. ‘‘reality television’’ shows, which do not rather than referencing form names and Under the rule, DHS has begun to admit qualify an individual for admission numbers, in the regulatory text to aliens in I nonimmigrant status or under the I nonimmigrant category.132 provide flexibility for the future—if the otherwise grant I nonimmigrant status to Where an alien is self-employed or form name or number changes, the aliens only for the period necessary to freelancing, the alien must provide an Department would not need to engage in accomplish the authorized purpose of attestation that verifies the employment, rulemaking to make the update. See their stay in the United States, not to proposed 8 CFR 214.2(i)(5). And, as exceed 90 days. The rule also allows 132 For more information about what qualifies as with other applicants who file a Form such visitors to apply for extensions of ‘journalistic information’ see 9 FAM 402.11–3 I–539, under the proposed rule stay. Since the effective date of this Definitions of ‘‘Information Media Representative’’ and ‘‘Journalistic Information’’, available at https:// applicants would be required to submit rulemaking involving I nonimmigrants fam.state.gov/FAM/09FAM/09FAM040211.html biometrics. See proposed 8 CFR from the PRC, the National People’s (last visited Jan. 14, 2020). 214.2(i)(5). Specific guidance and any Congress of China announced in late

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May its intention to unilaterally and nonimmigrants. Under proposed 8 CFR which the alien physician will return at arbitrarily impose national security 214.2(j)(1), J exchange visitors would be the end of additional specialty legislation on Hong Kong.133 able to receive a period of admission not education or training has an exceptional Accordingly, the President, under the to exceed the program end date as stated need for an individual with such authority vested to him by the on the Form DS–2019, up to a period of additional qualification. See 22 CFR Constitution and applicable laws of the 4 years, unless otherwise limited to a 62.27(e). United States, including, among others, shorter period under proposed section 8 • International visitors: The length of section 202 of the United States-Hong CFR 214.2(j)(6). Currently, the time necessary to complete the program, Kong Policy Act of 1992 (22 U.S.C. permissible initial time periods for the not to exceed 1 year. See 22 CFR 5722), has determined that the Special J programs (as opposed to the periods of 62.28(g). Administrative Region of Hong Kong is admission) are as follows, though • Government visitors: The length of no longer sufficiently autonomous to further extensions are possible with time necessary to complete the program, justify differential treatment in relation DOS approval for all categories: not to exceed 18 months. See 22 CFR to the People’s Republic of China under • Professors and research scholars: 62.29(h). relevant U.S. laws, and issued an The length of program, not to exceed 5 • Camp counselors: 4 months. See 22 Executive Order that, among others years. See 22 CFR 62.20(i)(1). CFR 62.30(h)(2). • things, directed agencies to begin the Short-term scholars: The length of • Au pairs: Not more than 1 year. See process of eliminating policy program, not to exceed 6 months. See 22 22 CFR 62.31(c)(1). exemptions that give Hong Kong CFR 62.21(g). • • Summer work travel: Up to 4 differential treatment in relation to PRC. Trainees and interns: General months. See 22 CFR 62.32(c). In light of this Executive Order, DHS is trainees may be granted 18 months; As with the F category, many J proposing to amend its regulations to trainees in the field of agriculture, exchange visitors are admitted to eliminate differential treatment of I hospitality and tourism may be granted participate in programs shorter than 4 aliens who present, or are traveling on, 12 months, and interns may be granted years. Some J exchange visitors, like passports from the Hong Kong SAR, and 12 months. See 22 CFR 62.22(k). • most F nonimmigrants, enter as post- grant these aliens a period of stay College and university students: secondary students. Similar to the F–1 necessary to accomplish the authorized The length of time necessary to Ph.D. student, some J nonimmigrants, purpose of their I status, not to exceed complete the goals and objectives of the like physicians, may need to stay longer 90 days. The rule also proposes to allow training. See 22 CFR 62.23(f)(4). For than a 4-year period to complete their J these I aliens to apply for extensions of undergraduate and pre-doctoral program. However, many categories of J stay, not to exceed 90 days. In addition, training, not to exceed 18 months, and nonimmigrants would be covered by the aliens in I nonimmigrant status for post-doctoral training, not to exceed same 4-year period proposed for F presenting passports issued by the Hong a total of 36 months. 22 CFR 62.23(f)(4). nonimmigrants. As such, it makes sense Kong SAR who are properly Students enrolled in a degree program for DHS to treat these similarly situated maintaining their status on the [FINAL do not have a definite admission period nonimmigrants in a consistent manner RULE EFFECTIVE DATE] with but must comply with duration of by providing them with the same admission for D/S are authorized to participation requirements at 22 CFR proposed, maximum admission period. remain in the United States in I 134 62.23(h). If enrolled in a non-degree See proposed 8 CFR 214.2(j)(1)(ii)(A). nonimmigrant status for a period program, students may be granted up to necessary to complete their activity, not This would help ensure compliance by 24 months. See 62.23(h)(2). providing consistency between the J to exceed [DATE 90 DAYS AFTER • Student intern: Up to 12 months. program and the F program, which have EFFECTIVE DATE OF FINAL RULE]. I See 22 CFR 62.23(h)(3) and (i). programmatic similarities. nonimmigrants who seek to remain in • Teachers: The length of time the United States longer than the necessary to complete the program, not DHS proposes to retain the 30-day automatic extension period provided to exceed 3 years, unless a specific period that J nonimmigrants are would be required to file an extension extension of 1 or 2 years is authorized provided before the report date or start of stay request with USCIS. These by DOS. See 22 CFR 62.24(j). of the approved program listed on the proposed changes are in line with the • Secondary school students: Not DS–2019 and the 30-day period at the current requirements for I more than two academic semesters (or end of the program. As DHS expects nonimmigrants who are traveling on, or quarter equivalency). See 22 CFR these nonimmigrants to use the 30-day have been issued a passport, by the PRC, 62.25(c)(2). period of time after the program ends to which were enacted to achieve greater • Specialists: The length of time prepare for departure, the Department reciprocity between the United States necessary to complete the program, not proposes to revise the language and the PRC. to exceed 1 year. See 22 CFR 62.26(i). currently in 8 CFR 214.2(j)(1)(ii) that • Alien physicians: Limited to 7 reads, ‘‘period of 30 days for the G. Requirements for Admission, years, unless the alien physician has purposes of travel or for the period Extension, and Maintenance of Status of demonstrated to the satisfaction of the designated by the Commissioner. . .,’’ J Exchange Visitors Secretary of State that the country to to instead read ‘‘a period of 30 days at i. Admission Period and Period of Stay the end of the program for the purposes 134 of departure or to otherwise maintain 1. Principal Applicants A student who is in a degree program may be authorized to participate in the Exchange Visitor status.’’ See proposed 8 CFR The proposed revisions to the J Program as long as he or she is either: (i) Studying 214.2(j)(1)(ii)(C). DHS believes that the regulations at 8 CFR closely align with at the post-secondary accredited academic proposed language more accurately institution listed on his or her Form DS–2019 and: the proposed changes for F (A) Pursuing a full course of study as set forth in reflects the purpose of the period at the paragraph (e) of this section, and (B) Maintaining end of the program and accounts for 133 See the President’s Executive Order on Hong satisfactory advancement towards the completion of other ways J exchange visitors may Kong Normalization, July 14, 2020, See https:// the student’s academic program; or (ii) Participating maintain status during this period, such www.whitehouse.gov/presidential-actions/ in an authorized academic training program as presidents-executive-order-hong-kong- permitted in paragraph (f) of this section. 22 CFR as by filing an EOS or change of status normalization/ (last visited July 21, 2020). 62.23(h). application.

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Similar to the limitations proposed in appropriate actions that are within the is also a fast and easy way for sponsors 8 CFR 214.2(f)(20), the factors proposed scope of their respective authorities to and host institutions to demonstrate in section (j)(6) focus on fraud and reduce overstay rates for all classes of their commitment to maintaining a legal national security concerns. The factors nonimmigrant visas,’’ 136 could workforce. DHS identified for limiting initial encourage future compliance by Like the limiting factors for admission admission to a maximum of 2 years are: incentivizing timely departures so that a of F students, any one factor could • Certain countries. Like F country that exceeds the threshold trigger the designation of a maximum 2- nonimmigrants, exchange visitors who might be removed from the list of high year period of stay. And, like F students, were born in or are citizens of countries overstay rates on the DHS Entry/Exit J exchange visitors who depart the listed in the State Sponsor of Terrorism report. The restriction also would United States or for any reason would List. DHS would publish a notice in the permit DHS to have more frequent need to file an EOS application become Federal Register listing the countries scrutiny of individuals from countries subject to all terms and conditions of whose nationals are subject to a 2-year that present more risk, such that the admission, including the 2-year maximum period of stay in J–1 status. agency may sooner ascertain whether an limitation. This would include cases Changes to the list would be made by alien has violated their status. where an exchange visitor is admitted issuance of a new Federal Register • U.S. national interest. DHS for a 4-year period, but in the midst of Notice. As the State Sponsor of proposes to include a factor to limit the their 4-year admission, a new Federal Terrorism List are countries determined maximum period of admission to 2 Register Notice is published, making the by the Secretary of State to have years if it serves the U.S. national exchange visitor subject to the 2-year repeatedly provided support for acts of interest. As in the F program, this admission; even though the alien international terrorism, DHS believes it provision would provide the Secretary generally may remain in the United is appropriate to apply additional of Homeland Security and Secretary of States for the remainder of the 4-year scrutiny to those who were born in State the requisite flexibility to identify period without seeking an extension of these countries or are citizens of these potential risks of fraud and abuse to the stay, if they depart the United States or countries who are temporarily in the United States’ immigration programs for any reason need to file an EOS United States to ensure that these aliens and risks to national security that do not application, then they will be subject to are complying with the terms of their fit precisely within the other named the 2-year maximum period of admission and that they do not pose categories. If the Department determines admission. See proposed 8 CFR risks to the national security of the that certain technical fields pose a 214.2(j)(6)(iii). United States. national security risk, more frequent The ultimate decision as to whether to • Countries with high overstay rates. vetting of the exchange visitors may admit the alien, and the maximum Like F nonimmigrants, exchange visitors serve in the national interest to mitigate period of admission for such alien, would remain with the Secretary of who are citizens of countries with a the threats. If DHS determines that Homeland Security, consistent with the nonimmigrant student and exchange certain circumstances would be in the Secretary’s statutory obligation to visitor total overstay rate greater than 10 U.S. national interest to limit admission administer and enforce the nation’s percent according to the most recent to a 2-year maximum period, then it immigration laws. See, e.g., INA 103(a), DHS Entry/Exit Overstay report.135 The would provide the public advance 235; see also proposed 8 CFR 214.2(j)(6). DHS Entry/Exit Overstay report notice of such circumstance through The first FRN listing the countries compiles overstay rates for different publication of a Federal Register Notice. triggering the 2-year admission period, classifications. It provides overstay rates • E-Verify participation. While this along with other determinations related per country for F, M, and J proposed change would not impose a to this provision,138 would be published nonimmigrants together, rather than a requirement that the program sponsor or separate overstay rate by classification, contemporaneously with the final rule. host institution be enrolled in or be a Subsequent updates would be made as per country. Given the overlap between participant in good standing in E-Verify, the F and J nonimmigrant needed and would provide stakeholders it would encourage those organizations with notice in advance of any change. classifications, utilizing the data for that are not currently enrolled or in both exchange visitors and students to good standing to attain such status 2. Dependents establish overstay rates is useful in that rather than potentially lose future Consistent with the extension of stay it may deter aliens who may attempt to exchange visitors. E-Verify participation eligibility requirements for the J–1 seek admission in one status rather than helps to combat document fraud, found at 8 CFR 214.1(c)(4), DHS the other in order to obtain a lengthier identifies errors in certain Government proposes to codify the policy that period of admission. DHS would records belonging to employees, and extensions for spouses or children who publish a notice in the Federal Register may be used by law enforcement are granted J–2 status based on their listing the countries whose citizens are agencies to aid in the prevention of derivative relationship as a spouse or subject to a 2-year maximum period of identity theft.137 E-Verify participation child of the principal J–1 nonimmigrant stay in J–1 status. Changes to the list may not exceed the period of authorized would be made by issuance of a new 136 See Presidential Memorandum on Combating admission of the principal J–1. The Federal Register Notice. Placing High Nonimmigrant Overstay Rates (April 22, 2019) current regulations state that the initial restrictions on citizens of countries with available at https://www.whitehouse.gov/ presidential-actions/presidential-memorandum- admission of a spouse or child may not high overstay rates, consistent with the combating-high-nonimmigrant-overstay-rates/ (last be for longer than the principal percent described by the Administration visited April 14, 2020). The Presidential exchange visitor.139 That is, the as a ‘high’ overstay rate for the purpose Memorandum identified countries with a total authorized period of initial admission of enabling DHS and DOS to overstay rate greater than 10 percent in the combined B–1 and B–2 nonimmigrant visa category ‘‘immediately begin taking all as appropriate for additional engagement by the privacy/how-does-e-verify-use-my-information (last DOS, which ‘‘should identify conditions visited Apr.14, 2020). 135 The overstay report for 2018 can be found at contributing to high overstay rates among nationals 138 This information is currently available at https://www.dhs.gov/sites/default/files/ of those countries. . .’’ https://ope.ed.gov/dapip/#/home (last visited Jan. publications/19_0417_fy18-entry-and-exit-overstay- 137 E-Verify.gov website, How does E-Verify use 26, 2020). report.pdf, see Table 4, Column 6. my information?, https://www.e-verify.gov/faq/ 139 8 CFR 214.2(j)(1)(ii).

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for J–2 dependents would be subject to do not have to apply to USCIS for in addition to a new application for the same requirements as the J–1 authorization to engage in employment. employment authorization, in the exchange visitor and may not exceed the Upon timely filing of an EOS manner designated by USCIS, with the period of authorized admission of the application, DHS proposes to allow the required fee and in accordance with principal J–1 exchange visitor. See alien to continue engaging in activities form instructions. See proposed 8 CFR proposed 8 CFR 214.2(j)(1)(ii)(B). consistent with the terms and 214.2(j)(1)(v)( ). conditions of the alien’s program, As noted above in the discussion ii. EOS including any employment concerning EOS applications for F The shift from D/S to admission for a authorization, beginning on the day nonimmigrants, DHS considered but fixed time period would mean that J after the admission period expires, for declined to adopt a policy that would nonimmigrants wishing to remain in the up to 240 days. See 8 CFR result in abandonment of the EOS United States beyond their authorized 274a.12(b)(20). Such authorization application upon traveling outside the period of stay would need to file an EOS would be subject to any conditions and United States while the EOS is pending. application with USCIS. Like other limitations of the initial authorization. A J–1 or J–2 alien who travels during the nonimmigrants applying for EOS, they See proposed 8 CFR 214.2(j)(1)(vii). This time the EOS is pending will not be would currently need to file a Form I– policy is consistent with current considered to have abandoned the EOS 539 in accordance with that form’s practice and prevents J–1 exchange application. See proposed 8 CFR instructions, with the required fee, and visitors from being penalized on 214.1(c)(6)(i). including any biometrics or interview as account of USCIS processing times, Finally, DHS proposes minor required by 8 CFR 103.16. See proposed allows the alien to participate in the technical updates. First, DHS proposes 8 CFR 214.2(j)(1)(iv)(A). J–1s seeking a program without interruption, and, as to update outdated terms such as program extension will continue to first applicable, prevents disruption to U.S. ‘‘Commissioner’’ and ‘‘Service’’ in 8 request such an extension through the institutions employing or otherwise CFR 214.2(j)(1)(vi), replacing them with RO, as provided for under current relying on the alien. USCIS. Second, in 8 CFR 214.2(j)(1)(vi) regulations.140 If such a program If the alien’s initial date of admission DHS proposes to strike the reference to extension is recommended by the RO, passes, DHS proposes to consider the duration of status and replace it with the J–1 must apply for an EOS with alien’s Form I–94 unexpired when ‘Extension of J–1 stay and grant of USCIS to remain in the U.S. beyond the combined with a USCIS receipt notice employment authorization for aliens status expiration date on their I–94. indicating receipt of a timely filed EOS who are the beneficiaries of a cap- Dependent J–2 spouses and children application and a valid, properly subject H–1B petition’ which is seeking to accompany the J–1 exchange endorsed Form DS–2019 indicating his consistent to the terminology proposed visitor during the additional period of or her program’s end date. An EOS in 8 CFR 214.2(f)(5)(vi). Third, because admission would either need to be application would be considered timely proposed 8 CFR 214.2(j)(1)(vii) is being included on the primary applicant’s filed if the receipt notice for the revised to describe J nonimmigrants request for extension or file their own application of EOS is on or before the with pending extension of stay EOS applications on the form date the authorized stay expires. The applications and their employment designated by USCIS, and may be extension of an alien’s authorized authorization, it is necessary to revise required to provide biometrics employment would terminate on the and reassign current 8 CFR consistent with 8 CFR 103.16. See date of denial of an individual’s 214.2(j)(1)(vii) and (viii) to proposed 8 proposed 8 CFR 214.2(j)(1)(iv)(D). As application for an EOS. See proposed 8 CFR 214.2(j)(1)(viii) and (ix) with other nonimmigrant categories, the CFR 214.2(j)(1)(iv)(B). DHS believes that respectively. Fourth, DHS proposes period of stay for J–2 dependents cannot such provision would clarify how conforming amendments to the exceed the period of stay authorized for exchange visitors would demonstrate provision which requires exchange the principal J–1 exchange visitor. And, authorization to continue engaging in visitors to report legal changes to their as with other nonimmigrant categories, employment authorized pursuant to name and any changes in their address, if an EOS is denied, the aliens would their program and better facilitate replacing the term ‘Service’ with need to immediately depart the United employer compliance with I–9 ‘USCIS’ and clarifying the number of States once their authorized period of employment verification requirements. days during which changes need to be stay expires. Unlike J–1 exchange visitors, J–2 reported by revising from 10 days to 10 spouses and minor children may only iii. Employment and Pending EOS and ‘calendar’ days for exchange visitors to engage in employment with report changes in their names and Employment Authorization authorization by USCIS. See 8 CFR Applications addresses and from 21 days to 10 214.2(j)(1)(v) as also provided for in business days for the RO to update Like I nonimmigrants, J–1 exchange proposed 8 CFR 214.2(j)(1)(vii)(C). DHS SEVIS, in order to conform with existing visitors are authorized to engage in also proposes to retain the current DOS regulations.142 See proposed 8 CFR 141 employment incident to status. This restriction on the J–2 dependent’s 214.2(j)(1)(ix). This change is proposed means that they are authorized to work income described in 8 CFR because the differing number of days for per the terms of their program, and they 214.2(j)(1)(v)(A); the J–2 nonimmigrant’s ROs to report changes between DHS and income may be used to support the DOS regulations may cause confusion 140 See 22 CFR 62.43, describing J–1 program family’s customary recreational and given that the time frames are both extension procedures. cultural activities and related travel, regarding the requirement for ROs to 141 See 8 U.S.C. 1101(a)(15)(J) (including teaching, among other things, but not to support instructing, lecturing, and consulting among the permissible activities of nonimmigrants in the J the J–1. See proposed 8 CFR 142 22 CFR 62.10(d)(3) clarifies that the J–1 category for participation in programs authorized by 214.2(j)(1)(v)( ). exchange visitor must inform the RO or ARO of the Department of State); 8 CFR 214.2(j)(1)(v) If a J–2 dependent nonimmigrant’s address changes within ‘‘10 calendar days’’ of the (discussing employment authorization for J requested period of employment change, and 22 CFR 62.10(d)(4) states that the exchange visitors); 22 CFR 62.16 (stating that an reporting window for ROs or AROs to update SEVIS exchange visitor program participant may receive authorization exceeds his or her current is ‘‘10 business days’’ from receiving the J–1 compensation ‘‘when employment activities are admission period, the J–2 dependent exchange visitor’s address change notification from part of the exchange visitor’s program’’). would need to file an EOS application, the J–1 exchange visitor.

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update changes in SEVIS, and this abandoned.144 See proposed 8 CFR language to be consistent with proposed change provides for a common 248.1(g). Note, however, if there is an cap-gap provisions at 8 CFR timeframe. In that same provision, DHS underlying petition filed along with the 214.2(f)(5)(vi). proposes to strike the sentence which change of status, that petition may still Fourth, as discussed above, in references non-SEVIS programs, as be approved, but the alien generally proposed 8 CFR 274a.12(b)(10), DHS SEVIS enrollment is now a mandatory would have to obtain the necessary visa proposes to cross-reference proposed requirement. Id. Finally, DHS proposes at a U.S. Embassy or Consulate abroad language in 8 CFR 214.2(i) for I changes to the regulatory provisions to before applying for admission to the nonimmigrants, which clarifies that refer to J nonimmigrants as ‘‘exchange United States in the new nonimmigrant limitations currently in the provision visitors,’’ to promote consistency with classification. (an alien in this status may be employed DOS regulations. Additionally, DHS proposes minor only for the sponsoring foreign news technical edits: Replacing the words ‘‘A agency or bureau) allow for freelance H. Change of Status district director’’ in newly re-designated and self-employment situations where DHS is proposing to add two paragraph (g) with ‘‘USCIS’’; replacing the I nonimmigrant may not have a provisions to 8 CFR part 248, which ‘‘shall’’ in newly re-designated ‘‘sponsoring’’ foreign news agency or governs changes of status. First, DHS is paragraph (g) with ‘‘will’’; and replacing bureau, and instead would need to proposing to clarify that aliens who all instances of ‘‘shall’’ with ‘‘will’’ in show, among other requirements were granted a change to F or J status newly re-designated paragraph (h). indicated in proposed 8 CFR 214.2(i), before the effective date of the final rule, I. Classes of Aliens Authorized To that they are working for a qualifying and are applying for admission as an F foreign media organization. or J after the final rule’s effective date Accept Employment may be admitted up to the program end DHS is proposing the following V. Statutory and Regulatory date as noted on the Form I–20 or DS– updates to regulations pertaining to Requirements 2019 that accompanied the change of employment authorization: First, as DHS developed this proposed rule status application that was approved discussed above, DHS proposes to after considering numerous statutes and prior to the alien’s departure, not to change 8 CFR 274a.12(b)(6)(i) to executive orders related to rulemaking. exceed 4 years, unless they are subject conform with proposed revisions in 8 The below sections summarize our to a 2-year admission proposed in 8 CFR CFR 214.2(f)(9)(i), which as discussed analyses based on a number of these 214.2(f)(20) or (j)(6), plus a period of 30 above, would terminate on-campus statutes or executive orders. days following their program end date, employment as of the alien’s fixed date to prepare for departure or to otherwise of admission as noted on his or her A. Executive Orders 12866, 13563, and seek to obtain lawful authorization to Form I–94. If the alien has timely 13771: Regulatory Review remain in the United States. See applied for an extension of stay, Executive Orders 12866 (‘‘Regulatory proposed 8 CFR 248.1(e). That is, CBP however, pursuant to proposed 8 CFR Planning and Review’’) and 13563 may admit these aliens into the United 214.2(f)(5)(vii), the current on-campus (‘‘Improving Regulation and Regulatory States up to the program end date, on and severe economic hardship Review’’) direct agencies to assess the the Form I–20 or DS–2019 that employment authorization of such an costs and benefits of available regulatory accompanied the approved change of alien may be automatically extended for alternatives and, if regulation is status prior to the alien’s departure, plus up to 180 days, or until adjudicated by necessary, to select regulatory an additional 30 days, thus ensuring USCIS, whichever is earlier, as approaches that maximize net benefits that they do not get more time than described in that section. See proposed (including potential economic, allocated by their program end date, 8 CFR 274a.12(b)(6)(i). In cases where environmental, public health, and safety since these Fs and Js would have employment is authorized pursuant to effects; distributive impacts; and received an admission period for D/S on severe economic hardship resulting equity). Executive Order 13563 the I–94 that accompanied the change of from emergent circumstances under 8 emphasizes the importance of status approval. CFR 214.2(f)(5)(v), the validity period of quantifying both costs and benefits, Second, DHS is proposing to codify the employment authorization is reducing costs, harmonizing rules and long-standing policy that, when an alien provided by notice in the Federal promoting flexibility. Executive Order timely files an application to change to Register and indicated by a Certificate 13771 (‘‘Reducing Regulation and another nonimmigrant status, including of Eligibility for Nonimmigrant (F–1/M– Controlling Regulatory Costs’’) directs F or J status, but departs the United 1) Students, Form I–20 or successor agencies to reduce regulation and States while the application is pending, form, endorsed by the Designated control regulatory costs and provides USCIS will consider the application School Official recommending such an that ‘‘for every one new regulation abandoned.143 Under INA 248, DHS extension. See proposed 8 CFR issued, at least two prior regulations be may authorize a change of status to a 274a.12(b)(6)(i). identified for elimination, and that the nonimmigrant who, among other things, Second, as discussed above, DHS cost of planned regulations be prudently continues to maintain his or her status. proposes to clarify that CPT terminates managed and controlled through a Thus, pursuant to a policy that has been on the alien’s fixed date of admission as budgeting process.’’ in place for decades, the change of noted on their Form I–94. An F–1 alien This rule has been designated a status application of an alien who whose fixed date of admission noted on ‘‘significant regulatory action’’ that is travels outside of the United States their Form I–94 has expired may not economically significant, under section during the pendency of his or her engage in CPT until USCIS approves an 3(f)(1) of Executive Order 12866. request for a change of status is deemed alien’s EOS request. See proposed 8 CFR Accordingly, the rule has been reviewed 274a.12(b)(6)(iii). by the Office of Management and 143 See Letter, Bednarz, Chief, NIV Branch, Third, as discussed above, DHS Budget. Adjudications CO 238–C (Oct. 29, 1993), reprinted proposes to strike the reference to D/S in 70 No. 46 Interpreter Releases 1604, 1626 (Dec. 1. Summary 6, 1993); INS Memorandum, HQ 70/6.2.9, Travel in 8 CFR 274a.12(b)(6)(v) and update the After Filing a Request for a Change of Currently, aliens in the F (academic Nonimmigrant Status, (June 18, 2001). 144 Id. student), J (exchange visitor), and I

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(representatives of foreign information replace duration of status (D/S) with an 2020. Therefore, the analysis period media) categories are admitted to the admission for a fixed time period. goes from 2020 through 2029. This United States under the duration of Admitting individuals in the F, J, and I analysis estimates the annualized value status framework. However, this categories for a fixed period of time of future costs using two discount rates: framework poses a challenge to the would require all F, J, and I aliens who 3 percent and 7 percent. In Circular A– Department’s ability to efficiently wish to remain in the United States 4, OMB recommends that a 3 percent monitor and oversee these beyond their specific authorized discount rate be used when a regulation nonimmigrants, as the duration of status admission period to apply for affects private consumption, and a 7 framework does not require immigration authorization to extend their stay percent discount rate be used in officers to assess whether these directly with USCIS or CBP. This evaluating a regulation that will mainly nonimmigrants are complying with the change would impose incremental costs displace or alter the use of capital in the terms and conditions of their stay, or on F, J, and I aliens, but would in turn private sector. The discount rate whether they present a national security protect the integrity of the F, J and I concern, unless some triggering event programs by having immigration officers accounts for how costs that occur sooner (such as an encounter in an enforcement evaluate and assess the appropriate are more valuable. As shown in Table 1, setting, or a request for a benefit from length of stay for these nonimmigrants. the NPRM would have an annualized USCIS) leads to a review of the The period of analysis for the rule cost ranging from $229.9 million to nonimmigrant’s compliance. To address covers 10 years and assumes the $237.8 million (with 3 and 7 percent these vulnerabilities, DHS proposes to proposed rule would go into effect in discount rates, respectively).

TABLE 1—OMB A–4 ACCOUNTING STATEMENT (2018$)

7 Percent 3 Percent Source citation Category discount rate discount rate (RIA, preamble, etc.)

BENEFITS: Annualized Monetized $millions/year ...... N/A ...... N/A ...... N/A. Annualized Quantified ...... N/A ...... N/A ...... N/A.

Qualitative ...... • Would enhance DHS’s ability to enforce the unlawful Preamble, RIA Section presence provisions of the INA at conclusion of their fixed VI.A.4. period of admission. • Would deter F, J, and I nonimmigrants from engaging in fraud and abuse and strengthen the integrity of these nonimmigrant classifications. • Would provide DHS with additional information to promptly detect national security concerns. • Would increase DHS’ ability to detect those non- immigrants who are not complying with the terms and conditions of their status. • Would ensure that immigration officers, who are U.S. Government officials, are responsible for reviewing and deciding each F, J or I nonimmigrant’s extension of stay request.

