The End of "Duration of Status"

 

The Department of Homeland Security (DHS) has proposed a major rule change that would end the long-standing practice of "duration of status" (D/S) for F-1 foreign students and J-1 exchange visitors. Instead, international students and exchange scholars would be admitted to the U.S. for a set period, generally capped at four years, after which they would need to apply for an extension or depart the country.

Key Points of the DHS Proposal

End of "Duration of Status" (D/S): F-1 and J-1 visa holders are currently admitted for as long as they maintain full-time enrollment or participation in approved activities, without a set end date. 

Fixed Period Admissions: Under the proposal, admission would match the program end date listed on Form I-20 (for F-1) or DS-2019 (for J-1), but not exceed four years, plus a short grace period (30 days for departure).

Extensions Required: Students or scholars needing additional time must apply directly to DHS for an extension of stay before their authorized period ends.

Transition for Current Students/Visitors: Those already in the U.S. on D/S could remain until their program end date, but for no more than four years from the rule’s effective date, and would also need to seek an extension to stay longer.

Shorter Grace Period: The F-1 visa grace period after program completion would be cut from 60 days to 30 days, matching the J-1 and M-1 categories.

Other Related Changes: The proposal also adjusts rules on multiple degrees, changes of schools or programs, and the accrual of unlawful presence.

Impact of the Proposed Change

The new rule increased uncertainty for international students, particularly those in longer programs or seeking Optional Practical Training, would face uncertainty and must plan for mid-program status extensions.

There is also the issue of program duration mismatches.  The National Center for Education Statistics finds the median time to complete a bachelor's degree in the U.S. is about 4.3 years, and the median for a Ph.D. is nearly 5.7 years, so many students would be impacted by the four-year cap.  More frequent extension requests would increase workload for both students and university administrators.  The USCIS' workload will also increase.

What's Next

The DHS proposal, if implemented, would mark a fundamental change to U.S. visa policy for international students and scholars, introducing fixed deadlines and potentially reshaping the global landscape for higher education.  The rule is open for public comment until September 29, 2025, and educational institutions and advocacy groups are expected to weigh in.  Although there may be some minor changes to the proposal, the main portions of the rule will likely be implemented.  International students and scholars should plan their immigration journey accordingly. 


(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

EB Rule Finalized: Grace Periods, Emergency I-140 EAD, 180-Day EAD Extension, and Much More

Hey foreign workers, you want grace periods?  Now you got them!

A final rule touching on many aspects of the U.S. employment-based non-immigrant and immigrant visa programs has been finalized recently.  In addition to grace periods,  the new rule allows emergency employment authorization for individuals with approved I-140 petitions, automatic 180-day EAD extension, job portability, H-1B extensions, and much more.   The main purpose of the new rule is to retain foreign high-skilled workers by creating flexibility for them to work in the U.S.  A draft proposal was published on December 31, 2015, the final rule goes into effect on January 17, 2017.

The following is a summary of the most important aspects of the new rule; 

10-Day and 60-Day Grace Periods
Foreign workers who are in E-1, E-2, E-3, L-1 and TN visa classifications may be granted grace periods of up to 10 days both before and after the visa validity period. Similar grace periods are currently available to nonimmigrants with H-1B, O, and P classifications.

Similarly, DHS may also grant foreign workers who are in E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN classifications a one-time grace period of up to 60 consecutive days, or until the end of the validity period, whichever is shorter, during the validity period of the underlying petition.  The purpose of this grace period is to accord time to foreign workers to seek new employment if their current employment is terminated for whatever reason. However, the foreign worker may not work during this grace period.

I-140 EAD for Compelling Reasons
The new rule allows certain foreign workers to apply for employment authorization for one year if they meet four criteria: "(1) The individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification; (3) the individual does not have an immigrant visa immediately available; and (4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization."