COSTS: Annualized Monetized $millions/year ...... $237.8 ...... $229.9 ...... RIA Section VI.A.4. Annualized quantified ...... N/A ...... N/A ...... N/A.

Qualitative ...... • Burden associated with government requests for addi- RIA Section V.A.4. tional information from or in-person interviews with non- immigrants. • Potential reduction in enrollment of nonimmigrant stu- dents and exchange visitors. • CBP and USCIS costs for proposed rule familiarization and training and additional steps at ports of entry to as- sess fixed period of time for admission. • Costs associated with EOS requests from F–1 non- immigrants attending schools that are not enrolled in E- Verify. • Potential burden to schools/program sponsors and DHS to update batch processing systems that facilitate ex- change of data between DSOs/ROs and SEVIS. • Potential costs to F–1 students and schools from limita- tions on changes in education levels. • Potential burden on F–1 English language training (ESL) program students who could no longer pursue an ESL course of study beyond 24 months.

TRANSFERS: Annualized Monetized $millions/year ...... N/A. N/A. Annualized quantified ...... N/A. N/A.

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TABLE 1—OMB A–4 ACCOUNTING STATEMENT (2018$)—Continued

7 Percent 3 Percent Source citation Category discount rate discount rate (RIA, preamble, etc.)

Qualitative ...... Potential reduction in fees collected by SEVP and DOS to RIA V.A.4. cover the cost of the programs due to a potential reduc- tion in international enrollment.

Category Effects Source Citation (RIA, preamble, etc.)

State, Local, and/or Tribal Government ...... Some public schools would incur incremental costs to RIA V.A.4. comply with the proposed rule and a potential decline in international enrollment. Small business ...... Some small businesses would incur incremental costs to Initial Regulatory Flexibility comply with the proposed rule. Analysis. Wages ...... None. N/A. Growth ...... None. N/A.

2. Background and Purpose of the and periodically vets their applications proposed rule, they would generally Proposed Rule for extension of stay and, in doing so, begin to accrue unlawful presence Unlike aliens in most nonimmigrant confirm they are engaged only in following the expiration of their categories who are admitted until a activities consistent with their student authorized period of admission, as specific departure date, F, J, and I or exchange visitor status. Under the noted on the Form I–94, and could nonimmigrants are admitted into the proposed changes, DHS would more potentially become inadmissible based United States for a period of time frequently collect biometrics and other on that accrual of unlawful presence necessary to engage in activities information, enhancing the under section 212(a)(9)(B) and (C), 8 authorized under their respective [visa] Government’s oversight and monitoring U.S.C. 1182(a)(9)(B) and (C), upon classifications. This period of time is of these aliens. departing the United States. Those referred to as ‘‘duration of status’’ (D/S) To address these concerns, the grounds of inadmissibility have and, under the D/S framework, proposed rule would replace the D/S important and far-reaching implications nonimmigrants do not receive a fixed framework for F, J, and I nonimmigrants on an alien’s future eligibility for a period of admission. Since the with a framework that authorizes an nonimmigrant visa, admission to the introduction of D/S, the number of F, J, admission period with a specific date United States, an immigrant visa, or and I nonimmigrants admitted into the upon which an authorized stay ends. adjustment of status to that of a lawful United States has significantly Nonimmigrants who would like to stay permanent resident, and therefore may increased. Admission for D/S, in in the United States beyond their fixed deter F, J, and I nonimmigrants from general, does not give immigration date of admission would need to apply failing to maintain status or engaging in officers enough opportunities to directly directly with DHS for an extension of fraud and abuse and strengthen the verify that aliens granted such stay. As the admission for a fixed time integrity of these nonimmigrant. nonimmigrant status are engaging only period of authorized stay is already in classifications. place for most other nonimmigrant in those activities authorized by their 3. Affected Population respective classifications while they are categories, this change brings F, J and I in the United States. In turn, this has nonimmigrants in line with most other The proposed rule would primarily undermined DHS’s ability to effectively classifications. Providing F, J and I affect F, J, and I nonimmigrants and enforce the statutory inadmissibility nonimmigrants a fixed time period of their dependents by requiring some grounds related to unlawful presence authorized stay would require them to nonimmigrants in these categories to file and has created incentives for fraud and apply to extend their stay, change their an EOS application to extend their stay abuse. nonimmigrant status, or otherwise seek beyond their fixed period of admission. Additionally, the D/S framework to obtain authorization to remain in the F nonimmigrants are individuals creates opportunities for foreign United States (e.g., by filing an enrolled as bona fide students at SEVP- adversaries to exploit these programs application for adjustment of status) certified schools, J nonimmigrants are and undermine U.S. national security, prior to the end of this specific individuals participating in work and in part due to the reduced opportunities admission period similar to most other study-based exchange visitor programs, for direct vetting of foreign academic nonimmigrants. and I nonimmigrants are foreign students by immigration officers. An The proposed rule would ensure an information media representatives. In open education environment in the effective mechanism for the Department the sections below, DHS describes the United States offers enormous benefits, to periodically and directly assess data and methods used to (1) estimate but it also places research universities whether these nonimmigrants are the annual population size for each and the nation at risk for economic, complying with the conditions of their analyzed visa classification, (2) academic, or military espionage by classifications and U.S. immigration characterize these annual populations foreign students and exchange visitors. laws, as well as to obtain timely and with respect to the need to file an EOS DHS believes that replacing admissions accurate information about the activities request, and (3) develop projections for for D/S for F–1 students and J–1 they have engaged in and plan to engage the annual number of EOS requests for exchange visitors with admission for a in during their temporary stay in the the evaluation period from 2020 to fixed time period would help mitigate United States. In addition, as F, J, and 2029. These analytical steps have been these national security risks, by I nonimmigrants would be admitted for implemented using the R Project for ensuring an immigration official directly a fixed period of admission under the Statistical Computing, an open-source

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analytical software platform.145 The from SEVIS and ADIS for fiscal year remove outliers in the data by removing proposed rule’s docket provides the (FY) 2016, FY 2017, and FY 2018 to data entries with an end date beyond SQL code used to query SEVIS and estimate the potentially affected 2050, (2) identify unique records by ADIS and the R code used to implement population. For each year of data, DHS removing duplicate entries, and (3) the logic for this analysis. estimated the total number of retain a single entry for nonimmigrants Estimating the Affected Population nonimmigrants in each category and the with multiple records by keeping either total number of individuals who would the entry linked to a currently active To identify potentially affected have to file an EOS in that year if the entry, or if there were no active entries, nonimmigrants, DHS used data from rule were in effect. Next, DHS used an keeping the entry with the latest end several agencies. Data for F and J average of these 3 years as a best date. In total, DHS reduced the number nonimmigrants were extracted from the estimate of the affected population. Student and Exchange Visitor of entries by approximately 240,000 Information System (SEVIS), including To estimate the total population of records for each fiscal year of data for data on student participation in OPT, nonimmigrants in each year of the the F nonimmigrants and approximately and J exchange visitor program analysis, DHS took steps to remove 4,000 records for each fiscal year of data sponsors. The Student and Exchange incomplete and incorrect data entries for the J nonimmigrants. This data Visitor Program (SEVP) oversees schools from the SEVIS and ADIS data. For F reduction has been largely driven by certified to enroll F and M and J nonimmigrants, DHS first elimination of multiple entries nonimmigrant students and their eliminated records that were missing associated with a unique SEVIS dependents. The Department of State data critical to the analysis such as data identifier, rather than by elimination of (DOS) manages Exchange Visitor entries without start and end dates for incomplete entries.150 the individual’s current program or Programs for nonimmigrant exchange Table 2 shows the estimated total entries that had a program start date that visitors in the J classification, and their number of F, J, and I nonimmigrants for dependents. Both SEVP and DOS use occurred after the program end date as this indicates that the start and end each fiscal year from 2016 to 2018, as SEVIS to track and monitor schools; well as the 3-year average. The F exchange visitor programs; and F, M, dates were entered improperly. In each estimates include F–1 and F–2 and J nonimmigrants while they are fiscal year of data, this resulted in nonimmigrants, J estimates include J–1 temporarily in the United States.146 elimination of approximately 4 percent Data on I nonimmigrants were of unique SEVIS entries for F and J–2 nonimmigrants, and I estimates extracted from the CBP Arrival and nonimmigrants but no appreciable data include both principal I and dependent Departure Information System (ADIS). loss for J nonimmigrants. In order to I nonimmigrants as there are no ADIS consolidates entry, exit, and only select individuals who were multiple categories of I visas. Over the admission status information from DHS enrolled during the year of analysis, 3-year period, there were approximately components, DOS, and the Canada DHS selected entries that had a program 1.7 million F nonimmigrants, 607,000 J Border Services Agency. ADIS contains end date that occurred on or after the nonimmigrants, and 35,000 I biographic information, biometric beginning of the year of analysis,148 and nonimmigrants active per year. Overall, indicators, and encounter data.147 had a program start date that occurred approximately 2.3 million persons DHS used nonimmigrant student and on or before the end of the year of participated annually in the F, J, and I exchange visitor program sponsor data analysis.149 DHS also took steps to (1) nonimmigrant programs combined.

TABLE 2—TOTAL NUMBER OF ACTIVE NONIMMIGRANTS BY CATEGORY AND FISCAL YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

F ...... 1,733,416 1,708,012 1,674,818 1,705,415 J ...... 590,992 627,752 603,292 607,345 I ...... 36,675 36,709 32,771 35,385

Total ...... 2,361,083 2,372,473 2,310,881 2,348,145 Estimates derived from SEVIS and ADIS data.

Each year, only a subset of the total criteria vary across the nonimmigrant nonimmigrants are their dependents. F nonimmigrant F, J, and I population categories. nonimmigrants include, but are not would be affected by the proposed rule limited to, individuals enrolled in Estimating EOS Requests for F provisions. DHS applied the criteria language training, bachelor’s degrees, Nonimmigrants contained within the proposed rule to and those engaged in OPT. estimate the subset of nonimmigrants F–1 nonimmigrants are bona fide This rule proposes a fixed period of that would be required to extend their students who seek to enter the United admission of up to 2 or 4 years for F authorized period of admission in each States temporarily and solely for the nonimmigrants, depending on whether year of the analysis in order to continue purpose of pursuing a full course of a nonimmigrant presents heightened the duration of studies observed in the study at an academic or language concerns related to fraud, abuse, and fiscal year 2016–2018 SEVIS data. These training school certified by SEVP. F–2 national security. The proposed rule

145 https://www.r-project.org/about.html. 148 In 2016, this cutoff is 10/01/2015; in 2017, it 1.01 entries per unique SEVIS identifier for J 146 More information on SEVIS can be found at is 10/01/2016; in 2018 it is 10/01/2017. nonimmigrants. https://www.ice.gov/sevis/overview. 149 In 2016, this cutoff is 9/30/2016; in 2017, it 147 More information on ADIS can be found at is 9/30/2017; in 2018 it is 9/30/2018. https://www.dhs.gov/publication/arrival-and- 150 There are approximately 1.15 entries per departure-information-system. unique SEVIS identifier for F nonimmigrants and

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includes the following criteria that recognized by the Secretary of the State Sponsors of Terrorism list or could result in an EOS request: Education; who are citizens of countries with a • Program Length. The • Extended Period of Admission. The student and exchange visitor total nonimmigrant’s program length exceeds nonimmigrant makes a change to his or overstay rate greater than 10 percent 4 years; 151 her program that affects the program according to the most recent DHS Entry/ • Certain Countries. The end date and requires an extension of Exit Overstay report, not in the last year nonimmigrant was born in or is a citizen stay, such as a change from OPT to a of their program, in a year of their of a country on the State Sponsors of STEM OPT extension or a change in program that was a multiple of two (e.g., Terrorism list, or is a citizen of a educational level; and year 2, 4, 6) and whose program country with a student and exchange • E-Verify Enrollment. The duration is greater than 2 years. visitor total overstay rate greater than 10 nonimmigrant’s school is not enrolled 3. Other Factors of U.S. National percent according to the most recent in E-Verify or is not a participant in Interest. Although the proposed rule DHS Entry/Exit Overstay report; 152 good standing in E-Verify as determined does not explicitly list other factors that • Other Factors of U.S. National by USCIS. may serve the U.S. national interest, the Interest. The nonimmigrant is subject to In this analysis, DHS does not present analysis uses enrollment in the nuclear other factors determined to be in the the number of individuals meeting each physics or nuclear engineering courses U.S. national interest, which may limitation criterion, as some individuals as examples of courses that could pose include but not be limited to may meet multiple criteria. The affected a risk to U.S. national security to circumstances where there may be population estimates reflect the overall estimate the potential impacts of this national security concerns or risks of effect of all of the NPRM’s limitations, proposed requirement. The analysis fraud and abuse. These factors may be rather than the marginal effects of each assumes that nonimmigrants would incorporated into a Federal Register limitation. To estimate EOS requests, require an EOS in the year of analysis Notice (FRN) to limit a student’s period DHS analyzed nonimmigrant data to if they were enrolled in these courses of of stay to a 2-year maximum; identify individuals who would be study, not in the last year of their • Accreditation. The nonimmigrant is subject to the limitation criteria in the program, in a year of their program that enrolled at a post-secondary school that year of analysis using the following was a multiple of two (e.g., year 2, 4, 6), is not accredited by an accrediting body steps: and had a program duration of greater 1. Program Length. This analysis than 2 years. 151 DHS acknowledges that recent estimates of assumes that individuals would require 4. Accreditation. Similarly, the median time to bachelor’s degree completion in the an EOS in the year of analysis if they analysis assumes that nonimmigrants United States published by the Department of Education’s National Center for Education Statistics had a program duration longer than 4 would require an EOS if they were (NCES) is 52 months. See U.S. Department of years, were not in the final year of their enrolled at a post-secondary school not Education, National Center for Education Statistics, program, and were in a year of their accredited by an accrediting body Status and Trends in the Education of Racial and program that was a multiple of four recognized by ED, not in the last year of Ethnic Groups 2018, available at https:// nces.ed.gov/programs/raceindicators/indicator_ (e.g., 4, 8, 12). their program, in a year of their program red.asp. NCES statistics on all postsecondary 2. Certain Countries. The rule that was a multiple of two (e.g., year 2, students in the U.S. also show factors positively proposes to limit the fixed time period 4, 6), and had a program duration of associated with completion of bachelor’s degree in of admission of up to 2 years for F greater than 2 years. under four years include financial dependent status nonimmigrants who were born in or are and age of less than 23 years. The prevalence of 5. Extended Period of Admission. U.S. citizens who are studying part-time in the citizens of countries listed on the State DHS identified nonimmigrants within NCES data indicates that the NCES data is not Sponsors of Terrorism List or who are each fiscal year who needed to change representative of the time to completion for citizens of countries with a student and their authorized period of admission in students studying full time, including foreign students. See U.S. Department of Education, exchange visitor total overstay rate the year of analysis. Individuals National Center for Education Statistics, Fast Facts, greater than 10 percent according to the switching from an OPT program to a available at https://nces.ed.gov/fastfacts/ most recent DHS Entry/Exit Overstay Science, Technology, Engineering, or display.asp?id=569. A longitudinal study of report.153 F nonimmigrants subject to Math (STEM) OPT extension program, students beginning their postsecondary studies in 2011–2012 shows 75% of students completing a full this limit would be eligible for an EOS individuals requesting additional time course-load in their freshman year alone finish of up to 2 years. To estimate the number to complete their program of study, and within 4 years. See U.S. Department of Education, of individuals meeting these criteria and individuals changing from one National Center for Education Statistics, Courses needing an EOS in the year of analysis, educational level to another, among Taken, Credits Earned, and Time to Degree: A First Look at the Postsecondary Transcripts of 2011–12 DHS identified individuals who were others, were included. Individuals Beginning Postsecondary Students, available at born in or are citizens of countries on changing majors, transferring schools, https://nces.ed.gov/pubs2020/2020501.pdf. DHS enrolling in pre-completion OPT, or does not assert that all foreign students will 153 A list of State Sponsors of Terror can be found making other changes to their course of complete their course of study on time and has at https://www.state.gov/state-sponsors-of- analyzed and discussed SEVIS data that forms the terrorism/. The overstay report for 2019 can be study that would not affect their basis of our estimated number of bona fide found at https://www.dhs.gov/sites/default/files/ program end date were not considered extension requests resulting from this proposed publications/20_0513_fy19-entry-and-exit-overstay- to require an EOS in the year of analysis rule. report.pdf, see Table 4, Column 6. The overstay if they did not meet any other limiting 152 A list of State Sponsors of Terrorism can be report for 2018 can be found at https:// found at https://www.state.gov/state-sponsors-of- www.dhs.gov/sites/default/files/publications/19_ criteria that would require them to terrorism/. The overstay report for 2018 can be 0417_fy18-entry-and-exit-overstay-report.pdf, see extend. found at https://www.dhs.gov/sites/default/files/ Table 4, Column 6. The 2017 Overstay Report can 6. E-Verify Enrollment. To estimate publications/19_0417_fy18-entry-and-exit-overstay- be found at https://www.dhs.gov/sites/default/files/ the number of students affected by this report.pdf, see Table 4, Column 6. The DHS 2017 publications/18_1009_S1_Entry-Exit-Overstay_ Entry/Exit Overstay Report can be found at https:// Report.pdf, see Table 4, Column 6. The 2016 proposed provision, DHS needed to www.dhs.gov/sites/default/files/publications/18_ Overstay Report can be found at https:// identify nonimmigrants that were 1009_S1_Entry-Exit-Overstay_Report.pdf, see Table www.dhs.gov/sites/default/files/publications/ enrolled at a post-secondary school not 4, Column 6. The DHS 2016 Entry/Exit Overstay Entry%20and%20Exit%20Overstay%20 enrolled in E-Verify or not a participant Report can be found at https://www.dhs.gov/sites/ Report%2C%20Fiscal%20Year%202016.pdf, see default/files/publications/Entry%20and%20 Table 4, Column 6. The analysis uses 87 countries in good standing in E-Verify, not in the Exit%20Overstay%20Report%2C%20Fiscal%20 with overstay rate greater than 10 percent in at least last year of their program, in a year of Year%202016.pdf, see Table 4, Column 6. one of the analysis years (i.e., 2016, 2017, or 2018). their program that was a multiple of two

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(e.g., year 2, 4, 6), and had a program attending institutions that do not data are in 14% of schools that DHS has duration of greater than 2 years. DHS participate in E-Verify. However, DHS been able to match to E-Verify worked with both nonimmigrant data conjectures that this bias is unlikely to enrollment data.156 and employer data, attempting to match be significant. Approximately 20% of DHS calculated the total number of E-Verify enrollment with students’ the educational services industry expected EOS requests from these schools. However, because the datasets establishments already participate in E- criteria for FY 2016, FY 2017, and FY did not have a common, unique key, Verify program.155 These establishments 2018, and used these yearly estimates to DHS was unable to comprehensively employ 80% this industry’s workers calculate the annual average number of merge the student-based data with the nation-wide. Assuming that the number EOS requests for both F–1 and F–2 employer-based data. Therefore, DHS of F–1 nonimmigrants is proportional to nonimmigrants.157 Table 3 shows the did not quantify the marginal effect of the number of employees in the EOS estimates for F nonimmigrants. the E-Verify enrollment provision.154 As educational services establishments, we DHS estimates that approximately a result, the estimated number of expect the share of F–1 nonimmigrants 249,000 F–1 nonimmigrants would extensions shown in Table 3 does not in schools already enrolled in E-Verify request an EOS per year, while include extensions that would have to be substantial. This observation is approximately 31,000 F–2 been filed by nonimmigrants meeting all further corroborated by the fact that nonimmigrants would be required to other 4-year eligibility requirements, but 61% of F–1 nonimmigrants in SEVIS apply for an EOS per year.

TABLE 3—NUMBER OF F NONIMMIGRANTS REQUIRING AN EOS PER YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

F–1 ...... 246,613 236,746 263,692 249,017 F–2 ...... 33,314 29,846 30,067 31,076

Total ...... 279,927 266,592 293,759 280,093 Estimates derived from SEVIS data.

Estimating EOS Requests for J Exchange • Program Length. The • E-Verify Enrollment. The Visitor Participants nonimmigrant’s program length exceeds nonimmigrant’s program sponsor is 4 years; either not enrolled in E-Verify or, if J–1 exchange visitor participants are • Certain Countries. The enrolled, is not a participant in good individuals approved to participate in standing in E-Verify as determined by work and study-based exchange visitor nonimmigrant was born in or is a citizen of a country on the State Sponsors of USCIS. programs, and J–2 nonimmigrants are In this analysis, DHS does not present Terrorism list or is a citizen of a country their dependents. For example, J the number of individuals meeting each with a greater than 10 percent total exchange visitor participants include limitation criterion, as some individuals overstay rate for students and exchange individuals enrolled in alien physician may meet multiple criteria. The affected programs, camp counselors, and au visitors according to the most recent 159 population estimates reflect the overall pairs, among others.158 DHS Entry/Exit Overstay report; effect of all of the NPRM’s limitations, The proposed rule would impose a • Other Factors of U.S. National rather than the marginal effects of each fixed period of admission of up to 2 or Interest. The nonimmigrant is subject to limitation. To estimate EOS requests, 4 years on J nonimmigrants, depending other factors determined to be in the DHS analyzed nonimmigrant data to on limitations on the length of U.S. national interest, which may identify who would be subject to the admission. In order to identify the include but not be limited to limitation criteria in the year of potentially affected J nonimmigrants, circumstances where there may be analysis. DHS took the following steps DHS estimated the number of national security concerns or risks of to identify individuals who would be individuals in FY 2016, FY 2017, and fraud and abuse. These factors may be subject to these criteria in the year of FY 2018 meeting the following incorporated into an FRN to limit a analysis: limitation criteria which would require student’s period of stay to a 2-year 1. Program Length. For J an EOS under the NPRM: maximum; nonimmigrants, DHS used the same

154 See Section VI.A.4 for additional discussion of in SEVIS underestimates the true E-Verify 159 A list of State Sponsors of Terrorism can be the impacts associated with the E-Verify provision. participation rate. found at https://www.state.gov/state-sponsors-of- 155 The nation-wide number of establishments 157 These numbers were developed using data terrorism/. The overstay report for 2019 can be and employment in the educational services from SEVIS. The SEVIS database was queried to found at https://www.dhs.gov/sites/default/files/ _ _ industry (NAICS 61) comes from U.S. Census extract data from FY 2016–2018. DHS used R publications/20 0513 fy19-entry-and-exit-overstay- Bureau 2018 County Business Patterns data. The Statistical Software to develop logic allowing DHS report.pdf, see Table 4, Column 6. The overstay to identify individuals meeting the limitations report for 2018 can be found at https:// current E-Verify enrollment by establishment size _ category in the educational services industry comes specified in the proposed rule. DHS provides the www.dhs.gov/sites/default/files/publications/19 SQL code used to query the SEVIS database and the 0417_fy18-entry-and-exit-overstay-report.pdf, see from DHS USCIS E-Verify data at https://www.e- R code used to develop the logic for this analysis Table 4, Column 6. The 2017 Overstay Report can verify.gov/about-e-verify. on the proposed rule’s docket. be found at https://www.dhs.gov/sites/default/files/ 156 DHS used name- and location-based fuzzy 158 J exchange visitor programs include: publications/18_1009_S1_Entry-Exit-Overstay_ matching procedure to establish approximate links Professors and research scholars; short-term Report.pdf, see Table 4, Column 6. The 2016 between 7,689 active schools in SEVIS and 2,264 scholars; trainees and interns; college and Overstay Report can be found at https:// unique schools in E-Verify enrollment data. Only university students; teachers; secondary school www.dhs.gov/sites/default/files/publications/ 1,100 schools have been able to be linked, and students; specialists; alien physicians; international Entry%20and%20Exit%20Overstay%20 cursory review established that the pool of visitors; government visitors; camp counselors; au Report%2C%20Fiscal%20Year%202016.pdf, see unmatched SEVIS schools does include other pairs; and summer work travel. See INA Table 4, Column 6. The analysis uses 87 countries schools that may be matched manually. As such, 101(a)(15)(j), 8 U.S.C. 1101(a)(15)(j) and 22 CFR with overstay rate greater than 10 percent in at least DHS believes that 14% match rate for active schools 62.20–62.32. one of the analysis years (i.e., 2016, 2017, or 2018).

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approach described for F employed by an employer enrolled in E- enrolling in E-Verify would incur nonimmigrants in the Estimating EOS Verify 160 in a year of their program that additional cost burdens when they Requests for F Nonimmigrants section is a multiple of two (e.g., 2, 4, 6), not enroll in and continue to use the E- above to estimate individuals needing to in the final year of their program, and Verify program. Employers would incur file an EOS in the fourth year of their enrolled in a program lasting longer costs related to enrolling in the program, program; than 2 years would be required to file attending trainings, filling out 2. Certain Countries. For J an EOS. In cases where DHS did not associated forms, designating an E- nonimmigrants, DHS used the same have information about an employer’s E- Verify administrator within the approach described for F Verify enrollment, DHS assumed those company, and using E-Verify to confirm nonimmigrants to estimate individuals employers were not enrolled in E-Verify their newly hired employees are eligible needing to file an EOS due to meeting unless the employer was a governmental to work in the United States.163 2-year limitation criteria for their organization. DHS does not have data on country of citizenship or country of which governmental organizations are DHS calculated the total number of birth; enrolled in E-Verify, but assumes that expected EOS requests from these 3. Other Factors of U.S. National governmental agencies will typically be criteria for FY 2016, FY 2017, and FY Interest. For J nonimmigrants, DHS enrolled in E-Verify. In 2018,161 60 2018, and used these yearly estimates to applied the same approach described for percent of non-governmental programs calculate the annual average number of F nonimmigrants, using participation in were not enrolled in E-Verify, 39 EOS requests for both J–1 and J–2 the field of nuclear physics or nuclear percent were enrolled in E-Verify, and nonimmigrants.164 Table 4 shows the engineering as examples of programs 1 percent had no information on E- EOS estimates for J exchange visitors. 162 that could pose a risk to U.S. national Verify enrollment status. In addition, DHS estimates that approximately security, to estimate individuals because of data limitations, DHS could 12,000 J–1 exchange visitors would needing to file an EOS due to meeting not estimate impacts associated with request an EOS per year, while 2-year limitation criteria for factors that participants not in good standing in E- approximately 8,000 J–2 nonimmigrants serve the U.S. national interest; Verify as determined by USCIS. The would be required to apply for an EOS 4. E-Verify Enrollment. DHS proposed rule may encourage employers per year. determined that any individual not to enroll in E-Verify. Employers

TABLE 4—NUMBER OF J EXCHANGE VISITORS REQUIRING AN EOS PER YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

J–1 ...... 10,711 10,992 12,993 11,565 J–2 ...... 7,641 7,872 8,784 8,099

Total ...... 18,352 18,864 21,777 19,664

Estimating EOS Requests for I 2018 staying for greater than 240 the initial admission exceeds 240 days. Nonimmigrants days.165 Any individual with a total in- After a very short departure from the country time of greater than 240 days United States, these same individuals I nonimmigrants are bona fide was included in the analysis, as they could have returned to the United representatives of foreign information would be required to get additional time States, and their cumulative total period media (such as press, radio, film, print) from DHS, either by filing an EOS or of stay for both admissions could have seeking to enter the United States to departing the United States and been longer than 240 days. Therefore, engage in such vocation, as well as the applying for admission with CBP. Table more than 1,200 I nonimmigrants may spouses and children of such aliens. See 5 provides estimates for the number of INA 101(a)(15)(I). request an EOS per year, as this number I nonimmigrants that would apply for does not capture the number of I DHS proposes to give I an EOS per year. Using this nonimmigrants requesting additional nonimmigrants an admission period of methodology, DHS estimates that time, only those with a period of stay approximately 1,200 I nonimmigrants up to 240 days, after which an EOS may longer than 240 days. DHS seeks public would request an EOS each year. be available for those who can meet EOS comment on ways to improve the requirements. In order to estimate the These estimates do not include I estimate of the affected I nonimmigrant number of EOS requests that would nonimmigrants with an initial population. likely be filed by I nonimmigrants, DHS admission period shorter than 240 days calculated the number of individuals in because they departed the United States I status in FY 2016, FY 2017, and FY before their total in-country time during

160 Participation data from E-Verify Program 163 For more information on E-Verify, go to nonimmigrants whose duration of status fell into a System of Records, retrieved February 5, 2020. www.e-verify.gov. given range of time. For this analysis, DHS summed 161 DHS used 2018 data because the percentage 164 These numbers were developed using data the number of individuals staying for greater than difference in E-Verify enrollment for non- from SEVIS. The SEVIS database was queried to or equal to 241 days but less than 366 days and governmental programs between years of analysis is extract data from FY 2016–2018. DHS used R those staying for greater than or equal to 366 days minimal. Any variation between years is due to the Statistical Software to develop logic allowing DHS in a given year to estimate the number of EOS number of programs active during each year. to identify individuals meeting the limitations requests that would be filed by I nonimmigrants. 162 The percentages presented represent the specified in the proposed rule. DHS provides the percentage of exchange visitor programs that are SQL code used to query the SEVIS database and the During 2016–2018, approximately 3 percent of I enrolled in E-Verify. One employer may sponsor R code used to develop the logic for this analysis nonimmigrants had an initial admission period multiple programs. Therefore, this number does not on the proposed rule’s docket. longer than 240 days. reflect the percentage of employers that will be 165 DHS used data from ADIS to derive these affected by this rule. estimates. Data were presented as the number I

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TABLE 5—NUMBER OF I FOREIGN INFORMATION MEDIA REPRESENTATIVES REQUIRING AN EOS PER YEAR

Nonimmigrant category FY 2016 FY 2017 FY 2018 Average

I ...... 1,433 1,215 944 1,197 Estimates derived from SEVIS data.

Transition Period time it takes the alien to complete his request when the rule goes into effect. or her activity, for a period of up to 240 Rather, F and J nonimmigrants would be Proposed 8 CFR 214.1(m)(1) would days. See proposed 8 CFR 214.1(m)(3). required to request an additional period establish a transition period for phasing To align with the proposed transition of admission by filing an EOS if they in admissions for a fixed time period. period, DHS adjusted the annual EOS meet the criteria associated with the Specifically, F and J nonimmigrants estimates for F and J nonimmigrants period of admission limitations present in the United States on the final over the 10-year period of analysis. The discussed above or the transition period rule’s effective date who are in D/S may transition period for the I requirements or alternatively they could remain in the United States in F or J nonimmigrants did not require depart the United States and apply for status, without filing an EOS request adjustments to the EOS estimates over readmission with CBP under the new and would be provided an authorized the 10-year period of analysis as I period of admission up to the program nonimmigrants would not receive a rule. In order to estimate the number of end date reflected on their Form I–20 or period of admission over 240 days EOS requests in each year, DHS DS–2019 that is valid on the Final [going forward]. DHS anticipates that segmented the period of analysis into Rule’s effective date, not to exceed 4 the rule would become effective in 2020 three distinct phases: (1) The early years from the effective date of the Final and estimated the number of EOS transition period, (2) the end of Rule, as long as they do not depart the requests in each year from 2020 through transition period, and (3) the full United States. See proposed 8 CFR 2029 (the 10-year period of analysis). implementation period. Figure 1 214.1(m)(1). I nonimmigrants would be F and J nonimmigrants would not describes the F and J nonimmigrants provided an extension of the length of automatically be required to file an EOS affected in each of these phases.

FIGURE 1—ESTIMATED EOS REQUESTS DURING THE TRANSITION PERIOD FOR F AND J NONIMMIGRANTS

EOS request during the ‘‘Early Transition EOS request during the ‘‘End Transition EOS request during the ‘‘Full Implementation Period’’ Period’’ Period’’ 2020–2023 2024 2025–2029

Aliens extending their program end date: EOS Aliens extending their initial date certain: EOS Aliens requiring an EOS after transition period requests resulting from extended program requests resulting from program end dates ends: The annual, ongoing average number end dates using the annual average number ending after 2024 based on the average of EOS requests expected each year. of individuals in 2016–2018 who seek a pro- number of individuals between 2016–2018 gram end date extension. with greater than 4 years left to accomplish their program. Aliens subject to a 2-year limitation: EOS re- Aliens requiring an EOS outside of transition quests resulting from 2-year limited aliens limitations: EOS requests resulting from ex- using the annual average number of individ- tending the program end date and being uals in 2016–2018 who meet the 2-year limi- subject to a 2-year limitation. tation criteria. These individuals are added in 2022–2023.

In the early transition period, DHS expects only F and I nonimmigrants requesting extensions to continue their assumes that, from 2020–2021, only F would be required to file EOS requests same program or degree. Using FY 2016, and J nonimmigrants extending their in this period as the SEVIS data do not FY 2017, and FY 2018 data, DHS program end date beyond the program have records of J nonimmigrants estimates that approximately 259,000 end date noted on their Form I–20 or extending their end date. EOS requests will be filed annually in DS–2019 would be filing an EOS Beginning in 2022, DHS assumes that the years 2022–2023.167 because no other period of stay individuals subject to a 2-year limitation DHS anticipates that there would not limitation would be triggered within the on the period of admission who were be any nonimmigrants currently in the first 2 years of the transition period. admitted after the effective date of the country in F, J, or I status at the time Using FY 2016, FY 2017, and FY 2018 rule would begin filing EOS requests. that the rule becomes effective who data, DHS estimates that approximately Therefore, in 2022 and 2023, there would receive a fixed period of 203,000 EOS requests would be filed would be two types of EOS requests admission that extends past 2024 annually in 2020 and 2021.166 DHS filed: Those from individuals requesting because the transition period has a 4- an EOS due to a 2-year period of 166 DHS developed these estimates by looking at admission, and those from individuals 167 These numbers were developed using data the data cross-sectionally and estimating how many from SEVIS. The SEVIS database was queried to individuals in each year would meet the necessary extract data from FY 2016–2018. DHS used R criteria for each stage of the transition period. DHS Software to develop logic allowing DHS to identify Statistical Software to develop logic allowing DHS provides the R code used to develop the logic for individuals meeting the limitations specified in the to identify individuals meeting the limitations this analysis on the proposed rule’s docket. These proposed rule. DHS provides the SQL code used to specified in the proposed rule. DHS provides the numbers were developed using data from SEVIS. query the SEVIS database and the R code used to SQL code used to query the SEVIS database and the The SEVIS database was queried to extract data develop the logic for this analysis on the proposed R code used to develop the logic for this analysis from FY 2016–2018. DHS used R Statistical rule’s docket. on the proposed rule’s docket.

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year limitation. DHS assumes that this additional time to finish their program. DHS, either by filing an EOS with provision could lead to a spike in EOS DHS added these additional individuals USCIS or by applying for admission requests in 2024, at the end of the to individuals extending their program, with CBP. transition period. To estimate EOS and those meeting the 2-year limitation DHS estimates that between 2025– requests at the end of the transition in 2024. DHS estimates that 2029 approximately 301,000 EOS period, DHS calculated the average approximately 364,000 nonimmigrants applications would be filed with USCIS number of individuals in FY 2016, FY would file an EOS in 2024. annually. Table 6 provides the 2017, and FY 2018 with more than 4 After the end of the transition period, estimated number of EOS requests per years left to complete their program. DHS assumes that all F, J and I year from each nonimmigrant category This number acts as a proxy for the nonimmigrants would have a fixed date for the full 10-year period of analysis, number of individuals who would of admission. During this time, all showing the fluctuations across the receive a fixed period of admission nonimmigrants needing to file an EOS early transition period, the end of the ending in 2024 when the rule goes into for any reason would need to request an transition period, and the full effect but would still need to request additional period of admission from implementation period. TABLE 6—NUMBER OF EOS REQUESTS BY NONIMMIGRANT CATEGORY AND YEAR

Early transition period End of Full implementation period Nonimmigrant category transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1 ...... 180,787 180,787 218,459 218,459 309,379 249,017 249,017 249,017 249,017 249,017 F–2 ...... 21,118 21,118 25,976 25,976 36,087 31,076 31,076 31,076 31,076 31,076 J–1 ...... 7,838 7,838 10,138 11,565 11,565 11,565 11,565 11,565 J–2 ...... 5,790 5,790 7,259 8,099 8,099 8,099 8,099 8,099 I ...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197

Total ...... 203,103 203,103 259,261 259,261 364,060 300,954 300,954 300,954 300,954 300,954 Estimates derived from SEVIS and ADIS data.

4. Costs and Benefits of the Proposed discussed throughout this section as a result of the rule and, as a result, Rule qualitatively. In accordance with the there would be no incremental costs Costs regulatory analysis guidance articulated associated with rule familiarization and in OMB Circular A–4 and consistent adaptation for I foreign information DHS proposes to admit with DHS’s practices in previous media representatives. nonimmigrants seeking entry under the rulemakings, this regulatory analysis F, J, and I nonimmigrant categories for Based on best professional judgment, focuses on the likely consequences of SEVP estimates that DSOs and ROs the period required to complete their the proposed rule (i.e., costs and academic program, foreign information would require 8 hours to complete rule benefits that accrue to affected entities). familiarization training, 16 hours to media employment, or exchange visitor The analysis covers 10 years (2020 program. For F and J nonimmigrants, create and modify training materials, through 2029) to ensure it captures the period of admission would not and 16 hours to adapt to the proposed major costs and benefits that accrue over exceed 4 years, or 2 years for F and J rule through system wide briefings and time. DHS expresses all quantifiable nonimmigrants meeting certain factors. systemic changes. DHS welcomes public impacts in 2018 dollars and uses 7 For I nonimmigrants, the period of comments on these estimates. To percent and 3 percent discounting admission would not exceed 240 days. estimate these costs, DHS multiplied the following OMB Circular A–4. As these nonimmigrants would have a total time requirement (40 hours) by the fixed time period of admission, this DSO and RO Rule Familiarization and loaded wage rate for DSOs and ROs proposal includes provisions that would Adaptation Costs ($28.93 wage rate * a 1.46 loaded wage require nonimmigrants to apply for an rate factor 168) and by the number of EOS directly with USCIS or apply for The proposed rule would impact DSOs and ROs (55,207; 49,089 DSOs + admission with CBP and receive an DSOs and ROs from SEVP-certified 6,118 ROs 169). DHS estimates that DSO admit until date on their Form I–94 if schools and exchange visitor programs seeking to continue their studies, to that run a SEVP or DOS approved 168 Based on the Bureau of Labor Statistics (BLS) participate in any type of post program by requiring time for rule average hourly wage for SOC 21–1012 (Educational, Guidance, School, and Vocational Counselors), completion training related to their familiarization training, modification of available at: https://www.bls.gov/oes/2018/may/ academic course of study, to continue training materials, and institutional oes211012.htm. The benefits-to-wage multiplier is working in their information medium, awareness and response (during the first calculated by the BLS as (Total Employee or to participate in an exchange visitor year only). I foreign information media Compensation per hour)/(Wages and Salaries per hour) = $36.32/$24.91 = 1.458 (1.46 rounded) based program beyond the initial admission representatives would not incur similar on the average national wage for all occupations period granted at entry. costs from the proposed rule as those (wages represent 68.6 percent of total DHS assessed the costs and benefits of incurred by DSOs and ROs because the compensation). See Economic News Release, the proposed rule relative to the existing burden for filing an EOS request falls on Employer Cost for Employee Compensation (March 2019), U.S. Dept. of Labor, BLS, Table 1. Employer baseline, that is, the current practice of the I nonimmigrant, who, DHS assumes costs per hour worked for employee compensation admitting F, J, and I nonimmigrants for that in the baseline familiarize and costs as a percent of total compensation: D/S, as well as monitoring and themselves with the pertinent visa Civilian workers, by major occupational and overseeing these categories of requirements at the time the visa is industry group (March 19, 2019), available at: https://www.bls.gov/news.release/archives/ecec_ nonimmigrants. As summarized in RIA needed, not at the point in time that 03192019.pdf. Section VI.A.1 Table 1, some impacts of Federal regulations change. DHS 169 The number of DSOs and ROs were pulled the proposed requirements are expects this behavior would not change from SEVIS and are current as of September 2019.

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and RO rule familiarization and maintaining their status, are present in complete the I–539A form.172 USCIS’s adaptation would cost $93.3 million the United States when the rule takes Inadmissibility on Public Charge during the first year once the rule takes effect, and were admitted for D/S would Grounds Rule, published August 14, effect ($28.93 × 1.46 loaded wage rate be authorized to remain in the United 2019, increased burden for the paper factor × 40 hours × 55,207 DSOs and States for a period of time up to the version of the Form I–539 to 2.38 hours ROs). program end date noted on their Form due to the collection of additional Extension of Stay Filing Costs I–20 or DS–2019, plus 30 days, not to information related to public exceed a period of 4 years. I benefits.173 84 FR 157 (Aug. 14, 2019). Under the proposed rule, nonimmigrants who are properly In addition to the labor burden of nonimmigrants who would like to maintaining their status and are present completing the Form I–539, DHS extend their stay beyond their fixed in the United States when the rule takes estimates in the Supporting Statement period of admission would need to effect would have their status, and for Form I–539 that 35 percent of F–1, apply for additional time directly with employment authorization incident to J–1, and I applicants may incur DHS. Under the proposed framework, such status, automatically extended for additional expenses for third party nonimmigrants could choose to file an a period necessary to complete their assistance to prepare responses, legal EOS using the appropriate form from activity, not to exceed 240 days after the services, translators, and document USCIS or apply for admission with CBP rule takes effect. Any F academic search and generation. For those at a POE. DHS assumes nonimmigrants students, J exchange visitors, and I applicants who seek additional with existing international travel plans representatives of foreign information assistance, the average cost for these would prefer to request extensions with media who are present when the rule activities is approximately $490. DHS CBP at a POE rather than incurring the assumes that F–2 and J–2 applicants costs of filing an EOS. Because DHS is takes effect would need to apply for an EOS if they require additional time would not incur additional expenses for unable to estimate how many outside assistance and would instead nonimmigrants would prefer to extend required beyond the maximum specified transition time period. work with the F–1 and J–1 applicants to with CBP, DHS’ best assessment of the complete the I–539A form. cost of the proposed rule to the affected EOS applicants would need to file In addition to completing the Form I– population is based on the assumption Form I–539 (F–1, J–1, and I 539/I–539A, all F, J, and I applicants that each extension will require a Form nonimmigrants) or Form I–539A (F–2, J– would be required submit biometrics. I–539 filing. Actual costs to the affected 2 nonimmigrants, and I dependents), The submission of biometrics requires population could be lower for those depending on the nonimmigrant travel to an application support center nonimmigrants able to extend while category, in order to extend their period (ASC) for the biometric services traveling through a POE.170 of stay. DHS assumes that all F–2 appointment,174 with an average round- During the transition, F and J nonimmigrants, J–2 nonimmigrants, and trip travel time of 2.5 hours.175 The nonimmigrants who are properly I dependents would complete the I– Supporting Statement for Form I–539 539A instead of completing a separate estimates that each would spend 1 hour More information on SEVIS can be found at https:// Form I–539 because the I–539A is less and 10 minutes (1.17 hours) at an ASC www.ice.gov/sevis/overview. burdensome to complete and does not 170 DHS is unable to estimate how many to submit biometrics. Summing the ASC require a separate application fee.171 individuals would seek an extension to their period time and travel time yields 3.67 hours However, I nonimmigrant data of stay while traveling through a POE instead of for each applicant to submit biometrics. filing the I–539 or I–539A form. The analysis thus contained the representatives of foreign assumes that all F, J, and I nonimmigrants requiring information media and their F, J, and I nonimmigrants would pay an EOS would file using the I–539 or I–539A form. dependents, without differentiating fees to USCIS to file the Form I–539 and If DHS made the opposite assumption—that all F, complete biometric processing, as J, and I nonimmigrants requiring an EOS would between the two. As a result, this extend while traveling through a POE—the cost analysis overestimates EOS filing costs described in the Supporting Statement estimates would change in the following ways. for I nonimmigrants by assigning the for Form I–539. F–1, J–1, and I First, F, J, and I nonimmigrants would not pay the primary I nonimmigrant costs to both nonimmigrants would pay a $370 fee I–539 or I–539A filing and biometric processing when submitting the Form I–539 (F–2 costs. However, the process of applying for the representatives of foreign readmission at a POE would require 8 minutes of information media and their and J–2 nonimmigrants would not be time for each F, J, or I nonimmigrant requiring an dependents. required to pay a fee when submitting EOS. The time estimate of 8 minutes is based on the time required for completing a paper I–94 form The most recently approved 172 Time estimates are taken from the Supporting (Supporting Statement A for Form I–94, ‘‘Arrival Paperwork Reduction Act (PRA) and Departure Record’’, OMB Control Number Statement A for Form I–539, ‘‘Application to 1651–0111). The cost to F, J, and I nonimmigrants Information Collection Package Extend/Change Nonimmigrant Status’’, found at: Supporting Statement for Form I–539 at https://www.reginfo.gov/public/do/ for applying for readmission at a POE translates to _ a total undiscounted cost of $5.0 million over the the time of this analysis, which provides PRAViewDocument?ref nbr=201907-1615-012. 173 Instructions for Application to Extend/Change 2020–2029 analysis period using the number of the average applicant burden estimates EOS requests presented in Table 6 and the Nonimmigrant Status, available at https:// _ nonimmigrant wage rates described in Table 7. F, for completing and submitting the form, www.uscis.gov/system/files force/files/form/i- J, and I nonimmigrants would also incur costs to states that F–1, J–1, and I 539instr-pc.pdf (last visited Apr. 14, 2020). travel to a POE. Second, CBP officers would also nonimmigrants require 2.0 hours to 174 DHS expects the majority of biometrics spend 8 minutes of time per F, J, or I nonimmigrant complete a paper version of the Form I– appointments to occur in the United States at an applying for readmission at a POE. Using a loaded ASC. However, in certain instances nonimmigrants wage rate of $87.94 (salary and benefit information 539 (70 percent of applicants) or 1.08 may submit biometrics at an overseas USCIS office was provided by CBP Office of Finance to ICE on hours to complete an electronic version or DOS Embassy or consulate. However, because April 9, 2020) and the number of EOS requests (30 percent of applicants), and F–2 and DHS does not currently have data tracking the presented in Table 6, the cost to CBP officers for J–2 nonimmigrants require 0.5 hours to specific number of biometric appointments that completing readmission at a POE for F, J, and I occur overseas, it uses the cost and travel time nonimmigrants requiring an EOS translates to $32.8 estimates for submitting biometrics at an ASC as an million over the 2020–2029 analysis period. DHS 171 Form I–539 instructions ask applicants to list approximate estimate for all populations submitting anticipates that the CBP labor burden required to all family members in Form I–539A. Therefore, it biometrics in support of an EOS request. processes readmissions at a POE can be is reasonable to assume that the co-applicants (F– 175 See DHS Final Rule, Provisional Unlawful incorporated in existing procedures without 2, J–2 nonimmigrants and I dependents) will use Presence Waivers of Inadmissibility for Certain requiring additional staff. Form I–539A. Immediate Relatives, 78 FR 535 (Jan. 3, 2013).

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the I–539A form).176 All F, J, and I the average round-trip distance to an travel to an ASC with the F–1 and J–1 nonimmigrants who file an EOS would ASC is 50 miles.177 Using the 2020 applicants. be required to pay an $85 fee for General Services Administration (GSA) Table 7 provides the unit cost and biometric processing. Lastly, the EOS rate of $0.58 per mile,178 the travel costs references for the costs for completing filing cost estimates account for travel are $29. DHS assumes that F–2 and J– and submitting the Form I–539/I–539A costs to an ASC to submit biometrics. In 2 applicants would not incur these and biometrics for each nonimmigrant past rulemakings, DHS estimated that travel costs since they would likely category.

TABLE 7—APPLICANT UNIT COSTS FOR FILING AN EXTENSION OF STAY WITH USCIS [2018$]

F–1 F–2 J–1 J–2 I

[a] Average applicant burden for paper applications (in hours) 1 ...... 2.38 0.50 2.38 0.50 2.38 [b] Average applicant burden for electronic applications (in hours) 2 ...... 1.08 0.5 1.08 0.5 1.08 [c] Average biometric processing burden (in hours) 3 ...... 3.67 3.67 3.67 3.67 3.67 [d] Total labor burden for paper applications (in hours) [a] + [c]...... 6.05 4.17 6.05 4.17 6.05 [e] Total labor burden for electronic applications (in hours) [b] + [c] ...... 4.75 4.17 4.75 4.17 4.75 [f] Average hourly wage rate ...... 11 $12.05 11 $12.05 12 $36.47 12 36.47 13 $36.81 [g] Filing fee 4 ...... $370 N/A $370 N/A $370 [h] Biometrics fee 4 ...... $85 $85 $85 $85 $85 [i] Travel costs to ASC to submit biometrics 5 ...... $29 N/A $29 N/A $29 [j] Burden costs for paper applications not requiring out- side help 6 ([d] * [f]) + [g] + [h] + [i] ...... $557 $135 $705 $237 $707 [k] Burden costs for electronic applications not requiring outside help 7 ([e] * [f]) + [g] + [h] + [i] ...... $541 $135 $657 $237 $659 [l] Additional expenses for outside help with form 8 ...... $490 N/A $490 N/A $490 [m] Burden costs for paper applications requiring outside help 9 [j] + [l] ...... $1,047 N/A $1,195 N/A $1,197 [n] Burden costs for electronic applications requiring out- side help 10 [k] + [l] ...... $1,031 N/A $1,147 N/A $1,149 1 Supporting Statement for Form I–539 states that 70 percent of applicants will file by paper. 2 Supporting Statement for Form I–539 states that 30 percent of applicants will file electronically. 3 1.17 hours at an ASC (Supporting Statement for Form I–539) + 2.5 hours of travel time to an ASC (78 FR 535) = 3.67 hours per applicant. 4 Filing and biometrics fees described in the Supporting Statement for Form I–539. 5 [5] 50 miles (78 FR 535) * $0.58/mile (2020 GSA rate) = $29.00. 6 Supporting Statement for Form I–539 states that 65 percent of applicants will not need outside help for completing the form. DHS assumed that all F–2 and J–2 nonimmigrants would not need outside help. Thus, 45.5 percent of F–1, J–1, and I applicants (70% paper applicants * 65% not requiring outside assistance = 45.5%) and 70 percent of F–2 and J–2 applicants would incur these costs. 7 Based on Supporting Statement for Form I–539 values, 19.5 percent of F–1, J–1, and I applicants (30% electronic applicants * 65% not re- quiring outside assistance = 19.5%) and 30 percent of F–2 and J–2 applicants would incur these costs. 8 Supporting Statement for Form I–539 states that 35 percent of applicants will need outside help for completing the form. DHS assumed that no F–2 or J–2 nonimmigrants would require outside help. 9 Based on Supporting Statement for Form I–539 values, 24.5 percent of F–1, J–1, and I applicants (70% paper applicants * 35% requiring out- side assistance = 24.5%) would incur these costs. 10 Based on Supporting Statement for Form I–539 values, 10.5 percent of F–1, J–1, and I applicants (30% electronic applicants * 35% requir- ing outside assistance = 10.5%) would incur these costs. 11 The average hourly loaded wage rate for F nonimmigrants is based on the ‘‘prevailing’’ minimum wage of $8.25 (used in the analysis for the recent USCIS 30-Day Application for Employment Authorization Removal proposed rule) and accounting for benefits. $12.05 = $8.25 × 1.46 ben- efits-to-wage multiplier. DHS used the ‘‘prevailing’’ minimum wage to account for the type of service-based labor that students typically fill. As is reported by the Economic Policy Institute (EPI, 2016; https://www.epi.org/publication/when-it-comes-to-the-minimum-wage-we-cannot-just-leave-it- to-the-states-effective-state-minimum-wages-today-and-projected-for-2020/). Many states have their own minimum wage, and, even within states, there are multiple tiers. See U.S. Department of Labor, Wage and Hour Division, State Minimum Wage Laws, available at https://www.dol.gov/ agencies/whd/minimum-wage/state. Although the minimum wage could be considered a lower-end bound on true earnings, the prevailing min- imum wage is fully loaded, at $12.05, which is 13.8 percent higher than the federal minimum wage. 84 FR 174 (Sept. 9, 2019). DHS requests public comment on other sources for the effective minimum wage in the United States. 12 The average hourly loaded wage rate for J nonimmigrants is based on the May 2018 BLS wage rate of $24.98 for ‘‘All Occupations’’ (00– 0000)), found at https://www.bls.gov/oes/2018/may/oes_nat.htm, and accounting for benefits. $36.47 = $24.98 × 1.46 benefits-to-wage multiplier. DHS used the ‘‘All Occupations’’ wage rate for J exchange visitors because of the diverse types of occupations that J exchange visitors can hold. 13 The average hourly loaded wage rate for I nonimmigrants is based on the May 2018 BLS wage rate of $25.21 for ‘‘Media and Communica- tion Workers, All Other’’ (27–3099)), found at https://www.bls.gov/oes/2018/may/oes273099.htm, and accounting for benefits. $36.81 = $25.21 × 1.46 benefits-to-wage multiplier.

176 Effective October 2, 2020, DHS raises the I– Requirements, 85 FR 46788 (August 3, 2020). At the 177 See DHS Final Rule, Provisional Unlawful 539 fee to $400 for paper filing, $390 for online time of this analysis, the fees had not been Presence Waivers of Inadmissibility for Certain filing and lowers the Biometrics fee from $85 to finalized, so the fee of $370 and biometric fee of $85 Immediate Relatives, 78 FR 535 (Jan. 3, 2013). $30. See DHS Final Rule, U.S. Citizenship and was used in the analysis. 178 https://www.gsa.gov/travel/plan-book/ Immigration Services Fee Schedule and Changes to transportation-airfare-rates-pov-rates/privately- Certain Other Immigration Benefit Request owned-vehicle-pov-mileage-reimbursement-rates.

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DHS multiplied the expected number would incur burden costs for paper Table 8 presents undiscounted EOS of EOS requests for F, J, and I applications with outside help, and 10.5 filing costs by nonimmigrant category nonimmigrants (Table 6) by the percent would incur burden costs for and year, along with a breakdown of appropriate applicant unit costs (Table electronic applications with outside costs based on filing type (paper or 7) to estimate EOS filing costs. As help. Burden costs for F–2 and J–2 electronic) and the need for outside help shown in Table 7, DHS assumed that nonimmigrants remain constant because to complete the form. EOS filing costs 45.5 percent of F–1, J–1, and I their labor burden does not vary are lowest during the early transition nonimmigrants would incur burden depending on paper versus electronic period (2020–2023) and highest at the costs for paper applications without filing, and DHS assumes that F–2 and J– end of the transition period (2024) outside help, 19.5 percent would incur 2 nonimmigrants would not pay for because of the variation in the estimated burden costs for electronic applications outside assistance with the I–539A number of EOS requests (Table 6). without outside help, 24.5 percent form. TABLE 8—EOS FILING COSTS BY NONIMMIGRANT CATEGORY AND YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period Number of EOS/cost transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1

F–1 EOS Requests...... 180,787 180,787 218,459 218,459 309,379 249,017 249,017 249,017 249,017 249,017 Paper filing cost, no help 1 ...... $45.8 $45.8 $55.4 $55.4 $78.4 $63.1 $63.1 $63.1 $63.1 $63.1 E-filing cost, no help 2 ...... $19.1 $19.1 $23.1 $23.1 $32.7 $26.3 $26.3 $26.3 $26.3 $26.3 Paper filing cost, with help 3 ...... $46.4 $46.4 $56.0 $56.0 $79.4 $63.9 $63.9 $63.9 $63.9 $63.9 E-filing cost, with help 4 ...... $19.6 $19.6 $23.7 $23.7 $33.5 $27.0 $27.0 $27.0 $27.0 $27.0

F–1 Total...... $130.8 $130.8 $158.1 $158.1 $223.9 $180.2 $180.2 $180.2 $180.2 $180.2

F–2

F–2 EOS Requests...... 21,118 21,118 25,976 25,976 36,087 31,256 31,256 31,256 31,256 31,256 Paper filing cost, no help 5 ...... $2.0 $2.0 $2.5 $2.5 $3.4 $3.0 $3.0 $3.0 $3.0 $3.0 E-filing cost, no help 6 ...... $0.9 $0.9 $1.1 $1.1 $1.5 $1.3 $1.3 $1.3 $1.3 $1.3

F–2 Total...... $2.9 $2.9 $3.5 $3.5 $4.9 $4.2 $4.2 $4.2 $4.2 $4.2

J–1

J–1 EOS Requests...... 0 0 7,838 7,838 10,138 11,565 11,565 11,565 11,565 11,565 Paper filing cost, no help 1 ...... $0.0 $0.0 $2.5 $2.5 $3.3 $3.7 $3.7 $3.7 $3.7 $3.7 E-filing cost, no help 2 ...... $0.0 $0.0 $1.0 $1.0 $1.3 $1.5 $1.5 $1.5 $1.5 $1.5 Paper filing cost, with help 3 ...... $0.0 $0.0 $2.3 $2.3 $3.0 $3.4 $3.4 $3.4 $3.4 $3.4 E-filing cost, with help 4 ...... $0.0 $0.0 $0.9 $0.9 $1.2 $1.4 $1.4 $1.4 $1.4 $1.4

J–1 Total...... $0.0 $0.0 $6.8 $6.8 $8.7 $10.0 $10.0 $10.0 $10.0 $10.0

J–2

J–2 EOS Requests...... 0 0 5,790 5,790 7,259 8,099 8,099 8,099 8,099 8,099 Paper filing cost, no help 5 ...... $0.0 $0.0 $1.0 $1.0 $1.2 $1.3 $1.3 $1.3 $1.3 $1.3 E-filing cost, no help 6 ...... $0.0 $0.0 $0.4 $0.4 $0.5 $0.6 $0.6 $0.6 $0.6 $0.6

J–2 Total...... $0.0 $0.0 $1.4 $1.4 $1.7 $1.9 $1.9 $1.9 $1.9 $1.9

I

I EOS Requests...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 Paper filing cost, no help 1 ...... $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 E-filing cost, no help 2 ...... $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 Paper filing cost, with help 3 ...... $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 E-filing cost, with help 4 ...... $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1

I Total...... $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0

Total, All Visas...... $134.7 $134.7 $170.8 $170.8 $240.3 $197.3 $197.3 $197.3 $197.3 $197.3 * Totals may not sum due to rounding to the nearest 100,000. 1 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.455). 2 (EOS request estimate) × (unit cost for electronic applicants not requiring outside help) × (0.195). 3 (EOS request estimate) × (unit cost for paper applicants requiring outside help) × (0.245). 4 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.105). 5 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.7). 6 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.3).