Compelling circumstances are not clearly defined, but may include the following:
- Serious Illness or Disability
- Employer dispute retaliation
- Substantial harm to the applicant
- Significant disruption to the employer

These EAD applications may be filed during the grace periods of the principal's visa status. Dependent family members are also eligible for th EAD.  Extensions are also allowed one two basis: (1) Compelling circumstances continue to exist and priority date remains not current, or (2) Principal's priority date is one year or less either before or after the Final Action cut-off date in the Department of State Visa Bulletin.

Automatic Extension of EAD
The new rule authorizes automatic extension of a worker's EAD for up to 180 days upon filing of an extension I-765 application prior to the expiration of the current EAD. The extension must be based on the existing authorization category and does not require adjudication of another application.  Some eligible categories include refugees, asylees, individuals granted withholding of removal, TPS recipients, individuals with pending I-485 applications, etc.  Ineligible categories include H-4 and L-2 beneficiaries, and also deferral of removal recipients.

I-140s Approved for 180 Days Remain Valid
Foreign workers' I-140 petitions that have been approved for more than 180 days will remain valid under the new rule and would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner's business. 

The validity of I-140 can be used in H-1B extension petitions under AC-21 and also for retention of priority dates in subsequent visa petitions.  An I-140 petition will remain valid even if it is withdrawn or cancelled by the employer unless USCIS revokes the petition based on fraud, misrepresentation or material error. 

Job Portability after 180 Days
The new rule codifies the current policy regarding foreign workers' ability to change jobs after their I-485 has been pending for 180 days. Specifically the new I-485 Supplement J was created to capture the information regarding the request for portability including the existence of a bona fide job offer that is in the same or similar job classification as the original one.

Three-Year H-1B Extensions
Section 104(c) of AC21 authorizes approval of H-1B status beyond the general 6-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category.  The new rule codifies this section and clarifies that extensions can be granted multiple times until an immigrant visa number becomes available to the beneficiary. Further, extensions can be granted regardless of whether the beneficiary is currently in H-1B status or physically present in the U.S. However, dependent beneficiaries are still not covered by the new rule.

One-Year H-1B Extensions
Section 106(b) of AC21 authorizes approval of 1-year extensions of H-1B status beyond the 6-year maximum period if 365 days have passed since the filing of labor application or immigrant visa petition by an employer on behalf of the beneficiary.  This current policy is codified in the new rule.   When an application has been denied but under appeal, it is still considered pending and can be used to support an extension request.  However, extensions would not be granted to expired labor applications.  Further, the applicant must file an I-485 adjustment of status application within one year of visa numbers becoming available. However, the one-year clock is reset if there is visa retrogression.  Failure to timely file the I-485 may be also excused by USCIS based on other valid reasons beyond the control of the beneficiary.

Licensing Requirements Relaxed for H-1B Employees
The new rule allows USCIS to review additional evidence when adjudicating H-1B positions which normally require a license.  For example, some states allow individuals without a full license to practice the occupation under the supervision of licensed professionals.  Sometimes a license is not granted not because of merits but because of a technical requirement such as lack of a social security number.  In short, USCIS will focus more on the substantive requirements of the license rather than the technical deficiencies.

Organizations that are Fee and/or Cap-Exempt
Certain organizations are exempt from the H-1B cap and/or filing fees.  The new rule provides more guidance in the qualifications of such organizations.  For example, an entity may claim exemption if it is "related or affiliated" with an institution of higher education.  Under the new rule, such an entity may claim exemption based on a formal written affiliation agreement with an institution of higher education, as long as "a fundamental activity" of the nonprofit entity is to directly benefit the mission of the institution of higher education.  Further, the new rule clarifies that shared ownership would not be a basis for denying exempt status.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

Sweeping Proposal to Provide 60-Day Grace Period, 180-Day EAD Extension & Other Flexibilty Provisions to High-Skilled Workers

As a New Year's present to foreign high-skilled workers, the DHS published a lengthy proposal in the Federal Register, dated December 31, 2015, to implement a number of new flexibility provisions and also codify some current policies pursuant to American Competitiveness in the Twenty-first Century Act of 2000 (AC21) and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), as part of the Obama Administration's immigration reform plan.  