The total estimated cost for EOS filing undiscounted,179 or $1.6 billion and $1.3 billion at discount rates of 3 and 7 in 2018 dollars would be $1.8 billion percent, respectively. The annualized 179 The undiscounted total differs slightly from cost of extension of stay filing over the the sum of the years provided in Table 8 because 10-year period would be $187.4 million of rounding in the table values.

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and $192.2 million at discount rates of judgment, SEVP estimates that DSOs/ DHS assumed that, on average, the 3- 3 and 7 percent, respectively. ROs would require 3 hours per EOS hour time estimate accounted for time DSO/RO Costs for Processing Program request for reviewing the program required to update SEVIS entries for F– Extension Requests and Updating SEVIS extension requests by the student (1 2 and J–2 dependents. The per-program hour), updating the SEVIS record and extension DSO/RO costs would be SEVIS is a web-based system that tracking program extension requests (1 $126.72 (3 hours × $28.93 × 1.46 loaded DHS and DOS use to maintain hour), and advising the student or wage rate factor). information regarding: SEVP-certified exchange visitor about the extension schools; F–1 and M–1 students studying Table 9 presents undiscounted DSO/ process and the requirements to file an RO costs for processing program in the United States (and their F–2 and EOS with USCIS (1 hour). M–2 dependents); DOS-designated extension requests and updating SEVIS Exchange Visitor Program sponsors; and To estimate DSO/RO costs for throughout the 2020–2029 study period. J–1 Exchange Visitor Program processing program extension requests Similar to EOS filing costs, DSO/RO participants (and their J–2 dependents). and updating SEVIS, DHS multiplied costs for processing program extension Under the proposed rule, DSOs and ROs the estimated number of EOS requests requests and updating SEVIS are lowest would need to process program for F–1 and J–1 nonimmigrants (Table 6) during the early transition period extension requests, update SEVIS by the expected DSO/RO time (2020–2023) and highest at the end of entries, and provide counseling for any requirement per EOS request (3 hours) the transition period (2024) because of students requesting a program and the DSO/RO loaded wage rate the variation in the estimated number of extension. Based on best professional ($28.93 × 1.46 loaded wage rate factor). EOS requests (Table 6). TABLE 9—DSO/RO COSTS FOR PROCESSING PROGRAM EXTENSION REQUESTS BASED ON EOS REQUESTS AND UPDATING SEVIS, BY YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

Number of EOS Requests1 ...... 180,787 180,787 226,297 226,297 260,582 260,582 260,582 260,582 260,582 260,582 Costs 2 ...... $22.91 $22.91 $28.67 $28.67 $33.02 $33.02 $33.02 $33.02 $33.02 $33.02 1 Sum of EOS request estimates for F–1 students and J–1 exchange visitors. 2 (Number of EOS requests) × (3 hours) × (DSO/RO wage rate of $28.93) × (loaded wage rate factor of 1.46).

The total cost estimate for DSO/RO maintenance. Of the 55 additional Requests for Additional Information or program extension requests processing positions, 23 of the positions would be In-Person Interviews and SEVIS updates would be $308.7 temporary one-year positions to develop For a subset of EOS request cases, 180 million undiscounted, or $268.7 SEVIS and 32 of the positions would be USCIS may request additional million and $226.9 million at discount permanent positions to handle the information or conduct an in-person rates of 3 and 7 percent, respectively. ongoing operation and maintenance and interview if the applicant has raised The annualized cost of EOS filings over the additional call center volume. In FY concerns of a risk to national security or the 10-year period would be $31.5 2021- FY 2029, there would be an public safety, possible criminal activity, million and $32.3 million at discount annual cost of $16 million for the 32 or status violation. These requests rates of 3 and 7 percent, respectively. additional Federal employees to handle would result in costs for both USCIS DHS acknowledges that there may be the ongoing operation and maintenance and the nonimmigrant EOS applicant. additional costs to the government to of SEVIS databases and other DHS IT The additional burden on USCIS would upgrade SEVIS and provide additional systems and to account for the depend on the time required to obtain support services to implement the additional call center volume. and review the additional information proposed rule. DHS anticipates there or conduct the in-person interview. DHS may be costs for SEVIS development, The timeline for completion would anticipates that the additional burden supplemental Federal staff to assist in impact the total SEVIS upgrade cost on applicants, on average, would be the development, increased call center estimate. If DHS lengthens the timeline equivalent to the added expense of volume, and operation and maintenance for implementing the provisions of this seeking third party assistance for of SEVIS databases and other DHS IT rule, DHS may be able to use existing completing the Form I–539, or $490. systems. The costs for the SEVIS resources to complete the necessary Because the percentage of upgrade and support services would upgrades. nonimmigrants that USCIS would ask to depend on the timeline for completion In addition to the changes due to this provide additional information or of the initial upgrade. DHS preliminary proposed rule, DHS is updating SEVIS participate in an in-person interview is estimates show that under a 6-month due to other SEVP programmatic goals. uncertain, this analysis does not timeline for upgrades, the costs in FY The cost estimates of $22.5 million in quantify the costs of such requests on either nonimmigrants or USCIS. 2020 would be $22.5 million. This FY 2020 and $16 million in FY 2021– estimate includes costs for 55 additional FY 2029 include costs that are necessary Potential Reduction in Enrollment Federal employees to handle the SEVIS to implement the provisions of this development, additional call center While the intent of the proposed rule proposed rule but may have been volume, and operation and is to enhance national security, the implemented without this proposed elimination of duration of status has the rule. Therefore, these costs are not 180 The undiscounted total differs slightly from potential to reduce the nonimmigrant the sum of the years provided in Table 9 because accounted for in the total cost of this student enrollment and exchange visitor of rounding in the table values. proposed rule. participation. This regulatory impact

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analysis considers these potential stay for additional time to complete university.186 These factors may impacts for each category of their program who cannot establish that outweigh the perceived impacts from nonimmigrant affected by the proposed the reason for requesting an extension is the proposed admission for a fixed rule. due to compelling academic reasons, a period. documented illness or medical F and J Nonimmigrants Affiliated With Other J Exchange Visitors condition, or circumstances beyond the SEVP-Certified Schools student’s control, or have otherwise For other J exchange visitors, such as The proposed rule may adversely failed to maintain status, the possibility government visitors and alien affect U.S. competitiveness in the of an extension being denied and the physicians, DHS does not believe there international market for nonimmigrant student thus not being able to complete would be a significant impact in student enrollment and exchange visitor the degree in the U.S. might affect the participation. Alternatives to U.S.-based participation. Specifically, the proposed student’s choice of country in which to exchange visitor programs (outside of changes could decrease nonimmigrant study. As a result, nonimmigrant academia) may be more difficult to find student enrollments in the United States students and exchange visitors may be in other countries, providing less of an with corresponding increased incentivized to consider other English- incentive for nonimmigrants to choose enrollments in other English-speaking speaking countries for their studies. an alternative. S. countries, notably in Canada, Australia, Nonimmigrant student enrollment I Foreign Information Media and the United Kingdom. Student visas and exchange visitor participation Representatives and resulting nonimmigrant status in contributes to the U.S. economy. The other English-speaking countries are Institute of International Education Similar to J exchange visitors not typically valid for the duration of the estimates that during the 2018 academic affiliated with SEVP-certified schools, student’s course enrollment, so students year, international students alone had DHS does not believe the proposed rule are not generally required to file an EOS an economic impact of $44.7 billion would have a significant impact on I application. For example, Australia’s from tuition and fees, food, clothing, nonimmigrants. Using ADIS data from most common student visa (Subclass travel, textbooks, and other spending.184 2016–2018, DHS found that on average, 500) provides for an admission for a If these students and exchange visitors 97 percent of I nonimmigrants have a length of stay that corresponds to the choose another country over the United period of stay shorter than 240 days, student’s enrollment, which may be States because of this proposed rule, and there are fewer proposed changes to more than 4 years.181 Similarly, a then the reduced demand could result the I category relative to other Canadian study permit is typically valid in a decrease in enrollment, therefore, nonimmigrants, such as F for the length of the study program, plus impacting school programs in terms of nonimmigrants. Therefore, DHS does an extra 90 days to let the student forgone tuition and other fees, jobs in not expect a reduction in admissions of prepare to leave Canada or apply to communities surrounding schools, and I nonimmigrants. extend their stay.182 The admission the U.S. economy. DHS conducted a DHS appreciates the importance of period for a nonimmigrant with a Tier literature search to find research nonimmigrant student enrollment and 4 (General) student visa in the United estimating impacts associated with exchange visitor participation to the Kingdom depends on the length of the actions like the proposed requirements U.S. culture and economy, but course as stated in the student’s and found related research like the acknowledges the potential for the Confirmation of Acceptance for Studies. Institute of International Education’s proposed rule to affect future International students in the UK are Open Doors®, as cited above, and nonimmigrant student enrollment and granted a certain number of additional NAFSA’s Economic Value Tool 185 that exchange visitor participation and months at the end of the course to provide annual estimates of the associated revenue. DHS requests prepare for departure, apply to extend economic contribution of international comment on this potential impact, their stay or change their status, students to the U.S. economy. While including literature, data, and research depending on the original course DHS acknowledges that the rule may estimating nonimmigrant student length.183 In each case, some decrease nonimmigrant student enrollment and exchange visitor nonimmigrant students may consider enrollments, there are many factors that participation impacts and the potential other countries’ visa programs to be less make the United States attractive to effect of the requirements on schools or restrictive relative to the proposed rule, nonimmigrant students and exchange sponsors and the larger economy. as they would not be required to file an visitors beyond the allowable admission Implementation and Operations Costs application to extend their stay and period. For example, Daily, Farewell, Incurred by CBP incur this additional expense. Although and Guarav (2010) found that it affects only those F–1 nonimmigrants international students pursuing a DHS acknowledges there would be who are applying for an extension of business degree in the United States rate implementation and operational costs to opportunities for post-graduation the U.S. Government associated with 181 Australian Government, Department of Home employment, availability of financial assessing aliens at the POE for purposes Affairs: Immigration and Citizenship, Subclass 500 aid, and reputation of the school as the of authorizing an admission period of 2 (Student Visa). Retrieved from: https:// immi.homeaffairs.gov.au/visas/getting-a-visa/visa- most important factors in selecting a or 4 years. CBP officers would need listing/student-500#Overview https:// training on new systems and procedures immi.homeaffairs.gov.au/visas/getting-a-visa/visa- 184 Institute of International Education, 2019 for conducting inspections at the POE. listing/student-500#Overview. Open Doors® Report on International Educational Once the rule is effective, CBP officers 182 Government of Canada, Immigration and Exchange, Retrieved from: https://www.iie.org/Why- would need readily accessible Citizenship, Study Permit: About the Process. IIE/Announcements/2019/11/Number-of- Retrieved from: https://www.canada.ca/en/ International-Students-in-the-United-States-Hits- information on the applicant to assist in immigration-refugees-citizenship/services/study- All-Time-High. canada/study-permit.html https://www.canada.ca/ 185 NAFSA: Association of International 186 Daily, C., Farewell, S., & Guarav, K., (2010). en/immigration-refugees-citizenship/services/study- Educators, Economic Value Statistics, Retrieved Factors Influencing the University Selection of canada/study-permit.html. from: https://www.nafsa.org/policy-and-advocacy/ International Students, Academy of Educational 183 Gov.uk, General Student Visa (Tier 4). policy-resources/nafsa-international-student- Leadership Journal, 14(3), 59–75, Retrieved from: Retrieved from: https://www.gov.uk/tier-4-general- economic-value-tool-v2#main-content (last visited https://www.abacademies.org/articles/ visa. Apr. 14, 2020). aeljvol14no32010.pdf (last visited Apr. 14, 2020).

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(1) assessing the appropriate length of in a timely manner by automating the potential impact of system-wide stay for admission; and (2) making an exchange of data. Rather than updating hardware or software updates. admissibility assessment in cases of re- individual nonimmigrant student and Preparing the SEVIS batch system to admission. DHS may require exchange visitor information manually accept novel categories of information modification to the Primary Processing through SEVIS, batch processing allows from schools and program sponsors System to deliver this information to schools and program sponsors to pool could require new database CBP officers. DHS continues to explore together and automatically process management procedures. DHS the necessary upgrades to systems and updates at the same time. The intended acknowledges that accepting the procedures that would allow CBP benefit of using batch processing is to updated XML files sent from DSOs has officers to perform their duties in streamline the SEVIS updating process. the potential to impact the functionality accordance with this proposed rule. Instead of updating individual record of its internal system. The SEVIS batch Therefore, this analysis does not information one-by-one through the system may require system updates to quantify the costs associated with SEVIS Portal, DSOs can update multiple maintain proper operations and system training CBP officers or the operational records at once, automatically. execution during the exchange between costs associated with new systems and DSOs are required to submit changes the user-system (the DSO’s system) and procedures. or updates to the nonimmigrant student the SEVIS batch system. Because of the uncertainty of the scope and scale of the E-Verify and exchange visitor information to the SEVIS database system. When using system upgrades needed as a result of DHS is proposing a 2-year limitation batch processing to submit information this proposed rule, DHS has not on F nonimmigrants accepted to and to SEVIS, DSOs are required to comply monetized the cost of these potential, attending schools not enrolled in E- with the proper documentation by future information technology Verify, or if enrolled, not a participant submitting their updates as Extensible investments. in good standing in E-Verify as Markup Language (‘‘XML’’) documents. English Language Training determined by USCIS. DHS also is Using the XML format allows the SEVIS DHS is proposing a limitation of an proposing a 2-year limitation on J batch system to recognize the new or aggregate 24-month period of stay, nonimmigrants participating in an updated student data automatically. The including breaks and an annual exchange visitor program whose changes are stored in the SEVIS batch vacation, for language training students. sponsor is not enrolled in E-Verify, or if system and an updated report is Unlike degree programs, there are no enrolled, not a participant in good returned to the school for record nationally-recognized, standard standing in E-Verify as determined by keeping and verification. Schools can completion requirements for language USCIS. The proposed rule would develop their own software or use third- training programs, allowing students to require these nonimmigrants to file an party software suppliers to organize, exploit the current system and stay for EOS request every 2 years to extend update, and store their student data an excessive period of time. The their stay. according to the SEVIS XML proposed 24-month period of stay The EOS estimates and quantitative requirements.188 cost impacts incorporate E-Verify would allow students a reasonable If finalized, the rule could lead to enrollment for J exchange visitor period of time to attain proficiency in system upgrades by schools and program sponsors. This was done by the English language while mitigating program sponsors that currently use matching the employer identification the Department’s concerns of fraud with batch processing to interface with number for J exchange visitor program the program. DHS estimates that an SEVIS. DHS acknowledges that there are sponsors with the employer average of 136,000 students participate many factors that affect the magnitude identification number for employers in English language training programs of system upgrade costs incurred by enrolled in E-Verify. However, DHS was annually.189 This analysis does not schools. For example, there may be one- not able to control for E-Verify estimate a cost for this proposed time software development costs to enrollment for schools attended by F provision as students enrolled in implement an updated system capable nonimmigrants because the student data English language training would not be of storing and converting a higher did not contain the employer able to extend their fixed period of stay volume of nonimmigrant student and identification number for schools beyond two years and would therefore exchange visitor records. There also attended by F nonimmigrants. DHS not incur the costs associated with may be differences in the burden of the attempted to manually identify schools applying for an extension to their period proposed rule according to the size of enrolled in E-Verify using fields such as of admission. However, it is possible the nonimmigrant student and exchange school name and employer name, but language training programs would visitor population at the school, the was unsuccessful. For this reason, DHS experience reduced enrollment due to willingness of the school to maintain did not quantify the impact of the E- the proposed rule. Additionally, some up-to-date system-wide software and Verify provision on F nonimmigrants in schools may choose to change their hardware, and other factors. DHS this analysis.187 curriculum to be covered in a 2-year requests comment on this potential time period, representing an additional Batch Processing impact, including the potential effect of burden on language training program Batch processing is a data-based the requirements on schools or sponsors providers. However, DHS expects this to transaction between a school and the and any data associated with the affect relatively few programs. For all SEVIS information database maintained impact, such as the typical expenses for years of analysis, the majority of English by DHS. Batch processing is intended to third-party software licenses or the help DSOs and ROs update and report 189 This estimate was developed using data from their nonimmigrant student and 188 Immigration and Customs Enforcement SEVIS SEVIS. The SEVIS database was queried to extract document, Application Program Interface data from FY 2016–2018. DHS used R Statistical exchange visitor information to SEVIS Document for the Student and Exchange Visitor Software to develop logic allowing DHS to identify Information System Batch Interface Release 6.35, p. individuals enrolled in language training programs. 187 See the section titled, ‘‘Estimating EOS 1–5 (July 31, 2017), Retrieved from: https:// DHS provides the SQL code used to query the Requests for F Nonimmigrants’’ for a discussion www.ice.gov/doclib/sevis/pdf/batch_api_6.35_ SEVIS database and the R code used to develop the regarding the E-Verify data limitations. 073117_main.pdf. logic for this analysis on the proposed rule’s docket.

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language training students were training programs by program duration resulting from the proposed limitations enrolled in programs shorter than two for FY 2016–2018. DHS seeks public on language training. years. Table 10 shows the percentage of comment on potential reduced students enrolled in English language enrollment, and associated impacts,

TABLE 10—PERCENT OF STUDENTS ENROLLED IN ENGLISH LANGUAGE TRAINING PROGRAMS BY LENGTH OF PROGRAM

FY 2016 FY 2017 FY 2018

Percent of English Language Training Students with a Program Duration Less Than or Equal to 1 Year ...... 58.4 58.9 58.0 Percent of English Language Training Students with a Program Duration Greater Than 1 year and Less Than or Equal to 2 years ...... 27.7 25.8 26.3 Percent of English Language Training Students with a Program Duration Greater Than 2 Years ...... 13.8 15.3 15.7 Estimates derived from SEVIS data.

Limitations on Changes in Educational nonimmigrant student program changes applications and applications for Levels between educational levels due to the employment authorization based on DHS is proposing a limitation on the lack of reliable transfer data. DHS seeks either an internship with an number of program changes at the same public comment on this potential international organization, CPT, pre- or lower educational levels that students impact. completion OPT, or post-completion OPT are approved. would be permitted to further Pending EOS Applications for F strengthen the integrity of the F visa Nonimmigrants DHS acknowledges that these category. Specifically, DHS proposes to requirements would affect a cohort of F The proposed rule also would restrict the number of program changes nonimmigrants. The total impact would establish certain adjustments for F between educational levels after depend on the number of F nonimmigrants with pending EOS completion of their first program by nonimmigrants with a timely filed EOS applications. Specifically, F limiting F–1 students to two additional application and whose EOS application nonimmigrants with a timely filed EOS changes in programs at the same level is still pending after their admission application and whose EOS application and one additional transfer to a lower period indicated on Form I–94 has is still pending after their admission level. See proposed 8 CFR expired. DHS does not have data to period indicated on Form I–94 has 214.2(f)(8)(ii)(B). This limitation may estimate this sub-population. DHS expired would: cause minor nonimmigrant enrollment believes that the incremental impact • Receive an automatic extension of reductions at schools, especially where from these proposed requirements their F nonimmigrant status and, as F–1 nonimmigrants have changed would not have a material impact on the between programs to remain in the applicable, of their on-campus employment authorization, off-campus results of this analysis, but requests United States for lengthy periods, and public comment on these impacts. may also reduce options to change employment authorization due to severe programs available to nonimmigrant economic hardship, or STEM OPT Total Cost Estimates students, including those who are employment authorization, as well as properly maintaining their status. evidence of employment authorization, Table 12 summarizes the impacts of Limiting the number of changes for up to 180 days or until the the proposed rule. Total monetized between education levels could applicable applications are approved, costs of the proposed rule include DSO potentially result in a corresponding whichever is earlier; and RO rule familiarization and reduction in tuition revenue for the • receive an automatic extension of adaptation costs, EOS filing costs, and universities and a reduction in their current authorization for on- DSO/RO program extension request extension of stay filing fees for the campus and off-campus employment processing and SEVIS update costs. The Federal government from students that based on severe economic hardship 10-year discounted costs of the are otherwise in compliance with their resulting from emergent circumstances proposed rule in 2018 dollars would status, fulfilling their academic under 8 CFR 214.2(f)(5)(v), for up to 180 range from $1.7 billion to $2.0 billion requirements, but are interested in days or the end date of the Federal (with 7 and 3 percent discount rates, additional programs beyond the Register notice (FRN) announcing the respectively). The annualized costs of proposed limitation. Based on an suspension of certain requirements, the proposed rule would range from analysis of three fiscal years of SEVIS whichever is earlier; $229.9 million to $237.7 million (with data between FY 2016 and FY 2018, • be prohibited from engaging in 3 and 7 percent discount rates, DHS is unable to quantify the impact on employment until their EOS respectively).

TABLE 12—COSTS OF THE PROPOSED RULE [2018$ millions]

DSO/RO Fiscal year DSO/RO rule EOS filing EOS Total costs familiarization processing

2020 ...... $93.3 $134.7 $22.9 $250.9 2021 ...... 0.0 134.7 22.9 157.6 2022 ...... 0.0 170.8 28.7 199.4 2023 ...... 0.0 170.8 28.7 199.4

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TABLE 12—COSTS OF THE PROPOSED RULE—Continued [2018$ millions]

DSO/RO Fiscal year DSO/RO rule EOS filing EOS Total costs familiarization processing

2024 ...... 0.0 240.3 40.5 280.7 2025 ...... 0.0 197.3 33.0 230.3 2026 ...... 0.0 197.3 33.0 230.3 2027 ...... 0.0 197.3 33.0 230.3 2028 ...... 0.0 197.3 33.0 230.3 2029 ...... 0.0 197.3 33.0 230.3

Undiscounted Total ...... 93.3 1,837.7 308.7 2,239.6 Total with 3% discounting ...... 93.3 1,599.0 268.7 1,961.0 Total with 7% discounting ...... 93.3 1,349.6 226.9 1,669.8 Annualized, 3% discount rate, 10 years ...... 10.9 187.4 31.5 229.9 Annualized, 7% discount rate, 10 years ...... 13.3 192.2 32.3 237.8

Transfers with the requirements of their status, or individuals. Without this oversight, if they present a national security there is no data on prevalence of fraud Should there be a reduction in the concern. Requiring nonimmigrant and abuse by F, J, and I nonimmigrants number of nonimmigrant students and academic students, exchange visitors, and only limited data on these exchange visitors applying for visas or and representatives of foreign individuals’ impact on national for F or J status in the United States, information media to request an security. then there would be an impact on the additional period of admission directly amount of fees collected by SEVP and with the Department would improve 5. Alternatives DOS from nonimmigrant students and consistency of admissions between Before arriving at a fixed admission exchange visitors through visa nonimmigrant categories, enable period of up to either 2 or 4-years, DHS applications and SEVIS fees. These fees stronger oversight by immigration considered various options, including are used to cover the operational costs officers who would review the no action, a 1- and 3-year fixed associated with processing the nonimmigrant’s request and assess admission period alternative, and a applications and adjudications. whether the nonimmigrant had been standard 1-year fixed admission period Nonetheless, DHS anticipates that any complying with the terms and for all F and J nonimmigrants. impacts resulting from potential conditions of his or her status, enhance No Action Alternative decreased nonimmigrant student DHS’s ability to effectively enforce the enrollment and exchange visitor statutory inadmissibility grounds DHS first considered a ‘‘no action’’ participation would be outweighed by related to unlawful presence, and deter alternative, under which F, J, and I the national security benefits aliens and entities from engaging in nonimmigrants would continue being anticipated as a result of the proposed fraud and abuse within these admitted for D/S. DHS determined that requirements. nonimmigrant programs. Accordingly, this alternative would not address the Benefits these proposed changes would provide lack of pre-determined points for the Department with additional immigration officers to directly evaluate Among the unquantified benefits of protections and mechanisms to exercise whether F, J and I nonimmigrants are the proposed rule is the opportunity for the oversight necessary to vigorously maintaining their status, currently DHS to have additional opportunities to enforce our nation’s immigration laws, lacking because of the D/S framework. evaluate whether F, J, and I protect the integrity of these categories, Additionally, DSOs and ROs would nonimmigrants are complying with their and promptly detect national security continue extending the program and status requirements. Currently, the D/S concerns. therefore the nonimmigrant status of F framework does not require immigration DHS believes this proposed rule could and J aliens, instead of having officers to assess whether these result in reduced fraud, abuse, and immigration officers, who are nonimmigrants are complying with the national security risks for these government officials, make this terms and conditions of their stay, or nonimmigrant programs, but whether assessment. As a result, there would whether they present a national security the rule will in fact result in a reduction continue to be challenges to the concern, unless some triggering event will be borne out when the final rule is Department’s ability to effectively (such as an encounter in an enforcement implemented. Compared to the current monitor and oversee these categories of setting, or a request for a benefit from D/S framework in which a nonimmigrants. With this option, the USCIS) leads to a review of the nonimmigrant’s substantive compliance Department would continue to be nonimmigrant’s compliance. By might never be reviewed by DHS, DHS concerned about the integrity of the implementing fixed periods of believes that the rule would be likely to programs and the potential for increased admission for these nonimmigrants, result in more prompt detection of risk to national security. they will be required to submit an national security concerns or abuse by application for EOS or travel and apply F, J and I nonimmigrants and could Alternative 1: 1- and 3-Year Fixed for admission, which they are not serve as a deterrent to those who would Admission Period currently required to do, in order to stay otherwise plan to engage in fraud or An alternative that DHS considered beyond their period of admission. This otherwise abuse these nonimmigrant was to admit F and J nonimmigrants to gives DHS additional opportunities to classifications. The rule proposes their program end date, not to exceed 3 evaluate whether they are complying additional oversight of these years, or 1 year for nonimmigrants

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meeting certain conditions. While such receive 193,000 fewer EOS requests on stay alternative. Therefore, DHS believes an option would provide the average each year. DHS believes that a an admission for the program end date, Department with more frequent direct 4-year period best aligns with the not to exceed 4 years (except for limited check in points with these normal progress for most programs, and exceptions that would limit admissions nonimmigrants than provided by a 4- a 3-year maximum period of stay would to 2 years) is the best option and year maximum period of admission, or require almost every nonimmigrant welcomes comments on this proposal. 2 years for nonimmigrants meeting enrolled in a 4-year program to apply for DHS calculated the costs for this certain conditions, DHS was concerned an EOS. A 3-year maximum also would alternative. DSO and RO rule it would be unduly burdensome on result in greater administrative burdens familiarization and adaptation costs many F and J nonimmigrants. Under the on USCIS and CBP compared to the would remain the same under this alternative, DHS estimates that, on proposed 4-year maximum period of alternative ($93.3 million during the average, 494,000 nonimmigrants would admission. USCIS would have to first year after the rule takes effect). To file an EOS each year. By comparison, adjudicate extension of stay calculate EOS filing costs, DHS DHS estimates that under the proposed applications with more frequency if a 3- multiplied the expected number of rule, on average, 301,000 year maximum period of stay is chosen extension of stay requests under the 3- nonimmigrants would file an EOS each over a 4-year period. Similarly, CBP year and 1-year fixed admission period year. By selecting the 2- and 4- year would have to process applications for alternative for F, I, and J nonimmigrants option in the proposed rule over the 1- admission at POEs more frequently (Table 13) by the appropriate applicant and 3-year alternative, DHS expects to under the 3-year maximum period of unit costs (Table 7). TABLE 13—NUMBER OF EOS REQUESTS UNDER ALTERNATIVE #1 BY NONIMMIGRANT CATEGORY AND YEAR