The proposed rules, entitled "Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers," are about 180-page long and touch on many areas of foreign workers' immigration process and immigration status.   The following is a summary of the most important changes, grouped under two categories: New Rules and Existing Policies Clarified.

NEW RULES

• Automatic Revocation of Approved I-140 Petition Removed:  Currently an approved I-140 is revoked automatically under certain conditions (invalidation of the labor application, death of the petitioner or beneficiary, withdrawal by petitioning employer, and termination of the petitioning business).  USCIS will no longer automatically revoke or cancel an approved I-140 petition once the I-140 petition has been approved for 180 days or more, unless there is evidence of fraud, misrepresentation, invalidation or revocation of the labor application or USCIS error.   Even when the petitioning employer requests for cancellation, the approved I-140 will continue to be valid for the purposes of retention of priority date, job portability and extension of H-1B status.  8 CFR 205.1(a)(3)(iii)(C) and (D). 

• Extension of 10-Day Grace Period to E, L & TN Visas:  Currently H-1B workers may enter the U.S. 10 days before their H-1B employment begins and also remain here for 10 more days after their H-1B employment terminates.  DHS proposes to extend these 10-day grace periods to other visa classifications including the E, L visas and also TN classification.  8 CFR 214.1(l)(i). Employment is not authorized during these grace periods.  

• 60-Day Grace Period for E, H-1B, L, TN & H1B1 Workers:  DHS proposes a one-time grace period of 60 days for these nonimmigrant workers to allow them time to seek new employment, apply for another visa status or prepare to depart from the U.S. when their employment is terminated.  The grace period would be for up to 60 days or until the existing validity period ends, whichever comes first. 8 CFR 214.1(l)(ii).  Dependents are also eligible for the grace period. Employment is not authorized during the grace period. 

• Emergency EAD for Compelling Circumstances:  DHS proposes to allow certain foreign workers to apply for employment authorization for one year if they meet four criteria: "(1) The individual is currently in the United States and maintaining E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) the individual is the beneficiary of an approved immigrant visa petition under the EB-1, EB-2 or EB-3 classification; (3) the individual does not have an immigrant visa immediately available; and (4) the individual can demonstrate to the satisfaction of DHS compelling circumstances that justify an independent grant of employment authorization." 8 CFR 204.5(p)(1).  Compelling circumstances have not been defined but may include serious illnesses and disabilities, employment retaliation, and other substantial harm to the applicant or his family (e.g., inability to seek employment in home country), and significant disruption to the employer.  The dependent family members would also be eligible for such an EAD.  Extensions are also possible.  However, there are two caveats.  First, the proposal would "generally require the worker to forgo adjusting status in the United States and seek an immigrant visa abroad through consular processing.   Secondly, in order to apply for such an emergency EAD, the foreign worker's immigrant visa priority date must be less than one year from the current cut-off date at the time of the application.  

• Automatic Extensions of EAD:  DHS proposes automatic extension of a person's EAD for up to 180 days upon filing of an extension I-765 application prior to the expiration of the current EAD. The extension must be based on the existing authorization category and does not require adjudication of another application.  8 CFR 274a.13(d)(1).  Some eligible categories include refugees, asylees, individuals granted withholding of deportation / removal, TPS recipients, individuals with pending I-485 applications, etc. 

EXISTING POLICIES CLARIFIED

• Three-Year H-1B Extensions:  Section 104(c) of AC21 authorizes approval of H-1B status beyond the general 6-year maximum period if an immigrant visa is unavailable to the beneficiary due to per-country cap limits in the applicable visa category.  The proposed rule codifies this section and clarifies that extensions can be granted multiple times until an immigrant visa number becomes available to the beneficiary. Further, extensions can be granted regardless of whether the beneficiary is current in H-1B status or physically present in the U.S. However, dependent beneficiaries are not covered by this rule. 8 CFR 214.2(h)(13)(iii)(E)(1).