Early transition period End of Full implementation period Nonimmigrant category transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1 ...... 180,787 298,835 298,835 537,228 381,596 381,596 381,596 381,596 381,596 381,596 F–2 ...... 21,118 35,376 35,376 56,917 44,094 44,094 44,094 44,094 44,094 44,094 J–1 ...... 0 40,776 40,776 50,418 45,526 45,526 45,526 45,526 45,526 45,526 J–2 ...... 0 18,896 18,896 25,004 21,978 21,978 21,978 21,978 21,978 21,978 I ...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197

Total ...... 203,102 395,080 395,080 670,764 494,391 494,391 494,391 494,391 494,391 494,391

Table 14 presents undiscounted EOS filing type (paper or electronic) and the the transition period (2023) because of filing costs under the 3-year and 1-year use or nonuse of outside help to the variation in the estimated number of fixed admission period alternative by complete the form. EOS filing costs are EOS requests (Table 13). nonimmigrant category and year, along lowest during the early transition period with a breakdown of costs based on (2020–2022) and highest at the end of TABLE 14—EOS FILING COSTS UNDER ALTERNATIVE #1, BY NONIMMIGRANT CATEGORY AND YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period Number of EOS/cost transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

F–1

F–1 EOS Requests...... 180,787 298,835 298,835 537,228 381,596 381,596 381,596 381,596 381,596 381,596 Paper filing cost, no help 1 ...... $45.8 $75.7 $75.7 $136.1 $96.7 $96.7 $96.7 $96.7 $96.7 $96.7 E-filing cost, no help 2 ...... $19.1 $31.5 $31.5 $56.7 $40.3 $40.3 $40.3 $40.3 $40.3 $40.3 Paper filing cost, with help 3 ...... $46.4 $76.6 $76.6 $137.8 $97.9 $97.9 $97.9 $97.9 $97.9 $97.9 E-filing cost, with help 4 ...... $19.6 $32.4 $32.4 $58.2 $41.3 $41.3 $41.3 $41.3 $41.3 $41.3

F–1 Total...... $130.8 $216.3 $216.3 $388.8 $276.2 $276.2 $276.2 $276.2 $276.2 $276.2

F–2

F–2 EOS Requests...... 21,118 35,376 35,376 56,917 44,094 44,094 44,094 44,094 44,094 44,094 Paper filing cost, no help 5 ...... $2.0 $3.3 $3.3 $5.4 $4.2 $4.2 $4.2 $4.2 $4.2 $4.2 E-filing cost, no help 6 ...... $0.9 $1.4 $1.4 $2.3 $1.8 $1.8 $1.8 $1.8 $1.8 $1.8

F–2 Total...... $2.9 $4.8 $4.8 $7.7 $6.0 $6.0 $6.0 $6.0 $6.0 $6.0

J–1

J–1 EOS Requests...... 0 40,776 40,776 50,418 45,526 45,526 45,526 45,526 45,526 45,526 Paper filing cost, no help 1 ...... $0.0 $13.1 $13.1 $16.2 $14.6 $14.6 $14.6 $14.6 $14.6 $14.6 E-filing cost, no help 2 ...... $0.0 $5.2 $5.2 $6.5 $5.8 $5.8 $5.8 $5.8 $5.8 $5.8 Paper filing cost, with help 3 ...... $0.0 $11.9 $11.9 $14.8 $13.3 $13.3 $13.3 $13.3 $13.3 $13.3 E-filing cost, with help 4 ...... $0.0 $4.9 $4.9 $6.1 $5.5 $5.5 $5.5 $5.5 $5.5 $5.5

J–1 Total...... $0.0 $35.1 $35.1 $43.5 $39.2 $39.2 $39.2 $39.2 $39.2 $39.2

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TABLE 14—EOS FILING COSTS UNDER ALTERNATIVE #1, BY NONIMMIGRANT CATEGORY AND YEAR—Continued [Millions 2018$, undiscounted]

Early transition period End of Full implementation period Number of EOS/cost transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

J–2

J–2 EOS Requests...... 0 18,896 18,896 25,004 21,978 21,978 21,978 21,978 21,978 21,978 Paper filing cost, no help 5 ...... $0.0 $3.1 $3.1 $4.1 $3.6 $3.6 $3.6 $3.6 $3.6 $3.6 E-filing cost, no help 6 ...... $0.0 $1.3 $1.3 $1.8 $1.6 $1.6 $1.6 $1.6 $1.6 $1.6

J–2 Total...... $0.0 $4.5 $4.5 $5.9 $5.2 $5.2 $5.2 $5.2 $5.2 $5.2

I

I EOS Requests...... 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 1,197 Paper filing cost, no help 1 ...... $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 E-filing cost, no help 2 ...... $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 $0.2 Paper filing cost, with help 3 ...... $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 $0.4 E-filing cost, with help 4 ...... $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1 $0.1

I Total...... $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0 $1.0

Total, All Nonimmigrant Cat- egories ...... $134.7 $261.7 $261.7 $446.9 $327.6 $327.6 $327.6 $327.6 $327.6 $327.6 * Totals may not sum due to rounding. 1 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.455). 2 (EOS request estimate) × (unit cost for electronic applicants not requiring outside help) × (0.195). 3 (EOS request estimate) × (unit cost for paper applicants requiring outside help) × (0.245). 4 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.105). 5 (EOS request estimate) × (unit cost for paper applicants not requiring outside help) × (0.7). 6 (EOS request estimate) × (unit cost for electronic applicants requiring outside help) × (0.3).

The total costs for EOS request filing 1-year fixed period of admission the 2020–2029 study period under the under the 3-year and 1-year fixed period alternative, DHS multiplied the 3-year and 1-year fixed admission of admission alternative would be $3.1 expected number of F–1 and J–1 EOS period alternative. Similar to EOS filing billion undiscounted,190 or $2.7 billion requests under the 3-year and 1-year costs, DSO/RO costs to process program and $2.2 billion at discount rates of 3 fixed admission period alternative extension requests and update SEVIS and 7 percent, respectively. The (Table 13) by the expected DSO and RO are lowest during the early transition annualized cost of EOS request filing time requirement per EOS request (3 period (2020–2022) and highest at the over the 10-year period would be $312.8 hours) and the DSO and RO loaded × end of the transition period (2023) million and $320.0 million at discount wage rate ($28.93 1.46 loaded wage because of the variation in the estimated rates of 3 and 7 percent, respectively. rate factor). number of EOS requests (Table 13). To estimate costs for DSOs and ROs Table 15 presents undiscounted DSO/ to process program extension requests RO costs to process program extension and update SEVIS under the 3-year and requests and update SEVIS throughout TABLE 15—DSO/RO COSTS FOR PROCESSING PROGRAM EXTENSION REQUESTS BASED ON EOS REQUESTS AND UPDATING SEVIS UNDER ALTERNATIVE #1, BY YEAR [Millions 2018$, undiscounted]

Early transition period End of Full implementation period transition 2020 2021 2022 2023 2024 2025 2026 2027 2028 2029

Number of Extension Requests 1 ...... 180,787 339,611 339,611 587,646 427,122 427,122 427,122 427,122 427,122 427,122 Costs 2 ...... $22.91 $43.03 $43.03 $74.46 $54.12 $54.12 $54.12 $54.12 $54.12 $54.12 1 Sum of extension request estimates for F–1 students and J–1 exchange visitors. 2 (Number of extension requests) × (3 hours) × (DSO/RO wage rate of $28.93) × (loaded wage rate factor of 1.46).

The total cost estimate for DSOs and The annualized cost of DSOs and ROs familiarization and adaptation costs, ROs to process program extension to update SEVIS over the 10-year period EOS filing costs, and DSO/RO costs for requests and update SEVIS under the 3- would be $51.8 million and $53.0 processing program extension requests year and 1-year fixed period of million at discount rates of 3 and 7 and updating SEVIS. The 10-year admission alternative would be $508.2 percent, respectively. discounted total costs of the 3-year and million undiscounted,191 or $441.7 Total monetized costs of the 3-year 1-year fixed period of admission million and $372.1 million at discount and 1-year fixed period of admission alternative would be $3.2 billion with a rates of 3 and 7 percent, respectively. alternative include DSO and RO rule 3 percent discount rate and $2.7 billion

190 The undiscounted total differs slightly from 191 The undiscounted total differs slightly from the sum of the years provided in Table 14 because the sum of the years provided in Table 15 because of rounding in the table values. of rounding in the table values.

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with a 7 percent discount rate. The aliens apply for a visa and admission to Department has observed that abuse is annualized total costs of the 3-year and the U.S. as an F or J nonimmigrant, as not limited to one particular type of 1-year fixed period of admission well as to track and monitor their status. school or program. By fixing a date alternative would range from $375.5 While this information is likely to be certain period of admission, all of these million to $386.2 million (with 3 and 7 helpful in identifying aliens who should nonimmigrants are on notice as to the percent discount rates, respectively). be subjected to further review, in some date their period of stay expires, and the The qualitative benefits of the 3-year cases the information may not be Department will be in a position to and 1-year fixed period of admission sufficient for determining whether these provide greater oversight to help deter F alternative are same as the benefits of nonimmigrants are engaging in and J nonimmigrants from engaging in the 4-year and 2-year fixed period of fraudulent behavior or otherwise have fraud and abuse, including staying admission alternative described in fallen out of status. The data received beyond that fixed date. All those who Section V.A.4. when applying for an EOS provides overstay would begin to accrue additional information not contained in unlawful presence, generally the day Other Alternatives SEVIS that helps the Department after their period of stay expires, when DHS also considered a standard 1- effectively monitor and oversee F and J admitted for a fixed period of year fixed admission period for all F nonimmigrants. Further, an EOS admission. Lastly, the Department and J nonimmigrants. This option provides a direct interaction with an believes that a fixed period of admission would treat all F and J nonimmigrants immigration officer. As a potential for these populations may deter fraud, equally and would likely allow for remedy, the Department considered allow for earlier detection of national easier implementation by USCIS and whether the SEVIS data could be used security concerns, and help reduce CBP by reducing the complexity of to classify a subset of nonimmigrants as overstays which outweighs reducing the implementation and enforcement. higher risk of being a national security number of EOS requests that may be Nevertheless, it could result in threat or committing fraud. The required. significant costs to nonimmigrants and identified subset would then be the Department. There are more than 1 required to complete an EOS as Comparison Table of Alternatives million F students who are enrolled in described in the proposal. Depending on Table 16 compares the quantitative programs of study that last longer than how the Department targeted higher risk costs and qualitative benefits of the 1 year. With a 1-year admission period, aliens, a smaller number of EOS’s would various alternatives. The ‘‘no action’’ DHS expects that all of them would be need to be completed as compared to alternative has zero costs but does not required to apply for additional time. the current proposal, thus lowering the address how the D/S framework This would be a significant cost to burden on nonimmigrants, program challenges the Department’s ability to students and exchange visitors, sponsors, and the Department. The effectively implement the statutory especially those who comply with the Department rejected this alternative in inadmissibility grounds of unlawful terms and conditions of their admission favor of moving all F and J presence, undermines the integrity of and those attending undergraduate nonimmigrants to a fixed period these programs, and presents a risk to programs that typically require 4 years admission because SEVIS does not national security. The alternative with a to complete. Further, such a restrictive readily lend itself to this purpose, as it 3-year maximum period of admission admission period could have is used to gather information regarding (or 1-year for nonimmigrants meeting unintended consequences. For example, technical compliance, and the data certain conditions) would provide the if USCIS’s EOS processing time is cannot replace the information that can Department with more frequent direct significantly lengthened due to a 1-year be developed in the course of an check in points on the nonimmigrants admission period, cases presenting adjudication, in which USCIS has the than a 4-year maximum period of national security or fraud concerns opportunity to ask questions via a admission, but DHS determined that the would not necessarily be prioritized, request for evidence and, if necessary, expense and workload implications of thereby allowing a mala fide student or conduct an interview. The Department this option would be too burdensome on exchange visitor to remain in the United also rejected this alternative due to the all stakeholders. DHS thus selected the States until USCIS adjudicated his or operational burden and challenges that proposed rule, which would impose her petition. would exist if some F and J lower costs while providing the DHS also considered whether the nonimmigrants were admitted for D/S, Department with an effective Department could utilize data from but others for a fixed period of mechanism to exercise the oversight SEVIS to identify potentially admission. In addition, by requiring all necessary to vigorously enforce our problematic F and J nonimmigrants and of the F and J nonimmigrants to be nation’s immigration laws, protect the require only this targeted subset of F admitted for a fixed period, this allows integrity of these categories, and and J nonimmigrants to complete an for the opportunity for improved promptly detect national security EOS. SEVIS information is used when detection of fraud or abuse, as the concerns.

TABLE 16—SUMMARY OF ALTERNATIVES

10-Year discounted totals (in $2018 million) Annualized Alternative costs Total costs Qualitative benefits

3-Percent Discount

No action ...... $0.00 $0.00 N/A. Proposed Rule (4-year max admis- 229.9 1,961.0 Evaluations at pre-determined intervals provide oversight necessary to sion). enforce immigration laws; protect the integrity of F, J, and I non- immigrant categories; and promptly detect national security concerns.

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TABLE 16—SUMMARY OF ALTERNATIVES—Continued

10-Year discounted totals (in $2018 million) Annualized Alternative costs Total costs Qualitative benefits

Alternative 1 (3-year max admis- 375.5 3,203.5 More frequent evaluations of nonimmigrants (at least one check-in for sion). every F, J, and I nonimmigrant).

7-Percent Discount

No action ...... $0.00 $0.00 N/A. Proposed Rule (4-year max admis- 237.8 1,669.8 Evaluations at pre-determined intervals provide oversight necessary to sion). enforce immigration laws; protect the integrity of F, J, and I non- immigrant categories; and promptly detect national security concerns. Alternative 1 (3-year max admis- 386.2 2,712.7 More frequent evaluations of nonimmigrants (at least one check-in for sion). every F, J, and I nonimmigrant).

B. Regulatory Flexibility Act 2. A Succinct Statement of the authorities, including USCIS’ authority Objectives of, and Legal Basis for, the to establish national immigration The Regulatory Flexibility Act of 1980 Proposed Rule services policies and priorities and (RFA), 5 U.S.C. 601–612, as amended, The objective of the proposed rule is adjudicate applications) and 6 U.S.C. requires federal agencies to consider the to establish requirements that would 252(a)(4) (describing ICE’s authority to potential impact of regulations on small help: (1) Ensure that the Department has collect information relating to foreign entities during rulemaking. The term an effective mechanism to periodically students and program participants and ‘‘small entities’’ comprises small and directly assess whether these to use such information to carry out its business, not-for-profit organizations nonimmigrants are complying with the enforcement functions). Section that are independently owned and conditions of their classifications and 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), operated and are not dominant in their U.S. immigration laws; and (2), obtain and Title IV of the Homeland Security fields, and governmental jurisdictions timely and accurate information about Act of 2002, Public Law 107–296, the with populations of less than 50,000. the activities they engage in during their Secretary of Homeland Security has the DHS requests information and data from temporary stay in the United States. If authority to prescribe, by regulation, the the public that would assist in better immigration officers discover a time and conditions of admission of all understanding the impact of this nonimmigrant in one of these categories nonimmigrants. proposed rule on small entities. DHS has overstayed or otherwise violated his 3. A Description of and, Where Feasible, also seeks input from the public on or her status, the proposed changes an Estimate of the Number of Small alternatives that will accomplish the would ensure the Department is better Entities to Which the Proposed Rule same objectives and minimize the able to carry out the unlawful presence Will Apply proposed rule’s economic impact on provisions of the Immigration and small entities. An initial regulatory Nationality Act (INA). DHS believes this The small entities to which the proposed rule would apply include all flexibility analysis (IRFA) follows. greater oversight would deter F, J, or I nonimmigrants from engaging in fraud small SEVP-certified schools and J 1. A Description of the Reasons Why the and abuse and strengthen the integrity exchange visitor program sponsors. Action by the Agency Is Being of these nonimmigrant classifications. Employers of I foreign information Considered The legal basis for this proposed rule media representatives would incur is grounded in the Secretary of negligible costs from the proposed rule DHS proposes to amend its Homeland Security’s broad authority to because the burden for filing an EOS regulations to eliminate the practice of administer and enforce the nation’s request falls on the I nonimmigrant, not admitting F academic students, I immigration laws. Under Section 102 of the employer. Employers of I foreign representatives of foreign information the Homeland Security Act of 2002 information media representatives are media, and J exchange visitors for the (HSA) (Pub. L. 107–296, 116 Stat. 2135), thus excluded from the small business period of time that they are complying 6 U.S.C. 112 and section 103(a)(1) and impact analysis. SEVP-Certified with the conditions of their (3) of the INA, 8 U.S.C. 1103 (a)(1),(3), Institutions Certified to Enroll nonimmigrant category (‘‘duration of charge the Secretary with the Nonimmigrant Students status’’) and replace it with a fixed administration and enforcement of the As of 2018, there were a total of 6,754 period of admission. The proposed rule immigration and naturalization laws of SEVP-certified institutions (schools) would enable DHS to more effectively the United States. Section 402(4) of the authorized to enroll F nonimmigrant HSA, 6 U.S.C. 202(4), expressly combat fraud and abuse, more students that would be subject to the authorizes the Secretary, consistent with accurately account for the accrual of proposed rule because they are 6 U.S.C. 236 (the DOS’s statutory unlawful presence grounds of authorized to enroll F–1 nonimmigrants authority concerning visa issuance and for a length of time greater than 1 year. inadmissibility, and better protect our refusal), to establish and administer nation’s immigration system. DHS’s Of these schools, 1,346 are public, 655 rules governing the granting of visas or are for-profit, 4,183 are private objectives and legal authority for this other forms of permission to enter the proposed rule are further discussed nonprofit, and 570 are private without United States to individuals who are not a for-profit/nonprofit specification.192 throughout this NPRM. U.S. citizens or lawful permanent residents. See also 6 U.S.C. 271(a)(3), (b) 192 The number and type of schools were (describing certain USCIS functions and extracted from SEVIS, retrieved on September 5,

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DHS estimated the percentage of private schools without a for-profit/ percent of all for-profit schools public schools that are small entities nonprofit designation are small entities. authorized to enroll F nonimmigrants using a random sample of the 1,346 DHS requests comments from the public fall below the SBA size standard of a SEVP-certified public schools. DHS regarding these assumptions. small business according to their does not keep data on the size of the To determine which of the remaining industry. As a result, DHS estimates that jurisdiction where each SEVP-certified 655 private for-profit schools are 439 of the 655 for-profit schools fall school is located and, therefore, needed considered a small entity, DHS sampled below the SBA size standard of a small to do additional research to determine 243 for-profit schools.197 DHS business according and are considered which schools are small. Due to the referenced the Small Business small entities (67% × 655 = 438.85, large number of SEVP-certified public Administration (SBA) size standards rounded to 439). Table 17 shows a schools and the level of effort associated represented by business average annual breakdown of the number of small for- with additional data collection, DHS receipts. Receipts are generally defined profit SEVP-certified schools by assessed the jurisdiction size for a as a firm’s total income or gross income. industry. sample of 299 public schools selected SBA’s Table of Small Business Size DHS estimated each private school’s randomly from the 1,346 SEVP-certified Standards provides business size annual receipts by multiplying the public schools. 193 Of these sampled standards for all sections of the North approximate annual cost of room, board, schools, none were affiliated with a American Industry Classification and tuition by the average annual governmental jurisdiction with a System (NAICS) for industries.198 DHS number of total students based on data population of less than 50,000 because matched information provided by the provided by the schools to SEVP. DHS most schools had a statewide schools in SEVIS regarding what acknowledges that this method of jurisdiction. Of the 299 sampled public programs of study it is engaged in with estimating receipts may be an schools, DHS found that none of the an appropriate six-digit NAICS industry incomplete account of a school’s public schools were small entities description. NAICS is the standard income, which may also include because they are in a governmental classification used to categorize contributions from private individuals jurisdiction with a population greater business establishments for the purpose or other endowments. Because these than 50,000.194 Therefore, DHS of collecting, analyzing, and publishing data reflect a snapshot of all SEVP- estimates that all 1,346 public schools statistical data related to the U.S. certified schools authorized to enroll F are not small entities.195 economy. students in 2018, DHS acknowledges DHS conservatively assumes that all DHS found that the revenue of 163 of there may be changes in the school’s 4,183 private nonprofit schools are the 243 sampled for-profit schools fell enrollment numbers and that a school’s small entities because they are not below the SBA size standard of a small estimated revenue may differ from dominant in their field. 196 DHS also business according to their industry. actual revenue, which could include assumes that all 570 schools that are Therefore, DHS estimates that 67 income generated from other sources.

TABLE 17—FOR-PROFIT SEVP-CERTIFIED SCHOOLS BY INDUSTRY

Number of Total SEVP- School industry Size standard NAICS codes Number of non-small certified Percent small small schools schools schools schools

Elementary and Secondary Schools ...... $12M 611110 44 19 63 70 Junior Colleges ...... 22M 611210 1 2 3 33 Colleges, Universities and Professional Schools ...... 30M 611310 46 24 70 66 Flight Training ...... 30M 611512 1 1 2 50 Other Technical and Trade Schools ...... 17M 611519 4 3 7 57 Fine Arts Schools ...... 8M 611610 2 2 4 50 Language Schools ...... 12M 611630 64 29 93 69 All Other Miscellaneous Schools and In- struction ...... 12M 611699 1 0 1 100

Total ...... 163 80 243 67 1 U.S. Small Business Administration, Tables of Small Business Size Standards Matched to NAICS Codes.

2019. More information on SEVIS can be found at 195 DHS is aware that this conclusion differs from independently owned and operated and is not https://www.ice.gov/sevis/overview. that of the findings in the 2019 SEVP Fee Rule dominant in its field. 193 In determining the sample size, DHS assumed FRFA (See 84 FR 23930 (May 29, 2019)). For the 197 In determining the sample size, DHS assumed a 95 percent confidence level (z-score of 1.96); 5 SEVP Fee Rule FRFA and the D/S NPRM IRFA, a 95 percent confidence level (z-score of 1.96); 5 percent margin of error (e=0.05); and a 50 percent DHS used census data to search for the jurisdiction percent margin of error (e=0.05); and a 50 percent population proportion of small schools (p=0.5). where the school was located. In the D/S NPRM population proportion of small schools (p=0.5). DHS used the equation S = ((z∧ 2*p(1 – p))/e∧2) / IRFA, high schools were excluded from this search DHS used the equation S = ((z∧ 2*p(1 – p))/e∧2) / as they would not be subject to the rule limitations. (1+((z∧2 * p(1 – p))/(Ne∧2))), where S is sample (1+((z∧2 * p(1 – p))/(Ne∧2))), where S is sample Most public colleges and universities are run at the size, N is population size, and all other variables size, N is population size, and all other variables state level, and all states have a population greater are as described in this footnote. The equation used than 50,000. In the SEVP Fee Rule FRFA, public are as described in this footnote. The equation used to calculate the sample size can be found in Daniel elementary, secondary, and high schools are to calculate the sample size can be found in Daniel WW (1999). Biostatistics: A Foundation for combined with public universities. There are WW (1999). Biostatistics: A Foundation for Analysis in the Health Sciences. 7th edition. New necessarily more public elementary, secondary, and Analysis in the Health Sciences. 7th edition. New York: John Wiley & Sons. high schools than there are public universities. York: John Wiley & Sons. 194 Section 601(5) of the Regulatory Flexibility Therefore, DHS expects to see differences between 198 U.S. Small Business Administration, Tables of Act defines small governmental jurisdictions as the two rules. Small Business Size Standards Matched to NAICS governments of cities, counties, towns, townships, 196 Section 601(4) of the Regulatory Flexibility Codes (Aug. 19, 2019), available at https:// villages, school districts, or special districts with a Act defines the term ‘‘small organization’’ to mean www.sba.gov/document/support—table-size- population of less than 50,000. any not-for-profit enterprise which is standards.

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2 Number of schools derived from SEVIS data.

Table 18 shows a summary by school nonimmigrants and estimated small small entity, or approximately 77 type of the number of SEVP certified entities. DHS estimates that 5,192 percent of the 6,754 schools included in schools authorized to enroll F schools meet the SBA definition of a this analysis.

TABLE 18—SEVP-CERTIFIED SCHOOLS AUTHORIZED TO ENROLL F NONIMMIGRANTS BY SCHOOL TYPE

Total number Percent small Percent small Description of schools schools schools

Public schools ...... 1,346 0 0 Private, nonprofit schools ...... 4,183 4,183 100 Private, unspecified schools ...... 570 570 100 For profit schools ...... 655 439 67

Total Number of SEVP-Certified Schools ...... 6,754 5,192 77

J Exchange Visitor Program Sponsors sponsor J exchange visitor programs for for-profit institutions. These sponsors a length of time greater than 1 year. Of issue DS–2019s according to certain As of 2018, there were a total of 1,171 these sponsors, 54 are government designation codes that map to specific J exchange visitor program sponsors that entities, 891 are schools, 23 are programs. Table 19 shows the type for would be subject to the proposed rule hospitals and related institutions, 141 each J exchange visitor program because they are authorized by DOS to are nonprofit institutions, and 62 are designation code.

TABLE 19—DESCRIPTIONS OF J EXCHANGE VISITOR PROGRAM SPONSOR TYPES BY DESIGNATION CODE

Designation code Program type

G–1 ...... Programs sponsored by the Department of State. G–2 ...... Programs sponsored by the Agency for International Development (USAID). G–3 ...... Other U.S. Federal agencies. G–4 ...... International agencies or organizations in which the U.S. Government participates. G–5 ...... Other national, State, or local government agencies. G–7 ...... Federally funded national research and development center or a U.S. Federal laboratory. P–1 ...... Educational institutions, e.g., schools, colleges, universities, seminaries, libraries, museums, and institutions devoted to sci- entific and technological research. P–2 ...... Hospitals and related institutions. P–3 ...... Nonprofit organizations, associations, foundations, and institutions (academic institutions conducting training programs can be classified as a P–3, as long as they are considered nonprofit). P–4 ...... For-profit organizations (business and industrial concerns).

Government Entities sponsoring both F and J nonimmigrants, hospitals are small entities because they DHS determined that all 54 357 (50 percent) of the schools are are not dominant in their fields. Only government entities (G–1, G–2, G–3, G– public schools and 357 (50 percent) are one hospital and related institution, a 4, G–5, and G–7 program sponsors) are private, nonprofit schools. DHS assumes health maintenance organization large entities because 30 are federal that the remaining 178 (20 percent) of medical health center with six-digit government entities and 24 are state or schools sponsoring only J exchange NAICS code 621491, sponsoring J local government entities. Of the 24 visitors are also 50 percent public and exchange visitor programs is a for-profit state or local government entities, all 50 percent private, nonprofit schools. institution that exceeded the threshold represented jurisdictions with DHS thus estimates that there would be of $32.5 million annually in receipts for populations greater than 50,000. 446 public schools and 446 private, being a large entity. nonprofit schools (50 percent each of Therefore, DHS classified all 54 Nonprofit Organizations government entities as large entities. the 891 J-sponsor schools). Since all affected public schools have been found DHS conservatively assumes that all Educational Institutions to be large entities and all affected 141 nonprofits sponsoring J exchange DHS identified 891 schools that are J private, nonprofit schools are assumed visitor programs are small entities exchange visitor program sponsors. To to be small entities, DHS estimates that because they are not dominant in their identify which J exchange visitor 446 of the 891 J-sponsor schools are field. DHS requests comments on these program sponsors were small entities, small entities. assumptions. DHS compared the 891 schools Hospitals and Related Institutions For-Profit Organizations sponsoring J exchange visitor programs to the schools authorized to enroll F DHS identified 23 hospitals and DHS identified a total of 62 nonimmigrants. Of the 891 schools related institutions sponsoring J potentially affected for-profit sponsoring J exchange visitor programs, exchange visitor programs. Of these 23 organizations sponsoring J exchange 713 (80 percent) also enrolled F hospitals, 22 are nonprofit. DHS visitor programs. In order to determine nonimmigrants. Of the 713 schools assumes that all 22 private nonprofit which of these for-profit entities may be

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affected by the proposed rule, DHS visitor participants with a potential stay Total J Exchange Visitor Program identified sponsors eligible to sponsor J of greater than one year. Of these 61 Sponsors exchange visitor programs for longer organizations, DHS identified 32 than one year, as those would be the potentially affected small entities. To Overall, DHS identified 1,171 unique only sponsors potentially affected by the identify these small entities, DHS entities sponsoring J exchange visitor rule. Sponsors for exchange visitors referenced the SBA size standards programs. Of these 1,171 entities, DHS enrolled in short-term scholar, intern, represented by business average annual identified 642 small entities that may be specialist, secondary school student, receipts. Receipts are generally defined affected by the proposed rule. Table 20 college and university student, summer as a firm’s total income or gross income. shows a summary by sponsor type of the work travel, camp counselor, and au SBA’s Table of Small Business Size number of J exchange visitor program pair programs would not be affected by Standards is matched to the NAICS for sponsors and estimated small entities. the proposed rule as the programs they industries.199 DHS matched information DHS requests comments on these offer are too short to be affected. Using provided by the sponsors in SEVIS with assumptions, particularly with regard to these guidelines, DHS identified 61 an appropriate NAICS industry J exchange visitor program nonprofit organizations sponsoring J exchange description. sponsors.

TABLE 20—J EXCHANGE VISITOR PROGRAM SPONSORS BY TYPE AND SMALL ENTITY STATUS

Number of Description Total number affected small of sponsors entities

U.S. Department of State ...... 1 0 U.S. Agency for International Development (USAID) ...... 1 0 Other U.S. Federal agencies ...... 26 0 International agencies or organizations 1 ...... 1 0 Other national, state, or local government agencies ...... 24 0 National research and development center or laboratory 2 ...... 1 0 Educational institutions 3 ...... 891 447 Hospitals and related institutions ...... 23 22 Nonprofit organizations, associations, etc.4 ...... 141 141 For-profit organizations 5 ...... 62 32

Total ...... 1,171 642 1 International agencies or organizations in which the U.S. Government participates. 2 Federally funded national research and development center or a U.S. Federal laboratory. 3 Educational institutions, e.g., schools, colleges, universities, seminaries, libraries, museums, and institutions devoted to scientific and techno- logical research. 4 Nonprofit organizations, associations, foundations, and institutions (academic institutions conducting training programs can be included here, as long as they are considered nonprofit). 5 For-profit organizations (business and industrial concerns).

4. A Description of the Projected hour), and advise the F–1/J–1 employment authorizations. Therefore, Reporting, Recordkeeping, and Other nonimmigrant about the extension the potential impacts of these Compliance Requirements of the process and the requirements to file an requirements on small entities is not Proposed Rule, Including an Estimate of EOS with USCIS (1 hour annually). DHS quantitatively evaluated in this IRFA. the Classes of Small Entities That Will estimates the annual impact to small Be Subject to the Requirement and the SEVP-certified schools and J exchange SEVP-Certified Schools Authorized to Types of Professional Skills Necessary visitor program sponsors based on the Enroll F Nonimmigrants for Preparation of the Report or Record cost of compliance as represented as a As shown in Table18, DHS estimates percentage of their annual revenue. This The proposed rule would increase that 5,192 SEVP-certified schools that analysis examines the impact that the costs for SEVP-certified schools and J are authorized to enroll F proposed rule would have on small exchange visitor program sponsors nonimmigrants meet the SBA definition because DSOs and ROs would have to SEVP-certified schools and J exchange of a small entity, including 4,183 spend approximately 40 hours for rule visitor program sponsors. private, nonprofit schools; 570 private familiarization and adaptation (in the The IRFA evaluates the impacts that schools without a for-profit/nonprofit first year only; 8 hours to complete rule have been quantitatively estimated in designation; and 439 for-profit schools. familiarization training, 16 hours to the regulatory impact analysis. As DHS determined a SEVP-certified create and modify training materials, discussed in the regulatory impact school’s annual revenue by multiplying and 16 hours to adapt to the proposed analysis, there are other proposed rule the average cost per F student by rule through system wide briefings and requirements that could impact small average annual enrollment. DHS systemic changes) and approximately 3 SEVP-certified schools and J exchange acknowledges that this method to hours per F–1/J–1 program extension visitor program sponsors. The regulatory estimate revenue may be an incomplete request to review the Form I–539 impact analysis qualitatively discusses account of a SEVP-certified school’s completed by the F–1/J–1 nonimmigrant proposed requirements affecting English revenue, which may also include (1 hour), update the SEVIS record and language training programs; changes in contributions from private individuals track program extension requests (1 educational levels; and extensions to or other endowments.

199 U.S. Small Business Administration, Tables of Codes (Aug. 19, 2019), available at https:// SBA%20Table%20of%20Size%20Standards_ Small Business Size Standards Matched to NAICS www.sba.gov/sites/default/files/2019-08/ Effective%20Aug%2019%2C%202019_Rev.pdf.

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DHS examined all 5,192 small SEVP- certified schools by dividing the rule 96.4 percent, would experience an certified schools authorized to enroll F familiarization and adaptation costs for impact less than or equal to 1 percent nonimmigrants to estimate the impact of three DSOs ($5,069) by each school’s of their estimated annual revenue as a estimated DSO rule familiarization and estimated annual revenue. For the result of the rule familiarization and adaptation costs in the first year of the private, for-profit schools, DHS assessed adaptation costs. DHS estimates 118 rule. For this analysis, DHS assumed impacts of the rule familiarization and small schools (2.3 percent) would that each small SEVP-certified school adaptation costs on the sample of for- realize an impact between 1 percent and has three DSOs that will incur rule profit schools and applied the 2 percent of their estimated annual 200 familiarization and adaptation costs. percentage of schools falling within revenue, 29 small schools (0.6 percent) For each DSO, rule familiarization will each impact category to the full universe would realize an impact between 2 cost $1,690 (40 hours × $28.93 × 1.46 of small for-profit schools. percent and 3 percent, and 38 small loaded wage rate factor). in the first year Table 21 shows the number of small schools (0.7 percent) would realize an after the rule takes effect. 201 DHS schools within the range of impact to calculated the impact of rule each school’s estimated annual revenue. impact greater than or equal to 3 familiarization and adaptation on SEVP- Of the 5,192 small schools, 5,007, or percent.

TABLE 21—IMPACT OF RULE FAMILIARIZATION AND ADAPTATION COSTS FOR SEVP-CERTIFIED SCHOOLS CERTIFIED TO ENROLL F NONIMMIGRANT STUDENTS 1

Rule familiarization and adaptation costs as a percent of annual Type of school revenue Total <1% 1%–2% 2%–3% ≥3%

Private, nonprofit schools ...... 4,048 81 21 33 4,183 Private, unspecified schools ...... 541 21 3 5 570 For-profit schools 2 ...... 418 16 5 0 439

Total Small Schools ...... 5,007 118 29 38 5,192 % of Small Schools ...... 96.4% 2.3% 0.6% 0.7% 100.0% 1 Values based on the assumption that small entities will have three DSOs that will incur rule familiarization and adaption costs. 2 DHS assessed impacts of the rule familiarization and adaptation costs on the subsample of for-profit schools and applied the percentage of schools falling within each impact category to the full universe of small for-profit schools.

DHS also examined all 5,192 small requests for each school. The DSO cost impact less than or equal to 1 percent SEVP-certified schools to estimate the per EOS request is $127 (3 hours × of their estimated annual revenue. DHS impact of annual DSO costs for $28.93 × 1.46 loaded wage rate estimates 108 small schools (2.1 processing program extension requests factor).202 DHS calculates the impact by percent) would realize an impact and updating SEVIS. For this analysis, dividing the processing costs for 37 EOS between 1 percent and 2 percent of their DHS estimated the number of program requests ($4,670) by each school’s estimated annual revenue, 27 small extension requests that each school is estimated annual revenue. For the for- schools (0.5 percent) would realize an expected to process by dividing the profit schools, DHS assessed impacts of impact between 2 percent and 3 percent, estimated annual number of F–1 EOS costs on the sample of for-profit and 32 small schools (0.6 percent) nonimmigrant EOS requests from the schools and applied the percentage of would realize an impact greater than or full implementation period (249,017; schools falling within each impact equal to 3 percent. Table 22 shows the see Table 6) by the total number of category to the full universe of small for- number of small schools within the SEVP-certified schools, small and large profit schools. (6,754). This methodology produced an Of the 5,192 small schools, 5,025, or range of impact to each school’s estimated average of 37 annual EOS 96.8 percent, would experience an estimated annual revenue.

TABLE 22—IMPACT OF EOS COSTS FOR SEVP-CERTIFIED SCHOOLS 1

EOS costs as a percent of annual revenue Type of school Total <1% 1%–2% 2%–3% ≥ 3%

Private, nonprofit schools ...... 4,062 75 17 29 4,183 Private, unspecified schools ...... 545 17 5 3 570 Por-profit schools 2 ...... 418 16 5 0 439

Total Small Schools ...... 5,025 108 27 32 5,192 % Small Schools ...... 96.8% 2.1% 0.5% 0.6% 100.0% 1 Values based on the assumption that each small entity will process 37 EOS requests annually. 2 DHS assessed impacts of the EOS costs on the subsample of for-profit schools and applied the percentage of schools falling within each im- pact category to the full universe of small for-profit schools.

200 DHS estimated costs assuming that each small welcomes public comment on the average number 202 See Section V.A of the NPRM for a detailed SEVP-certified school has one, three, and five of DSOs at small SEVP-certified schools. discussion of DSO and RO Rule Familiarization and DSOs. DHS presented the estimates for three DSOs 201 See Section V.A of the NPRM for a detailed Adaptation Costs. as a midpoint value. The actual number of DSOs discussion of DSO and RO Rule Familiarization and may vary by small SEVP-certified school. DHS Adaptation Costs.

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DHS recognizes that the 37 annual 23, approximately 72 percent of the enrolled on average, implying that the EOS requests assumption for each small schools identified as having EOS analysis may be overestimating the SEVP-certified school may overestimate processing cost impacts greater than or number of schools with impacts greater the costs for schools with low average equal to 3 percent of annual school than 3 percent.203 annual enrollment. As shown in Table revenue have 37 or fewer students

TABLE 23—SMALL ENTITY SEVP-CERTIFIED SCHOOLS CERTIFIED TO ENROLL F NONIMMIGRANTS WITH EOS IMPACTS GREATER THAN OR EQUAL TO 3 PERCENT OF SCHOOL EARNINGS AND ENROLLMENT OF 37 OR FEWER STUDENTS 1

Number of schools Percent of schools ≥ with enrollment at Number of schools with impacts 3% Type of school or under 37 stu- ≥ and enrollment at dents and impacts with impacts 3% or under 37 ≥3% students

Private, nonprofit schools ...... 20 29 69.0% Private, unspecified schools ...... 3 3 100.0% For profit schools 2 ...... 0 0 ......

Total Small Schools ...... 23 32 71.9% 1 Impact percentage based on the assumption that each small entity will process 37 EOS requests annually. 2 DHS assessed impacts of the EOS costs on the subsample of for-profit schools and applied the percentage of schools falling within each im- pact category to the full universe of small for-profit schools.

J Exchange Visitor Program Sponsors see Table 6) by the total number of J proposed rule will not exceed 3 percent exchange visitor program sponsors, or 2 percent, respectively, of sponsor As shown in Table 20, 642 J exchange small and large (1,171). This earnings. DHS anticipates that the visitor program sponsors meet the SBA methodology produced an estimated majority of small J sponsors will have definition of a small entity. Because average of 10 annual EOS requests for earnings that exceed these thresholds. reliable financial information is not each J sponsor. DHS recognizes that DHS requests comments on the available for all J sponsors, DHS did not small entities will likely process fewer availability of earnings data for J assess impacts of the proposed rule for EOS requests than the average but does exchange visitor program sponsors in each small J exchange visitor program not have more detailed data on the EOS order to refine this analysis. sponsor. Instead, DHS determined the requests by entity. DHS also recognizes minimum earnings required for potential non-quantifiable risks of The impact of the costs for processing proposed rule costs to equal 1 percent, reduced enrollment in J exchange visitor program extension requests and 2 percent, and 3 percent of J sponsor programs that can lead to revenue updating SEVIS (10 EOS requests; revenue. For this analysis, DHS reductions. $1,251) will not exceed 1 percent of assumed that each small J exchange Table 24 provides the minimum sponsor earnings if earnings are at least visitor program sponsor will have three annual earnings required for proposed $125,144. If J exchange visitor program ROs that will incur rule familiarization rule costs to equal 1 percent, 2 percent, sponsor earnings are at least $41,715 or and adaptation costs in the first year.204 and 3 percent of J exchange visitor $62,572, the EOS request processing To assess the annual impacts of costs for program visitor sponsor revenue. The costs of the proposed rule will not processing program extension requests impact of the RO rule familiarization exceed 3 percent or 2 percent, and updating SEVIS, DHS estimated the and adaptation costs of the proposed respectively, of sponsor earnings. DHS number of program extension requests rule ($5,069) will not exceed 1 percent anticipates that the majority of small J that each J exchange visitor program of sponsor earnings if earnings are at sponsors will have earnings that exceed sponsor is expected to process by least $506,854. If J exchange visitor these thresholds. DHS requests dividing the estimated annual number program sponsors earnings are at least comments on the availability of earnings of J–1 nonimmigrant EOS requests from $168,951 or $253,427, the rule data for J exchange visitor program the full implementation period (11,565; familiarization and adaption costs of the sponsors in order to refine this analysis.

TABLE 24—MINIMUM J EXCHANGE VISITOR PROGRAM SPONSOR EARNINGS FOR PROPOSED RULE COSTS TO EQUAL 1 PERCENT, 2 PERCENT, OR 3 PERCENT OF SPONSOR REVENUE (2018$)

Percent of annual revenue Minimum annual earnings 1% 2% 3%

Rule Familiarization and Adaptation Costs (first year only) 1 ...... $506,854 $253,427 $168,951 EOS Costs (annual) 2 ...... 125,144 62,572 41,715 1 Values based on the assumption that small entities will have 3 ROs that will incur rule familiarization/adaptation costs. 2 Values based on the assumption that each small entity will process 10 EOS requests annually.

203 Schools with 37 or fewer students include 204 DHS estimated costs assuming that each small may vary by small J exchange visitor program religious institutions, Montessori schools, schools J exchange visitor program sponsor has one, three, sponsor. DHS welcomes public comment on the for students with disabilities, specialty graduate and five ROs. DHS presented the estimates for three average number of ROs at small J exchange visitor schools, and boarding schools. ROs as a midpoint value. The actual number of ROs program sponsors.

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5. An Identification, to the Extent on USCIS and CBP compared to the C. Small Business Regulatory Practicable, of All Relevant Federal proposed 4-year maximum period of Enforcement Fairness Act of 1996 Rules That May Duplicate, Overlap, or admission. Specifically, USCIS would Under section 213(a) of the Small Conflict With the Proposed Rule have to adjudicate extension of stay Business Regulatory Enforcement Department of State Exchange Visitor applications with more frequency if a 3- Fairness Act of 1996, Public Law 104– Program regulations would need to be year maximum period of stay is chosen 121, we want to assist small entities in updated to inform the sponsor over a 4-year one. Similarly, CBP would understanding this proposed rule so that community of this new EOS procedure. have to process applications for they can better evaluate its effects on The regulations at 22 CFR part 62.43 admission at POEs more frequently them and participate in the rulemaking. describe the procedures for J–1 program under the 3-year maximum period of If the proposed rule would affect your extensions. These regulations may need stay alternative. Therefore, DHS believes small business, organization, or to be updated to reference the changes an admission for the program end date, governmental jurisdiction and you have made in this proposed rule, whereby a not to exceed 4 years (except for limited questions concerning its provisions or J–1 must file for an extension of stay exceptions that would limit admissions options for compliance, please consult with USCIS in order to remain in the to 2 years) is the best option and ICE using the contact information United States beyond the status welcomes comments on this proposal. provided in the FOR FURTHER INFORMATION CONTACT section above. expiration date on their I–94, or depart DHS also considered a standard 1- the United States and seek admission as year fixed admission period for all F D. Congressional Review Act a J–1 nonimmigrant at a port of entry, and J nonimmigrants. This option in addition to securing a program This proposed rule is a major rule as would treat all nonimmigrants with F extension from the Responsible Officer defined by 5 U.S.C. 804, also known as and J status equally and would likely or from the Department of State, as the ‘‘Congressional Review Act,’’ as required by the current regulations.’’ allow for easier implementation by CBP enacted in section 251 of the Small at the POEs. Nevertheless, it could Business Regulatory Enforcement 6. A Description of Any Significant result in significant costs to Fairness Act of 1996, Public Law 104– Alternatives to the Proposed Rule nonimmigrants and the Department. 121, 110 Stat. 847, 868 et seq. Which Accomplish the Stated There are more than 1 million F Accordingly, this rule, if enacted as a Objectives of Applicable Statutes and students who are enrolled in programs final rule, would be effective at least 60 Minimize Any Significant Economic of study that last longer than 1 year. days after the date on which Congress Impact of the Proposed Rule on Small With a 1-year admission period, DHS receives a report submitted by DHS Entities expects that all of them would be under the Congressional Review Act, or DHS first considered a ‘‘no action’’ required to apply for additional time. 60 days after the final rule’s publication, alternative, under which DHS would This could be a significant cost to whichever is later. continue admitting nonimmigrants with students and exchange visitors, E. Unfunded Mandates Reform Act F, I, and J status without an end date for especially those who comply with the The Unfunded Mandates Reform Act their authorized periods of stay. DHS terms and conditions of their admission of 1995 (2 U.S.C. 1531–1538) requires determined that this alternative would and those attending undergraduate federal agencies to assess the effects of not adequately provide immigration programs that typically require 4 years their discretionary regulatory actions. In officers with an opportunity to evaluate to complete. Further, such a short particular, the Act addresses actions an alien’s maintenance of status at pre- admission period could have that may result in the expenditure by a determined points, nor would it enable unintended consequences. If USCIS’s State, local, or tribal government, in the immigration officers an opportunity to EOS processing time is significantly aggregate, or by the private sector of assess whether an alien is accruing lengthened due to a 1-year admission $100,000,000 (adjusted for inflation) or unlawful presence, and the ‘no action’ period, cases presenting national more in any year. Though this proposed alternative would do nothing to address security or fraud concerns would not rule would not result in such an the fraud and abuse currently present in necessarily be prioritized, thereby expenditure, DHS does discuss the these categories. allowing a mala fide student or effects of this rule elsewhere in this Another alternative DHS considered exchange visitor to remain in the United preamble. was to admit F and J nonimmigrants to States until USCIS adjudicated his or F. Paperwork Reduction Act—Collection their program end date, not to exceed 3 her petition. years (or 1 year for nonimmigrants of Information DHS requests comment on the meeting certain conditions). While such Under the Paperwork Reduction Act impacts on small entities. Members of an option would provide the of 1995, Public Law 104–13, 109 Stat. the public should submit a comment, as Department with more frequent direct 163 (1995) (PRA), all Departments are described in this proposed rule under evaluations of nonimmigrants than a 4- required to submit to OMB, for review year maximum period of admission (or Public Participation, if they think that and approval, any reporting or 2-year maximum for nonimmigrants their business, organization, or recordkeeping requirements inherent in meeting certain conditions), DHS was governmental jurisdiction qualifies as a a rule. DHS, USCIS and ICE are revising concerned it would be unduly small entity and that this proposed rule one information collection and burdensome on many F and J would have a significant economic proposing non-substantive edits to one nonimmigrants. DHS believes that a impact on it. It would be helpful if information collection in association period of admission for up to 4 years commenters provide DHS with as much with this rulemaking action: best aligns with the normal progress for information as possible as to why this most programs. A 3-year maximum proposed rule would create an impact I–539 and I–539A period of stay would require almost on small businesses. Commenters DHS, USCIS and ICE invite the every nonimmigrant enrolled in a 4-year should also describe any recommended general public and other federal program to apply for an EOS and would alternative measures that would agencies to comment on the impact to result in greater administrative burdens mitigate the impact on small businesses. the proposed collection of information.

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In accordance with the PRA, the response is 2.38 hours; the estimated H. Executive Order 12988: Civil Justice information collection notice is total number of respondents for the Reform published in the Federal Register to information collection Form I–539 (e- This proposed rule meets applicable obtain comments regarding the file) is 136,466 and the estimated hour standards set forth in sections 3(a) and proposed edits to the information burden per response is 1.083 hours; the 3(b)(2) of Executive Order 12988, Civil collection instrument. estimated total number of respondents Justice Reform, to eliminate drafting Comments are encouraged and will be for the information collection errors and ambiguity, minimize accepted for 60 days from the Supplement A is 83,712 and the litigation, provide a clear legal standard publication date of the proposed rule. estimated hour burden per response is for affected conduct, and promote All submissions received must include .50 hours; the estimated total number of simplification and burden reduction. the OMB Control Number 1615–0003 in respondents for biometrics processing is the body of the letter and the agency 538,599 and the estimated hour burden I. Executive Order 13211: Actions name. To avoid duplicate submissions, per response is 1.17 hours. Concerning Regulations That please use only one of the methods (6) An estimate of the total public Significantly Affect Energy Supply, under the ADDRESSES and Public burden (in hours) associated with the Distribution, or Use Participation section of this rule to collection: The total estimated annual DHS has analyzed this proposed rule submit comments. Comments on this hour burden associated with this under Executive Order 13211, Actions information collection should address collection of information in hours is Concerning Regulations That one or more of the following four points: 1,577,242. Significantly Affect Energy Supply, (1) Evaluate whether the collection of (7) An estimate of the total public Distribution, or Use. DHS has information is necessary for the proper burden (in cost) associated with the determined that it is not a ‘‘significant performance of the functions of the collection: The estimated total annual energy action’’ under that order because agency, including whether the cost burden associated with this it is a ‘‘significant regulatory action’’ information will have practical utility; collection of information is under Executive Order 12866 but is not (2) Evaluate the accuracy of the $105,461,002. likely to have a significant adverse effect agency’s estimate of the burden of the on the supply, distribution, or use of collection of information, including the USCIS Form I–765 and I–756 WS energy. validity of the methodology and Under the Paperwork Reduction Act assumptions used; of 1995, 44 U.S.C. 3501–12, DHS must J. National Environmental Policy Act (3) Enhance the quality, utility, and submit to OMB, for review and (NEPA) clarity of the information to be approval, any reporting requirements DHS Management Directive (MD) collected; and inherent in a rule unless they are 023–01 Rev. 01 and Instruction Manual (4) Minimize the burden of the exempt. Although this rule does not (IM) 023–01–001–01 Rev. 01 establish collection of information on those who impose any new reporting or the policy and procedures that DHS and are to respond, including through the recordkeeping requirements under the its Components use to implement the use of appropriate automated, PRA for this information collection, this requirements of the National electronic, mechanical, or other rule will require non-substantive edits Environmental Policy Act of 1969 technological collection techniques or to USCIS Form I–765, Application for (NEPA), 42 U.S.C. 4321–4375, and the other forms of information technology, Employment Authorization. Council on Environmental Quality e.g., permitting electronic submission of Accordingly, USCIS has submitted a (CEQ) regulations for implementing responses. Paperwork Reduction Act Change NEPA, 40 CFR parts 1500 through 1508. Overview of Information Collection Worksheet, Form OMB 83–C, and The CEQ regulations enable federal (1) Type of Information Collection: amended information collection agencies to establish categories of Revision of a Currently Approved instruments to OMB for review and actions that do not individually or Collection. approval in accordance with the PRA. cumulatively have a significant effect on the human environment and, therefore, (2) Title of the Form/Collection: G. Executive Order 13132: Federalism Application to Extend/Change do not require an Environmental Nonimmigrant Status. This proposed rule would not have Assessment or Environmental Impact (3) Agency form number, if any, and substantial direct effects on the States, Statement. 40 CFR 1508.4. DHS’s the applicable component of the DHS on the relationship between the Categorical Exclusions are listed in IM sponsoring the collection: I–539 and I– National Government and the States, or 023–01–001–01 Rev. 01, Appendix A, 539A; USCIS. on the distribution of power and Table 1. (4) Affected public who will be asked responsibilities among the various For an action to be categorically or required to respond, as well as a brief levels of government. DHS does not excluded, the action must satisfy each of abstract: Primary: Individuals or expect that this proposed rule would the following three conditions: households. This form will be used for impose substantial direct compliance 1. The entire action clearly fits within nonimmigrants to apply for an costs on State and local governments, or one or more of the Categorical extension of stay, for a change to preempt State law even though schools, Exclusions; another nonimmigrant classification, or colleges, and universities may choose to 2. The action is not a piece of a larger for obtaining V nonimmigrant enroll in E-Verify to permit their action; and classification. students a longer initial period of 3. No extraordinary circumstances (5) An estimate of the total number of admission. Therefore, in accordance exist that create the potential for a respondents and the amount of time with section 6 of Executive Order significant environmental effect. IM estimated for an average respondent to 13132, it is determined that this rule 023–01–001–01 Rev. 01 sec. V(B)(2)(a)– respond: The estimated total number of does not have sufficient federalism (c). respondents for the information implications to warrant the preparation If the proposed action does not clearly collection Form I–539 (paper) is 318,421 of a federalism summary impact meet all three conditions, DHS or the and the estimated hour burden per statement. Component prepares an Environmental

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Assessment or Environmental Impact L. Executive Order 12630: Governmental delegating the authority to electronically Statement, according to CEQ Actions and Interference With sign this document to Chad R. Mizelle, requirements and MD 023–01 Rev. 01 Constitutionally Protected Property who is the Senior Official Performing and IM 023–01–001–01 Rev. 01. Rights the Duties of the General Counsel for DHS, for purposes of publication in the DHS proposes to amend its This proposed rule would not cause a Federal Register. regulations to eliminate the practice of taking of private property or otherwise admitting F–1 nonimmigrant students, I have taking implications under List of Subjects Executive Order 12630, Governmental nonimmigrant representatives of 8 CFR Part 214 information media, and J–1 exchange Actions and Interference with visitors (and F–2/J–2 family members) Constitutionally Protected Property Administrative practice and Rights. for D/S. The proposed rule would procedure, Aliens, Cultural exchange provide for nonimmigrants seeking M. Executive Order 13045: Protection of programs, Employment, Foreign entry under F, I, or J visas to be Children From Environmental Health officials, Health professions, Reporting and recordkeeping requirements, admitted for the period required to Risks and Safety Risks Students. complete their academic program, Executive Order 13045 requires foreign information media employment, agencies to consider the impacts of 8 CFR Part 248 or exchange visitor program, not to environmental health risk or safety risk Administrative practice and exceed the periods of time defined in that may disproportionately affect procedure, Aliens, Reporting and this proposed rule. The proposed rule children. DHS has reviewed this recordkeeping requirements. would also require nonimmigrants proposed rule and determined that this seeking to continue their studies, rule is not an economically significant 8 CFR Part 274a foreign information media employment, rule and would not create an Administrative practice and or exchange visitor program beyond the environmental risk to health or risk to procedure, Aliens, Employment, admission period granted at entry to safety that might disproportionately Penalties, Reporting and recordkeeping apply for extension. DHS has analyzed affect children. Therefore, DHS has not requirements. prepared a statement under this this proposed rule under MD 023–01 Regulatory Amendments Rev. 01 and IM 023–01–001–01 Rev. 01. executive order. Accordingly, DHS proposes to amend DHS has determined that this proposed N. National Technology Transfer and parts 214, 248, and 274a of chapter I, Advancement Act rulemaking action is one of a category subchapter B, of title 8 of the Code of of actions that do not individually or The National Technology Transfer Federal Regulations as follows: cumulatively have a significant effect on and Advancement Act of 1995 (15 the human environment. This proposed U.S.C. 272 note) directs agencies to use PART 214—NONIMMIGRANT CLASSES rule completely fits within the voluntary consensus standards in their Categorical Exclusion found in IM 023– regulatory activities unless the agency ■ 1. The authority citation for part 214 01–001–01 Rev. 01, Appendix A, Table provides Congress, through the Office of continues to read as follows: 1, number A3(d): ‘‘Promulgation of Management and Budget, with an Authority: 6 U.S.C. 202, 236; 8 U.S.C. rules. that interpret or amend an explanation of why using these 1101, 1102, 1103, 1182, 1184, 1186a, 1187, existing regulation without changing its standards would be inconsistent with 1221, 1281, 1282, 1301–1305, 1356, and environmental effect.’’ This proposed applicable law or otherwise 1372; section 643, Pub. L. 104–208, 110 Stat. 3009–708; Pub. L. 106–386, 114 Stat. 1477– rule is not part of a larger action. This impracticable. Voluntary consensus standards are technical standards (e.g., 1480; section 141 of the Compacts of Free proposed rule presents no extraordinary Association with the Federated States of circumstances creating the potential for specifications of materials, performance, Micronesia and the Republic of the Marshall significant environmental effects. design, or operation; test methods; Islands, and with the Government of Palau, Therefore, this proposed rule is sampling procedures; and related 48 U.S.C. 1901 note, and 1931 note, categorically excluded from further management systems practices) that are respectively; 48 U.S.C. 1806; 8 CFR part 2; developed or adopted by voluntary Pub. L. 115–218. NEPA review. consensus standards bodies. This ■ DHS seeks any comments or 2. Section 214.1 is amended by: proposed rule does not use technical ■ a. Adding paragraph (a)(4); information that may lead to the standards. Therefore, we did not ■ b. Revising paragraphs (b) discovery of any significant consider the use of voluntary consensus introductory text, (b)(1) introductory environmental effects from this standards. text, (b)(2) introductory text, and (b)(3) proposed rule. O. Family Assessment introductory text; ■ K. Executive Order 13175: Indian Tribal c. Removing paragraph (b)(4); DHS has determined that this ■ d. Revising paragraphs (c)(2), (c)(3)(v), Governments proposed action will not affect family and (c)(5); and well-being within the meaning of This proposed rule does not have ■ e. Adding paragraphs (c)(6) and (m). section 654 of the Treasury and General tribal implications under Executive The additions and revisions read as Government Appropriations Act, follows: Order 13175, Consultation and enacted as part of the Omnibus Coordination with Indian Tribal Consolidated and Emergency § 214.1 Requirements for admission, Governments, because it would not have Supplemental Appropriations Act of extension, and maintenance of status. a substantial direct effect on one or 1999 (Pub. L. 105–277, 112 Stat. 2681). (a) * * * more Indian tribes, on the relationship (4) Requirements for admission of between the Federal Government and P. Signature aliens under section 101(a)(15)(F) and Indian tribes, or on the distribution of The Acting Secretary of Homeland (J). Aliens applying for admission as F power and responsibilities between the Security, Chad F. Wolf, having reviewed or J nonimmigrants after [EFFECTIVE Federal Government and Indian tribes. and approved this document, is DATE OF FINAL RULE] will be