• One-Year H-1B Extensions:  Section 106(b) of AC21 authorizes approval of 1-year extensions of H-1B status beyond the 6-year maximum period if 365 days have passed since the filing of labor application or immigrant visa petition by an employer on behalf of the beneficiary.  This current rule is codified in the proposed regulation.  8 CFR 214.2(h)(13)(iii)(D)(1).  These extensions would generally be granted until a final decision has been made on the underlying labor application or immigrant visa petition.  A denied case under appeal is not considered a final decision.  However, extensions would not be granted to expired labor applications. Further, DHS proposes that the beneficiary must file an I-485 adjustment of status application within one year of visa number becoming available. (This is a new rule) 8 CFR 214.2(h)(13)(iii)(D)(10).  However, failure to timely file the I-485 can be excused or tolled due to unavailability of visa numbers, visa retrogression, or other valid reasons beyond the control of the beneficiary. 

• Ability to Change Jobs after Filing of I-485:   Under AC21 Section 106(c), visa applicants may change jobs or employers if an I-485 adjustment application has been properly filed and remains pending for 180 days or more.   The new rule continues to require that the new job offer must be "in the same or a similar occupational classification."  The new rule clarifies that the new job offer may be from the original petitioner, a different U.S. employer, or based on self employment. 8 CFR 245.25(a).  The intent of the parties at the time of filing will be used to determine the bona fides of the job offer.

• Ability of H-1B Workers to Change Jobs and Employers:   The new regulation implements Section 105(a) of AC21, which allows H-1B employees to change jobs or employers by allowing them to work immediately upon filing of a non-frivolous amendment or extension H-1B petition.   8 CFR 214.2(h)(2)(i)(H).  However, employment authorization ceases if the H-1B petition is denied pursuant to section 214(n) of the INA.  This portability provision is only available to H-1B workers who are in the U.S. in H-1B status (contrast this with the other AC21 extensions).   Further, if there are several "bridge petitions", denial of a preceding H-1B petition will result in the denial of any requests for extension in the subsequent petitions.   8 CFR 214.2(h)(2)(i)(H)(3).

• Recapture of Days Spent Outside of the U.S.:   In regards to the calculation of maximum period of time of authorized admission for H-1B workers, the current policy allows recapturing of any days that the beneficiary spent outside of the U.S.  The new rule will codify this current policy without changes.  8 CFR 214.2(h)(13)(iii)(C). Any trip of at least 24-hour duration may be recaptured. 

• Employment at Exempt Organizations for H-1B Cap:   Certain employers such as institutions of higher education and nonprofit research organizations are exempt from the H-1B quota restrictions.  The new rule codified the current policy that employment "at" (not just "by") such qualifying organizations are also exempt as long as (1) the employment is located at a qualifying institution; and (2) the H-1B worker will perform duties that "directly and predominately further the normal, primary, or essential purpose, mission, objectives or function" of the qualifying organization.  8 CFR 214.2(h)(8)(ii)(F)(4).

• Exempt Affiliated or Related Nonprofit Entities:   The definition of these affiliated or related nonprofit entities is expanded in the proposal, which would include also those nonprofit organizations that have entered into formal written affiliation agreements with institutions of higher education if these entities also (1) "establish an active working relationship with the institution of higher education for the purposes of research of education"; and (2)  "establish that one of their primary purposes is to directly contribute to the research or education mission of the institution of higher education."  8 CFR 214.2(h)(8)(ii)(F)(2)(iv) and (h)(19)(iii)(B)(4).

• Whistleblower Protection of the H-1B Workers:   The current policy protects H-1B workers who encounter retaliations as a result of their filing of a complaint against their employers' LCA violations. Under the proposed rule, documentary evidence regarding any retaliatory action from the beneficiary's employer (or former employer) can be submitted with an H-1B petition. 8 CFR 214.2(h)(20).  This evidence can be used as the basis to excuse any loss of or failure to maintain H-1B status by the beneficiary in relation to such retaliations as an “extraordinary circumstance” under 8 CFR 214.1(c)(4) and 248.1(b). 

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)