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inspected and may be admitted into the 274a.12(b)(6)(iv), plus a 30-day period (3) Section 101(a)(15)(M). The United States, if in possession of a valid as provided in 8 CFR 214.2(f)(5)(iv). inspecting immigration officer may Form I–20 or Form DS–2019, or (ii) Aliens applying for admission as readmit for the unexpired period of stay successor form, and otherwise eligible, J nonimmigrants. (A) Aliens seeking authorized prior to the alien’s departure, and subject to the following: admission to the United States, any nonimmigrant alien whose (i) Aliens applying for admission as F including those seeking admission with nonimmigrant visa validity is nonimmigrants. (A) Aliens seeking a properly filed, pending application for considered automatically extended admission to the United States, an extension of stay as a J nonimmigrant pursuant to 22 CFR 41.112(d) and who including those seeking admission with after a previously authorized period of is applying for admission under section a properly filed, pending application for admission as a J nonimmigrant expired, 101(a)(15)(M) of the Act, if the alien: an extension of stay as an F may be admitted for the period specified * * * * * nonimmigrant after a previously in 8 CFR 214.2(j)(1); (c) * * * authorized period of admission as an F (B) Aliens seeking admission to the United States as a J nonimmigrant with (2) Filing for an extension of stay. Any nonimmigrant expired, may be admitted other nonimmigrant who seeks to for the period specified in 8 CFR a properly filed pending extension of stay as a J nonimmigrant may, if they extend his or her stay beyond the 214.2(f)(5); currently authorized period of (B) Aliens seeking admission to the have time remaining on the period of stay authorized prior to departure, be admission, must apply for an extension United States as an F nonimmigrant of stay by filing an extension request in with a properly filed pending admitted for a period up to the unexpired period of stay authorized the manner and on the form prescribed application for extension of stay as an by USCIS, together with the required F nonimmigrant may, if they have time prior to the alien’s departure, plus an additional 30 days as provided in 8 CFR fees and all initial evidence specified in remaining on the period of stay the applicable provisions of 8 CFR authorized prior to departure, be 214.2(j)(1)(ii)(C), subject to the requirements in paragraph (c)(6) of this 214.2, and in the form instructions, admitted for a period up to the including the submission of any unexpired period of stay authorized section, provided that if the alien seeks admission with a Form DS–2019 for a biometrics required by 8 CFR 103.16. prior to the alien’s departure, plus an More than one person may be included additional 30 days as provided in 8 CFR program end date beyond his or her previously authorized period of in an application if the co-applicants are 214.2(f)(5)(iv), subject to the all members of a single-family group requirements in paragraph (c)(6) of this admission, the alien may be admitted for the period specified in 8 CFR and either all hold the same section, or if the alien seeks admission nonimmigrant status or one holds a with a Form I–20 for a program end date 214.2(j)(1), subject to the requirements in paragraph (c)(6) of this section; nonimmigrant status and the other co- beyond their previously authorized applicants are his or her spouse and/or period of admission, the alien may be (C) Aliens seeking admission to the United States as a J nonimmigrant with children who hold derivative admitted for the period specified in 8 nonimmigrant status based on his or her CFR 214.2(f)(5), subject to the an approved extension of stay in J nonimmigrant status may be admitted status. Extensions granted to members requirements in paragraph (c)(6) of this of a family group must be for the same section; up to the expiration of the approved extension of stay, plus an additional 30 period of time. The shortest period (C) Aliens seeking admission to the granted to any member of the family United States as an F nonimmigrant days as provided in 8 CFR 214.2(j)(1)(ii)(C). will be granted to all members of the with an approved extension of stay for family. In order to be eligible for an F nonimmigrant status may be admitted (b) Readmission of nonimmigrants under section 101(a)(15) (F), (J), or (M) extension of stay, nonimmigrant aliens until the expiration of the approved in K–3/K–4 status must do so in extension of stay, plus an additional 30 whose visa validity is considered automatically extended] to complete accordance with 8 CFR 214.2(k)(10). days, as provided in 8 CFR (3) * * * 214.2(f)(5)(iv); unexpired periods of previous (v) Any nonimmigrant admitted for (D) Post-completion Optional admission or extension of stay— duration of status. Practical Training (OPT) and Science (1) Section 101(a)(15)(F). The Technology Engineering and inspecting immigration officer may * * * * * Mathematics OPT extension (STEM readmit up to the unexpired period of (5) Decisions for extension of stay OPT extension). Aliens seeking stay authorized prior to the alien’s applications. Where an applicant or admission to the United States as an F departure, any nonimmigrant alien petitioner demonstrates eligibility for a nonimmigrant to pursue post- whose nonimmigrant visa validity is requested extension, it may be granted completion OPT or a STEM OPT considered automatically extended at USCIS’s discretion. The denial of an extension may be admitted until the end pursuant to 22 CFR 41.112(d) and who application for extension of stay may date of the approved employment is applying for admission under section not be appealed. authorization for post-completion OPT 101(a)(15)(F) of the Act, if the alien: (6) Abandonment of extension of stay or STEM OPT, or if the Application for * * * * * and pending employment authorization Employment Authorization, Form I–765 (2) Section 101(a)(15)(J). The applications for F, I, and J or successor form for post-completion or inspecting immigration officer may nonimmigrant aliens. (i) If an alien in F, STEM OPT is still pending with USCIS, readmit up to the unexpired period of I, or J nonimmigrant status timely files as evidenced by a notice issued by stay authorized prior to the alien’s an application for an extension of stay, USCIS indicating receipt of such departure, any nonimmigrant alien USCIS will not consider the application application, until the Designated School whose nonimmigrant visa validity is abandoned if the alien departs the Official’s recommended employment considered automatically extended United States while the application is end date for post-completion or STEM pursuant to 22 CFR 41.112(d) and who pending, provided that when the alien OPT specified on the Form I–20, subject is applying for admission under section seeks admission, the previously to the requirements in paragraphs (c)(6) 101(a)(15)(J) of the Act, if the alien: authorized period of admission has not of this section and 8 CFR * * * * * expired and the alien seeks admission

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for the balance of the previously (i) If the F–1’s application for post- ■ b. Adding paragraph (f)(5)(vii); authorized admission period. completion OPT or STEM–OPT ■ c. Revising the paragraph (f)(7) subject (ii) An application for extension of employment authorization is approved, heading and paragraphs (f)(7)(i), (iii), stay in F, I, or J nonimmigrant status is the F–1 will be authorized to remain in and (iv); abandoned if an alien departs the the United States in F status until the ■ d. Adding paragraphs (f)(7)(v) through United States while the application is expiration date of the employment (viii); pending and seeks admission with a authorization document, plus 60-days. If ■ e. Revising paragraph (f)(8); ■ Form I–20 or DS–2019 for a program the employment authorization f. Revising paragraphs (f)(9)(i), application is denied, the F–1 would (f)(10)(i), (f)(10)(ii)(D), and (f)(11)(i); end date beyond their previously ■ authorized period of admission. USCIS continue to be authorized to remain in g. Removing and reserving paragraph the United States until the program end (f)(13); will not consider as abandoned any ■ date listed on their Form I–20, plus 60 h. Revising paragraph (f)(18)(iii); corresponding applications for ■ i. Adding paragraphs (f)(20) and (21); employment authorization. days, as long as he or she continues to ■ j. Revising paragraph (i), the * * * * * pursue a full course of study and paragraph (j) subject heading, and (m) Transition period from duration otherwise meets the requirements for F– paragraphs (j)(1)(ii), (iv), (v), (vi), (vii), of status to a fixed admission date—(1) 1 status. and (viii); and Transition from D/S admission to a (ii) Aliens in F–1 status with pending ■ k. Adding paragraphs (j)(1)(ix) and fixed admission period for aliens employment authorization applications, (j)(6) and (7). other than post-completion OPT and properly maintaining F and J status on The revisions and additions read as STEM–OPT, who continue to pursue a [EFFECTIVE DATE OF FINAL RULE]. follows: full course of study and otherwise meet Aliens with F or J status who are the requirements for F–1 status, § 214.2 Special requirements for properly maintaining their status on continue to be authorized to remain in admission, extension, and maintenance of [EFFECTIVE DATE OF FINAL RULE] the United States until the program end status. with admission for duration of status are date listed on the Form I–20, plus 60 * * * * * authorized to remain in the United days, regardless of whether the (f) * * * States in F or J nonimmigrant status employment authorization application (5) Authorized admission periods—(i) until the later date of either the is approved or denied. General. If eligible for admission as expiration date on an Employment (3) Transition from D/S admission to described in paragraph (f)(1)(i) of this Authorization Document (Form I–766, a fixed admission period for aliens with section, aliens seeking F–1 status may or successor form), or the program end I status present in the U.S. on be granted such nonimmigrant status for date noted on their Form I–20 or Form [EFFECTIVE DATE OF FINAL RULE]. up to the length of their program DS–2019, as applicable, not to exceed a Except for those aliens described in 8 (including any period of authorized period of 4 years from [EFFECTIVE CFR 214.2(i)(3)(ii), aliens in I practical training time following the DATE OF FINAL RULE], plus the nonimmigrant status who are properly completion of studies to engage in post- departure period of 60 days for F maintaining their status on [EFFECTIVE completion optional practical training nonimmigrants and 30 days for J DATE OF FINAL RULE] with admission (OPT) and Science Technology nonimmigrants. Any authorized for duration of status are authorized to Engineering and Mathematics Optional employment or training continues until remain in the United States in I Practical Training (STEM OPT) the program end date on such F or J nonimmigrant status for a period extensions) listed on the Form I–20, not nonimmigrant’s Form I–20 or DS–2019, necessary to complete their activity, not to exceed a period of 4 years, plus a as applicable and as endorsed by the to exceed [DATE 240 DAYS AFTER period up to 30 days before the DSO or RO for employment or training, EFFECTIVE DATE OF FINAL RULE] indicated report date or program start or expiration date on Employment with the exception of aliens in I date listed on Form I–20 and an Authorization Document (Form I–766, nonimmigrant status presenting additional 30 days at the end of the or successor form). Aliens who need passports issued by the Hong Kong program, as provided in paragraph additional time to complete their Special Administrative Region, who are (f)(5)(iv) of this section, subject to the current course of study, including authorized to remain in the United following exceptions: requests for post-completion OPT or States in I nonimmigrant status for a (A) Aliens subject to the limitations STEM OPT, or exchange visitor period necessary to complete their described in paragraph (f)(20) of this program, or would like to start a new activity, not to exceed [DATE 90 DAYS section may be admitted for the course of study or exchange visitor AFTER EFFECTIVE DATE OF FINAL applicable period under that paragraph. program must apply for an extension of RULE]. Aliens who need additional time (B) Aliens whose course of study is in stay with USCIS in accordance with to complete their employment must a language training program are paragraph (c)(2) of this section for an apply for an extension of stay with restricted to an aggregate total of 24 admission period to a fixed date. USCIS in accordance with paragraph months of language study, including (2) Pending employment (c)(2) of this section for an admission any school breaks and annual vacations. authorization applications with USCIS period to a fixed date. (C) Aliens who are granted F–1 status on [EFFECTIVE DATE OF FINAL RULE] (4) Severability. The provisions in 8 as border commuter students under the filed by aliens with F–1 status. F–1 CFR 214.1(m) are intended to be provisions in paragraph (f)(18) of this aliens described in paragraph (m)(1) of independent severable parts. In the section may be admitted for the this section who have timely and event that any provision in this applicable period described under that properly filed applications for paragraph is not implemented, DHS paragraph. employment authorization pending with intends that the remaining provisions be (D) Aliens who are granted F–1 status USCIS on [EFFECTIVE DATE OF FINAL implemented as an independent rule. to attend a public high school are RULE] do not have to file for an ■ 3. Section § 214.2 is amended by: restricted to an aggregate of no more extension or re-file such applications for ■ a. Revising the paragraph (f)(5) subject than 12 months to complete their course employment authorization, unless heading and paragraphs (f)(5)(i), (ii), of study, including any school breaks otherwise requested by USCIS. (iv), and (vi); and annual vacations.

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(E) Aliens with pending employment fee and in accordance with the form year for which the H–1B status is authorization applications who are instructions, including any biometrics requested, where such petition: admitted based on the DSO’s required by 8 CFR 103.16. (1) Has been timely filed; recommended employment end date for (E) DHS may delay or suspend the (2) Requests a change of status; and (3) Requests an H–1B employment post-completion OPT or STEM OPT implementation of paragraphs start date of October 1 of the fiscal year specified on their Form I–20, with a (f)(5)(ii)(A) through (C) of this section, for which the H–1B status is requested. notice issued by USCIS indicating in its discretion, if it determines that receipt of the Application for (B) The automatic extension of the implementation is infeasible for any alien’s F–1 nonimmigrant status and Employment Authorization, Form I–765 reason. If DHS delays or suspends any or successor form for post-completion or employment authorization under provisions in paragraphs (f)(5)(ii)(A) paragraph (f)(5)(vi)(A) of this section STEM OPT, who cease employment through (C) governing the change in pursuant to an employment will automatically terminate upon the degree level, DHS will make an rejection, denial, revocation, or authorization document (EAD) that announcement of the delay or expires before the alien’s fixed date of withdrawal of the H–1B petition filed suspension on SEVP’s website at on such alien’s behalf; upon the admission as noted on their I–94, will https://www.studyinthestates.dhs.gov be considered to be in the United States withdrawal or denial of the request for (or successor uniform resource locator). change of nonimmigrant status, even if in a period of authorized stay from the DHS thereafter will announce the date of the expiration noted on their the H–1B petition filed on the alien’s implementation dates of change in behalf is approved for consular EAD until the fixed date of admission as degree level provision on the SEVP noted on their I–94. processing; or, if USCIS approves the H– website at https:// (F) The authorized period of stay for 1B petition and associated change of www.studyinthestates.dhs.gov (or F–2 dependents may not exceed the status request, and the change of status authorized period of stay of the successor uniform resource locator), at will take effect prior to April 1 of the principal F–1 alien. least 30 calendar days in advance. fiscal year for which H–1B status was (ii) Change of educational levels while * * * * * requested, upon the date that the change in F–1 status. (A) An alien in F–1 status (iv) Period of preparation for of status takes effect. who has completed a program in the departure or to otherwise maintain (C) In order to obtain the automatic United States at one educational level status. An alien in F–1 status who has extension of stay and employment and begins a new program at the next completed a course of study or any authorization under this paragraph, the highest educational level is considered authorized practical training following alien, consistent with 8 CFR 248, must to be maintaining F–1 status if completion of studies will be allowed a not have violated the terms or otherwise complying with requirements 30-day period from the Form I–94 (or conditions of his or her F–1 status. (D) The automatic extension of F–1 under this paragraph (f). successor form) end date or the status under this paragraph (f)(5)(vi) (B) An alien in F–1 status who has expiration date noted on the also applies to an F–2 dependent spouse completed a program in the United Employment Authorization Document and child(ren) who timely files a change States at one educational level and (Form I–766 or successor form), as of status application from an F–2 to an begins a new program at the same applicable, to prepare for departure H–4 nonimmigrant. The automatic educational level, up to, but not more from the United States, or to otherwise extension for these dependents ends than two additional times, is considered maintain status, including timely filing upon termination of the F–1 to be maintaining F–1 status if an extension of stay application in nonimmigrant’s automatic extension. otherwise complying with requirements accordance with paragraph (f)(7) of this The timely filing of such change of under this paragraph (f). This two-time section and § 214.1 or timely filing a status application does not authorize limit on beginning additional programs change of status application in employment for the F–2 dependents. after completion of a program in the accordance with 8 CFR 248.1(a). An (vii) F status and employment United States at the same educational alien authorized by the DSO to authorization while extension of stay level is a lifetime limit and does not withdraw from classes will be allowed and employment authorization reset with a new admission as an F–1. a 15-day period from the date of the (C) An alien in F–1 status who has applications are pending. An F alien withdrawal to depart the United States. completed a program in the United whose status as indicated on the An alien admitted in F–1 status who States at one educational level and Arrival-Departure Record (Form I–94 or fails to maintain a full course of study begins a new program at a lower successor form) has expired will be without the approval of the DSO or educational level is considered to be considered to be in a period of otherwise fails to maintain status is not maintaining F–1 status only in the first authorized stay if he or she has timely eligible for any additional period of time instance of such a change, and if the filed an extension of stay application for departure. alien is otherwise complying with the pursuant to paragraph (f)(7) of this requirements under this paragraph (f). * * * * * section until USCIS issues a decision on The one-time limit on changing to a (vi) Extension of F–1 stay and grant of the extension of stay application. lower educational level following employment authorization for aliens Subject to paragraphs (f)(9)(i) and (ii) of completion of a program at a higher who are the beneficiaries of an H–1B this section and 8 CFR 274a.12(b)(6)(i) level is a lifetime restriction and does petition. (A) The lawful nonimmigrant and 8 CFR 274a.12(c)(3)(iii), any F–1 not reset with a new admission as an F– status and any employment alien’s current on-campus and severe 1. authorization granted under 8 CFR economic hardship employment (D) When seeking a change in 274a.12(c)(3)(i)(B) or (C) of an alien in authorization is automatically extended educational levels, aliens in F–1 status F–1 status who is the beneficiary of an during the pendency of the extension of referenced in paragraphs (f)(5)(ii)(A) H–1B petition, subject to section stay application, but such automatic through (C) of this section must, if 214(g)(1)(A) of the Act, as well as those extension may not exceed 180 days seeking an extension of stay, apply for eligible for exemption under section beginning from the end date of his or an extension of stay on the form 214(g)(5)(C) of the Act, will be extended her period of admission as indicated on designated by USCIS, with the required automatically until April 1 of the fiscal the alien’s Arrival-Departure Record

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(Form I–94 or successor form). However, who has maintained his or her F–1 the applicant must timely file for an severe economic hardship employment status, but who is unable to meet the extension of stay on the form and in the authorization resulting from emergent program end date on the Form I–20. manner designated by USCIS, with the circumstances under paragraph (f)(5)(v) Such aliens may be eligible for an required fees and in accordance with of this section is automatically extended extension if the DSO issues a new Form the filing instructions, including any for up to 180 days or until the end date I–20, indicating that the alien: biometrics required by 8 CFR 103.16 stated in the Federal Register notice (1) Has continually maintained lawful and a valid, properly endorsed Form I– announcing the suspension of certain status; 20 or successor form, showing the new requirements, whichever is earlier. If an (2) Is currently pursuing a full course program end date. If seeking an F–1 alien files an extension of stay of study; and extension of stay to engage in any type application during the 30-day period (3) Maintains documentation that the of practical training, the alien in F–1 provided in paragraph (f)(5)(iv) of this request is based on one of the reasons status also must have a valid, properly section, he or she does not receive an described in paragraph (f)(7)(iii)(B) of endorsed Form I–20 and be eligible to automatic extension of employment this section; receive the specific type of practical authorization, including on-campus and (B) Required evidence. In such cases training requested. The alien in F–1 severe economic hardship, and must where the alien fails to meet the status must be maintaining his or her wait for approval of the extension of program end date on the Form I–20, he status and must not have engaged in any or she must establish to the satisfaction stay application (and employment unauthorized employment. of USCIS that the delays in completing authorization application, if required) (D) Late requests of extension of the program within the time noted on before engaging in employment. For current program end date. If the DSO the previous Form I–20, or successor purposes of employment eligibility enters an extension of the program end form, are caused by: date in SEVIS after the end date noted verification (Form I–9) under 8 CFR (1) Compelling academic reasons, 274a.2(b)(1)(v), for on-campus on the most recent Form I–20 or such as inability to take the required successor form, the alien must file a employment and severe economic classes in his or her major due to over- hardship employment authorization request for reinstatement of F–1 status enrollment, changes of major or research in the manner and on the form resulting from emergent circumstances topics, or unexpected research under paragraph (f)(5)(v) of this section, designated by USCIS, with the required problems. Unexpected research fee, including any biometrics required the alien’s Form I–94 (or successor problems are those caused by an form) or Employment Authorization by 8 CFR 103.16. F–2 dependents unexpected change in faculty advisor, seeking to accompany the F–1 principal Document (Form I–766, or successor need to refine investigatory topic based form) based on severe economic student must file applications for an on initial research, research funding extension of stay or reinstatement, as hardship, when combined with a notice delays, and similar issues. Delays issued by USCIS indicating receipt of a applicable. including, but not limited to those (iv) Form. To request an extension of timely filed extension of stay caused by academic probation or stay, applicants must file an extension application, is considered unexpired for suspension, or where a student whose of stay application on the form and in 180 days or until USCIS issues a pattern of behavior demonstrates a the manner designated by USCIS, decision on the extension of stay repeated inability or unwillingness to including submitting the updated, application, or for severe economic complete his or her course of study, properly endorsed Form I–20 or hardship employment based on such as failing classes, are not successor form, submitting evidence of emergent circumstances, the end date acceptable reasons for extensions of a sufficient funds to cover expenses, stated in the Federal Register notice current program and corresponding appearing for any biometrics collection announcing suspension of certain extension of stay; required by 8 CFR 103.16, and remitting requirements, whichever is less. (2) A documented illness or medical the appropriate fee. * * * * * condition. A documented illness or (v) Timely filing. An extension of stay (7) Extension of stay applications—(i) medical condition is a compelling application is considered timely filed if General. A program end date as medical reason, such as a serious injury, the receipt date, pursuant to 8 CFR indicated on Form I–20, or successor that is supported by medical 103.2(a)(7), is on or before the date the form, standing alone, does not allow documentation from a licensed medical authorized period of admission expires, aliens with F status to remain in the doctor, doctor of osteopathy, or licensed which includes the 30-day period United States in lawful status. Aliens in clinical psychologist; or provided in paragraph (f)(5)(iv) of this F–1 status must apply for an extension (3) Circumstances beyond the section. USCIS must receive the of stay to receive an additional student’s control, including a natural extension application before the admission period as stated on Form I– disaster, national health crisis, or the expiration of the authorized period of 94, or successor form, if needed to closure of an institution. admission, including the 30-day period complete the course of study, engage in (C) Timely requested extension of provided in paragraph (f)(5)(iv) of this optional practical training pursuant to current program end date and extension section allowed after the completion of paragraph (f)(10)(ii) of this section, or to of F–1 status. To obtain a new program studies or any authorized practical start a new program through the new end date reflected on an updated Form training. If the extension of stay program end date indicated on Form I– I–20, or successor form, aliens must application is received during the 30- 20, or successor form. If a DSO extends request their DSO to make such a day period provided in paragraph an alien’s program end date for any recommendation through SEVIS. The (f)(5)(iv) of this section, the alien in F– reason, the alien must apply to USCIS DSO may recommend an extension of 1 status is authorized to continue a full for an extension of stay. the program end date in SEVIS only if course of study but may not continue or * * * * * the alien requested the recommendation begin engaging in practical training or (iii) Extension of current program and before the program end date noted on other employment. extension of F–1 status—(A) Failure to the most recent Form I–20, or successor (vi) Length of extensions. Extensions meet program end date. USCIS may form. If the DSO recommends an of stay may be granted for up to the grant an extension of stay to an alien extension of the program end date, then period of time needed to complete the

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program or requested practical training, transferring out of the school that transfer in school must update SEVIS to not to exceed 4 years, unless the alien recommended OPT or the date the OPT reflect the student’s registration and is a border commuter, enrolled in authorization ends, whichever is earlier. current address, thereby acknowledging language training or a public high (ii) An alien who is not maintaining that the student has completed the school, or paragraph (f)(20) of this F–1 status, including because he or she transfer process. In the remarks section section applies, in which case the failed to pursue a full course of study of the student’s Form I–20, the DSO restrictions of paragraphs (f)(5)(i) and at the school that he or she was last must note that the transfer has been (f)(18) and (20) of this section will authorized to attend, is ineligible to completed, including the date, and govern the new admission period and change educational levels or transfer return the form to the student. The attendant employment authorization. and must either depart immediately, or transfer is effected when the transfer-in (vii) Dependents. Dependent F–2 apply for reinstatement under the school notifies SEVIS that the student spouses and children seeking to provisions of paragraph (f)(16) of this has enrolled in classes in accordance accompany the principal F–1 student section, if eligible. Academic probation, with the 30 days required by 8 CFR during the additional period of suspension, or a pattern of student 214.3(g)(3)(iii). admission must either be included on behavior demonstrating a repeated (iv) F–1 transfer students must report the primary applicant’s request for inability or unwillingness toward to the transfer in DSO no later than 15 extension of stay or file their own completing his or her course of study, days after their Program Start Date. No extension of stay applications on the such as failing grades, resulting in the later than 30 days after the Initial form designated by USCIS, including student failing to carry a full course of Session Start Date as listed in SEVIS, any biometrics required by 8 CFR study, are not acceptable reasons for the transfer-in DSO must: 103.16. USCIS must receive the failing to pursue a full course of study, (A) Register the student in SEVIS, if extension of stay applications before the unless the student was previously the student enrolls at the transfer in expiration of the previously authorized authorized for a reduced course load school; or period of admission, including the 30- pursuant to paragraph (f)(6)(iii) of this (B) Terminate the student’s record in day period following the completion of section. SEVIS, if the student does not enroll. the course of study, as indicated on the (iii) To transfer schools, the alien (v) If the new program to which the F–2 dependent’s Form I–94, or must first notify the school he or she is student transferred will not be successor form. The F–2 dependent attending (‘‘transfer out school’’) of the completed within the authorized must demonstrate the qualifying intent to transfer, then obtain a valid admission period established in relationship with the principal F–1 Form I–20, or successor form, from the paragraph (f)(5)(i) or (f)(20) of this student, be maintaining his or her school to which he or she intends to section, the F–1 student must apply to status, and must not have engaged in transfer (‘‘transfer in school’’). Upon USCIS for an extension of stay in the any unauthorized employment. notification by the student, the transfer manner and on the form designated by Extensions of stay for F–2 dependents out school will update the student’s USCIS, with the required fee and in may not exceed the authorized record in SEVIS as a ‘‘transfer out’’ and accordance with form instructions, admission period of the principal F–1 indicate the transfer in school and a including any biometrics required by 8 student. release date. The release date will be the CFR 103.16, together with a valid, (viii) Denials. If an alien’s extension current semester or session completion properly endorsed Form I–20 indicating of stay application is denied and the date, or the date of expected transfer if the new program end date. alien’s authorized admission period has earlier than the established academic (9) * * * expired, the alien and his or her cycle. The transfer out school will retain (i) On-campus employment. On- dependents must immediately depart control over the student’s record in campus employment must either be the United States. SEVIS until the student completes the performed on the school’s premises, (8) School transfer and change in current term or reaches the release date, (including on-location commercial firms educational level. (i) An alien in F–1 whichever is earlier. At the request of that provide services for students on status may change educational levels or the student, the DSO of the current campus, such as the school bookstore or transfer to SEVP-certified schools if he school may cancel the transfer request at cafeteria), or at an off-campus location or she is maintaining status as described any time prior to the release date. As of that is educationally affiliated with the in paragraphs (f)(5)(ii)(A) through (C) of the release date specified by the current school. Employment with on-site this section. An alien seeking a transfer DSO, the transfer in school will be commercial firms, such as a to another SEVP-certified school, or to granted full access to the student’s construction company building a school a different campus at the same school, SEVIS record and then becomes building, which do not provide direct must follow the notification procedure responsible for that student. The student services is not deemed on- prescribed in paragraph (f)(8)(iii) of this transfer out school conveys authority campus employment for the purposes of section. Aliens in F–1 status changing and responsibility over that student to this paragraph. In the case of off-campus educational levels or transferring to an the transfer in school and will no longer locations, the educational affiliation SEVP-certified school also must meet have full SEVIS access to that student’s must be associated with the school’s the following requirements: record. As such, a transfer request may established curriculum or related to (A) The alien will begin classes at the not be cancelled by the transfer out DSO contractually funded research projects transfer school or program within 5 after the release date has been reached. at the post-graduate level. In any event, months of transferring out of the current After the release date, the transfer in the employment must be an integral part school or within 5 months of the DSO must complete the transfer of the of the student’s educational program. program completion date on his or her student’s record in SEVIS and may issue Employment authorized under this current Form I–20, or successor form, a Form I–20. The student is then paragraph must not exceed 20 hours a whichever is earlier. required to contact the DSO at the week while school is in session, unless (B) If the alien is authorized to engage transfer in school within 15 days of the DHS suspends the applicability of this in post-completion optional practical program start date listed on the Form I– limitation due to emergent training (OPT), he or she must be able 20. Upon notification that the student is circumstances by means of publication to resume classes within 5 months of enrolled in classes, the DSO of the of a document in the Federal Register,

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the student demonstrates to the DSO employers through cooperative recommendation, the DSO will provide that the employment is necessary to agreements with the school. Aliens in the alien a signed Form I–20, or avoid severe economic hardship F–1 status who have received 1 year or successor form, indicating that resulting from the emergent more of full time curricular practical recommendation. circumstances, and the DSO notates the training are ineligible for post- (A) Applications for employment Form I–20 in accordance with the completion academic training. authorization. An alien in F–1 status Federal Register document. However, Exceptions to the one academic year must properly file an application for an alien in F–1 status or in a period of requirement are provided for students employment authorization, on the form authorized stay during a pending F–1 enrolled in graduate studies that require and in the manner designated by USCIS, extension of stay application may work immediate participation in curricular with the required fee, as described in on campus full-time when school is not practical training. A request for the form’s instructions, including in session or during the annual authorization for curricular practical submitting a valid, properly endorsed vacation. An alien in F–1 status or in a training must be made to the DSO. An Form I–20 for OPT and other supporting period of authorized stay during a alien may begin curricular practical documents. pending F–1 extension of stay training only after receiving his or her (B) Filing deadlines for pre- application who has been issued a Form Form I–20 with the DSO endorsement. completion OPT and post-completion I–20 to begin a new program in Curricular practical training may not be OPT—(1) Pre-completion OPT. For pre- accordance with the provision of 8 CFR granted for a period exceeding the completion OPT, the alien in F–1 status 214.3(k) and who intends to enroll for alien’s fixed date of admission as noted may properly file his or her application the next regular academic year, term, or on his or her Form I–94, or successor for employment authorization up to 120 session at the institution that issued the form. If applicable, an alien described days before being enrolled for one full Form I–20 may continue on-campus under paragraph (f)(5)(vii) of this academic year, provided that the period employment incident to status but may section, must not engage in curricular of employment will not start prior to the not work beyond the fixed date of practical training until USCIS approves completion of the first full academic admission as noted on his or her Form his or her extension of stay application. year. (2) Post-completion OPT. For post- I–94, or successor form. An alien in F– (A) [Reserved] completion OPT, not including a 24- 1 status or in a period of authorized stay (B) SEVIS process. To grant month OPT extension under paragraph during a pending F–1 extension of stay authorization for a student to engage in (f)(10)(ii)(C)(2) of this section, the alien application may not engage in on- curricular practical training, a DSO at a in F–1 status must file his or her campus employment after completing a SEVIS school will update the student’s extension of stay and employment course of study, except employment for record in SEVIS as being authorized for authorization application with USCIS practical training as authorized under curricular practical training that is up to 120 days prior to his or her directly related to the student’s major paragraph (f)(10) of this section. An program end date and no later than 30 alien in F–1 status or in a period of area of study. The DSO will indicate days after his or her program end date. authorized stay during a pending F–1 whether the training is full-time or part- (C) Applications and filing deadlines extension of stay application may time, the employer and location, and the for 24-month OPT extension—(1) engage in any on-campus employment employment start and end date. The Application. An alien in F–1 status authorized under this paragraph that DSO will then print a copy of the meeting the eligibility requirements for will not displace United States workers. employment page of the SEVIS Form I– a 24-month OPT extension under In the case of a transfer in SEVIS, the 20 indicating that curricular practical paragraph (f)(10)(ii)(C) of this section to alien may only engage in on-campus training has been approved. The DSO engage in STEM OPT must file an employment at the school having must sign, date, and return the SEVIS extension of stay application under jurisdiction over the student’s SEVIS Form I–20 to the student prior to the paragraph (f)(7) of this section and an record. Upon initial entry to begin a student’s commencement of application for employment new course of study, such aliens may employment. authorization on the form designated by not begin on-campus employment more (ii) * * * USCIS with the required fees and in than 30 days prior to the actual start of (D) Extension of stay for post- accordance with form instructions. classes. If applicable, an alien described completion OPT. An alien in F–1 status (2) Filing deadline. An alien in F–1 in paragraph (f)(5)(vii) of this section, recommended for post-completion OPT status may file the application for STEM whose timely filed applications for an must apply for an extension of stay and OPT employment authorization up to extension of stay and employment employment authorization and may not 120 days prior to the expiration date of authorization (if required) are pending engage in post-completion OPT unless the alien’s current OPT employment may engage in on-campus employment such employment authorization is authorization and after the DSO enters for a period not to exceed 180 days, or granted. If the application for an the STEM OPT recommendation into until USCIS approves his or her extension of stay and post-completion the student’s SEVIS record. applications, whichever is earlier. OPT are granted, the alien will receive (3) Extension of OPT. If an alien * * * * * an additional 30-day period provided in timely and properly files an application (10) * * * paragraph (f)(5)(iv) of this section for STEM OPT employment (i) Curricular practical training. An following the expiration of the status authorization and timely and properly alien in F–1 status may be authorized by approved to complete post-completion requests a DSO recommendation, the DSO to participate in a curricular OPT. including by submitting the fully practical training program that is an * * * * * executed Form I–983, Training Plan for integral part of an established (11) * * * STEM OPT Students, or successor form, curriculum. Curricular practical training (i) Applicant responsibilities. An alien to his or her DSO, but the Form I–766, is defined to be alternative work/study, in F–1 status must initiate the OPT Employment Authorization Document internship, cooperative education, or application process by requesting a or successor form, currently in the any other type of required internship or recommendation for OPT from his or alien’s possession expires before USCIS practicum that is offered by sponsoring her DSO. Upon making the issues a decision on the alien’s STEM

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OPT employment application, the United States at the time of the alien’s (3) Admission. (i) Generally, aliens alien’s Form I–766, or successor form, is admission in F–1 status or at the time seeking admission in I status may be extended automatically pursuant to the the alien files an application for an admitted for a period of time necessary terms and conditions specified in 8 CFR extension of or change to F–1 status to complete the planned activities or 274a.12(b)(6)(iv). with USCIS; are in compliance with all assignments consistent with the I * * * * * requirements of the E-Verify program, classification, not to exceed 240 days (18) * * * including but not limited to verifying unless paragraph paragraph (i)(3)(ii) of (iii) Period of admission. An alien the employment eligibility of newly this section applies. with F–1 nonimmigrant status who is hired employees in the United States; (ii) Foreign nationals travelling on a admitted as a border commuter student and continue to be participants in good passport issued by the People’s under this paragraph (f)(18) will be standing in E-Verify at any time during Republic of China (with the exception of admitted until a date certain. The DSO which the alien is pursuing a full-course Macau Special Administrative Region is required to specify a completion date of study at the educational institution; passport holders) or Hong Kong Special on the Form I–20 that reflects the actual or Administrative Region passport holders: semester or term dates for the commuter (iv) Language training programs. The An alien who presents a passport from student’s current term of study. A new student is attending an English language the People’s Republic of China (with the Form I–20 will be required for each new training program, which does not lead exception of Macau Special semester or term that the alien attends to a degree. Administrative Region passport holders) at the school. (v) Alien with a 4-year period of or an alien who is a Hong Kong Special Administrative Region passport holder, * * * * * admission who becomes subject to a 2- year maximum period of admission. If may be admitted until the activities or (20) Limitations on period of assignments consistent with the I admission. Subject to the discretion of an alien was admitted in F status for a 4-year period of admission, but a new classification are completed, not to the Secretary of Homeland Security, exceed 90 days. aliens with F–1 status in the following Federal Register Notice is subsequently published according to paragraph (4) Change in activity. Aliens categories may only be admitted for up admitted pursuant to section to 2 years, or the program end date as (f)(20)(i) of this section that would subject the alien to the 2-year maximum 101(a)(15)(I) of the Act may not change stated on the Form I–20, whichever is the information medium or employer shorter, and may be eligible for period of admission, then the alien may remain in the United States for the until they obtain permission from extensions of stay for additional periods USCIS. Aliens must request permission of up to 2 years each, or until the remainder of the 4-year period. However, if the alien departs the United by submitting the form designated by program end date, whichever is shorter. USCIS, in accordance with that form’s States or otherwise must apply for These categories of 2-year maximum instructions, and with the required fee, admission or extension of stay, that period of admission are: including any biometrics required by 8 alien will become subject to the 2-year (i) Certain countries and U.S. national CFR 103.16, as appropriate. interest. Aliens who were born in or are limitation. (5) Extensions of stay. (i) Aliens in I citizens of countries listed on the State (21) Severability. The provisions in 8 status may be eligible for an extension Sponsor of Terrorism List, or who are CFR 214.2(f) are intended to be of stay of up to 240 days (90 days for citizens of countries with a student and independent severable parts. In the aliens who present a passport issued by exchange visitor total overstay rate event that any provision in this the People’s Republic of China or Hong greater than ten percent according to the paragraph is not implemented, DHS Kong Special Administrative Region most recent DHS Entry/Exit Overstay intends that the remaining provisions be passport holders, with the exception of report. DHS will publish a document in implemented as an independent rule. Macau Special Administrative Region the Federal Register listing the * * * * * passport holders) or until the activities countries or circumstances which fall (i) Representatives of information or assignments consistent with the I into the categories in this paragraph media—(1) Foreign Media Organization. classification are completed; whichever making aliens in F–1 status subject to A foreign information media date is earlier. To request an extension the 2 year maximum period of organization is an organization engaged of stay, aliens in I status must file an admission, and any other such in the regular gathering, production or application to extend their stay by circumstances that may serve the U.S. dissemination via print, radio, submitting the form designated by national interest. Changes to the list will television, internet distribution, or other USCIS, in accordance with that form’s be made by the publication of a new media, of journalistic information and instructions, and with the required fee, Federal Register document; has a home office in a foreign country. including any biometrics required by 8 (ii) Unaccredited institutions. The (2) Evidence. Aliens applying for I CFR 103.16, as appropriate. An alien alien has been accepted to and attends nonimmigrant status must: whose I status, as indicated on Form I– a post-secondary educational institution (i) Demonstrate that the foreign media 94, has expired but who has timely filed not accredited by an accrediting agency organization that the alien represents an extension of stay application is recognized by the Secretary of has a home office in a foreign country, authorized to continue engaging in Education; and that the home office will continue activities consistent with the I (iii) E-Verify participation. The alien to operate in the foreign country while classification on the day after the Form has been accepted to and attends an they are in the United States; and I–94 expired, for a period of up to 240 educational institution that is not (ii) Provide a letter from the days, as provided in 8 CFR enrolled in E-Verify, or if enrolled, is employing foreign media organization 274a.12(b)(20). Such authorization may not a participant in good standing in E- or, if self-employed or freelancing, an be subject to any conditions and Verify as determined by USCIS. attestation from the alien, that verifies limitations of the initial authorization. Educational institutions that are the employment, establishes that they (ii) Notwithstanding paragraph participants in good standing in the E- are representatives of that media (i)(5)(i) of this section and 8 CFR Verify program are: Enrolled in E-Verify organization, and describes the 274a.12(b)(20), an alien in I status who with respect to all hiring sites in the remuneration and work to be performed. is described in paragraph (i)(3)(ii) of this

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section whose status, as indicated on (A) Form. To request an extension of employment if authorized by USCIS. Form I–94, has expired but who has stay, an alien in J status must file an The employment authorization is valid timely filed an extension of stay extension of stay application on the only if the J–1 is maintaining status. An application is authorized to continue form and in the manner designated by application for employment engaging in activities consistent with USCIS, including submitting the valid authorization must be filed in the the I classification on the day after the Form DS–2019 or successor form, manner prescribed by USCIS, together Form I–94 expired, for a period of up to appearing for any biometrics collection with the required fee and any additional 90 days. Such authorization may be required by 8 CFR 103.16, and remitting evidence required in the filing subject to any conditions and the appropriate fee. instructions. Income from the J–2 limitations of the initial authorization. (B) Timely filing. An application is dependent’s employment may be used (6) Denials. If an alien’s extension of considered timely filed if the receipt to support the family’s customary stay application is denied and the date is on or before the date the recreational and cultural activities and alien’s authorized admission period has authorized admission period expires. related travel, among other things. expired, the alien and his or her USCIS must receive the extension of Employment will not be authorized if dependents must immediately depart stay application before the expiration of this income is needed to support the J– the United States. the authorized period of admission, 1 principal exchange visitor. If the (7) Severability. The provisions in this including the 30-day period of requested period of employment paragraph (i) are intended to be preparation for departure allowed after authorization exceeds the current independent severable parts. In the the completion of the program. If the admission period, the J–2 dependent event that any provision in this extension application is received during must file an extension of stay paragraph is not implemented, DHS the 30-day period provided in paragraph application, in addition to the intends that the remaining provisions be (j)(1)(ii)(C) of this section following the application for employment implemented as an independent rule. completion of the exchange visitor authorization, in the manner designated (j) Exchange visitors. program, the alien in J–1 status may by USCIS, with the required fee and in (1) * * * continue to participate in his or her accordance with form instructions. (ii) Admission period and period of exchange visitor program. (vi) Extension of J–1 stay and grant of stay—(A) J–1 exchange visitor. A J–1 (C) Length of extensions. Extensions employment authorization for aliens exchange visitor may be admitted for of stay may be granted for a period up who are the beneficiaries of a cap- the duration of the exchange visitor to the length of the program, not to subject H–1B petition. USCIS may, by program, as stated by the program end exceed 4 years, unless the J–1 exchange notice in the Federal Register, at any date noted on Form DS–2019, or visitor is subject to paragraph (j)(6) of time it determines that the H–1B successor form, not to exceed a period this section or otherwise restricted by numerical limitation as described in of 4 years, unless subject to paragraph regulations at 22 CFR part 62. section 214(g)(1)(A) of the Act will (j)(6) of this section. If paragraph (j)(6) (D) Dependents. Dependent J–2 likely be reached prior to the end of a of this section applies, the admission spouses and children seeking to current fiscal year, extend for such a period will be governed by the accompany the J–1 exchange visitor period of time as deemed necessary to limitations of paragraph (j)(6) of this during the additional period of complete the adjudication of the H–1B section. admission must either be included on application, the status of any J–1 alien (B) J–2 accompanying spouse and the primary applicant’s request for on behalf of whom an employer has dependent. The authorized period of extension or file their own extension of timely filed an application for change of initial admission for J–2 dependents is stay applications on the form designated status to H–1B. The alien, in accordance subject to the same requirements as the by USCIS, including any biometrics with 8 CFR part 248, must not have J–1 exchange visitor and may not exceed required by 8 CFR 103.16. USCIS must violated the terms of his or her the period of authorized admission of receive the extension of stay nonimmigrant stay and not be subject to the principal J–1 exchange visitor. applications before the expiration of the the 2-year foreign residence requirement (C) Period of stay. A J–1 exchange previously authorized period of at 212(e) of the Act. Any J–1 student visitor and J–2 spouse and children may admission, including the 30-day period whose status has been extended shall be be admitted for a period up to 30 days following the completion of the program considered to be maintaining lawful before the report date or start of the provided in paragraph (j)(1)(ii)(C) of this nonimmigrant status for all purposes approved program listed on Form DS– section, as indicated on the J–2 under the Act, provided that the alien 2019, or successor form, plus a period dependent’s Form I–94, or successor does not violate the terms and of 30 days at the end of the program for form. J–2 dependents must demonstrate conditions of his or her J nonimmigrant the purposes of departure, as provided the qualifying relationship with the stay. An extension made under this by this paragraph (j)(1)(ii)(C), or to principal J–1 exchange visitor, be paragraph also applies to the J–2 otherwise maintain status. maintaining status, and not have dependent alien. * * * * * engaged in any unauthorized (vii) Pending extension of stay (iv) Extension of stay. A future employment. Extensions of stay for J–2 applications and employment program end date as indicated on the dependents may not exceed the authorization. (A) An alien whose J–1 Form DS–2019, or successor form, authorized admission period of the status, as indicated on Form I–94, has standing alone, does not allow aliens principal J–1 exchange visitor. expired but who has timely filed an with J status to remain in the United (E) Denials. If an alien’s extension of extension of stay application is States in lawful status. If a sponsor stay application is denied, and the authorized to continue engaging in issues a Form DS–2019 or successor alien’s authorized admission period has activities consistent with pursuing the form extending an alien’s program end expired, he or she and his or her terms and conditions of the alien’s date for any reason, or the alien requires dependents must immediately depart program objectives and including an additional admission period to the United States. authorized training beginning on the complete his or her program, the alien (v) Employment of J–2 dependents. day after the admission period expires, must apply to USCIS for an extension of The spouse or minor children of a J–1 for a period of up to 240 days as stay. exchange visitor may only engage in provided in 8 CFR 274a.12(b)(20). Such

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authorization may be subject to any (6) Limitations on length of States or otherwise must apply for conditions and limitations of the initial admission. Subject to the discretion of admission or extension of stay, that authorization. the Secretary of Homeland Security, in alien will become subject to the 2-year (B) An Arrival-Departure Record consultation with the Secretary of State, limitation. (Form I–94 or successor form) is a J–1 exchange visitor in the following (7) Severability. The provisions in this considered unexpired when combined categories may be admitted for a period paragraph (j) are intended to be with a USCIS receipt notice indicating of up to the length of the exchange independent severable parts. In the receipt of a timely filed extension of visitor program as stated on the Form event that any provision in this stay application and a valid Form DS– DS–2019 or up to 2 years, whichever is paragraph is not implemented, DHS 2019, or successor form, indicating the shorter, and may be eligible to apply for intends that the remaining provisions be duration of the program. An application extensions of stay for additional periods implemented as an independent rule. is considered timely filed if the receipt of up to 2 years each, until the end date * * * * * notice for the application is on or before of the exchange visitor program. These the date the admission period expires. categories of 2-year periods of PART 248—CHANGE OF Such extension may not exceed the admission are: NONIMMIGRANT CLASSIFICATION earlier of 240 days, as provided in 8 CFR (i) Certain countries and U.S. national ■ 274a.12(b)(20), or the date of denial of interest. Exchange visitors who were 4. The authority citation for part 248 the alien’s application for an extension born in or are citizens of countries listed continues to read as follows: of stay. in the State Sponsor of Terrorism List or Authority: 8 U.S.C. 1101, 1103, 1184, (C) An alien in J–2 status whose who are citizens of countries with a 1258; 8 CFR part 2. student and exchange visitor total admission period has expired (as ■ 5. Section 248.1 is amended: overstay rate greater than ten percent indicated on his or her Form I–94) may ■ a. By redesignating paragraphs (e) and according to the most recent DHS Entry/ not engage in employment until USCIS (f) as paragraphs (g) and (h), Exit Overstay report. DHS will publish approves his or her application for respectively, and adding new a document in the Federal Register employment authorization. paragraphs (e) and (f); listing the countries or circumstances (viii) Use of SEVIS. The use of the ■ b. In newly redesignated paragraph (g) making aliens in J–1 status subject to the Student and Exchange Visitor by removing the words ‘‘A district factors listed in this paragraph and such Information System (SEVIS) is director shall’’ and adding in their place mandatory for designated program other factors that may serve the U.S. national interest. Changes to the list will ‘‘USCIS will’’; and sponsors. All designated program ■ be made by a new Federal Register c. In the first and second sentences of sponsors must issue a SEVIS Form DS– newly redesignated paragraph (h) by 2019 to any exchange visitor requiring document; or (ii) E-Verify participation. The J removing the word ‘‘shall’’ and adding a reportable action (e.g., program exchange visitor is participating in an in its place ‘‘will’’. extensions and requests for employment exchange visitor program whose The additions read as follows: authorization), or for any aliens who sponsor is not enrolled in E-Verify, or if must obtain a new nonimmigrant J visa. § 248.1 Eligibility enrolled, is not a participant in good As of 2003, the records of all current or * * * * * standing in E-Verify as determined by continuing exchange visitors must be (e) Admission of aliens under section USCIS. A sponsor is a participant in entered in SEVIS. 101(a)(15)(F) and (J) previously granted good standing in the E-Verify program if (ix) Current name and address. A J– duration of status—Aliens who were it has enrolled in E-Verify with respect 1 exchange visitor must inform USCIS to all hiring sites in the United States at granted a change to F or J status prior and the responsible officer of the the time of the exchange visitor’s to [EFFECTIVE DATE OF FINAL RULE] exchange visitor program of any legal admission in J–1 status or filing of an and who departed the United States and changes to his or her name or of any application for extension of or change to are applying for admission on or after change of address, within 10 calendar J–1 status with USCIS, is in compliance [EFFECTIVE DATE OF FINAL RULE] days of the change, in a manner with all requirements of the E-Verify will be inspected and may be admitted prescribed by the program sponsor. A J– program, including but not limited to into the United States up to the program 1 exchange visitor enrolled in a SEVIS verifying the employment eligibility of end date as noted on the Form I–20 or program can satisfy the requirement in newly hired employees in the United DS–2019 that accompanied the change 8 CFR 265.1 of notifying USCIS by States; and continues to be a participant of status application that was approved providing a notice of a change of in good standing in E-Verify at any time prior to the alien’s departure, not to address within 10 calendar days to the during which the J–1 exchange visitor is exceed a period of 4 years, unless responsible officer, who in turn shall participating in an exchange visitor subject to 8 CFR 214.2(f)(20) or (j)(6). To enter the information in SEVIS within program at the organization. be admitted into the United States, all 10 business days of notification by the (iii) Alien with a 4-year period of aliens must be eligible for the requested exchange visitor. In cases where an admission who becomes subject to a 2- status and possess the proper exchange visitor provides the sponsor a year maximum period of admission. If documentation including a valid mailing address that is different than his an alien in J status was originally passport, valid nonimmigrant visa, if or her actual physical address, he or she admitted for a 4-year period of required, and valid Form I–20 or Form is responsible to provide the sponsor his admission, but a new Federal Register DS–2019, or successor form. or her actual physical location of document is subsequently published (f) Abandonment of change of status residence. The exchange visitor program according to paragraph (j)(6)(i) of this application. If an alien timely files an sponsor is responsible for maintaining a section that would subject the alien to application to change to another record of, and must provide upon the 2-year maximum period of nonimmigrant status but departs the request from USCIS, the actual physical admission, then the alien may remain in United States while the application is location where the exchange visitor the United States for the remainder of pending, USCIS will consider the resides. the 4-year period. However, if the J–1 change of status application abandoned. * * * * * exchange visitor departs the United * * * * *

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PART 274a—CONTROL OF after having been enrolled full-time in a 214.2(i). An alien in this status may be EMPLOYMENT OF ALIENS SEVP-certified institution for one full employed pursuant to the requirements academic year. Curricular practical of 8 CFR 214.2(i). Employment ■ 6. The authority citation for part 274a training (part-time or full-time) is authorization does not extend to the continues to read as follows: authorized by the Designated School dependents of a foreign information Authority: 8 U.S.C. 1101, 1103, 1324a; 48 Official on the student’s Form I–20, or media representative. U.S.C. 1806; 8 CFR part 2; Pub. L. 101–410, successor form. Curricular practical * * * * * 104 Stat. 890, as amended by Pub. L. 114– training terminates on the earlier of the 74, 129 Stat. 599. employment end date indicated on (c) * * * ■ 7. Section 274a.12 is amended by Form I–20, or successor form, or on the (3) * * * revising paragraphs (b)(6)(i), (iii), and alien’s fixed date of admission as noted (iii) Is seeking employment because of (v), (b)(10), and (c)(3)(iii) to read as on his or her Form I–94. If applicable, severe economic hardship pursuant to 8 follows: an alien described in 8 CFR CFR 214.2(f)(9)(ii)(C) and has an § 274a.12 Classes of aliens authorized to 214.2(f)(5)(vii) must not engage in Employment Authorization Document, accept employment. curricular practical training until USCIS Form I–766 or successor form, based on approves an alien’s extension of stay * * * * * severe economic hardship pursuant to 8 (b) * * * request. CFR 214.2(f)(9)(ii)(C), and whose timely (6) * * * * * * * * filed Application for Employment (i) On-campus employment for not (v) The beneficiary of an H–1B Authorization, Form I–765 or successor more than 20 hours per week when petition and change of status request as form, and Application to Extend/Change school is in session or full-time described in 8 CFR 214.2(f)(5)(vi)(A) Nonimmigrant Status, Form I–539 or employment when school is not in and whose status and employment successor form, are pending, is session if the student intends and is authorization have been extended authorized to engage in employment eligible to register for the next term or pursuant to 8 CFR 214.2(f)(5)(vi). These beginning on the expiration date of the semester. Part-time on-campus aliens are authorized to continue Employment Authorization Document employment is authorized by the employment with the same employer issued under paragraph (c)(3)(i)(B) of school. On-campus employment beginning on the date of the expiration this section and ending on the date of terminates on the alien’s fixed date of of the authorized period of admission USCIS’ written decision on the current admission as noted on his or her Form until April 1 of the fiscal year for which Application for Employment I–94. If applicable, the employment H–1B status is requested. Such Authorization, Form I–765 or successor authorization of an alien described in 8 authorization will be subject to any form, but not to exceed 180 days. For CFR 214.2(f)(5)(vii) may be conditions and limitations noted on the this same period, such Employment automatically extended for up to 180 initial authorization. Such Authorization Document, Form I–766 or days, or until authorized by USCIS, authorization, however, will successor form, is automatically whichever is earlier. In cases where the automatically terminate upon the extended and is considered unexpired employment is authorized pursuant to 8 notification date in the denial decision when combined with a Certificate of CFR 214.2(f)(5)(v), the validity of the if USCIS denies the H–1B petition or Eligibility for Nonimmigrant (F–1/M–1) employment authorization is provided request for change of status. If USCIS Students, Form I–20 or successor form, by notice in the Federal Register and approves the H–1B petition and endorsed by the Designated School indicated by a Certificate of Eligibility associated change of status request, and Official recommending such an for Nonimmigrant (F–1/M–1) Students, the change of status will take effect prior extension. Form I–20 or successor form, endorsed to April 1 of the fiscal year for which * * * * * by the Designated School Official H–1B status was requested, such recommending such an extension. authorization will automatically Chad R. Mizelle, * * * * * terminate on the date that the change of Senior Official Performing the Duties of the (iii) Curricular practical training status takes effect. General Counsel, U.S. Department of (internships, cooperative training * * * * * Homeland Security. programs, or work-study programs that (10) A foreign information media [FR Doc. 2020–20845 Filed 9–24–20; 8:45 am] are part of an established curriculum) representative (I), pursuant to 8 CFR BILLING CODE 9111–28–P

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